Gauhati High Court
Union Of India (Uoi) vs Bhaskar Construction Co. And Anr. on 5 December, 2002
Equivalent citations: 2003(2)ARBLR180(GAU)
Author: Amitava Roy
Bench: Amitava Roy
JUDGMENT Amitava Roy, J.
1. Common questions of law plead to be answered in the above two revision petitions. Those were heard analogously and by this common judgment and order, I propose to dispose of both the petitions.
2. We heard Mr. S.C. Shyam, learned Additional Central Govt. Standing Counsel for the petitioner and Mr. S.R. Sen, learned senior counsel assisted by Mrs. P.D.B. Baruah for the respondent. The factual foundation has to be laid to appreciate the rival contentions of the parties.
3. The Civil Revision Petition No. 16 (SH) of 2001 is directed against the judgment and order dated 24.8.1999 passed by the learned Assistant to Deputy Commissioner, Shillong in (Arb.) Misc. Case No. 36(1) of 1995 and the judgment and order dated 2.3.2001 passed by the learned Additional Deputy Commissioner, Shillong in Misc. Civil Appeal No. 6(1) of 1999. The petitioner, Union of India in the present revision is represented by the Chief Engineer (AF), Air Force Military Engineer Service, Shillong Zone. The respondent, which is a registered MES Contractor, was allotted the works for construction of Married Accommodation for Officers, Airmen and MES Key Personnel at 10 Wing Borjar and an agreement of contract was executed between the President of India represented by the Chief Engineer, Shillong Zone on 11.12.1987. Paragraph 7(b) of the agreement contains the arbitration clause. Such clause being relevant is extracted herein below for ready reference :
"(b) To execute all the work referred to in said document upon terms and conditions contained of referred to therein and as detailed in General Summary below and to carry out such deviation as may be ordered vide contract Condition 70 of IAFW-2249 up to maximum of ten per cent and further agree to refer all disputes as required by Condition 70 of IAFW-2249 to sole arbitration of Engineer Officer to be appointed by Engineer-in-Chief or in his absence the office officiating as Engineer-in-Chief Army Headquarters, New Delhi whose decision shall be final, conclusive and binding."
4. The respondent-opposite party started the work and completed the same on 31.12.1991. According to the petitioner, the final bill of the work was signed by the respondent on 7.4.1992 with a remark "signed under protest". In the meantime, certain disputes arose between the parties in the matter of execution of the allotted works and the respondent by letter dated 26.2.1994 requested the petitioner to appoint an Arbitrator in accordance with Condition 70 of IAFW-2249 forming a part of the contract agreement and also under Sections 8 and 20 of the Arbitration Act, 1940 (hereinafter referred to as "the Act"). The case of the petitioner is that, pursuant to the said letter the process for appointment of an Arbitrator was initiated, but before completion of the process, the respondent filed an application under Sections 8 and 20 of the Act, in the Court of the Assistant to the Deputy Commissioner, Shillong, inter-alia, for appointment of an Arbitrator by the Court. The application was registered as Misc. Case No. 36(T) of 1995. The petitioner, however, continued with the process initiated on receipt of the letter dated 26.2.1994 and appointed Shri M.M.S. Nanda, Chief Engineer as the sole Arbitrator, Thereafter, on the retirement of Shri M.M.S. Nanda, the petitioner in his place appointed Shri G.S. Mehta as the sole Arbitrator in accordance with the provisions of the arbitration agreement. The petitioner has maintained that the sole Arbitrator in due course issued notices to both the parties on 25.5.1998 and the respondent also participated in the arbitration proceeding.
5. Before the learned court below, the petitioner also submitted its written show cause contending inter alia, that the application filed by the respondent was not maintainable in law inasmuch as, Sections 8 and 20 of the Act were not attracted in the facts of the case. They also asserted, that as the respondent had participated in the arbitration proceeding before the sole Arbitrator Shri G.S. Mehta, the reliefs sought for, were not tenable.
6. The learned Assistant to the Deputy Commissioner, Shillong by the impugned judgment and order dated 24.8.1999 held that the petitioner did not appoint the Arbitrator within time and also did not file the original arbitration agreement in the Court. It further held that, the failure on the part of the petitioner to appoint an Arbitrator within the period of 15 days from the date of receipt of the notice issued by the respondent, amounted to non-compliance of the provisions of Section 8(2) of the Act, and therefore, referring to the decision of the Apex Court in Nandyal Co-operative Spinning Mills Ltd. v. K.V. Mohan Rao, (1993)2 SCC 654=1993(1) Arb. LR 469 (SC) held that the petitioner had waived its right to appoint the Arbitrator. It, therefore, concluded that the appointment of Shri G.S. Mehta as the sole Arbitrator was illegal and null and void. It, thus, set aside the said appointment and appointed Brigadier S.S. Vadhi, retired Chief Engineer, MES as the sole Arbitrator as suggested by the respondent and ordered, that all disputes/claims between the parties be referred to him.
7. The petitioner preferred an appeal against the said order in the Court of the Additional Deputy Commissioner, Shillong and the said appeal was registered as Misc. Civil Appeal No. 6(T) 1999. The learned lower appellate Court by the impugned judgment and order dated 2.3.2001 concurred with the findings and conclusions of the learned Assistant to the Deputy Commissioner, Shillong and held that as the petitioner had failed to appoint an Arbitrator after receipt of the notice, the Trial Court had the power to appoint an Arbitrator under Section 8(2) of the Act. The appeal, was, thus dismissed. It is in this background, that the petitioner is before this Court.
8. The petitioner in Civil Revision Petition No. 3(SH) of 2002 has challenged the judgment and order dated 10.9.1999 passed by the learned Assistant to the Deputy Commissioner, Shillong in (Arb.) Misc. Case No. 37(T) of 1995 and the judgment and order dated 7.12.2001 passed by the learned Additional Deputy Commissioner, Shillong in F.A.O. No 2(T) of 1999.
9. The respondent had entered into a contract with the petitioner for construction of an office accommodation for DAD at Guwahati and it completed the work on 30.6.1993. Thereafter the respondent issued a notice under Sections 8 and 20 of the Act for appointment of an Arbitrator under Condition 70 of IAFW-2249 for referring to Arbitrator appear as a claim as mentioned therein. While the matter was under process, in response to the said notice, the respondent issued another notice dated 10.10.1994 adding one more claim to those in the earlier notice inter alia mentioning therein that if no Arbitrator was appointed within 15 days from the date of receipt of the notice, it would approach the Court for appointment of an Arbitrator. Thereafter, the respondent filed an application under Sections 8 and 20 of the Act in the Court of the Assistant to the Deputy Commissioner, Shillong praying for an order to direct the petitioner to produce/file the original arbitration agreement in Court and for a further order directing it to refer the disputes to arbitration of a sole Arbitrator or an Engineer officer as per terms of the arbitration agreement and on failure to do so, to appoint a sole Arbitrator as the Court deemed fit and proper. An application under Section 41 of the Act was also filed, praying for interim reliefs. The learned trial Court by order dated 6.6.1995 granted an ad-interim injunction as prayed for; and issued notice on the petitioner for filing its show cause.
10. Accordingly, the petitioner filed its show cause wherein it was contended inter alia that the petition was not maintainable in law. It was averred therein, that it had never refused to appoint an Arbitrator and that it had already initiated the process for the purpose. The other contentions with regard to entitlement of the respondent arising of the contract being of no relevance to the issue in hand, those are, for the sake of brevity, not referred to herein.
11. During the pendency of the proceeding before the learned trial Court, the petitioner appointed Brigadier G.R. Sud as the sole Arbitrator and the trial Court was apprised of the same by an application filed on 20.2.1996. The respondent, thereafter, filed another application dated 23.2.1996 asserting that as the petitioner had failed to appoint a sole Arbitrator in terms of the arbitration clause within the time specified in the notices, it had relinquished its right to appoint the Arbitrator. In the application, the respondent furnished a list of persons whom it suggested to be the Arbitrators and prayed before the Court for an order to stay the proceeding before Brigadier C.R. Sud and to appoint one Arbitrator from amongst the persons furnished in the list.
12. The learned trial Court by order dated 4.4.1996 restrained the sole Arbitrator appointed by the petitioner from proceeding with the arbitration and eventually by the impugned judgment and order dated 10.9.1999 appointed Brig. S.S. Virdhi (Retd.) as the sole Arbitrator for adjudication of the disputes between the parties. It is the case of the petitioner that though the case was finally heard on 16.4.1996, the judgment was delivered on 10.9.1999 and it became aware of the same only after receiving a copy of the letter of appointment of the Arbitrator on 27.9.1999.
13. The learned Trial Court in its judgment and order inter alia, held that the petitioner having failed to appoint the Arbitrator within the period stipulated for the purpose, it had waived its right to appoint the Arbitrator and therefore, the Court had the power to appoint an Arbitrator under Section 8(2) of the Act. The learned trial Court in coming to the said conclusion, also relied on the decision of the Apex Court in Nandyal Co-operative Spinning Mill Ltd. v. K.V. Mohan Rao (supra). On the same reasoning, the learned Trial Court held that the appointment of Shri G.R. Sud as the Arbitrator was illegal, null and void. It, therefore, appointed Brigadier S.S. Virdhi (Retd.) as the sole Arbitrator and further ordered that all disputes between the parties be referred to him for adjudication.
14. Being aggrieved, the petitioner carried the matter in appeal, to the Court, the Additional Deputy Commissioner, Shillong and the appeal was registered as F.A.O. No. 2(T) of 1999. The learned lower appellate Court after hearing the parties upheld the judgment and order of the learned Trial Court holding that the Court had the jurisdiction to appoint an Arbitrator under Section 8 of the Act and that the appointment of Brigadier G.R. Sud was rightly set aside being illegal. The learned lower appellate Court referred to two decisions of this Court rendered in Civil Revision No. 26(SH), 1999 and Civil Revision No. 25(SH)/1999 and concluded that there was no bar in the appointment of a retired Engineer officer as done in the instant case. With regard to the claims which the petitioner contended, though not arbitrable had been referred to arbitration by the learned Trial Court, the learned lower appellate Court held that even if all the claims were referred to the Arbitrator, it would be in his wisdom to decide finally on such claims. The appeal, was thus, dismissed.
15. Mr. Shyam, learned counsel for the petitioner has argued that in the admitted facts of the case, neither Section 8 nor Section 20 of the Act was attracted and therefore, the petition filed by the respondent before the learned Trial Court under the said provisions of law was on the face of the record not maintainable in law and on facts. He urged that in any view of the matter, in terms of the arbitration clause, as per Condition 70 of IAFW-2249, the appointment of the Arbitrator has to be in accordance therewith and therefore, even assuming that the Court had the jurisdiction to appoint an Arbitrator, in the facts of the present case, the power has to be exercised as contemplated under the arbitration clause and any appointment in contravention thereof would be illegal, null and void. He, therefore, urged that in any case, the appointment of Brigadier S.S. Virdhi (Retd.) was beyond the scope of the arbitration clause and on that ground alone, the impugned judgments and orders are liable to be set aside. The learned counsel submitted that it is not a case, where the petitioner had not appointed the Arbitrator as required under the arbitration clause and the delay if any, in the matter is not so material so as to render the appointment illegal. Having regard to the fact, that the petitioner is an impersonal machinery, referring to the arbitration clause, the learned counsel contended, that the purpose of appointing a Service Engineer was to minimise the expenditure relatable to the arbitration proceeding and going by the language used in the arbitration agreement. It was clear that the parties are agreed to refer the disputes to the sole arbitration of a named Arbitrator. He argued that the expressed "named Arbitrator" signified an Arbitrator identified by name, office, designation or class and therefore, the provision in the arbitration agreement to appoint an "Engineer Officer" amounts to one for a named Arbitrator. He, therefore, argued that considering the express provision for appointment of a named Arbitrator in the arbitration clause, the learned Court below had no jurisdiction to appoint an Arbitrator other than the one contemplated by the arbitration agreement. According to him, the learned Courts below have totally misconstrued and misinterpreted Sections 8 and 20 of the Act and the impugned judgment and orders are vitiated by gross illegalities and error of jurisdiction rendering the same not sustainable in law. To substantiate his arguments, the learned counsel for the petitioner placed reliance on the following authorities.
(i) The Union of India v. Dev and Company, Shillong, AIR 197S Gauhati 91.
(ii) Food Corporation of India v. Salam Traders, 1998(2) RAJ 510 (Ker)=1998(2) Arb. LR 374 (Ker).
16. Per contra, Mr. Sen, learned Senior counsel for the respondents while supporting the impugned judgment and orders argued that it is incomprehensible in law, that on the failure of the Engineer-in-Chief to appoint an Arbitrator in terms of the arbitration agreement, any of the parties thereto, would be left without any remedy in law. He strenuously contended that the authority in charge of making the appointment of the Arbitrator having failed to act inspite of repeated requests in writing to appoint an Arbitrator within the time stipulated therein, it was permissible on the part of the respondent to approach the appropriate Court with an application under Sections 8 and 20 of the Act and therefore, the applications filed by the respondent in the case in hand are clearly maintainable in law and on facts. He argued, that having regard to the content and reach of Section 20 of the Act, it is idle to contend that the Court is powerless to appoint an Arbitrator beyond those contemplated by the arbitration agreement. He argued that the arbitration clause did not require the reference of the disputes to a 'named Arbitrator' and by no stretch of imagination, the expression "Engineer Officer" can be interpreted to signify "named Arbitrator" as sought to be contended on behalf of the petitioner. Drawing the attention of the Court to the decisions rendered by this Court in Union of India v. L.M. Da, CR(P) No. 25(SH)/97 and Sons and Union of India v. Goel Trading Co., CR(P) No. 26(SH)/97 the learned counsel argued that the special leave petition preferred by the Union of India against the above two decisions had been dismissed in limine by the Apex Court and as the questions involved therein were the same, as in the case in hand, it was not open or the petitioner to once again urge those before this Court. The learned counsel in support of his argument placed reliance on the following decisions :
(i) Nandyal Co-op. Spinning Mills Ltd. v. K. V. Mohan Rao (supra),
(ii) G. Ramachandra Reddy and Co. v. Chief Engineer, Madras Zone, Military, Engineering Service, AIR 1994 SC 2381=1994(2) Arb. LR 61 (SC)
(iii) Union of India and Ors. v. D. Khosla and Co., AIR 2001 J&K 48
(iv) Union of India v. Prahallad Moharana, AIR 1996 Orissa 19=1996 (Suppl.) Arb. LR 267 (Ori.).
(v) SPM Engineers Ltd. v. Guwahati Municipal Corporation, AIR 2002 Gauhati 114=2003(1) Arb. LR 403 (Gau.).
17. In reply, Mr. Shyam learned counsel for the petitioner argued that the dismissal of the special leave petition by the Apex Court without a speaking order is only a dismissal simpliciter and would not amount to declaration of law by it. The learned counsel placed reliance on a decision of the Apex Court rendered in Saurashtra Oil Mills Association Gujarat v. State of Gujarat and Anr., AIR 2002 SC 1130 in this regard.
18. Before taking up the rival contentions advanced, it would be profitable to refer to the authorities called at the bar.
19. In Union of India v. Dev and Company, Shillong (supra), the question which fell to be answered by this Court was whether the Assistant to the Deputy Commissioner, Shillong had the jurisdiction to entertain the application filed by the respondent therein under Section 8 of the Arbitration Act, 1940. The arbitration clause involved therein required the Additional Chief Engineer CPWD to appoint a sole Arbitrator to whom the disputes between the parties reliable to the contract were to be referred for arbitration. Pursuant to the said clause, one BS Sekhon was appointed as the Arbitrator. The respondent being dissatisfied with the appointment, submitted an application before the Assistant to the Deputy Commissioner, Shillong praying for an order to set aside the appointment. The prayer having been granted, the petitioner filed an appeal in the Court of the Additional Deputy Commissioner, Shillong. In the meantime, another person was appointed as the sole Arbitrator which was also not acceptable to the respondent and on an application filed by him, the said appointment was also disapproved by the Court below and one D.P. Sharma, Superintending Engineer, P.W. Deptt., Govt. of Meghalaya was appointed as the Arbitrator. The matter reached this Court thereafter. This Court on examining the scope and ambit of Section 8 of the Arbitration Act, 1940 held that having regard to the arbitration clause, Sub-section (1) of Section 8 was not attracted and that, therefore, Sub-section (2) thereof was also not applicable. It was further, held that as the arbitration clause did not provide for appointment of an Arbitrator or Arbitrators by consent of the parties as envisaged under Section 8(1)(a) of the Act, the question of appointment of an Arbitrator within 15 days after serving of notice as contemplated under Section 8(2) did not arise and consequently, the power of the Court to appoint an Arbitrator or Arbitrators of umpire could not be involved. This Court after noticing that the prayers made in the application to be filed, were not in terms of Section 20 of the Act, held that the impugned order could not be saved under that provision of the Act as well.
20. In Food Corporation of India v. Salam Traders (supra), also under the same Act, their Lordship of the Kerala High Court were confronted with a question whether when a person is authorised to appoint an Arbitrator and he does not make such appointment, the aggrieved party can come to the Court under Section 8 of the Arbitration Act, 1940. The arbitration clause provided therein, that the disputes and differences arising out of the concerned agreement were to be referred to the sole arbitration of any person appointed by the Managing Director of the Food Corporation of India. On an analysis of the arbitration clause, their Lordships held that the same did not provide for appointment of a person as an Arbitrator by the consent of both the parties and therefore, held that Section 8(1)(a) of the Act was not applicable as the power to nominate the Arbitrator was given to a designated person under the arbitration clause. While arriving at the conclusion, their Lordships referred to three decisions of the Apex Court rendered in Harbans Singh Tuli & Sons Builders (P) Ltd. v. Union of India, (1992) 2 SCC 225=1992(2) Arb. LR 93, Union of India v. Prafulla Kumar, AIR 1979 SC 1457 and Dhanrajamal Gobindram v. Shamji Kalidas & Co., AIR 1961 SC 1285 Several decisions of various High Courts were also referred to. This case, however, deals exclusively with the applicability of section of the Act.
21. Next, the decisions relied upon by the learned counsel for the respondent need to be referred.
In Nandyal Co-op. Spinning Mills Ltd. (supra), the applicability of Section 8(1)(a) of the Arbitration Act, 1940 (hereinafter referred to as "the Act") was being examined by the Apex Court vis-a-vis the relevant arbitration clause whereunder the disputes were to be referred to the sole arbitration of the person appointed by the administrative head of owner. The respondent therein in terms of the arbitration clause requested the administrative head to appoint an Arbitrator within 15 days from the date of receipt of the letter making the request. When, even after receipt of the request there was no response, he filed an application before the Court to appoint an Arbitrator. After the notice was issued to the applicant, an Arbitrator was appointed. The Court after hearing both the parties, appointed another person as the Arbitrator. On the aspect of the applicability of Section 8(1)(a) of the Act in the above factual background, the Apex Court after noticing that no action had been taken by the appellant in response to the notice making the request to appoint an Arbitrator, held that on expiry of the said period, the administrative head denuded his power under the arbitration clause to appoint the Arbitrator and that the Court got the jurisdiction to appoint an Arbitrator in place of the contract by operation of Section 8(1)(a) of the Act. It was further held that, had the contract provided for appointment of a named Arbitrator and the named person was not appointed, the only remedy left to the contracting party would have been to file a suit. However, as the contract did not expressly provide for the appointment of a named Arbitrator or as the power was given to the administrative head of the appellant to do so, on the failure of the administrative head to appoint the Arbitrator within the stipulated period of 15 days, it was within the right of the respondent to approach the Court for appointment of an Arbitrator.
22. The Apex Court in G. Ramachandra Reddy and Co. (supra) was examining the question whether the failure of the person or authority under the arbitration clause to appoint an Arbitrator, inspite of requests made by a party to the said agreement conferred the right on the letter to invoke the jurisdiction of the Civil Court under Section 20(4) of the Act, and further, whether the Court had the jurisdiction to appoint the Arbitrator of its choice. Under the relevant arbitration clause, Engineer-in-Chief was to appoint an Arbitrator to adjudicate upon the disputes that had arisen between the parties thereto. The appellant requested the respondents to act in terms of the arbitration clause, but as there was no response, the appellant filed a suit under Section 20 of the Act requesting the Court to appoint the Arbitrator. While answering the question posed, the Apex Court held that the Court should endeavour that the contract should always be given effect to though the contracting party had failed to act according to the contract. In the presence of any named Arbitrator, it would be open to the contracting party to agree for an appointment of an Arbitrator by agreement even after proceedings are laid in the court under Section 20 of the Act and in absence of any such agreement, the Court gets the jurisdiction and power to appoint an Arbitrator. The Apex Court in coming to the said conclusions, recalled its earlier decision in Nandyal Co-op. Spinning Mills Ltd. (supra).
23. In Union of India v. D. Kliosla and Company (supra), the issue before the High Court of Jammu and Kashmir was that if the competent authority in the arbitration clause fails to appoint an Arbitrator, whether it forfeits its right to do so, thus making it permissible for the Court, if approached, by the party aggrieved, to appoint an Arbitrator of its choice. Under Clause 70 of the contract agreement in that case, the Director General, Border Roads Organisations, Army Headquarter, Kashmir House, New Delhi as the designated authority was to appoint the Arbitrator for referring the disputes to arbitration. The said authority inspite of requests made in that regard failed to appoint an Arbitrator within the stipulated time and an application was, therefore, filed before the Court by the respondents therein for appointment of an Arbitrator. During the pendency of the application, an Arbitrator was appointed by the appellant. The Court, however, revoked the said appointment and appointed another person as the Arbitrator. The contention raised before the High Court of Jammu and Kashmir was that the Court had no power to appoint an Arbitrator and that too, by cancelling the appointment of the Arbitrator appointed by a competent authority, and their Lordships of the said High Court in the facts of that case, held that as per Section 8 of the Act, the designated authority having failed to appoint an Arbitrator in terms of Clause 70 of the contract agreement, the Court had the power to appoint an Arbitrator. It held that even assuming that Section 8 was not applicable to the facts of the case, it could not be accepted that under Clause 70 of the contract agreement, the designated authority could sit over the request for appointment for an unreasonably long period and that in such a situation, the Court would be powerless.
24. One of the points which arose for consideration in Union of India and Anr. v. Prahlad Maharana (supra), was whether the Court is competent to appoint an Arbitrator of its own choice when the parties agreed to appoint an Arbitrator in the written agreement. There also, the authority had failed to appoint an Arbitrator inspite of the requests made in terms of the arbitration agreement. His Lordship of the Orissa High Court while referring to the decisions of the Apex Court rendered in Nandyal Co-op. Spinning Mills Ltd. (supra) and in G. Ramanchandra Reddy and Co. (supra), held that the failure on the part of the appellant to appoint an Arbitrator in terms of the agreement had resulted in the abdicating of the right of the appellant to make such appointment and that, therefore, the Court was competent to appoint the Arbitrator of its choice. While noticing the scope of an application under Sections 8 and 20 of the Act, His Lordship further held that power under Section 20(4) of the Act and that under Section 8 thereof, were distinct powers prescribed for meeting different situations and there is no reason to hold that both the sections overlap each other and to give the real effect to serve better the purpose of arbitration, the provisions of both the sections can be resorted to independently.
25. In SPM Engineers Ltd. v. Guwahati Municipal Corporation (supra), the Commissioner, Guwahati Municipal Corporation, who under the relevant arbitration clause was to act as the Commissioner having failed to enter upon the reference after being requested by the applicants, the letter approached this Court for appointment of an Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996. This Court in the facts of that case being satisfied that the Commissioner had failed to enter upon the reference as required under the arbitration clause, appointed an Arbitrator under the above provision of the 1996 Act referred to above.
The applications before the learned trial Court in the relevant proceeding from which the present petitions arise having been filed under Sections 8 and 20 of the Arbitration Act, 1940, this decision, in my view, is not relevant for the purpose of resolving the controversy. Sections 8 and 20 of the Act, form a part of the scheme thereof, and as the question to be answered in the instant petition is, whether the learned trial Court had the authority and jurisdiction to appoint an Arbitrator of its choice, thereunder, on the failure of the authority designated in the arbitration agreement, applicability of Section 11(6)(c) of 1996 Act is not considered relevant for the present purpose.
26. A survey of the decisions referred to above, therefore, reveals that if there is an arbitration agreement providing for appointment of an Arbitrator by a authority mentioned therein, and if inspite of a request made to the said authority, no such appointment is made within the stipulated time as referred to in the request, the said authority abdicates its power under the arbitration agreement to appoint the Arbitrator. In such a situation, if a party aggrieved, approaches a Court of law with an application under Sections 8 and 20 of the Act and the parties to the agreement do not still concur in the matter of such appointment, the Court can appoint an Arbitrator of its choice. However, if in the arbitration agreement, the Arbitrator is named, then in case of any dispute relatable to such appointment, the remedy of the party aggrieved is to file a suit. Sections 8 and 20 of the said Act have their existence independent of each other and a party to the arbitration agreement may file an application under Section 20 of the said Act even without availing his remedy under Section 8 thereof. In a given fact situation, even if Section 8 of the Act is not attracted, the Court can invoke its power under Section 20 thereof, if the conditions adumbrated therein exist. In essence, therefore, unless the parties to the arbitration agreement have concurred in the matter of appointment of an Arbitrator, and the Arbitrator has been named in the agreement, the Court is not powerless to appoint an Arbitrator of its choice, even if in a case, where a third party is required to appoint an Arbitrator, fails to do so, within the time mentioned by one of the parties requesting the said authority to make the appointment.
27. Turning to the rival contentions of the parties, it would be appropriate to deal, at the outset, with the controversy relating to 'named Arbitrator' as referred to above. Under the arbitration agreement, in the present case, the Engineer-in-Chief is the competent authority to refer the disputes to the sole arbitration of a Engineer Officer to be appointed by him. The question is whether the arbitration agreement as above amounts to an agreement to refer the disputes to a "named Arbitrator" of the Engineer-in-Chief is granted the liberty to appoint any person who is an Engineer Officer.
28. The word "name" has been defined in Black's Law Dictionary as hereunder :
"Name. The designation of an individual person, or of a firm or corporation.
A person's "name" consists of one or more Christian or given names and one surname or family name. It is the distinctive characterization in words by which one is known and distinguished from others, and description, or abbreviation is not the equivalent of a "name".
29. In Words and Phrases, the word name has been construed as hereunder :
"The sole function of a "name" is to identify the person whom it is intended to designate. Department of Public Assistance of Com. of Pa-Vs.-Reustle, 56 A 2d 221, 223, 358 Pa. 111.
The "name" of a person is the distinctive characterization in words by which he is known and distinguished from others, and description, or abbreviation, is not the equivalent of a "name". Putnam-Vs-Bessom, 197 N.E. 147, 148, 291 Mass. 217."
It is, thus, evident from the above, that the function of a "name" is to identify the person whom it is intended to designate. The expression "named Arbitrator" for the present purpose, thus has to be construed in the context in which the same has been used. In my view, the same would receive a meaningful interpretation, if it is so understood that by the use thereof a person is clearly identified so much so, that nothing more is required to be done by the parties or the authority empowered to refer the disputes, to make any further exercise for locating the Arbitrator. In other words, if the arbitration agreement mentions a "named Arbitrator", he should be identifiable by a name, designation or office. Reference of such a person by class, description or in the generic sense would not amount to naming the Arbitrator in the arbitration agreement.
30. In the instant case, the Engineer-in-Chief has been empowered to appoint an Engineer Officer without specifying the person to be appointed by name, designation or office and, therefore, in my view, no Arbitrator had been named in the arbitration agreement. In that view of the matter, there cannot be a restriction on the power of the Court to limit its choice of an Arbitrator and confine the appointment only to the Arbitrator named in the arbitration agreement. Similarly, the embargo contemplated by the Apex Court in Nandyal Co-op. Spinning Mills (supra), would not be attracted, and the party aggrieved, need not to be taken the remedies in a civil suit.
31. Coming to the aspect of applicability of Section 8 of the 1940 Act, in the case in hand, it is noticeable that the attention of the Apex Court while rendering the decision in Nandyal Co-op. Spinning Mills Ltd. (supra) was not drawn to its earlier decision in Harbans Singh Tuli & Sons Builders (P.) Ltd. v. Union of India (supra). In the said case, it was held that Section 8(1)(a) of the Act was not applicable as the parties to the arbitration agreement had agreed that the Arbitrator has to be appointed by a person designated in the agreement. In that case also, the Engineer-in-chief, Army Headquarter, New Delhi was authorised to appoint an Arbitrator not named in the arbitration agreement. It was held that in such a situation, recourse to Section 8(1)(a) or 1(b) cannot be had and one has to fall back on Section 20(4) of the Act. Considering the present arbitration agreement and the language used therein, I feel guided by the decision of the Apex Court rendered in Harbans Singh Tuli & Sons Builders (P) Ltd. (supra). In my view, therefore, Section 8 of 1940 Act is not attracted in the facts and circumstances of the case in hand.
32. The matter does not end here. The applications had been filed under Section 20 of the Act as well. It is an admitted fact that there is an arbitration agreement and that differences had arisen between the parties to which the same applies. The learned Trial Court after affording an opportunity to the parties and after noticing that they could not agree on the appointment of an Arbitrator, appointed one of the Arbitrators provided in the list submitted by the respondent. The pleadings of the parties reveal that though belatedly, the Arbitrator was appointed by the authority mentioned in the arbitration agreement, it was not acceptable to the respondent and therefore, it is clear, that the parties did not agree to the appointment of the Arbitrator in terms of the arbitration agreement even during the pendency of the proceeding before the Court below. In terms of Section 20(4) of the Act, therefore, even if Section 8 was not attracted in the facts and circumstances of the case, the learned Trial Court had the power and authority to appoint an Arbitrator of its choice.
33. Having regard to the state of law as discussed hereinabove, and the scope and ambit of Section 20 of the Act, mere particularly, Sub-section (4) thereof, I am of the view that if the conditions prescribed thereunder are satisfied, the power of the Court to appoint an Arbitrator cannot be circumscribed to limit its choice to the Arbitrator, if any, provided by the arbitration agreement. If such a limitation is opposed on the power of the Court, it would amount to restricting the exercise of its power by imposing conditions and restraints not contemplated by the law makers. If, however, the parties have named an Arbitrator in the arbitration agreement, there would be no scope for any one of them to approach the Court under Section 20 of the Act and the remedy has to be sought for in a suit.
34. In the case in hand, the conditions precedent for exercising the power under Section 20(4) of the Act were present and therefore, the learned trial Court rightly exercised its power thereunder to appoint the Arbitrator from the list of persons furnished by the respondent. My attention has not been drawn to any material on record to suggest that the Arbitrator appointed by the Court below suffers from any disqualification rendering him illegible to be appointed as the Arbitrator. Nothing adverse against him has been pointed out to disqualify him to act as the Arbitrator in the disputes between the parties. On the other hand, the learned Court below, before making its choice, had examined, all relevant aspects of the matter and exercised its judicial discretion to make the appointment.
35. The learned lower appellate Court also appears to have approached the issue in its correct perspective and on a detailed consideration of relevant materials on record had upheld the decision of the learned Trial Court. I have carefully perused the judgments and orders of the learned Courts below and I am of the view that the same do not suffer from any error of law or jurisdiction warranting interference therewith, in exercise of the revisional power of this Court.
36. In a decision rendered by this Court in Civil Revision Petition No. 26(SH)/1997 (Union of India v. Goel Trading Company) and Civil Revision Petition No. 25(SH)/1997 (Union of India v. L.M. Das and Sons) turn on the facts involved therein and the issues that had arisen for adjudication in those cases are not the same as in the cases in hand. It is, therefore, not necessary to deal with the contentions of the parties relating thereto.
37. In the wake of the above, the revision petitions are devoid of merits. The petitioners have failed to make out a case justifying interference with the impugned judgments and orders. Accordingly, the petitions are dismissed. There would be no order as to costs.