JUDGMENT : After hearing Adv. Shri N. Dharmadhan, learned Senior Advocate appearing for petitioner, Adv. Shri S.R. Dayanandha Prabhu, learned counsel for respondents 4 to 6 and the learned Government Pleader who represented respondents 2 and 3, the following questions are formulated for a decision : i. Whether the power of the High Court under Article 226 and/or 227 of the Constitution of India could be invoked against an order/award passed by a private Arbitrator and if so, under what circumstances? ii. Whether the agreement for arbitration is void or unenforceable as pleaded by petitioner? iii. Whether the appointment of sole Arbitrator is bad in law as it is not in compliance with Sec.34 of the Arbitration Act, 1940 (for short, "the Act of 1940") or Sec. 11(6) of the Arbitration and Conciliation Act, 1996 (for short, "the Act of 1996")? iv. Whether there was any dispute referable to the Arbitrator so that he had the jurisdiction to pass a preliminary order/final award on the reference? To answer the above questions, it is necessary to refer to the facts of the case in detail : 2. Petitioner purchased a Tata Sumo bearing registration No.KL-2. E/9007 on 19.04.1997 for Rs.3,76,709/- on the strength of Ext.P1 (Ext.R4(j) -hereinafter referred as "Ext.R4(j)), hire purchase agreement executed between petitioner and the 4th respondent on 15.01.1997. According to the petitioner, he paid the installments upto 23.4.1999. While so, alleging default in payment of the installments the 5th respondent (which is a branch of the 4th respondent at Kollam) seized the vehicle on 23.04.1999. Petitioner filed Ext.P3, complaint dated 23.04.1999 before the 2nd respondent, the Deputy Superintendent of Police, Kollam alleging illegal seizure of the vehicle. It is the case of petitioner that the 2nd respondent mediated the dispute following which Ext.R4(b), agreement of guarantee was executed by one P. Sugathan, in favour of the 5th respondent on 28.07.1999. Pursuant to that agreement, the vehicle was released to the petitioner. It is the case of petitioner that the 2nd respondent mediated the dispute following which Ext.R4(b), agreement of guarantee was executed by one P. Sugathan, in favour of the 5th respondent on 28.07.1999. Pursuant to that agreement, the vehicle was released to the petitioner. The 4th respondent issued Ext.P4, demand notice dated 28.08.2000 to the petitioner, the guarantor under Ext.R4(j), hire purchase agreement and the guarantor under Ext.R4(b), agreement informing default in payment of installments from 15.02.1999 to 15.02.2000 and demanding payment of Rs.1,97,886/- (as on the date of that notice) and regularisation of the account within seven days from the date of receipt of the notice failing which they were asked to surrender the vehicle as provided in Ext.R4(j), hire purchase agreement and failing which it was informed that legal action will be taken for recovery of the amount due. On receiving Ext.P4, notice petitioner filed O.S.No.128 of 2000 in the court of learned Sub Judge, Kollam against respondents 4 and 5 (Ext.P5 is the copy of plaint) on 21.03.2000 claiming that petitioner has already paid Rs.3,04,036/-, the loan is required to be cleared only by 19.04.2002 as per the oral agreement reached before the 2nd respondent and that the demand made by respondents 4 and 5 (in the notice dated 28.02.2000) is not valid as the transaction is unfair. Petitioner claimed benefit of the Usurious Loans Act and alleged that the contract with the 4th respondent is hit by Sec. 14 of the Indian Contract Act (for short, "the Contract Act"). Petitioner requested the learned Sub Judge to fix the liability of petitioner to the 4th respondent by re-opening the transaction, settlement of the account and prohibitory injunction restraining respondents 4 and 5 from taking forcible possession of the vehicle and recovering unreasonable amount as compensation, penalty or overdue charges. Petitioner filed Ext.P6, application supported by an affidavit for an order of temporary injunction against seizure of the vehicle. During pendency of that suit, on 25.03.2000 by respondents 4 and 5 seized the vehicle. The vehicle was sold on 16.06.2000 for Rs.1,91,000/-. Petitioner filed Exts.P8 to P10, petitions before the 3rd respondent, the Regional Transport Officer, Kollam to prevent change of registration of the vehicle. Ext.P7, representation was given to the 2hd respondent intimating violation of Ext.R4(b), agreement executed by Shri P. Sugathan in favour of the 5th respondent. 3. The vehicle was sold on 16.06.2000 for Rs.1,91,000/-. Petitioner filed Exts.P8 to P10, petitions before the 3rd respondent, the Regional Transport Officer, Kollam to prevent change of registration of the vehicle. Ext.P7, representation was given to the 2hd respondent intimating violation of Ext.R4(b), agreement executed by Shri P. Sugathan in favour of the 5th respondent. 3. While so, the 4th respondent, claiming to be invoking power under Ext.R4(j), hire purchase agreement referred the dispute to the sole Arbitrator (the 6th respondent) stationed at Uduppi for his award on the dispute. The Arbitrator (6th respondent) gave Ext.P11, notice dated 08.03.2001 requiring petitioner to submit his written statement on 07.04.2001. Petitioner filed Ext.P6(a), application before the learned Sub Judge, in O.S.No.128 of 2000 on 28.03.2001 praying that arbitration proceedings initiated against him be kept in abeyance till me disposal of the suit (no order was passed on that application). In the affidavit in support of Ext.P6(a), application petitioner stated that after filing of the suit, respondents 4 and 5 illegally seized the vehicle and fabricated some documents, the hire purchase agreement and arbitration clause are under challenge in the suit and that the Arbitrator (6th respondent) has posted the matter on 07.04.2001 asking petitioner to submit written statement. 4. Petitioner sent Ext.P12, reply dated 27.03.2001 to the 6th respondent in reply to his notices dated 09.01.2001 and 08.03.2001 (the suit was filed on 21.03.2000 and Ext.P6(a), application to keep in abeyance the arbitration proceedings was filed on 28.03.2001). In Ext.P12, petitioner claimed that the arbitration proceeding initiated is without the consent and knowledge of petitioner, the matter is pending in the civil court, that the hire purchase agreement itself is under challenge and hence proceedings initiated by the 6th respondent will not bind petitioner. The 6th respondent gave Ext.P13, notice dated 18.04.2001 to the petitioner. The 6th respondent informed petitioner that the arbitration proceeding is adjourned to 12.05.2001 at 11 a.m. to enable petitioner file his written statement (before the arbitrator) as the last chance To that notice, petitioner gave Ext. 14, reply dated 07.05.2001 requesting to keep the proceeding in abeyance until the suit is disposed of. To that, 6th respondent gave Ext.P15, reply dated 25.10.2001 stating that on the preliminary point (raised by petitioner as to the jurisdiction of the Arbitrator to proceed in the matter) an order has been passed by the 6th respondent on 21.7.2001. 14, reply dated 07.05.2001 requesting to keep the proceeding in abeyance until the suit is disposed of. To that, 6th respondent gave Ext.P15, reply dated 25.10.2001 stating that on the preliminary point (raised by petitioner as to the jurisdiction of the Arbitrator to proceed in the matter) an order has been passed by the 6th respondent on 21.7.2001. A true copy of the preliminary order dated 21.07.2001 (Ext.P15(2)) was appended to the said letter. In Ext.P15(2), preliminary order the 6th respondent stated that he was appointed as the sole Arbitrator as per agreement entered between petitioner and the 4th respondent, he has therefore jurisdiction to entertain the dispute, respondents 4 and 5 examined PW1 and proved Ext.P.P2, copy of hire purchase agreement (marked before the Arbitrator) and that Clause 22(a) of Ext.P2 (Ext.R4(j) in this proceeding) empowered the Arbitrator to proceed in the matter. 5. The Arbitrator continued with his proceeding in the absence of petitioner and came out with Ext.P17, award dated 02.03.2002 holding that petitioner is liable to pay Rs.2,49,407/- with interest at the rate of 25% per annum from 09.11.2000. Petitioner was also made liable to pay cost of Rs.2,551/-. That was followed by a notice (Ext.P18), for recovery of the amount under the provisions of the Revenue Recovery Act. 6. In the meantime, respondents 4 and 5 filed Ext.P6(b), objection to Ext.P6(a), application in O.S.No.128 of 2000 to keep the arbitration proceeding in abeyance, where they contended in paragraph 4 that the hire purchase agreement (Ext.R4(j)) contains arbitration clause which is in compliance with the provisions of the relevant law, respondents 4 and 5 have already initiated arbitration proceedings which is under way, it is lawful, and in view of the provisions of the Act of 1996 the civil court has no jurisdiction to interfere in the subject matter of arbitration. Respondents 4 and 5 filed Ext.R4(g), application I.A.No.973 of 2000 under Sec.8(1) of the Act of 1996 in O.S.No.128 of 2000 requesting learned Sub Judge to stop proceeding (in the suit) and refer the parties to the arbitration (which had by then been initiated by appointing the 6th respondent as the Arbitrator). Along with Ext.R4(g), respondents 4 and 5 also produced the original of Ext.R4(j), hire purchase agreement. 7. Learned Sub Judge, Kollam posted the suit - O.S.No.128 of 2000 on 07.09.2004 for payment of balance court fee. Along with Ext.R4(g), respondents 4 and 5 also produced the original of Ext.R4(j), hire purchase agreement. 7. Learned Sub Judge, Kollam posted the suit - O.S.No.128 of 2000 on 07.09.2004 for payment of balance court fee. Petitioner did not pay the balance court fee add thereon learned Sub Judge rejected the plaint on 15.09.2004. Though petitioner attempted to resurrect the suit by an application for its restoration by condoning the delay in requesting for restoration (Exts.P20 and P21), those applications were dismissed for default. Thus the challenge made by petitioner vide O.S.No.128 of 2000 came to an end by the rejection of plaint on 15.09.2004 and dismissal of the applications for restoration and for condonation of delay. 8. On 10.11.2001, petitioner, filed this Original Petition under Article 226 of the Constitution of India. There, it is stated in paragraph 2 that petitioner purchased the vehicle above mentioned on hire purchase terms, hire purchase agreement was executed in Kerala on 15.01.1997 - a copy of which and the invoice are produced along with this Original Petition as Exts.P1 and P2, respectively. Petitioner contended that the hire purchase agreement is void since respondents 4 and 5 incorporated the arbitration clause under the Act of 1940 which had, by then been repealed and hence, the arbitration clause and proceeding based on that are illegal and void. It is also contended in paragraph 2 of the Original Petition that for the said reason the proceedings (for arbitration) cannot be continued under the Act of 1996. This Court had not granted any stay of arbitration proceedings. The Arbitrator (the 6th respondent) passed Ext.P17, award on 02.03.2002. After the Arbitrator passed that award, the Original Petition was amended by order dated 08.04.2002 on C.M.P.No.21162 of 2002 to incorporate a challenge to Ext.P17, award as well. Now that the plaint stands rejected by order dated 15.09.2004 and that has attained finality, among the reliefs prayed for in the Original Petition the following reliefs alone remain for consideration: i. To direct the 2nd respondent recover the vehicle from respondents 4 and 5 and restore it to the petitioner, ii. To declare that respondents 4 to 6 have no right to invoke Clause 22(a) of Ext.R4(j), agreement as the Act of 1940 is repealed and since Ext.R4(b), guarantee agreement was executed by P. Suguthan in favour of respondents 4 and 5 by which Ext.R4(j), agreement stands superseded. iii. To declare that respondents 4 to 6 have no right to invoke Clause 22(a) of Ext.R4(j), agreement as the Act of 1940 is repealed and since Ext.R4(b), guarantee agreement was executed by P. Suguthan in favour of respondents 4 and 5 by which Ext.R4(j), agreement stands superseded. iii. To quash Ext.P17, award and all subsequent proceedings initiated pursuant to that. 9. This Court by order dated 02.12.2003 on I.A.No.15142 of 2003 filed on 26.11.2003 has stayed execution of the award dated 22.03.2002. Now I shall consider the questions formulated for a decision. 10. Points I to III: It is contended by the learned Senior Advocate appearing for petitioner that reference of the dispute to the Arbitrator is made on the strength of Clause 22(a) of Ext.R4(j), hire purchase agreement which provides for reference to the Arbitrator under the Act of 1940 which stands repealed by Sec.85(1) of the Act of 1996, the agreement was entered into at a time when the Act of 1940 was not in force and hence the agreement to refer the dispute to the Arbitrator under the Act of 1940 is ex facie illegal, void and unsustainable. It is contended that in so far as Ext.R4(j) was executed on 15.01.1997 and the Act of 1996 having come into force with effect from 25.01.1996, since no arbitration proceedings had commenced before the Act of 1996 came into force on the said day, any proceeding initiated by the 6th respondent under the Act of 1996 is without jurisdiction and hence, the preliminary order (Ext.P15) and the final award (Ext.P17) passed by the 6th respondent are void and unenforceable. It is also contended by learned Senior Advocate that at any rate, when Clause 22(a) was incorporated in Ext.R4(j), hire purchase agreement whereby the parties on 15.01.1997 agreed to refer the dispute under the Act of 1940 which had by then been repealed, both the parties were under a common mistake of fact as to existence of the law then in force governing arbitration and hence, that common mistake would render Clause 22(a) of Ext.R4(j) void in view of Sec.20 of the Contract Act. Further argument which learned Senior Advocate has advanced is as to the non-enforceability and invalidity of Clause 22(a) of Ext.R4(j), hire purchase agreement in that Ext.R4(j), agreement no more survives and could not also, as it is superseded by Ext.R4(b), deed of guarantee executed by P. Sugathan in favour of the 4th respondent on 28.07.1999. In view of Ext.R4(b), the rights and liabilities of parties are to be governed and controlled by Ext.R4(b) (agreement dated 28.07.1999) and not by Ext.R4(j), agreement dated 15.01.1997. Therefore, in so far as Ext.R4(j) dated 15.01.1997 stands superseded by Ext.R4(b), agreement dated 28.07.1999, respondents 4 and 5 were not entitled to refer the dispute to the Arbitrator; nor was the Arbitrator (6th respondent) competent to enter on a reference on the strength of Clause 22(a) of Ext.R4(j), agreement. Learned Senior Advocate contended that at any rate, the appointment of Arbitrator is invalid since at the time the Arbitrator was appointed, O.S.No.128 of 2000 was pending and hence, without reference to the Court in accordance with Sec.34 of the Act of 1940 or, Sec.11(6) of the Act of 1996, respondents 4 and 5 could not have appointed the Arbitrator. Learned Senior Advocate has referred to me to various decisions in support of the contentions which I will refer to a bit later, after referring to the reply argument advanced by the learned counsel for respondents 4 to 6. 11. It is contended by the learned counsel for respondents 4 to 6 that the challenge to Exts.P15 and P17, preliminary finding and award passed by the Arbitrator in a proceeding under Article 226 or 227 of the Constitution of India cannot stand. According to the learned counsel under Sec.16 of the Act of 1996, it is within the power of the Arbitrator to decide on the arbitrability of the dispute or his jurisdiction to enter on arbitration and the decision which the Arbitrator might enter under Sec. 16 of the Act of 1996 is subject to an appeal under Sec.37 of the Act of 1996. It is contended that so far as Ext.P17, award is concerned, it is open to the petitioner to challenge the same under Sec.34 of Act of 1996 even raising the question of jurisdiction or arbitrability as above stated. It is contended that so far as Ext.P17, award is concerned, it is open to the petitioner to challenge the same under Sec.34 of Act of 1996 even raising the question of jurisdiction or arbitrability as above stated. Therefore, none of the contentions which petitioner has raised in this Original Petition are required to be decided by this Court by way of judicial review under Article 227 or even under Article 226 of the Constitution. It is contended by learned counsel that by Ext.R4(g), respondents 4 and 5 had given information to the petitioner as to the dispute having been referred to the Arbitrator and hence petitioner could not plead ignorance about the same. Various communications between the Arbitrator and petitioner produced by petitioner would show that even at the earliest point of time the Arbitrator had given notice to the petitioner about his entering into arbitration. In that situation it cannot be contended that proceedings are initiated behind the back of petitioner or that he had no sufficient opportunity to contest the proceedings before the Arbitrator. In such a situation Exts.P15 and P17, preliminary finding and award are not liable to be challenged in this Court either under Article 226 or 227 of the Constitution, it is argued. 12. Learned counsel for respondents 4 to 6 further argued that Clause (Clause 22(a)) for arbitration in Ext.R4(j) is couched in such a manner that though there is reference to the Act of 1940, it is clear from the relevant Clause that parties agreed to refer the disputes arising between them to the Arbitrator in accordance with the law in force on the date of Ext.R4(j) (executed on 15.01.1997) i.e. the Act of 1996. According to the learned counsel when the parties provided in Clause 22(a) that the dispute between them shall be referred to arbitration under the Act of 1940 or the said Act as amended by law, what they intended is the Act of 1996 which amended, consolidated and codified the law relating to domestic arbitration earlier governed by the Act of 1940 and the International Law on Arbitration. Learned counsel has referred me to the preamble of the Act of 1996 to point out the object of enacting the said Act. It is contended by the learned counsel that the preamble to a Statute is a key to understand the relevant provisions in it. Learned counsel has referred me to the preamble of the Act of 1996 to point out the object of enacting the said Act. It is contended by the learned counsel that the preamble to a Statute is a key to understand the relevant provisions in it. It is contended that there was nothing illegal or wrong in the parties agreeing to refer the dispute arising among them in accordance with the law of arbitration in force on the date of the agreement, Ext.R4(j) dated 15.01.1997. Hence, the contention that arbitration was agreed to be based on the Act of 1940, it was repealed by the time Ext.R4(j), hire purchase agreement was executed and hence the agreement is void, cannot stand. It is contended that in that view of the matter, no question of common mistake as to any fact in existence on the date of agreement (Ext.R4(j) - dated 15.01.1997) arose. It is argued that Ext.R4(b) cannot supersede or override the terms and conditions of Ext.R4(j), agreement since the former was only an additional security obtained by respondents 4 and 5 at the time of release of the vehicle to the petitioner. Obtaining such additional security is permitted even as per Ext.R4(j). agreement. 13. In response to the contention learned Senior Advocate has advanced as to legality of appointment of the Arbitrator without reference to the court when O.S. No.128 of 2000 was pending and without recourse to Sec. 11(6) of the Act of 1996, learned counsel contended that by virtue of Sec.8(3) of Act of 1996, permission of the court is not required even when the suit was pending, either to initiate the arbitration proceeding or, if it was already initiated, to continue with the said proceeding. It is contended that Sec. 11(6) of Act of 1996 has no application since Clause 22(a) of Ext.R4(j) provided for a named sole Arbitrator and that being the agreement of parties, it was not necessary to get an Arbitrator appointed as provided under Sec.11(6) of the Act of 1996. 14. I shall refer to the question whether this proceeding under Article 226 or, assuming it to be under Article 227 of the Constitution is maintainable in challenge of Exts.P15 and P17, preliminary finding and the award passed by the Arbitrator. 14. I shall refer to the question whether this proceeding under Article 226 or, assuming it to be under Article 227 of the Constitution is maintainable in challenge of Exts.P15 and P17, preliminary finding and the award passed by the Arbitrator. Learned counsel for respondents 4 to 6 has placed reliance on the decisions in Tata Finance Ltd. v. Ajaya Kumar Biswal and others ( (2000) 9 SCC 238 ) and SBP & Co. v. Patel Engineering Ltd. and another ( (2005) 8 SCC 618 ) to contend that when statutory remedies are available to the petitioner under Sec.9 of the Act of 1996 concerning seizure of the vehicle which according to the petitioner is illegal, against the preliminary finding (Ext.P15) entered by the Arbitrator as to his authority to enter into arbitration under Sec.37 of Act of 1996 and, against the award (Ext.P17) under Sec.34 of Act of 1996, it is not open to this Court to interfere under Article 226 and/or Article 227 of the Constitution. Learned Senior Advocate in response has relied on the decisions in The State of Uttar Pradesh v. Seth Jagamander Das and others ( AIR 1954 SC 683 ), Moolchand Kevalchand Daga v. Kissindoss Girdhardoss (AIR 1962 Madras 52), Ram Sahai v. Babu Lal (AIR 1965 Allahabad 217), Parameswaran Pillai v. Kudamaloor Regional Service Co-operative Society ( 1967 KLT 19 (paragraph 10)), P. Narayanan Nair v. E. Achuthan Nair and another ( 1973 KLT 299 ), Union of India v. P.M. Paul and another (AIR 1985 Kerala 206), State of Kerala v. Babu ( 2003 (2) KLT 526 ), Travancore Devaswom Board v. Panchami Pack Pvt. Ltd. (ILR 2005 (1) Kerala 134) and SBP & Co. v. Patel Engineering Ltd. and another ( AIR 2006 SC 450 (corresponding to (2005) 8 SCC 618 ) I shall advert to the above decisions. 15 In Tata Finance Ltd. v. Ajaya Kumar Biswal and others (supra), maintainability of proceeding when alternative remedy is available is considered. There, during the pendency of arbitration proceeding, respondent filed petitions before the High Court in challenge of seizure of vehicle. The High Court directed that on payment of a certain amount, the vehicle shall be released and that the party shall be governed by the arbitration award. There, during the pendency of arbitration proceeding, respondent filed petitions before the High Court in challenge of seizure of vehicle. The High Court directed that on payment of a certain amount, the vehicle shall be released and that the party shall be governed by the arbitration award. That order was challenged in the Supreme Court and it was held that pending arbitration proceeding, the High Court was not justified in interfering under Article 227 of the Constitution and issuing an order which has the effect of frustrating or pre-empting the arbitration award SBP & Co. v. Patel Engineering Ltd. and another (supra) is the decision of the Constitution Bench, Paragraph 45 of the decision states : "It is seen that some High Courts have proceeded on the basis that any order passed by an Arbitral Tribunal during arbitration, would be capable of being challenged under Article 226 or 227 of the Constitution. We see no warrant for such an approach. Section 37 makes certain orders of the Arbitral Tribunal appealable. Under Section 34, the aggrieved party has an avenue for ventilating its grievances against the award including any in-between orders that might have been passed by the Arbitral Tribunal acting under Section 16 of the Act. The party aggrieved by any order of the Arbitral Tribunal, unless has a right of appeal under Section 37 of the Act has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The Arbitral Tribunal is, after all, a creature of a contract between the parties, the arbitration agreement, even though, if the occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that would not alter the status of the Arbitral Tribunal. It will still be a forum chosen by the parties by agreement. We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the Arbitral Tribunal is capable of being corrected by the High Court under Article 226 or 227 of the Constitution. Such an intervention by the High Courts is not permissible." 16. We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the Arbitral Tribunal is capable of being corrected by the High Court under Article 226 or 227 of the Constitution. Such an intervention by the High Courts is not permissible." 16. In Parameswaran Pillai v. Kudamaloor Regional Service Co-operative Society (supra) in paragraph 10 it was held that if the authorities decided disregarding, ignoring or misunderstanding the law, they had mis-guided themselves and in the case of arbitrators, it will amount to mis-conduct and the error being apparent, it is an error of law apparent on the face of the record entitling the High Court to interfere (in exercise of the power under Article 226 of the Constitution). The State of Uttar Pradesh v. Seth Jagamander Das and others (supra) related to the question of prosecution under repealed Statutes. The High Court quashed proceeding in exercise of the power under Sec.482 of the Code of Criminal Procedure and that was confirmed by the Supreme Court. Moolchand Kevalchand Daga v. Kissindoss Girdhardoss(supra) is rendered by a Full Bench of the High Court. There, there was a reference from an appeal to the Division Bench under Clause 15 of the Letters of Patent from the order of the Single Bench as against dismissal of application under Sec.34 of the Act of 1940. That was not a decision concerning of the power of the High Court under Article 226 and/or under Article 227 of the Constitution but arose from an appeal preferred under Clause (15) of the Letters of Patent (Madras) Ram Sahai v. Babu Lal (supra) arose from the judgment and decree of the High Court in a Second Appeal in a suit for injunction and recovery of damages. The High Court made reference to the provisions of Secs.32 and 14 of the Act of 1940. In paragraph 25, it was held that where the award has not been made a rule of court (in accordance with the Act of 1940) it remains a dead letter, that the suit on the original cause of action was maintainable and it cannot successfully be resisted by setting up such award in defence P. Narayanan Nair v. E. Achuthan Nair and another (supra) was an appeal from the judgment and decree of the High Court arising from a suit on a boundary dispute. The defendant in that case pleaded that the suit is not maintainable as it was to enforce an arbitration agreement. The High Court considered relevancy of the agreement in the light of Sec.32 of the Act of 1940. I must bear in mind that it was not a case where challenge was to the award or other proceeding of the Arbitrator made under Article 226 or 227 of the Constitution. The court was considering the scope and ambit of Sec.9 of the Code of Civil Procedure (for short, "the Code") whether, the suit could lie for fixation of boundary notwithstanding provisions of the Survey and Boundaries Act. It was held that a suit for fixation of boundary is a suit of a civil nature and came within the ambit of Sec.9 of the Code. Union of India v. P.M. Paul and another (supra) concerned an order passed under Secs.5 and 12 of the Act of 1940. The question considered was whether the said order was amenable to a judicial review under Article 226 or 227 of the Constitution. It was held that simply because an appeal is not provided under the Act against such an order it is too far fetched to suggest that such orders are beyond judicial review under Article 226 or 227 of the Constitution. In that case, the sole Arbitrator was appointed for adjudication of the dispute. Arbitrator entered upon the reference by requiring parties to submit their statement. The aggrieved party approached the Sub Court praying for injunction against defendant therein and the Arbitrator. Defendant filed application for stay under Sec.34 of the Act of 1940. The order of the civil court dismissing the application under Secs.34 and 40 of the Act of 1940 was under challenge in the High Court invoking Articles 226 and 227 of the Constitution. 17. In State of Kerala v. Babu (supra) it is held that visitorial jurisdiction under Article 227 of the Constitution must be exercised where the order passed by the subordinate civil court is wholly unreasonable that it can be said to be tainted with perversity. It was held that visitorial jurisdiction of the Constitution is narrow Travancore Devaswom Board v. Panchami Pack Pvt. Ltd (supra) is a decision rendered by the Supreme Court. There, the Division Bench of the High Court while refusing to admit a Writ Petition referred the matter for arbitration. It was held that visitorial jurisdiction of the Constitution is narrow Travancore Devaswom Board v. Panchami Pack Pvt. Ltd (supra) is a decision rendered by the Supreme Court. There, the Division Bench of the High Court while refusing to admit a Writ Petition referred the matter for arbitration. That judgment was challenged before the Supreme Court. The Supreme Court held that the court cannot refer the parties to an Arbitrator in the absence of specific provision in the written agreement for arbitration. 18. In the light of the above decisions referred to me I am to decide whether interference be it under Article 226 or Article 227 of the Constitution is totally excluded as against an order or proceeding of the Arbitrator. Even going by the decision of the Constitution Bench in SBP & Co. v. Patel Engineering Ltd. and another (paragraph 45) I am not persuaded to think it is a case where jurisdiction of the High Court under Article 226 or 227 of the Constitution is totally excluded. It is relevant to refer to the observations made in paragraph 45: "........... We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the Arbitral Tribunal is capable of being corrected by the High Court under Article 226 or 227 of the Constitution. Such an intervention by the High Courts is not permissible.” Reading paragraph 45 of the decision of the Constitution Bench referred to above, what I can understand is that it is not as if the High Court has the unbriddled right, be it under Article 226 or 227 of the Constitution to interfere with an order or proceeding of the private Arbitrator, ie. any order or proceeding of the Arbitrator is not capable of being corrected under Article 226 or 227 of the Constitution. I am not able to understand the observations made by the Constitution Bench as having the meaning that under no circumstance an order or proceeding of the Arbitrator is subject to interference by the High Court under Article 226 or 227 of the Constitution. 19. But, as aforesaid, it is not as if against any order or proceeding of the Arbitrator, the High Court could interfere under Article 226 or 227 of the Constitution. 19. But, as aforesaid, it is not as if against any order or proceeding of the Arbitrator, the High Court could interfere under Article 226 or 227 of the Constitution. Exercise of that power must be subject to general limitations the High Court is required to bear in mind while invoking the power under Article 226 or 227 of the Constitution. The Supreme Court in Anoop Sharma v. Executive Engineer (2010 (2) KLT SN 77 Case No.79) has held that the power under Article 226 of the Constitution is not required to be exercised to correct an error of fact however grave it may appear to be. In Shalini Shyam Shetty v. Rajendra Shankar Patil (2010 (3) KLT SN 86 Case No.90), the Supreme Court drew a distinction between the exercise of powers under Articles 226 and 227 of the Constitution and prescribed limitations for interference under Article 226 of the Constitution. It was held that the power to issue writs underwent a sea-change with the coming of the Constitution from 26th January, 1950. Writs can be issued by the High Courts only under Article 226 of the Constitution. No Writ Petition could be moved under Article 227 of the Constitution nor can a writ be issued under the said provision of the Constitution. It is held that a petition filed under Article 227 of the Constitution cannot be called a Writ Petition. Jurisdiction under Article 227 of the Constitution is neither original nor, appellate. Jurisdiction under Article 227 of the Constitution is one of superintendence, both administrative and judicial and hence the powers under Articles 226 and 227 of the Constitution are separate and distinct and operate in different fields. Under Article 226, the High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227 the High Court apart from annulling the proceeding, it can also substitute the impugned order by the order which the inferior Tribunals should have made. It is further held that the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the Tribunals and Courts subordinate to it, "within the bounds of their authority". 20. It is appropriate to refer to the decision of the Supreme Court in Jai Singh and others v. Municipal Corporation of Delhi and another ( (2010) 9 SCC 385 ) as well. 20. It is appropriate to refer to the decision of the Supreme Court in Jai Singh and others v. Municipal Corporation of Delhi and another ( (2010) 9 SCC 385 ) as well. There, the Supreme Court held that the power under Article 227 of the Constitution cannot be exercised like "a bull in the china shop", to correct all errors of judgment of a court, or tribunal, acting within limits of its jurisdiction, correctional jurisdiction can be exercised where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. The High Court cannot lightly or liberally act as an appellate court and re-appreciate the evidence. 21. In the view of the above decisions, I am of the view that the power of the High Court to interfere with the orders or proceedings of the Arbitrator is not totally taken away by the Constitution Bench in SBP & Co. v. Patel Engineering Ltd. and another (supra). But, the power has to be exercised in accordance with the position of law as laid down in Anoop Sharma v. Executive Engineer (supra) where it is held that the power under Article 226 of the Constitution cannot be invoked to correct an error of fact however grave it may be, and the limitations laid down in Shalini Shyam Shetty v. Rajendra Shankar Patil and Jai Singh and others v. Municipal Corporation of Delhi and another (supra) as to the extent of power of superintendence of the High Court under Article 227 of the Constitution.) I shall consider the rest of the contentions raised by the parties guided by the limitations prescribed by above said decisions as to orders and proceedings of the 6th respondent. 22. The main thrust of the argument of learned Senior Advocate is concerning the application of Clause 22(a) of Ext.R4(j) and its invalidity on the ground that the agreement is to refer the dispute to the Arbitrator under the Act of 1940 which stood repealed by the Act of 1996 coming into force with effect from 25.01.1996. To understand that contention, it is necessary to refer to Clause 22(a) of Ext.R4(j). The said Clause reads. To understand that contention, it is necessary to refer to Clause 22(a) of Ext.R4(j). The said Clause reads. "All disputes, differences and/or claims arising out of this HIRE PURCHASE AGREEMENT, shall be settled by arbitration, in accordance with the provisions of the INDIAN ARBITRATION ACT, 1940 or any statutory amendments thereof and shall be referred to the sole arbitration of Mr. A.S.N. Hebbar, Advocate, Kundapur or in case of his death, refusal, neglect or incapacity to act as an arbitrator to the sole Arbitration of Mr. Muralidhar Varambally, Advocate, Udupi. This reference to the arbitrator shall be within the CLAUSES, TERMS and CONDITIONS of this agreement. The award given by the Arbitrator shall be final and binding on all the parties concerned." 23. It is not disputed that the Act of 1996 though came into force with effect from 22.08.1996, it is effective from 25.01.1996 when the First Ordinance came into effect (see Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. ( (2001) 6 SCC 356 ). Sec.85 of Act of 1996 deals with repeal and savings. Sub-sec.(1) says that among other enactments, the Act of 1940 is "hereby repealed". Sub-sec.(2) of Sec.85 of the Act of 1996 says that the provisions of the repealed enactment shall be applied in relation to arbitration proceedings which commenced before the Act of 1996 came into force unless otherwise agreed by the parties but, the Act of 1996 shall be applied in an arbitration proceeding which commenced on or after the Act of 1996 came into force. 24. It is not disputed that in this case the dispute between parties arose and, the reference to the arbitration was made only after 25.01.1996. Ext.R4(j), agreement itself was executed on 15.01.1997. It cannot also be disputed that on the day Ext.R4(j), agreement was executed on 15.01.1997, the Act of 1940 was not in force and the law relating to domestic arbitration was governed and controlled by the Act of 1996. According to the learned Senior Advocate, in that situation the agreement to refer the dispute to arbitration under the Act of 1940 which was non-existent on the date of Ext.R4(j), agreement is void, being an agreement based 6n a repealed Act which is non est in the eye of law and on account of the common mistake parties committed it is void by virtue of Sec.20 of the Contract Act. Learned Senior Advocate has referred me to the various decision in support of the contention. 25. In Thyssen Stahlunion GMBH v. Steel Authority of India Ltd. ( AIR 1999 SC 3923 ), the dispute was referred to the sole Arbitrator on 04.12.1993 and an award was passed on 23.02.1996 after the Act of 1996 came into force with effect from 25.01.1996. Paragraph 4 of the decision would show that the dispute between the parties in that case arose on 14.09.1995 (i.e. when the Act of 1940 governed the field). Paragraph 7 of the decision would show that the arbitration proceedings commenced before the Act of 1996 came into force. In paragraph 44, the Supreme Court held that parties can agree to the applicability of the new Act even before the new Act came into force but they cannot agree to the applicability of the old Act after the new Act came into force when the arbitration proceedings under the old Act had not commenced, though arbitration agreement was under the old Act. It is necessary to refer to the relevant clause for arbitration in that case which is available in paragraph 44 which was that the parties agreed for arbitration under the law "for the time being in force". The Supreme Court, adverting to the said clause held that it meant that parties meant that the provisions of law as on the date of agreement would apply. In Shetty's Constructions Co. Pvt. Ltd. v. Konkan Railway Construction and another ( (1998) 5 SCC 599 ) Sec.85(2) of the Act of 1996 is referred to. There, it is held that if the proceedings (based on the agreement executed as per the Act of 1940) was moved before 25.01.1996 (when the new Act came to be effective) it will be governed by the Act of 1940. In State of West Bengal v. Amritlal Chatterjee ( AIR 2003 SC 4564 ) Sec.21 of the Act of 1996 was referred to. In paragraph 4 of the decision it was held: "........ Section 21 of the new Act provides that unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. In paragraph 4 of the decision it was held: "........ Section 21 of the new Act provides that unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. Clause (a) of Sub-sec.(2) of S.85 of the new Act provides that notwithstanding repeal of the Arbitration Act, 1940, the provisions of the said enactment shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force". In paragraph 13, it is held: "The Court having regard to the duty imposed upon the arbitrator held that the arbitrators enter on the reference as soon as they have accepted their appointment and have communicated to each other about the reference....." In paragraph 14 it is held that Sec.85(2)(a) of the Act of 1996 may have to be construed keeping in view the provisions contained in Sec.21 of the said Act. 26. Gopalakrishnan, V. v. T.K. Sivadas and others (ILR 2001 (1) Kerala 361) is a decision rendered by a Division Bench of this Court. Clause 14 of the Partnership deed referred to therein related to arbitration. Respondents in that case filed the application under Sec.34 of the Act of 1940. The Act of 1996 came into force on 25.01.1996. It was held by the Division Bench that after 25.01.1996 no application could be filed under Sec.34 of the Act of 1940. The Division Bench drew a distinction between Sec.34 of the Act of 1940 and Sec.8 of the Act of 1996 and held that an application filed under Sec.34 of the Act of 1940 cannot be treated as one under Sec.8 of the Act of 1996. 27. Referring to Sec.20 of the Contract Act learned Senior Advocate has referred to me 'the Indian Contract Act and Specific Relief Act by Pollock and Mulla, 10th Edition", page 211 and the Law of Contract by Cheshire, 9th Edition' at pages 206 and 207 and the Law of Contract by G.H. Trietal, 6th Edition' at page 210 and 211. 27. Referring to Sec.20 of the Contract Act learned Senior Advocate has referred to me 'the Indian Contract Act and Specific Relief Act by Pollock and Mulla, 10th Edition", page 211 and the Law of Contract by Cheshire, 9th Edition' at pages 206 and 207 and the Law of Contract by G.H. Trietal, 6th Edition' at page 210 and 211. The Authors referred to above have stated about unilateral and common mistake and stated that when there is a common mistake as to existence of a fact, the contract could be avoided as void in view of Sec. 20 of the Contract Act. In Vasu Nambisan v. Kesavan Nair ( 1963 KLT 872 ) paragraphs 5, 8 and 10 refer to the common mistake. The question whether there could be a presumption that everybody knows the law was also considered. It was held that though, ignorance of law is no excuse, there could be no presumption that everybody knows the law. Reference was made to the observation to that effect in Kolappa Pillai v. Krishna Pillai ( 1961 KLT 1013 ). Yet another decision which the learned Senior Advocate has referred to me is New India Assurance Co. Ltd. v. Itty Kurian ( 1997 (2) KLT 830 ) where, in paragraph 17 it is stated that the principle of equity must apply with force to both parties and it cannot be that the one party would receive the advantage under the contract could still avoid the liability. The conclusion that followed in that case was that both the plaintiff and defendant were presenting under the mistaken belief that the vehicles existed and that it was a mistake committed by both the parties. The insurance company could not have discovered the truth on enquiry. In that situation, the agreement was found to be unenforceable since the parties had proceeded on a common mistake of fact. 28. Learned counsel for respondents 4 to 6 in response invited my attention to the preamble of the Act of 1996 to contend that the Act of 1996 was in effect amending the law relating to domestic arbitration till then governed by the Act of 1940. 28. Learned counsel for respondents 4 to 6 in response invited my attention to the preamble of the Act of 1996 to contend that the Act of 1996 was in effect amending the law relating to domestic arbitration till then governed by the Act of 1940. It is also contended by the learned counsel that in view of Clause 22(a) of Ext.R4(j) that the dispute, difference and claims arising out of the said agreement "shall be settled by arbitration in accordance with the provisions of the Indian Arbitration Act, 1940 or any statutory amendments thereon, it has to be held that the parties while executing Ext.R4(j) on 15.01.1997 intended and agreed that the dispute, claims and difference of opinion arising between them shall be decided by the law of arbitration as it stood on 15.01.1997 ie., by the Act of 1996. It is pointed out by the leaned counsel that the Act of 1996 so far as it relates to the domestic arbitration is nothing but an amendment of the Act of 1940. Learned counsel has also placed reliance on an unreported judgment of this Court dated 31.07.2002 in O.P.No.23475 of 2001 and the appellate judgment arising therefrom in W.A.No.2108 of 2002. Reliance is also placed on the order dated 29.11.2006 in AR No.23 of 2006 to contend that such clause as appearing in Clause 22(a) of Ext.R4(j) is not uncommon and need not be understood as parties agreeing on 15.01.1997 to be governed by the Ac of 1940 which by then had been repealed. 29. I have referred to the argument which learned Senior Advocate has advanced as to the (alleged) common mistake between the parties as to the existence of the law in force on 15.01.1997. That argument becomes relevant only if it is found that the parties by Clause 22(a) of Ext.R4(j) decided to refer the differences, disputes or claims arising in the matter to arbitration as per the Act of 1940. Therefore, I am to decide first whether the parties intended and agreed by Clause 22(a) of Ext.R4(j) to refer the difference, dispute, etc. to arbitration as per the Act of 1940 or to the law as it stood on 15.01.1997 when Ext.R4(j), agreement was executed. To understand that, it is necessary to refer to the history behind the Act of 1996. to arbitration as per the Act of 1940 or to the law as it stood on 15.01.1997 when Ext.R4(j), agreement was executed. To understand that, it is necessary to refer to the history behind the Act of 1996. In the Act of 1996, it is stated in the preamble: "An Act to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto". In the 'Statement of Objects and Reasons' for enacting the Act of 1996 it is stated that the law on arbitration in India was at the time of adoption of the new Act substantially contained in three enactments, ie. the Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961. It was widely felt that the Act of 1940 which contained the general law of arbitration has become out-dated. The Law Commission of India, several representative bodies of trade and industry and experts in the field of arbitration had proposed amendments to the Act of 1940 to make it more responsive to contemporary requirements. It was also recognized that the economic reforms may not become fully effective if the law dealing with settlement of both domestic and international commercial disputes remains out of tune with such reforms. Like arbitration, conciliation was also getting increasing worldwide recognition as an instrument for settlement of disputes. Though the UNCITRAL Model Law and Rules were intended to deal with international commercial arbitration and conciliation they could with appropriate modifications, serve as a model for legislation on domestic arbitration and conciliation. The Act of 1996 sought to consolidate and amend the law relating to domestic arbitration, international commercial arbitration, enforcement of foreign arbitral awards and to define the law relating to conciliation taking into account the said UNCITRAL Model Law and Rules.) The Law Commission of India in its 176th report stated. "The Arbitration and Conciliation Act, 1996 was enacted to consolidate and amend the law relating to Domestic Arbitration, International Commercial Arbitration and Enforcement of Foreign Arbitral Awards. It also defined the law relating to conciliation. It was based on the UNCITRAL Model Law". 30. "The Arbitration and Conciliation Act, 1996 was enacted to consolidate and amend the law relating to Domestic Arbitration, International Commercial Arbitration and Enforcement of Foreign Arbitral Awards. It also defined the law relating to conciliation. It was based on the UNCITRAL Model Law". 30. In paragraph 1.2, the Law Commission states in Chapter I: "The 1996 Act was the result of recommendations for reform, particularly in the matter of speeding up the arbitration process and reducing intervention by the court. In Guru Nanak Foundations v. Rattan Singh, AIR 1981 SC 2075 (2076-77), the Supreme Court, while referring to the 1940 Act, observed that "the way in which the proceedings under the Act are conducted and without an exception challenged in courts, has made lawyers laugh and legal philosophers weep" in view of "unending prolixity, at every stage providing a legal trap to the unwary. The Public Accounts Committee of the Lok Sabha had also commented adversely about arbitration in India (9th Rep., 1977-78, pp.201-202). The matter came to be dealt by the Law Commission in its 76th Report, which recommended certain amendments, including a proviso to be inserted in section 28 of the Act of 1940 forbidding. an extension beyond one year, in respect of the time for making the award except for special and adequate reasons to be recorded." 31. Before the Act of 1996 came into force with effect from 25.01.1996, the Act of 1940 governed domestic arbitration and the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961 dealt with the international commercial transactions and arbitrations in this Country. It is in that circumstance that the Parliament thought of a comprehensive legislation covering domestic arbitration and international arbitration relating to the international commercial transactions and the law making body came with the Act of 1996. In otherwords, though by Sec.85 of Act of 1996 the above referred Statutes were repealed and that repeal took effect from 25.01.1996, in effect the law relating to domestic arbitration which was hither to being governed by the Act of 1940 was amended in the form it is found in the Act of 1996. Profitable reference can be made to the decision in Fuerst Day Lawson Limited v. Jindal Exports Limited ( (2011) 8 SCC 333 ). Profitable reference can be made to the decision in Fuerst Day Lawson Limited v. Jindal Exports Limited ( (2011) 8 SCC 333 ). There, in paragraph 53, it is stated that before the Act of 1996 came into force, domestic arbitration (in India) was contained in the Act of 1940. which in turn was brought in the place of Arbitration Act, 1899. Apart from Act of 1940, there were in force the Arbitration (Protocol and Convention) Act, 1937 (for execution of the Ganeva Convention Awards) and Foreign Awards (Recognition and Enforcement) Act, 1961 (for enforcement of the New York Convention Awards). The aforesaid three Acts were replaced by the Act of 1996 which is based on the UNCITRAL Model and is broadly compatible with the "Rules of Arbitration of International Chamber of Commerce". In paragraph 54, it is stated that the Act of 1996 itself has repealed the Act of 1940, Arbitration (Protocol and Convention) Act, 1937 and Foreign Awards (Recognition and Enforcement) Act, 1961, consolidates and amends the law relating to domestic arbitration, international commercial arbitration, enforcement of foreign arbitral awards and defines the law relating to conciliation and provides for matters connected therewith and incidental thereto taking into account the UNCITRAL Model Law and Rules. 32. Thus it is clear that though the Act of 1940 which dealt with the law of domestic arbitration in the Country along with other Acts and which dealt with the international arbitration was repealed with effect from 25.01.1996 by Sec.85 (1) of the Act of 1996, in effect, what the legislature has done was to amend the Act of 1940 which related to domestic arbitration and consolidate the law relating to international arbitration in the Act of 1996. 33. P. Ramanatha Aiyar, in "the Law Lexicon in 1997 Edition" at page 160 defines the word "amend" and states that the word is derived from the French word signifying "to make better"; "to change for the better". The word "amend" conveys, the idea of making a thing better or bringing things into a more perfect state. In otherwords, by amendment of the law relating to domestic arbitration contained in the Act of 1940, what is done by the legislature is to make the law relating to domestic arbitration better, a change for the better, by the Act of 1996. 34. I referred to the Preamble of Act of 1996. In otherwords, by amendment of the law relating to domestic arbitration contained in the Act of 1940, what is done by the legislature is to make the law relating to domestic arbitration better, a change for the better, by the Act of 1996. 34. I referred to the Preamble of Act of 1996. True that the Preamble of an Act cannot control and govern the interpretation which could be given to the various provisions of the Act. But, it is settled position of law that the preamble would act as a key to the interpretation of relevant provisions in case of ambiguity. The Supreme Court in Narain Khamman v. Parduman Kumar Jain (( 1985 1 SCC 1 ) held: "It is now well settled that though the Statement of Objects and Reasons accompanying a legislative Bill cannot be used to determine the true meaning and effect of the substantive provisions of a statute, it is permissible to refer to the Statement of Objects and Reasons accompanying a Bill for the purpose of understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statute sought to remedy............." In Bharat Singh v. Management of New Delhi Tuberculosis Centre, New Delhi and others ( (1986) 2 SCC 614 ) the Supreme Court held that the Object and Reasons give an insight into the background why the provisions are introduced, the Object and Reasons cannot be the ultimate guide in interpretation of statutes and that it often aids in finding out what really persuaded the legislature to enact a particular provision. Thus, as aforesaid though the Preamble to the Act of 1996 cannot by itself control and govern the interpretation which should be given to the various provisions of the Act, it is certainly an aid to understand the background in which the Act of 1996 was made, ie. to amend the law relating to domestic arbitration contained in the Act of 1940 and by repealing the said Act as well as the two other Acts of 1937 and 1961 (referred above) and make a comprehensive law relating to arbitration in this Country including domestic arbitration. 35. Reference can also be made to the decisions learned counsel for respondents 4 to 6 has placed reliance. 35. Reference can also be made to the decisions learned counsel for respondents 4 to 6 has placed reliance. In the unreported judgment (dated 31.07.2002) of this Court in O.P.No.23475 of 2001, relevant clause in the agreement read: "(a) All disputes, differences and claims out of this Hire Purchase Agreement shall be settled by arbitration in accordance with the provisions of the Indian Arbitration Act, 1940 or any statutory amendments thereof...............". This Court held that the existing arbitration cannot be stated to be without jurisdiction and the challenge to the arbitration was repelled. That order was challenged in W.A.No.2108 of 2002. It is seen from the copy of judgment dated 01.09.2005 of the Division Bench that the counsel for appellants in that case sought permission to withdraw the appeal with liberty to raise ail permissible objections before the Arbitrator, that request was allowed and the Writ Appeal was dismissed. 36. The other Order which learned counsel for respondents 4 to 6 referred to me is rendered by the Hon'ble Chief Justice of this Court in A.R.No.23 of 2006 on 29.11.2006. There, the relevant clause in the agreement relating to arbitration read: "15. If at any time during the progress of the works or after completion of the alleged completion thereof and at any time during the continuance of this agreement any dispute or difference arise between the parties hereto in relation to or in connection with this agreement, the same shall be referred to the arbitrator and the provisions of the Indian Arbitration Act, 1940 shall apply. The decision so given shall be final and binding upon the parties." The contention raised before Hon'ble Chief Justice was that since the Act of 1940 had been repealed, the above referred clause was void ab initio. The contention was rejected because the Act of 1996 had come into force with effect from 25.01.1996 and the Act of 1940 had been repealed by Sec.85 (1) of Act of 1996. The Hon'ble Chief Justice observed in the order: ".......... It is absolutely apparent that the mentioning of the Act of 1940 in clause 15 reproduced above is an inadvertent mistake. As surely, if the parties were conscious of the fact that the Act of 1940 has since been repealed there was no question to make mention thereof. The Hon'ble Chief Justice observed in the order: ".......... It is absolutely apparent that the mentioning of the Act of 1940 in clause 15 reproduced above is an inadvertent mistake. As surely, if the parties were conscious of the fact that the Act of 1940 has since been repealed there was no question to make mention thereof. In that case the only mention in the clause would have been of the Act of 1996.........." I may also refer to the decision in M.G.F. (India) Ltd. v. Sh.Rajinder Singhal and Another (2003 (3) Raj. 414). There the parties had agreed to refer the dispute in accordance with the provisions of Act of 1940 or any statutory amendment thereof. Petition for arbitration was filed under the Act of 1940 (by which time the Act of 1940 was repealed). Though arbitration proceeding commenced prior to the new Act, it was held that parties expressly agreed to be governed by Act of 1996 as is disclosed from the expression "provisions of the Indian Arbitration Act, 1940 or any statutory amendment thereof. 37. Petitioner and the 4th respondent in Clause 22(a) of Ext.R4(j) stated that their disputes, differences and/or claims arising out of Ext.R4(j), agreement shall be settled by arbitration, in accordance with the provisions of the Act, 1940 "or any statutory amendment thereof. I must understand that at the time when Ext.R4(j) was entered on 15.01.1997, the Act of 1940 was not in force and the Act of 1996 being the amended version of the Act of 1940 to the extent it related to domestic arbitration was in force. Petitioner and the 4th respondent by Clause 22(a) of Ext.R4(j) were agreeing to be governed in the matter of arbitration by the Act of 1996. To hold otherwise will be too technical and unpragmatic. In the light of what I have stated, I hold that the Act of 1996 to the extent it concerned domestic arbitration is nothing but an amended version of the law relating to domestic arbitration which till then was governed by the Act of 1940 and that words "or any statutory amendments thereof" (to the Act of 1940) occurring in Clause 22(a) of Ext.R4(j) is sufficient to show that parties by the said clause agreed to refer their disputes, differences and/or claims to the Act of 1996. I must also bear in mind that the parties entered into that agreement on 15.01.1997 at a time by which time the Act of 1940 was repealed. There is no reason to think that the parties intended and wanted to be governed by a law which was non-existent on 15.01.1997 when Ext.R4(j), agreement was executed. In that view of the matter the contention that Clause 22(a) of Ext.R4(j) is void ab initio being an agreement to refer the dispute to the Arbitrator based on a repealed Act has to fail. 38. In the light of the above finding, the contention that there is a common mistake between petitioner and the 4th respondent by agreeing to refer the dispute to arbitration as per the Act of 1940 and hence Clause 22(a) of Ext.R4(j) is unenforceable being void under Sec.20 of the Contract Act also cannot stand. 39. The challenge to the jurisdiction of the 6th respondent to enter on the arbitration is based on the grounds that Clause 22(a) of Ext.R4(j) is void in so far as the parties have agreed to refer the dispute to the Arbitrator under an Act which was not in force on the day Ext.R4(j) was executed on 15.01.1997, the agreement was to refer the dispute in accordance with the Act of 1940 which had by then been repealed under Sec.85(1) of the Act of 1996, no arbitration proceedings had commenced before the Act of 1940 was repealed and hence Clause 22(a) of Ext.R4(j) is invalid. The further contention as to jurisdiction of the Arbitrator is on the basis of Sec.20 of the Contract Act, that there is a common mistake committed by the parties while deciding to refer the disputed the Arbitrator under the Act of 1940 which was not in force on the relevant day and hence the relevant clause in Ext.R4(j) is void. It is contended that at any rate, in so far as Ext.R4(j), agreement is superseded or substituted by Ext.R4(b), agreement dated 28.07.1999, respondents 4 and 5 are not entitled to fall back upon Ext.R4(j), agreement and invoke Clause 22(a) and refer the dispute to the Arbitrator. It is also contended that appointment of the 6th respondent as Arbitrator when O.S.No.128 of 2000 was pending, without reference to Sec.34 of the Act of 1940 and at any rate, except by recourse to Sec.11(6) of the Act of 1996 is illegal. 40. It is also contended that appointment of the 6th respondent as Arbitrator when O.S.No.128 of 2000 was pending, without reference to Sec.34 of the Act of 1940 and at any rate, except by recourse to Sec.11(6) of the Act of 1996 is illegal. 40. Though there is a contention raised in Ext.P6(a), affidavit in support of the application filed in O.S.No.128 of 2000 to keep the arbitration proceedings in abeyance till the disposal of the suit that Ext.R4(j), agreement is under challenge (in the suit) as "it is printed form agreement and the contents of the agreement has not been brought to the notice of petitioner and in Ext.P5, copy of Ext.P5, copy of plaint in O.S.No.128 of 2000 it is stated in paragraph 4 that respondents 4 and 5 "obtained the signature of the plaintiff in certain printed forms and certain stamped white papers", the fact of entering into the hire purchase agreement with respondents 4 and 5 is not disputed and petitioner himself has produced a copy of the hire purchase agreement along with this Original Petition marked as Ext.P1 (Ext.R4(j) produced by respondents 4 and 5). But no such plea is raised by petitioner in this Original Petition. On the other hand, it is pleaded in paragraph 2 of the Original Petition that petitioner purchased the vehicle from the 5th respondent on 19.04,1997 on hire purchase terms and that "it" (obviously referring to the hire purchase agreement) was executed in Kerala on 15.01.1997 (as Ext.R4(j) reveals). Petitioner also states in paragraph 2 that a "copy of the hire purchase agreement and the invoices are produced and marked as Exts.P1 to P2. The hire purchase agreement is void since the respondents 5 and 6 had incorporated an arbitration clause under the repealed Arbitration Act of 1940". When Exts.P1 (ie. Ext.R4(j)) and P2 are produced along with the Original Petition in support of the allegations made therein in I must understand that it forms part of pleadings of petitioner. Therefore, it is not a case where due execution of Ext.R4(j), agreement is disputed by the petitioner in this proceeding. The reference in the Original Petition to the Clause in the agreement for arbitration being void is to Ext.R4(j). Therefore, it is not a case where due execution of Ext.R4(j), agreement is disputed by the petitioner in this proceeding. The reference in the Original Petition to the Clause in the agreement for arbitration being void is to Ext.R4(j). Therefore, no contention could validly be advanced in this proceeding that there is dispute regarding execution of the agreement (Ext.R4(j)) and hence without deciding that question, there could be no reference to the Arbitrator. 41. I must also bear in mind that though petitioner had filed O.S.Nb.128 of 2000 on 21.03.2000 where, a contention that signed printed forms/blank, stamped papers were obtained by respondents 3 and 5 was raised, for non-payment of the balance court fee the plaint was rejected by judgment dated 15.09.2004 and that judgment has become final. I do not forget that learned Senior Advocate has reminded me of the power of this Court under Article 227 of the Constitution to interfere with the judgment dated 21.03.2004 rejecting the plaint. But I am not inclined to think that the said power is to be exercised in this proceeding where there is no challenge to the judgment dated 21.03.2002. 42. Unlike Sec.34 of the Act of 1940, where a discretionary power is conferred on the court to stay the suit and refer the parties to the arbitration as agreed between them Sec.8(1) of the Act of 1996 is worded in such a way that the power of the civil court is not optional - when it is brought to the notice of the civil court that regarding the subject matter of the suit there is an arbitration agreement or clause in the agreement, that agreement is valid and when other requirements of Sec.(8)(1 of the Act is complied, it amounts to a temporary suspension of jurisdiction of the civil court and then the only course available to the civil court is to refer the parties to arbitration. On such reference, nothing remains to be decided in the suit. In the present case respondents 4 and 5 had filed Ext.R4(g), application in the sub court under Sec.8(1) of the Act of 1996 requesting that court to stop proceedings in the suit. The Arbitrator (6th respondent) who had by then been appointed, had given notice of his appointment and his proceeding to the petitioner, as seen from Ext.P12, letter dated 27.03.2001, as early as on 09.01.2001. The Arbitrator (6th respondent) who had by then been appointed, had given notice of his appointment and his proceeding to the petitioner, as seen from Ext.P12, letter dated 27.03.2001, as early as on 09.01.2001. It is for no fault of respondents 4 and 5 that the plaint was rejected on 21.03.2004 for non-payment of balance court fee. I must also bear in mind provisions of Sub-sec.(3) of Sec.8 of the Act of 1996 which is clear that notwithstanding that an application has been made by the opposite party under sub-sec.(1) of Sec.8, and that issue is pending before the judicial authority, "an arbitration may be commenced and continued and an arbitral award made". Therefore pendency of O.S.No.128 of 2000 created no statutory interdiction to respondents 4 and 5 referring the dispute to the arbitration or in the 6th respondent starting the arbitration proceeding. Therefore, the contention that initiation of proceedings when the suit was pending is bad in law, cannot be accepted. 43. Yet another argument learned Senior Advocate has advanced is that no reference could have been made without recourse to Sec. 11(6) of Act of 1996. Sec.11 of Act of 1996 deals with the power to appoint an arbitrator and Sub-sec.(6) says: "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 (c) 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". 44. Thus, intervention of the Chief Justice is required for appointment of the Arbitrator in the limited situations falling under Sub-sec.(6) of Sec. 11 of Act of 1996. In the present case, Clause 22(a) of Ext.R4(j) names the 6th respondent as the Arbitrator as agreed upon by the parties. In otherwords, the parties have resolved to refer their dispute to a named Arbitrator, the 6th respondent. In such a situation, reference to the Chief Justice as required under Sec. 11(6) of Act of 1996 is not warranted. In the present case, Clause 22(a) of Ext.R4(j) names the 6th respondent as the Arbitrator as agreed upon by the parties. In otherwords, the parties have resolved to refer their dispute to a named Arbitrator, the 6th respondent. In such a situation, reference to the Chief Justice as required under Sec. 11(6) of Act of 1996 is not warranted. I can profitably refer to the decision in Ranjulal Baruah v. Numbaligarh Refinary Ltd. ((2002) 1 CCC 211 (Gauhati) where a learned Judge referring to Sec.11(2) of the Act of 1996 stated that parties are free to agree on a procedure for appointment of sole Arbitrator, it means that either of the parties can be vested with the power of appointment of the Arbitrator and that the Chief Justice is vested with the power of appointment of sole Arbitrator only when the parties fail to agree on the Arbitrator as per agreement. In paragraph 10, reference is made to Sec. 11(6) of Act of 1996 and it is held that the Chief Justice is empowered to appoint an Arbitrator when the agreement referred to in Sub-Sec.(2) of Sec. 11 fails. Sub-sec. (6) provides for a request to the Chief Justice to take necessary measures on the happening of one of the contingencies mentioned therein (extracted by me above). In paragraph 11, it is stated that a combined reading of Sub-secs. (2) and (6) of Sec. 11 of Act of 1996 indicates that the Chief Justice comes into picture only when the parties fail to act on an agreement procedure. In that case where the agreement provided alternatively the powers of appointment with either of the parties and the sole Arbitrator was appointed by-one of the parties so empowered under the agreement it was held that such appointment cannot be treated as illegal and contrary to the provisions of law merely because the other party does not agree to the appointment of the person appointed by the party empowered. It could not be treated as a case of failure of the agreement referred to in Sub-secs.(2) and (6) of Sec.11 of Act of 1996. Reference can also be made to the decision in Rail India Technical and Economic Services Ltd. v. Ravi Construction (2002 (1) Karnataka L.J. 419) rendered by R.V. Raveendran, J. (as his Lordship then was) for the Division Bench. Reference can also be made to the decision in Rail India Technical and Economic Services Ltd. v. Ravi Construction (2002 (1) Karnataka L.J. 419) rendered by R.V. Raveendran, J. (as his Lordship then was) for the Division Bench. There, in paragraph 10, the relevant clause in the agreement of arbitration is extracted which stated that all disputes or differences in respect of which the decision is not final and conclusive shall be referred for arbitration to a sole Arbitrator appointed in the manner provided therein. Paragraph 14 states that the appointment procedure was clear and specific. In paragraph 18 it is stated that in the view of the above (provisions of the agreement) "we hold that the appointment of the Arbitrator is in accordance with the appointment procedure agreed under the arbitration agreement." A unilateral cancellation of the contract does not deprive the other party of his contractual rights (to enforce an agreement for arbitration). Heyman v. Darwins Ltd. (1942 AC 356) and Trades Man ((1962) 1 WLR 61) say that an arbitration clause does not cease to be binding because one of the parties has repudiated the contract. Repudiation amounts to a breach of contract and that also is within the scope of; the agreement for arbitration. 45. Coming back to Clause 22(a) of Ext.R4(j), I find that the parties have named a person as Arbitrator (the 6th respondent) to whom disputes arising between them were to be referred. In exercise of that power, respondents 4 and 5 have referred the dispute to the Arbitrator. It is not necessary that for such a reference the junction of petitioner was required. On the other hand, in exercise of the power conferred under Clauses 22(a) and 22 (b) of Ext.R4(j) respondents 4 and 5 have referred the dispute to the named Arbitrator, the 6th respondent. In that situation, I am not inclined to think that Sec.11(6) of Act of 1996 has any application so that the intervention of the Chief Justice was called for. 46. It is contended that since Ext.R4(j), Hire purchase agreement dated 15.1.1887 stands superseded by Ext.R4(b) agreement of guarantee dated 28.7.1999, respondents 4 and 5 could invoke the arbitration clause in Ext.R4(j). Learned Senior Advocate has placed reliance on the decision in Ram Bahadur Thakur & Co. v. Sabu Jain Ltd ((1981) 51 Company Cases 301) and Nathani Steels Ltd. v. Associated Constructions ((1995) Supp. Learned Senior Advocate has placed reliance on the decision in Ram Bahadur Thakur & Co. v. Sabu Jain Ltd ((1981) 51 Company Cases 301) and Nathani Steels Ltd. v. Associated Constructions ((1995) Supp. 3 SCC 324 (paragraph 3). 47. Initially the vehicle was seized by respondents 4 and 5 on 23.04.1999 alleging default in payment of installments. Petitioner filed Ext.P3, complaint dated 23.04.1999 to the second respondent Dy.S.P. Kollam. There were some negotiations between the parties and that resulted in the vehicle being released on the strength of Ext.R4(b), agreement of guarantee executed by P.Sugathan in favour of respondents 4 and 5 on 28.7.1999. In Nathani Steels Ltd. v. Associated Constructions the Supreme Court held that when the dispute is amicably settled between the parties finally arbitration clause (in the agreement between parties) could not be invoked by a party to resolve the same on ground of mistake in the settlement. 48. To attract Sec.62 of the contract Act, there should be a complete substitution of the new contract in place of the old. It is in that situation that the original contract need not be performed. A substitute contract should rescind or alter or extinguish the previous contract (see Lata Construction and others v. Dr. Rameshchandra Ramniklal Shah and another ( AIR 2000 SC 380 ). In the present case there is no substitution and much less, any complete substitution of the old contract (Ext.R4(j)) with the agreement of guarantee (Ext.R4(b). Clause Vl(b) of Ext.R4(j) itself contemplates respondents 4 and 5 obtaining additional guarantee. The said clause says that the guarantors further agree that the owners may at their sole discretion demand the Hirer to furnish further guarantee from any other persons on such terms and conditions as may be stipulated by the owners without prejudice to the liabilities of the guarantors (as per Ext.R4(j)) but when such guarantees are obtained by the owners all the guarantors including the guarantors as per Ext.R4(b) shall be jointly and severally liable for the due performance and observance of the terms and conditions of Ext.R4(j) agreement. Exhibit R4(b), agreement of guarantee executed by P. Sugathan in favour of 4th respondent refers to Ext.R4(j) agreement and says that in consideration of the owner agreeing to continue to let to the Hirer the vehicle referred to in Ext.R4(j), agreement, Ext.R4(b) agreement of guarantee is being executed. Exhibit R4(b), agreement of guarantee executed by P. Sugathan in favour of 4th respondent refers to Ext.R4(j) agreement and says that in consideration of the owner agreeing to continue to let to the Hirer the vehicle referred to in Ext.R4(j), agreement, Ext.R4(b) agreement of guarantee is being executed. Clause (a) of Ext.4(b), agreement states that the guarantor (i.e. P. Sugathan) shall guarantee due performance and observance by the Hirer of the several stipulations and conditions mentioned in Ext.R4(j), agreement. Clause (b) of Ext.R4(b) states that the guarantor further agrees that the owners shall be at liberty to sue the Hirer and the guarantor jointly and severally and that the owners shall be entitled to proceed against the guarantor in the first instance and he desire so to do. Thus it is clear that it is not a case of Ext.R4(b) agreement superseded Ext.R4(j) agreement. On the other hand Ext.R4(b) is got executed as additional guarantee at the time vehicle was released to be Hirer (after it is first superseded alleging default in payment of installment) and that too as respondents 4 and 5 are empowered by ExtR4(j), agreement. Hence the contention that Ext.R4(j) stands superseded by Ext.R4(b), agreement and hence respondents 4 and 5 could not invoke the arbitration clause in Ext.R4(j) has to be rejected. 49. Point No.IV It is contended that there is no arbitrable dispute in the present case so that, respondents 4 and 5 could refer the dispute to the 6rth respondent, the Arbitrator. It is contended by the learned Senior Advocate that what is involved is only an arithmetical process of finding out the actual amount if any due to the petitioner or respondents 4 and 5. That is within the power of the public fora, i.e. the regular court. It is also contended by the learned Senior Advocate that seizure of the vehicle was highly high-handed, not to say was illegal and that its sale was conducted in an illegal and shocking manner. It is contended that while respondents 4 and 5 sold the vehicle for Rs.91,000/-, petitioner was prepared to purchase that vehicle even for an amount exceeding Rs.2,00,000/-. It is also contended that when the sale is performed in a manner shocking to the judicial conscious, that is a matter which this Court has to take into account. Various authorities are also cited in support of the above contentions. It is also contended that when the sale is performed in a manner shocking to the judicial conscious, that is a matter which this Court has to take into account. Various authorities are also cited in support of the above contentions. But I am of the view that these questions are not required to be gone into in this proceeding under Article 226 and/or 227 of the Constitution for, assuming that the seizure of vehicle which according to respondents 4 and 5 is in exercise of contractual right they had as per Ext.R4(j), was illegal, it was not as if petitioner was without any remedy. He could invoke jurisdiction of the court under Sec.9 of the Act of 1996 or seek appropriate interim orders from the Arbitrator under Sec. 17 of the said Act and, if the order was adverse, challenge that order in appeal under Sec.37 of the Act. So too, regarding the alleged illegal or improper manner in which sale of vehicle was allegedly effected; that is a matter touching upon the facts. An error of fact however, grave it may be is not amenable to writ jurisdiction of this Court under Article 226 of the Constitution. I also referred to the decisions of the Supreme Court which laid down parameters for the exercise of power under Article 227 of the Constitution. So far as alleged illegal seizure or sale of the vehicle concerned, I am inclined to think that those are matters which petitioner could and ought have raised before the court concerned or Arbitrator who was" entitled to consider those questions under Sec. 17 of the Act of 1996. 50. Nor am I impressed by the argument that there was no arbitrarable dispute involved in the case. Clause 22(a) of Ext.R4(j) says that all disputes, differences and claims arising from the hire purchase agreement shall be settled by arbitration. In otherwords, it is not merely a dispute arising between the parties to Ext.R4(j), agreement but even any difference and/or claim arising out of the said agreement which was referable to the Arbitrator. If petitioner has a claim that amount is due to him and that no amount is payable to respondents 4 and 5, that was a matter which ought to have been taken before the Arbitrator consequent to the notice which the Arbitrator had given him on 09.01.2001 and 08.03.2001 as revealed by Ext.P12. If petitioner has a claim that amount is due to him and that no amount is payable to respondents 4 and 5, that was a matter which ought to have been taken before the Arbitrator consequent to the notice which the Arbitrator had given him on 09.01.2001 and 08.03.2001 as revealed by Ext.P12. In that view of the matter, I am not inclined to think the said questions are required to be decided in this proceeding either under Article 226 or 227 of the Constitution. Arguments are also advanced by both sides as to the power of the 3rd respondent, the Regional Transport Officer to effect change of registration in the name of the purchaser. That follows the sale of vehicle which was accepted by the 6th respondent in Ext.P17, award and hence, that question is not required to be decided in this proceeding. But I make it clear that on matters other than decided in this judgment, it is open to the petitioner, if he is otherwise entitled to challenge Exts.P15 and P17 as provided under the Act of 1996 on other grounds as may be available to him. Resultantly this Original Petition is dismissed. But it is made clear that on grounds other than which are decided by this judgment and as may be available to the petitioner under law it is open to the petitioner to challenge Exts.P15 and P17 before the statutory forum provided under the Act of 1996, if he is entitled to that course.