Civil Appeal Nos
2472 2473 of 1969
From the Judgment and Decree dated 26 4 1966 of the Allahabad High Court in FAFO No 44761 and 47660
R N Sachthey R B Datar Girish Chandra and Miss A Subhashini for the Appellant
R K Garg for the Respondent
The Order of the Court was delivered by UNTWALIA J These two appeals by certificate arise out of the same proceedings between the parties
The respondent company applied to the Trial Court for the filing of the Arbitration agreement under Section 20 of the hereinafter called the Act and for appointment of an Arbitrator under Section 8
The applications were allowed
An Arbitrator was appointed
The Union of India took the matter in appeals to the Allahabad High Court
The High Court has dismissed the appeal arising out of the order of the Trial Court under Section 20 of the Act and has treated the appeal arising out of Section 8 order as a revision and dismissed the same also
The Union of India has come to this Court
129 The decisions of the courts below in regard to Section 20 matter is at an end now
It was denied on behalf of the appellant that there was any Arbitration agreement
The findings of the court below in this regard could not be assailed at all
The Arbitration clause in the contract between the parties ran as follows All disputes or differences arising between the parties or their representatives and the Controller of Rationing Delhi at any time hereafter and of whatever nature arising out of or in respect of the contract shall be referred for arbitration to the Chief CommissionerDirector of Storage Ministry of Food Government of India and his decision shall be final and binding
 The post of Director of Storage Ministry of Food Government of India was abolished and no person holding that post was available for arbitration for the purpose of the arbitration clause aforesaid
The Chief Commissioner however was available but he refused to act
That led the respondent company to apply to the court under Section 8 of the Act for appointment of another Arbitrator
The argument put forward on behalf of the appellant is that when there was a named Arbitrator even though he was named by office it was not open to the court to supply the vacancy in his place under Section 81 b of the Act
We did not find any substance in this argument
The court had no power to supply the vacancy under Section 81 b only if the arbitration agreement did show that the parties did not intend to supply the vacancy
If no such intention could be culled out from the arbitration clause the court could supply the vacancy
There is a direct decision of this Court  in Ms Prabhat General Agencies etc
vs Union of India  Another1 Mr R B Datar counsel for the appellant placed the reliance upon the Full Bench Decision of Madras High Court in Badam Satayanarayanamurthi vs Badam Venkataramanamurthi  Ors2 in support of his submission that no other Arbitrator could be appointed by the court under Section 8 of the Act when the Arbitrator named in the agreement refused to act
In our opinion while considering the provisions of Section 81 b of the Act that decision is of no help to the appellant
The full Bench decision was given with reference to the corresponding provisions of 130 law contained in Schedule II of Code of Civil Procedure 1908 in paragraph 5 whereof the crucial words occurring in Section 81b of the Act were not there
The words in Section 81b are these and arbitration agreement does not show that it was intended that the vacancy should not be supplied
 For the reasons stated above we hold that there is no merit in either of the two appeals
They are accordingly dismissed with costs which we quantify at Rs 1500 
SR Appeals dismissed


Summary:
HELD 1
The Court had no power to supply the vacancy under section 81 b of the only if the arbitration agreement did show that the parties did not intend to supply the vacancy
The words in section 81 b are these and arbitration agreement does not show that it was intended that the vacancy should not be supplied
If no such intention could be culled out from the arbitration clause the Court could supply the vacancy
129 D E
Ms Prabhat General Agencies etc
vs Union of India and Anr
1971 2 SCR 564 affirmed
Badam Satyanarayanamurthi vs Badam Venkataramanamurthi AIR 1948 Madras 312 distinguished