Delhi High Court India Supplies & Exports Co. Pvt. Ltd. vs Union Of India on 30 October, 1990 Equivalent citations: 1991(1)ARBLR144(DELHI), ILR1991DELHI169, 1991RLR51 JUDGMENT D.P. Wadhwa, J. (1) This is a petition under Sections 8 and 20 of the Arbitration Act, 1940 (for short the 'Act'). (2) Under a contract, the petitioner was to supply certain quantity of tents to the respondent. The contract was governed by the General Conditions of Contract. Clause 16 thereof provided as under : "IN the even of any question, dispute or difference arising under these conditions oi any special conditions of contract, or in connection with this contract, (except as to any matters the decision of which is specially provided for by these or the special conditions) the same shall be referred to the sole arbitration of the Secretary, Ministry of defense, Department of defense Supplies or of some other person appointed by him. It will be no objection that the arbitrator is a Government servant, that he had to deal with the matters to which contract relates or that in course of his duties as government servant, he has expressed views on all or any of the matters in dispute or difference. The award of the arbitrator shall be final and binding on the parties of this contract.................." This constituted arbitration agreement between, the parties. (3) Disputes and differences having arisen, the petitioner sent a notice dated 22111988 calling upon the Secretary, Ministry of defense, to enter upon the reference as a person named in the arbitration agreement or appoint some other person within a period of 15 days from the date of receipt of the notice. The respondent failed to do so. This led to the filing of the present petition on 2011988. (4) On notice being issued, the respondent filed its reply. Apart from controverting the claims of the petitioner, it stated that after the receipt of the notice dated 22111988 from the petitioner immediate steps were taken to appoint an Arbitrator and by letter dated 2931989 Brig. R. K. Mehra was appointed arbitrator and this fact was duly communicated to the petitioner. it appear, the Arbitrator was appointed after receipt of the notice of these proceeding upon the respondent, as on 3031989 counsel for the respondent appeared in court and stated that an Arbitrator had already been appointed in the case. This did not satisfy the petitioner and it asserted that after the expiry of a period of 15 days, the respondent could not appoint the Arbitrator and that jurisdiction to appoint an Arbitrator now lay with the court. Section 8 of the Act is as under : "8. (1) In any of the following cases (a) where an arbitration agreement provides that the reference shall be to one or more arbitrators to be appointed by consent of the parties, and all the parties do not, after differences have arisen, concur in the appointment or appoints; or (b) if any appointed arbitrator or umpire neglects or refuses to act, or is incapable of acting, or dies and the arbitration agreement does not show that it was intended that the vacancy should not be supplied, and the parties or the arbitrators, as the case may be, do not supply the vacancy; or (c) where the parties or the arbitrators are required to appoint an umpire and do not appoint him; any party may serve the other parties or the arbitrators, as the case may be with a written notice to concur in the appointment or appointments or in supplying the vacancy "(2) If the appointment is not made within fifteen clear days after the service of the said notice, the court may on the application of the party who gave the notice and after giving the other parties an opportunity of being heard, appoint an arbitrator or arbitrators or umpire, as the case may he. who shall have award as if he or they had been appointed by consent of all parties." (5) As noted above, the present petition is both under Sections 8 and 20 of the Act. Such a petition, to my mind, is not maintainable under both these sections as a petition under Section 20 can be filed by a person who does not choose to proceed under Chapter Ii of the Act. Section 8 falls under Chapter Ii of the Act. (6) Mr. Wali, learned counsel for the petitioner submitted that the appointment of the Arbitrator by the respondent was not legal, In support of his submission, he referred to two decisions of the Punjab and Haryana High Court : (i) in Banarsi Dass Mittal vs. Housing Board, Haryana and 2 others, Alr 1988(1) 171; (1) and (ii) Union of India and another vs. M/s. Amarnath Aggarwal Construction Pvt. Ltd., Alr 1988 (2) 337. (2) These two cases would appear to support the contention raised by the petitioner that since the respondent did nut appoint the Arbitrator within the period of 15 days after receipt of the notice, it had forgone its right to do so, and that now it was for the court to exercise its jur