Court No. 6 (265719) 19.08.2026 (AD 32) (S. Banerjee) CO 2756 of 2026 Braithwaite and Company Private Limited Vs. DTM Construction Private Limited Mr. Debanik Banerjee Mr. Aniruddha Ganguly …for the petitioner This application under Article 227 of the Constitution of India is at the instance of the respondent in a miscellaneous arbitration case and is directed against the order dated June 24, 2025 passed by the learned Additional District Judge, 7th Court at Alipore in Miscellaneous Case (Arbitration) No. 35 of 2023. By the order impugned the petitioner herein was required to submit three names for selection of one of them as the Sole Arbitrator and after furnishing such names the arbitrator shall be appointed for continuation of the arbitration proceeding commenced under the Arbitration Act, 1940. Learned advocate appearing for the petitioner submits that the erstwhile Arbitrator appointed under the Arbitration Act, 1940 expressed his inability to continue with the arbitration proceeding. He submits that in view thereof, any appointment of an arbitrator should be as per the provisions laid down under the 2 Arbitration and Conciliation Act, 1996 and not under the Arbitration Act, 1940. It is not in dispute that in the case on hand the arbitration proceeding was invoked sometime in the year 1987, i.e., long before enactment of the Arbitration and Conciliation Act, 1996. An Arbitrator was selected from the panel of three names and after the resignation of the said arbitrator, a retired Judge of this Hon’ble Court was appointed as the Sole Arbitrator and the said Sole Arbitrator subsequently expressed his helplessness as the time for making and publishing the award expired and any decision on reappointment in order to continue with the proceeding should be with the consent of the other side and the respondent did not give consent for continuation of the arbitration proceeding by the Sole Arbitrator. Section 85(1) of the Arbitration and Conciliation Act, 1996 states that the Arbitration Act, 1940 stood repealed. Sub-Section (2) of Section 85 starts with a non- obstinate clause and states that notwithstanding such repeal the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before the 1996 Act came into force unless otherwise agreed by the parties but this Act 3 shall apply in relation to arbitral proceedings which commenced on or after the 1996 Act came into force. It is not in dispute that in the instant case the arbitral proceeding commenced prior to coming into force of the 1996 Act. Learned advocate appearing for the petitioner in support of his contention that the arbitral proceeding shall have to be initiated as per the provisions of the 1996 Act, places reliance upon a decision of the Hon'ble Supreme Court in the case of Sukhwant Rai – Vs.- Justice D. V. Sehgal (Retd.) and Ors., reported at (1999) 9 SCC 56. After going through the said decision this Court finds that the Hon'ble Supreme Court after recording the contention of the respondents therein that once an arbitrator has resigned a new arbitrator will have to be appointed as per the 1996 Act also recorded the fact that the appellant therein joined issues and the Hon'ble Supreme Court expressed no opinion on the rival contentions of the parties. The learned Additional District Judge, 7th Court at Alipore rightly noticed the fact that the Hon'ble Supreme Court in Sukhwant Rai (supra) did not express any opinion on the aforesaid rival contentions of the parties. 4 The learned Additional District Judge after noticing the provisions of Section 2(c), 21, 22, 23 and 31(4) of the Arbitration Act, 1940 was right in observing that the learned Additional District Judge was competent to entertain the application and shall have the jurisdiction over the arbitration proceeding. This Court does not find any infirmity in the order impugned warranting interference under Article 227 of the Constitution of India. With the above observations this civil revision application stands disposed of. (Hiranmay Bhattacharyya, J.)