- (1.) THIS application has been made by B. S. Jaireth under Section 8 of the Arbitration Act praying for appointment of an Arbitrator. There was a Memorandum of understanding as between the petitioner and the respondent dated 12/11/1988 which contained a clause as follows : "6. Any dispute arising out of above understanding or due to non-implementation of above understanding by either Sri Sinha or Shri Jaireth will be referred for arbitration."
(2.) THEREAFTER disputes and differences had arisen between the parties and the petitioner by letter dated 22/09/1990 appointed an Arbitrator. The respondent, S. P. Sinha, however, did not send his concurrence to the said appointment. THEREAFTER, the said Arbitrator proceeded with the reference (hereinafter referred to as 'the previous reference') and made an Award. The said Award was set aside by an unreported judgment and order passed by Justice Ruma Pal dated 23/05/1992, made in matter No. 3432 of 1991 (S. P. Sinha v. B. S. Jaireth). This is to be noted that the said previous reference had arisen in respect of the same disputes between the same parties and was made under the same arbitration agreement as in the instant case before me. By and under the said judgment, this Court, inter alia, held that where the provisions of the first schedule to the Arbitration Act were not excluded, the reference has to be to a sole arbitrator and the appointment of the sole arbitrator has to be by consent of the parties to the agreement. The Ld. Judge relied on a Division Bench Judgment of this Court in case of India Hosiery Works. v. Bharat Woolen Mills Ltd. reported in AIR 1953 Calcutta 488. In the said case, the Division Bench of this Court held as follows :- "An arbitration agreement, neither specifying the number of arbitrators, nor specifying the mode of appointment, is perfectly effective and valid and the incidents of such an agreement are that it is to take effect as an agreement for reference to a sole arbitrator, to be appointed by consent of the parties or, where the parties do not concur in making an appointment, to be appointed by the court, except where the operation of Rule 1 of the First Schedule is excluded."
(3.) THE Division Bench, in the aforesaid case also relied on Halsbury's laws of England, because according to the Division Bench, the provisions of the English Act are in all essential respect the same is in India. In the Hailsham Edition of Halsbury's Laws of England in Vol. I, the following passage occurs at page 644-45 : "THE submission itself may name the arbitrator or arbitrators, or it may without naming them direct how they are to be selected or it may simply provide for a reference to arbitration without either naming the arbitration or directing how they are to be selected.;