Shri Narayan Shukla,J.- 1. Heard Mr. Brijesh Kumar Shukla, learned counsel for the petitioners and Mr. U. K. Srivastava, learned counsel for opposite party no.1. 2. The petitioners have challenged the order dated 18.07.08 passed by Civil Judge (Senior Division), Unnao in Regular Suit No. 558 of 2007, whereby in place two arbitrators namely Mr. S. Chatarjee, Deputy Chief Mechanical Engineer(P)/Head Quarter, Northern Railway Baroda House, New Delhi and Mr. Adiya Joshi, Deputy Chief Accounts Officer (Cash and Pay, Railway,Cash Offic, New Delhi one Mr. R.G. Singh, Chief Engineer/Works Northern Railway, Baroda House, New Delhi has been appointed as sole Arbitrator. 3. The petitioners have raised finger upon the jurisdiction of Civil Court to pass the order impugned on the ground that the case in hand is governed under Arbitration and Conciliation Act, 1996, in which only Chief Justice of the High Court is empowered to appoint Arbitrator in the event of parties failed to reach an agreement. 4. The factual matrix of the case is that contract for the work-zone II earth work in embankment, constructions of minor bridges, Rail level platform at railway station and cabins at station etc. was awarded by the petitioners to opposite party no.1 stipulating conditions that work shall be completed within 18 months from the date of issuance of acceptance letter. The agreement was executed on 27.01.1989 for the cost of work i.e. Rs. 78,48,240/-. Since the opposite party no. 1 could not complete the work within stipulated period a notice under clause 62 of General Condition of Contract, 1971 was issued to him with request to complete the work within stipulate period but he failed to follow the same, therefore, another notice was issued on 03.07.1989 even then the opposite party no. 1 could not follow the terms of contract. Therefore, a review committee was appointed, before whom opposite party no.1 explained that due to inter se dispute of partnership of firm, he could not follow the terms of agreement, but it was hope that the same would likely to be resolved and the work would be accelerated with effect from 01.08.1989, but the same was not appreciated by the review committee and it submitted a report to the Chief Engineer, Construction Headquarters to terminate the contract and invite a fresh tender for timely completion of work. The opposite party no. The opposite party no. 1 again failed to follow the terms of agreement as well as undertaking, ultimately the contract was terminated by means of letter dated 17.08.1989 and the opposite party no. 1 was informed that the work done would be measured on 04.09.1989. He was requested to remain present to watch the measurement at the site, but he did not turn up. The measurement was done and the work was found to have been done at the cost of Rs. 24.20 Lacs. 5. Since opposite party no. 1 was not satisfied with the action of petitioners, he by means of letter dated 15.11.1993 invoked clause 64 of General Condition of Contract, 1971 and called upon the petitioners to consider the claims as tabulated by him within a period of 90 days and make payments thereof or in the alternative, if it was not feasible to make the payments then referred the matter to the Arbitration. He raised claims for Rs. 4,98,728/-. The Petitioners by means of letter dated 3.06.1994 intimated him that firm's suit regarding rendition of account as well as dissolution of partnership is pending in the court and the demanding authority was not empowered to demand arbitration for and on behalf of the firm, therefore, request for arbitration was not legally in order and cannot be entertained unless a compromise between the partners of the firm is arrived at or judgment is delivered by the Hon'ble Court. Thereafter opposite party no. 1 by means of letter dated 05.05.2006 informed the petitioners that compromise between the partners of firm have been arrived at through Hon'ble Delhi High Court, now the claimants invoked again clause 64 of General Condition of Contract, 1971 for the appointments of Arbitrators for settlement of previous disputes/claims which were claimed vide letter dated 15.11.1993, at that time he raised claim for Rs. 8,98,828/-. 6. In response, the petitioners intimated the opposite party no.1 through letter dated 17.10.2006 that ?The General Manager, Northern Railway, Baroda House, New Delhi has appointed the following Co-Arbitrators to settle the disputes arising out of the subject contract. 1 Shri S. Chatterjee, Dy. Chief Mechanical Engineer (P)/HQ., Northern Railway, Head Quarters Office, Baroda House, New Delhi & Arbitrator (Contractor's Nominee? 2 Shri Aditya Joshi, Dy. 1 Shri S. Chatterjee, Dy. Chief Mechanical Engineer (P)/HQ., Northern Railway, Head Quarters Office, Baroda House, New Delhi & Arbitrator (Contractor's Nominee? 2 Shri Aditya Joshi, Dy. Chief Accounts Officer (Cash & Pay), Northern Railway, Cash Office, New Delhi & Arbitrator (Railway's Nominee) The details of disputes referred for arbitration are given in ANNEXURE-A The total value/amount of claims works out to Rs. 6,48,739.00 (Rupees Six Lac, Forty Eight Thousand Seven Hundred and Thirty Nine only) i.e. Contractor's claim Rs. 4.33,726/- plus claim No. 8, under which the claimants contend that any recovery made in the so called final bill is unjustified and illegal and refund of the same is prayed for. The Railways' claims for recoveries to be made from the contractor are Rs. 2,15,011/-. You may enter into reference as Co-Arbitrator after nominating an Umpire. The case is governed by the ' Arbitration and Conciliation Act- 1940 read with clause 64 of Northern Railway G.C.C. 1971?. 7. A claim of Rs. 6,48,739/- was referred for arbitration. It appears that opposite party no. 1 disputed the amount of claim referred for arbitration then the petitioners by means of letter dated 1/6 February, 2007 explained that claim nos. 3, 5, 6, 7 and 9 cannot be referred to arbitration in light of the decision of Hon'ble Supreme Court rendered in the case of G.M., N. Rly., v/s Servesh Chopra 2002 Supreme ? 170. Co-Arbitrators by means of notice dated 11.12.2007 called upon claimant i.e. opposite party no. 1 to submit statements of facts of his claim (item-wise) along with supporting documents within 15 days. 8. In turn, petitioners and opposite party no.1 were also called upon to submit counter statements of facts supported by evidential facts, if any, to the Arbitral Tribunal within 15 days whereas instead of submitting statements of facts opposite party no. 1 filed a suit i.e. Regular Suit No. 558 of 2007 before the Court of Civil Judge(Senior Division), Unnao for appointment of sole independent arbitrator (Technical) not connected to Railway to refer all the claims/disputes to him. The petitioners contested the suit by filing a written statement. Through paragraphs 33 of written statement, it was submitted that the General Manager, Northern Railway has already appointed the Arbitrators to settle the disputes arsing out of the above contract, in terms of contract agreement. The petitioners contested the suit by filing a written statement. Through paragraphs 33 of written statement, it was submitted that the General Manager, Northern Railway has already appointed the Arbitrators to settle the disputes arsing out of the above contract, in terms of contract agreement. It was also stated that the Hon'ble Court has no jurisdiction to appoint any Arbitrator outside the Railway's jurisdiction in terms of clause 64 of General Conditions of Contract, which is part of the conditions of contract agreement, therefore, the Hon'ble Court may be pleased to direct the petitioners to co-operate with the Co-arbitrators already appointed to settle dispute. 9. Through paragraph 34 of written statement he also raised question on the jurisdiction of court which is reproduced hereinunder:- That the petitioner has not filed in the court of having proper jurisdiction and hence this Hon'ble court has no jurisdiction to entertain the petition. 10. The civil court decreed the suit by appointing sole Arbitrator by means of judgment and order dated 18.7.2008 which is under challenge. 11. Learned counsel for the petitioners submits that once under the terms of agreement two Arbitrators were appointed with option to nominate an umpire, the opposite party no.1 was bound to follow the terms of agreement and face the arbitration proceeding. It was not open him to challenge the appointment of Arbitrator before the Civil Court, who has no jurisdiction. He invited the attention of this court towards section 11 of the Arbitration and Conciliation Act, 1996 and submitted that only the Hon'ble Chief Justice of the High Court can exercise the power to appoint the Arbitrator. He further invited the attention of this court towards Section 85 of the Act 1996 and submitted that Arbitration Act,1940 was repealed. So far as notwithstanding clause for continuation of arbitral proceeding is concerned, he submitted that his request made in 1993 was turned down. Thereafter on the afresh application moved by opposite party no.1 he claimed that two Arbitrators were appointed on 7th October, 2006 who proceeded for arbitration and issued notices to opposite party no.1 for submitting statement of facts of the claims. Opposite party no.1 challenging the order of appointment of two Arbitrators invoked jurisdiction of civil court provided under section 11 of the Arbitration Act, 1940 moved before civil court and filed regular suit. Opposite party no.1 challenging the order of appointment of two Arbitrators invoked jurisdiction of civil court provided under section 11 of the Arbitration Act, 1940 moved before civil court and filed regular suit. The civil court also entertained the same and decided finally by means of judgment and order impugned. Learned counsel for the petitioners submits that after repeal of Arbitration Act, 1940 the proceeding of civil court is without jurisdiction and consequently the order passed therein is also without jurisdiction. He further submitted that through written statement the question on the jurisdiction of civil court was raised but the learned civil court has failed to appreciate the same properly. 12. In support of his submissions he cited a case i.e. Union of India and another Vs. M.P.Gupta (2004) 10 Supreme Court Cases 504. In the said case arising out of dispute between the parties, an application under section 20 of the Arbitration Act, 1940 for appointment of the arbitrator in terms of clause 64 of the agreement was moved. The learned Single Judge allowed the said application and appointed Justice P.K. Bhari as the sole arbitrator, being aggrieved with which an appeal was preferred before the Division Bench of the High Court, which was dismissed, against which Special Leave Petition was filed before Hon'ble Supreme Court. Learned counsel for the appellants urged that in view of clause 64 of the agreement which provides that only two gazetted railway officers of equal status are to be appointed as arbitrators, no person other than the two specified persons could be appointed as arbitrator. The Hon'ble Supreme Court found merit in his submission and held that in view of specific provisions contained therein that two gazetted railway officers shall be appointed as arbitrators, Justice P.K. Bhari could not be appointed by the High Court as the sole arbitrator. On this short ground alone, the Hon'ble Supreme Court set aside the judgment and order passed by the Hon'ble Single Judge of High Court with direction to the appellants to appoint two gazetted railway officers as arbitrators, who shall make their award. 13. Mr. U.K. Srivastava, learned counsel for the opposite party no. On this short ground alone, the Hon'ble Supreme Court set aside the judgment and order passed by the Hon'ble Single Judge of High Court with direction to the appellants to appoint two gazetted railway officers as arbitrators, who shall make their award. 13. Mr. U.K. Srivastava, learned counsel for the opposite party no. 1 by contesting the case submitted that it is not in dispute that opposite party no.1 raised dispute to refer the matter of Arbitration at very first time on 15.11.1993 but since regarding rendition of accounts as well as dissolution of partnership of firm a case was pending in the court, the reference was postponed until compromise between the firms is arrived at or judgment is delivered by the court. Thereafter when the parties entered into compromise and the Hon'ble Delhi High Court certified the same by means of judgment and order dated 22.09.05, he further submitted an application on 05.05.2006, which was in continuation of its earlier application dated 15.11.93 for appointment of arbitrator and for settlement of previous disputes/claims. The petitioners also appointed arbitrator with the observation that the case is governed by Arbitration Act 1940, therefore, now at this stage it is not open for the petitioners to cover the dispute under Act, 1996. 14. So far as the amount of claim in the subsequent application is concerned, it has been submitted that mistakenly incorrect amount of claim was shown. He submitted an application to correct the same subsequently. It has further been submitted that when the arbitrator failed to start the arbitration proceeding even no umpire was nominated by them, the petitioners requested for appointment of arbitrator in place thereof, but since his request was not acceded, he proceeded to file a suit before the Civil Court. He further submitted that section 11 of Arbitration Act, 1940 is very much empowered the civil court to appoint arbitrator. So far as the repealing Act, 1996 is concerned, he submitted that arbitral proceeding starts on the date of receipt of reference to the arbitration though there is no specific clause provided in Arbitration Act, 1940 as to when arbitral proceeding commences, but section 21 of Act, 1996 provides that arbitral proceedings in respect of a particular disputes commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. So far as repealing clause provided under Section 85 of Act, 1996 is concerned, he submitted that notwithstanding clause of section section 85 provides that the provisions of the said old Acts shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties, but this Act shall apply in relation to arbitral proceedings which commences on or after this Act comes into force unless otherwise agreed by the parties. 15. In support of his submissions he cited a case i.e. Parwani Builders Versus Western Coalfields Ltd. And Others 2006(2) Arb. LR 483 (SC) referring the cases of Milkfood Ltd. Vs. GMC Ice Cream (P) Ltd., (2004)7SCC 288 and U.P. State Sugar Corpn. Ltd. Vs. Jain Construction Co., (2004) 7 SCC 332 . In the said case the Hon'ble Supreme Court has discussed the controversy as to whether the 1940 Act or the 1996 Act would apply, wherein the arbitral proceedings commenced prior to coming into force the 1996 Act came to be considered by a 3rd Judge Bench of this Court. In Milk food Ltd. Vs. GMC Ice Cream (P) Ltd., (2004)7SCC 288. case appellant invoked the arbitration clause and requested the first respondent to appoint a sole arbitrator in terms of arbitration agreement, which was not acceded to. He filed three applications under Section 20 of the 1940 Act bearing Suit Nos. 741, 742, and 743 of 1991 in the Court of Civil Judge, Senior Division, Nagpur. One Sri S. S. Rao, retired Chief Engineer(Civil) was appointed as an arbitrator. An award was made on 22.07. 1999. The respondent filed an application before the District Judge under Section 34 of the Act under a mistaken belief that the 1996 Act would be applicable in the case. However, subsequently realizing his mistake he prayed for treating the said application under Section 30 of the 1940 Act. The learned District Judge rejected the applications for amendment by an order dated 13.07.2001, against which the respondent moved to Nagpur Bench of the Bombay High Court for filing writ petitions, which were allowed holding that as the arbitral proceeding commenced under the old Act, they would continue to be governed thereby and not by the 1996 Act. The learned District Judge rejected the applications for amendment by an order dated 13.07.2001, against which the respondent moved to Nagpur Bench of the Bombay High Court for filing writ petitions, which were allowed holding that as the arbitral proceeding commenced under the old Act, they would continue to be governed thereby and not by the 1996 Act. The Hon'ble Supreme Court expressed its agreement and held that there is nothing on record to show that the procedure laid down in the 1940 Act were not applicable or before the arbitrator the parties agreed that provisions of the 1996 Act, shall apply. 16. Thus he submitted in the present case the application for reference dated 15.11.1993 was received to the petitioners in the month of December, 1993. On 3.06.1993 the petitioners replied also, therefore, the present proceeding is governed under old Act i.e. Arbitration Act, 1940 and under Section 11 of this Act the Civil Court is empowered to appoint the arbitrator. 17. Upon perusal of the records and after hearing the learned counsel for the parties, I find that only the question for determination by this Court is whether the case in hand is governed under old Act 1940 or new Act i.e. the Arbitration and Conciliation Act, 1996. It is not in dispute the opposite party no. 1 submitted his request on 15.11.1993 to the petitioners to appoint an arbitrator for determination of claim i.e. Rs. 4,98,728/-. Petitioners due to pendency of suit regarding rendition of accounts as well as dissolution of partnership firm and for want of authority of Mr. Y.P.Jain,General Attorney of the firms who raised intere se dispute for and on behalf of the firm, denied to entertain the request of the arbitration unless a compromise between the partners of the firm is arrived at or judgement is delivered by the Hon'ble Court. By means of order dated 22.09.2005 the Delhi High Court certified the compromise arrived at between the partners of firm and by means of letter dated 05.05.06 the opposite party no. 1 further invoked clause 64 of the General Conditions of Contract for appointment of arbitrator for settlements of claim indicating Rs. 8,98,828/-. 18. Thus, at this time he raised dispute for some more claim. 1 further invoked clause 64 of the General Conditions of Contract for appointment of arbitrator for settlements of claim indicating Rs. 8,98,828/-. 18. Thus, at this time he raised dispute for some more claim. It cannot be said that by means of letter dated 03.06.94 issued by the petitioners the request of arbitration was kept pending till finalisation of inter se dispute, but it is obvious from the said letter itself that at that stage the reference was refused. Thereafter a fresh claim was raised by means of letter dated 05.05.2006 for different amount. Indisputedly by means of order dated 17.10.2006 the petitioners observed that case is governed by Arbitration and Conciliation Act, 1940 but it appears that name of Act has been referred mistakenly as Arbitration and Conciliation Act, 1940, whereas it is Arbitration and Conciliation Act, 1996. The name of old Act is only Arbitration Act, 1940, therefore, it cannot be said that the appointment of arbitrator was made pursuant to the application made by opposite party no. 1 in 1993, but obviously arbitrators were appointed in reference of application dated 05.05.2006 of opposite party no. 1 as clause no. 8 is specifically referred in the said order of appointment of arbitrator. The petitioners also raised question of jurisdiction before the civil court, but civil court failed to appreciate the same. 19. In light of the aforesaid discussions I arrive at the conclusion that the case in hand is covered under Arbitration and Conciliation Act, 1996. Section 11 (6) of this Act is reproduced hereinunder: “Where, under an appointment procedure agreed upon by the parties,- (a) a party fails to act as required under that procedure; or (b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or © a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. 20. 20. In light of the aforesaid provision of the Act, I am of the view that the order passed by the Civil Judge (Senior Division), Unnao is without jurisdiction, therefore, I hereby quash the order impugned dated 18.07.2008 passed by the Civil Judge(Senior Division), Unnao in Regular Suit No. 558 of 2007. Opposite party no. 1 is at liberty to move necessary application before Hon'ble Chief Justice of this Court for appointment of arbitrator under Section 11(6) of Act, 1996. 21. In the result, the writ petition is allowed.