Syed Sadat Abdul Masud, J. -
(1.) The Petitioner, Oriental Engineering & Construction Co., has made this application under Sec. 8 of the Indian Arbitration Act, 1940, for appointment of N.S. Tayebji, retired Chief Engineer, Indian Railways, or any other person as Arbitrator in respect of the disputes between the parties. The tender of the Petitioner, as subsequently modified, was duly accepted by the State of West Bengal through the office of the Superintending Engineer, Western Circle, on November 18, 1966. A formal deed of contract, being B.F. No. 2911 (ii) was executed and the Petitioner .undertook the works as contemplated by the said tender. After completion of the work the Petitioner submitted a final bill for a sum of Rs. 3,15,723 -94. The State of West Bengal raised various objections to different items in the said final bill. In the premises, disputes and differences arose between the parties and the Petitioner by the letter dated March 24, 1970, called upon the State of West Bengal to refer the disputes to arbitration under cl. 25 of the conditions of contract within a fortnight from the date of the receipt of the said letter. The letter was addressed to the Superintending Engineer, Western Circle, Public Health, Engineering Directorate, and two copies were sent to the Chief Engineer, Public Health, Engineering Directorate, Government of West Bengal, and also to the Executive Engineer, Calcutta Division, Public Health, Engineering Department, for information. By a letter dated April 7, 1970, the Superintending Engineer, Western Circle, wrote to the Chief Engineer, Public Health, Engineering Department, referring the disputes between the parties to the sole arbitration to him under the said arbitration clause. On May 16, 1.970, Oriental Engineering & Construction Co. wrote to the Superintending Engineer, Western Circle, that as the Chief Engineer did not enter or proceed with the reference within one month after the request was made by him the Petitioner appointed Sri N. S. Tayebji to be the sole Arbitrator for settlement of the disputes. - On June 11, 1970, the present application has been filed.
(2.) Mr. Sankar Ghosh, on behalf of the Petitioner, has drawn my attention to the Explanation to Sec. 9 of the Arbitration Act and has submitted that as the Chief Engineer failed to enter on the reference or to appoint his nominee within 30 days from the date when request was made to him to enter on the reference as set out in the letter of the Respondent dated April 7, 1970, the Petitioner has lawfully appointed N. S. Tayebji as the sole Arbitrator as communicated to the Respondent by their letter dated May .16, 1970.
(3.) Mrs. Banerjee, on behalf of the State of West Bengal, has contended that this application is not maintainable under Sec. 8 of the Act inasmuch as the Petitioner is bound by the arbitration clause under Sec. 4 and until the provisions of the said clause are complied with, Sec. 8 of the Act is not attracted.;