JUDGMENT
Adarsh Kumar Goel, J.
1. This order will dispose of C.R. No. 168 of 1996 and C.R. No. 153 of 1996 which is taken on Board on request of learned counsel for the parties being a connected matter.
2. The petitioner-society entered into an agreement with the respondent-National Trading Company for construction of a road in Hafed Complex at Jatusana. Disputes arose between the parties and respondent No. 1 invoked arbitration clause i.e. Clause No. 25 of the agreement. Under the said agreement the Registrar, Cooperative Societies was to appoint an Arbitrator. Since Arbitrator was not appointed, the respondent-contractor filed a petition in the Court and vide order dated 02.08.1989, a direction was issued to the Registrar to appoint an Arbitra tor. The Arbitrator was appointed on 03.05.1990 who held certain hearings but failed to make the award within the stipulated period of four months. The contractor sought removal of the Arbitrator on his failure to render the award within time which petition was contested by the petitioner. The trial Court allowed the application of respondent No. 1 and removed the Arbitrator and directed the parries to submit a panel of Arbitrators out of which the Court could appoint an Arbitrator. The trial Court rejected the objection of the petitioner that as per the agreement, the Arbitrator could only be nominee of the registrar. Hence this revision petition.
3. Learned counsel for the petitioner contends that under Clause 25, only nominee of the registrar could be appointed and only if such a nominee refuses to function as an Arbitrator, another Arbitrator could be appointed. Reliance is placed on judgments of the Apex Court in Govt. of Andhra Pradesh v. K. Mastan Rao, AIR 1994 SC 490=1994(1) Arb. LR 177 (SC), S. Rajan v. State of Kerala and Anr., JT 1992(4) SC 312=1992(2) Arb. LR 281 (SC) and Harbans Singh Tuli and Sons Builders Pvt. Ltd. v. Union of India, JT 1992(1) SC 517=1992(2) Arb. LR 93 (SC).
4. Learned counsel for the respondent supports the judgment of the trial Court and submits that failure of the Arbitrator to render the award within the stipulated period amounts to refusal/neglect and thereafter, the Court has discretion to appoint any other Arbitrator irrespective of agreement between the parties. He relied on judgments of this Court in Shaniji Mal v. L. Sefton and Co. Ltd., Mirzapur and Anr., 1954 PLR 187, Punjab State Electricity Board, Patiala and Anr. v. Amar Nath Aggarwal, Bhatinda, 1987(1) All India Land Laws Reporter 449, Jind Co-operative Sugar Mills Ltd. v. Sunder Das and Co., 1992(1) RRR 15=1991(2) Arb. LR 310 (P&H), and Judgment of the Apex Court in State of West Bengal v. National Builders, 1994(1) Arb. LR 5 (SC).
5. Arbitration agreement between the parties is as under :
“If any question, difference or objection whatsoever shall arise in any way connected with or arising out of this instrument or the meaning or operation of any part thereof or the rights, duties or liabilities of either party or whether the contract should be terminated or has been rightly terminated or as regards the rights and obligation of the parties as a result of such termination, then save insofar as the decision of any such matter is herein before provided for and has been so decided, every such matter shall be referred for arbitration to the Arbitrator to be appointed by the RCS on a written request from the contractor/Executive Engineer who will act as such at the time of reference within 30 days of the final payment has been made or from the date a registered notice for receiving the final payment is sent to the contractor, and in case of minus bill then from the date of signing by the contractor such bill or from the date of notice to the contractor for his bill being minus, and his decision shall be final and binding and where the matter involves a claim for or the payment or recovery or deduction of money, only the amount if any, awarded in such arbitration shall be recoverable in respect of the matter so referred.
If the matter is not referred to the arbitration within the period specified above, all the rights and claims under the contract shall be deemed to have been forfeited and absolutely time barred.”
6. In National Builders’ case (supra), it was observed that in absence of any provision about procedure for filling up vacancy, Arbitrator could be appointed by the Court only unless intention of the parties is that the vacancy should not be filled up at all. Judgment in K. Mastan Rao (supra), does not deal with the case where an Arbitrator was appointed but did not complete the proceedings. Similar is the position in the case of S. Rajan (supra). In Harbans S. Tuli (supra), Clause 70 specifically provided for manner of filling up of vacancy which is not the case herein.
7. Learned counsel for the petitioner submitted that in the present case, there was no neglect or refusal to act or incapacity to act and no vacancy accrued as per the provisions of Section 8(1)(b) of the Arbitration Act, 1940 and for this reason, judgment in National Builders (supra), was distinguishable. The trial Court in para 17 has recorded a finding that the Arbitrator failed to act expeditiously and period of four months came to an end without there being sufficient justification for the delay.
8. In these circumstances, the matter was covered by the law laid down by the Apex Court in National Builder’s case (supra). In absence of any agreed procedure for filling up of vacancy, the Court was justified in appointing an Arbitrator other than the one named in the arbitration agreement as rightly held by the trial Court. In Punjab Housing Development Board v. Jit Singh, 1999(3) PLR 51, 1999(2) Arb. LR 689 (P&H) a Single Bench of this Court also held that once Arbitrator named in the agreement fails to act, in absence of further agreement for supplying vacancy, it is the Court alone which can appoint a new Arbitrator.
9. For the above reasons, both the revision petitions are dismissed.