ORDER
Dr. M.K. Sharma, J.
1. The present appeal under Section 39 of the Arbitration Act, 1940 is directed against the judgment and order dated 8th August, 1997 whereby the Additional District Judge dismissed the objections of the appellants and made the award in question a rule of the court. In respect of the disputes arising between the parties, namely, the appellants and the respondent No.1, the same were referred to the named arbitrator, who entered upon the reference on 27th September, 1989 and passed his award on 15th December, 1989. The aforesaid award was filed in the court of the Additional District Judge, as against which objections were filed by the appellants herein. The aforesaid objections were taken up for consideration and in the light of the records of the case; the Additional District Judge dismissed the objections and made the award a rule of the court.
2. I have heard the learned counsel appearing for the appellants whose only plea was that reference to the arbitrator by the respondent No.1 was wholly unilateral without any knowledge and intimation to the appellants and, therefore, the said reference was bad in law. In order to appreciate the contention of the counsel appearing for the appellants, I have considered the records and also have perused the contents of the award as also the impugned order passed by the Additional District Judge.
3. Reference was made to Sh. B.R. Tandon, Advocate in terms of the arbitration clause between the parties as appearing from agreement-dated 18.5.1986. It transpires there from that Sh.B.R. Tandon, Advocate is a named arbitrator in the agreement itself wherein it stipulated that in case there is any dispute between the parties, a reference is to be made to the said named arbitrator. Thus, reference of the disputes arising between the parties was made to the named arbitrator in terms of the arbitration clause between the parties. If the arbitration agreement names the person to whom the reference is to be made in case of disputes between the parties, reference can be made to said arbitrator by any of the parties and in the event of such a reference, the provisions of Sections 8 and 20 of the Arbitration Act are not attracted. Besides, on perusal of the records, I find that although a plea of the aforesaid nature was raised in the reply filed, no such plea was argued before the arbitrator as would be apparent from a reading of the contents of paragraph 4 of the impugned order. The only submission of the counsel appearing for the appellants was that the arbitrator has miscomputed himself in the proceedings which is clear from the records. The nature of misconducts were also argued before the Additional District Judge, who on consideration of the same found that all the afore-said objections had no merit at all. In the memorandum of appeal filed in this court also no such plea was raised by the appellants. Thus, it is apparent that such a plea has been raised by the appellants for the first time at the time of arguments of the present appeal.
4. Counsel also relied upon the decision of this Court in National Small Industries Corpn. Vs. National Metal reported in 1981 RLR 337. A perusal of the said decision would indicate that the facts of the two cases are distinguishable. In the aforesaid reported decision the arbitration clause thereof is quoted in paragraph No.2. The arbitrator was not a named arbitrator and the disputes were to be referred to arbitration. In view of the aforesaid facts this court held that if a single arbitrator is to be appointed and the opponent does not concur, then party giving notice cannot unilaterally refer but must move Court under Section 8 and cannot seek assistance of Section 9 of the Arbitration Act. The said decision, therefore, is of no assistance to the plea raised herein.
5. Reference was also made to the decision of this court in Avn Tubes Ltd. Vs. Bharatia Cutler Hammer Ltd. reported in 1992 RLR (DB) 89. I have considered the facts of the said case also. On consideration of the facts of the said case it is apparent that the said case is also distinguishable on the facts. In the said case, only one party was given the right to go in for arbitration and the court held that the said clause is void. No such plea is also raised in the present case that the arbitration clause is void in any manner and, therefore, the said decision has no application to the facts and circumstances of the present case. Here is a case where arbitration clause was incorporated in the agreement in terms of which all disputes arising between the parties were to be referred to the sole arbitration of the named arbitrator. Therefore, when disputes have arisen between the parties, one party to the agreement has taken resort to the arbitration clause in the agreement and referred the disputes to the named arbitrator on the basis of which the arbitration proceeding continued and the award came to be passed and published.
6. The only ground that was raised before the trial court was that the arbitrator has miscomputed himself in conducting the proceedings which plea was found to be unfounded. In my considered opinion, there is no merit in this appeal. The appeal stands dismissed but without any costs.