R.N.Pyne, J. - (1.) BY a writing and/or work order dated 9-4-1976/15-4-1976 being Tender No. 34/S/M of 1976-77, the petitioner and the respondent entered into a contract for construction of a road bridge over the 'Madaria Khal' at chain 1237.00 at an estimated cost and/or value of Rs. 2,69,115/-. BY another writing and/or work order dated August 9, 1976 being reference No. 1182 and Tender No. 9 (M) of 76-77 the parties entered 79 E/M into another contract for the work of putting, maintaining, removing the cross bundh, construction of diversion channel and refilling the same after construction and construction of the approach road at the site of minor road bridge at chain 1237.00 On 'Madaria Khal' an estimated cost and/or value of Rs. 23,300/-. It is stated that the said two contracts consist of the following documents :-- (i) West Bengal Form No. 2911 (ii)---- In the case of First Contract -- and 2911 (i), in the case of Second Contract, (ii) Schedule of rates attached to the respective contracts; (iii) Specification attached to the respective contracts; (iv) Additional terms and conditions] and (v) Drawings. The said contracts, inter alia, contain an arbitration clause as follows :-- "Except as otherwise provided in the contract all questions and disputes, relating to the meaning of the specification, design, drawing and instruction hereinbefore mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arisen out of or relating to the contract, design, drawing, specification, estimates, instruction, orders or those conditions or otherwise consigning the works of the execution, or failure to execute the same, whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the sole arbitration of the Chief Engineer of the Department. Should the Chief Engineer be for any reason unwilling unable to act as such arbitrator, such question and dispute shall be referred to an arbitrator to be appointed by the Chief Engineer. The Award of the arbitrator shall be final, conclusive and binding on all parties to this contract."'
(2.) ACCORDING to the petitioner some payments were made in respect of the works done under the said two contracts. But she bas still a claim for a sum of Rs. 5,39,845/- on account of the first contract and a sum of Rupees l,37,500/- on account of the second contract then her total claim is Rupees 6,77,345/-. The petitioner's case is that in spite of demands the respondent No .1 failed and neglected to pay the said sum of Rs. 6,77,345/- or any portion thereof to the petitioner. Therefore according to the petitioner disputes and differences and/or questions of claims and/or right had arisen out of or relating to or within the ambit of the said arbitration clause by and between the parties herein.
(3.) AS the petitioner's aforesaid claim was not paid by a letter No. B/J/491/78 dated December 12, 1978 the petitioner duly applied in terms of the aforesaid arbitration clause to the Chief Engineer of the respondent No. 1 for appointment of an arbitrator to decide and settle the disputes that had arisen between the parties in terms of the said arbitration clause. In spite of such requests the respondent No. 2 failed and/ or neglected to act as an arbitrator or to appoint a sole arbitrator in terms of the said arbitration clause Ultimately bv a letter and/or an order dated Dec. 21. 1979 Mr. S. P. Sen. Chief Engineer-1, West Bengal Irrigation and Waterways Directorate of the respondent No. 2 (hereinafter referred to as "the Chief Engineer") appointed, by virtue of the said arbitration clause one Mr. P. K. De, retired Chief Engineer of the Irrigation and Waterways Directorate. Government of West Bengal as the sole arbitrator to, settle the aforesaid disputes. By a letter dated January 15, 1980 the appointed arbitrator Shri P. K. De agreed to act as a sole arbitrator in the aforesaid disputes, inter alia, on the terms and conditions that the fees of the arbitrator should be Rs. 200/- for each day of hearing and the same would be shared equally by the two parties. Thereafter, the petitioner received a letter dated June 6, 1980 from the said sole arbitrator wherein he had declined and/or refused and/or evinced his incapability to act as such arbitrator due to his pre-occupation. The petitioner has stated that at all material times she was and still is interested in and/or desirous of settling the aforesaid disputes through the machinery of arbitration the chosen forum of the party and indeed has made ail efforts to have the said disputes settled through the machinery of arbitration and to recover her legitimate dues According to the petitioner all such efforts have been frustrated. In the above circumstances by a letter dated June 21, 1980 the petitioner appointed one Mr. Arabindo Ghosh Barrister-at-Law to act as the sole arbitrator to decide the aforesaid disputes and duly called upon the respondent to concur in the said appointment within a period of 15 days from the date of the receipt of the said letter. In spite of the receipt of said letter, the respondents neither had concurred in the said appointment nor had objected to the same, nor filled up the vacancy. The petitioner's case is that the Chief Engineer having appointed the said Mr. P. K. Dey in terms of the aforesaid arbitration clauses and as the said P. K. Dey having declined and/or refused and/or became incapable of acting in terms thereof the power conferred on the said Chief Engineer in terms of the said arbitration clause had exhausted and indeed he had or has no further power and/or authority and/or jurisdiction to make any further appointment. Therefore on or about 14th August, 1980 the petitioner has made the instant application praying that Mr. Arabindo Ghose, Barrister-at-Law would be appointed as. the sole arbitrator to fill up the vacancy caused by the resignation of P. K. Dey or alternatively the Court should appoint any person as an arbitrator as it would deem fit and proper.;