ORDER
Sanjay Kishan Kaul, J.
1. The present appeal has been filed against the order dated 8th August ,2000 of the learned Singh Judge whereby the petition filed by the appellants herein under the provisions of the Arbitration Act, 1940 (hereinafter referred to as the Act)for revocation of authority of Appellant No.2 to act as the arbitrator and for appointment of another person in his place was allowed and Justice J.B Goel,a retired judge of this Court, was appointed as the Arbitrator.
2. Notice was issued in this appeal to the respondent, who raised a preliminary objection about the maintainability of the appeal on the strength of two decisions of this Court reported as Union of India and another vs.A.S. Dhupia and another (Full Bench) and G.C. . Sharma vs. The appeal was adjourned to hear arguments on the question of maintainability of the appeal as to whether the order impugned against is an order appealable under Section 39 of the Act.
3. We have heard learned counsel for the parties on the issue of maintainability of appeal.The present appeal has been preferred under section 10 of the Delhi High Court Act, 1966 read with Order 43 Rule 1 and Section 151 CPC.It is an admitted position that the prayer of the respondent herein was for revocation of the authority of respondent No.2 to act as the arbitrator and for appointment of another person in its place, which relief has been granted to the respondent by the impugned order.Section 39(1) of the Act provides for the eventualities wherein appeal would lie. This issues was considered by a Full Bench of this Court in a cases of Union of India vs. A.S. Dhupia (supra) wherein it was held that the provisions of Section 39 of the Act cannot be said to have been repealed by implicated by Section 10(1) of the Delhi High Court Act, 1966 and thus Section 10(1) of the Delhi High Court Act cannot be held to confer gift of an appeal against those orders which are not covered by Section 39(1) of the Arbitration Act, 1940.
4. Learned counsel for the appellant sought to argue that the present order will amount to an order as envisaged in Section 39(1)(i) of the Act as such the appeal is maintainable.
5. Learned Single Judge by the impugned order has only appointed an Arbitrator and has revoked the authority of Appellant No.2 to act as the Arbitrator. There is no supersession of the arbitration in the present case. The arbitration agreement is not in dispute. As such submission of learned counsel for the appellant is untenable. This question was also considered by a Division Bench of the Allahabad High Court in Union of India vs. S. Mohinder Singh and others where it was held that an order granting leave to a party to revoke the authority of an appointed arbitrator under Section 5 of the Act is not an appealable order under Section 39 and even an order appointing another arbitrator is not appealable.
6. Our attention was also drawn by learned counsel for the respondent to a Division Bench judgment of this Court in the case of G.C. Sharma vs. University of Delhi (supra) wherein it was held that even an order on the question of the existence or non-existence of an arbitration agreement have far-reading effects but the same is not an appealable order as the Legislature in its wisdom has not provided for an appeal against such an order. It may also be noted that Section 25 of the Act provides that in any of the circumstances mentioned in Sections 8, 10, 11 and 12 of the Act, the Court instead of filling up the vacancies or making the appointments can make an order superseeding the arbitrator and proceed with the suit. This Section 39(1) of the Act has no application to the facts of the present case.
7. In view of the aforesaid we find that the present appeal is not maintainable under Section 39(1) of the Act and the appeal is thus dismissed as not maintainable. The parties are left to bear their own costs.