Union of India Vs. R. B. Ch. Raghunath
Singh & Co  INSC 128 (27 July 1979)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
CITATION: 1980 AIR 103 1980 SCR (1) 128 1979
SCC (4) 21
Arbitration Act, 1940, Section 8(1)(b)
applicability of-Arbitration agreement specifies two names of arbitrators by
designation-One such designated post abolished and the second named officer
refuses to act-Whether a Court can appoint another arbitrator.
Dismissing the appeals by certificate, the
HELD: 1. The Court had no power to supply the
vacancy under section 8(1) (b) of the Arbitration Act only if the arbitration
agreement did show that the parties did not intend to supply the vacancy. The
words in section 8(1) (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].
M/s. Prabhat General Agencies etc. v. Union
of India and Anr., 2 S.C.R. 564; affirmed.
Badam Satyanarayanamurthi v. Badam
Venkataramanamurthi, A.I.R. 1948 Madras 312; distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 2472- 2473 of 1969.
From the Judgment and Decree dated 26-4-1966
of the Allahabad High Court in F.A.F.O. No. 447/61 and 476/60.
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 Arbitration Act,
1940 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
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
Commissioner/Director 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 8(1) (b) of the Act. We did not find any substance in
this argument. The court had no power to supply the vacancy under Section 8(1)
(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
M/s. Prabhat General Agencies etc. v. Union of India & Another.(1) Mr. R.
B. Datar, counsel for the appellant placed the reliance upon the Full Bench
Decision of Madras High Court in Badam Satayanarayanamurthi v. Badam
Venkataramanamurthi & Ors.(2), 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 8(1) (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
8(1)(b) of the Act were not there. The words in Section 8(1)(b) 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/-.
S.R. Appeals dismissed.