D.K.Seth, J. - (1.) The defendant/appellant, Union of India, entered into an agreement with the plaintiff/respondent, M/s. Kamrup Industrial Gases Limited, for purchase of Oxygen and Acetylene industrial gases on the terms and conditions contained therein. Pursuant to the said agreement, the plaintiff was allowed to install a plant for manufacturing of the industrial gases for supply to the defendant on a site allotted by the defendant within its factory premises agreeing to purchase the entire production. In consideration the defendant agreed to supply water and electricity to the plaintiff's plant on the terms and conditions stipulated. The said agreement also contained an agreement for arbitration. 1.2. In the present appeal arising out of an award passed by the umpire purported be acting on the basis of the arbitration agreement in respect of the dispute relating to supply of electricity by the defendant to the plaintiff. We are, therefore, confined only in relation to the supply of electricity within the scope and ambit of the arbitration clause. In order to appreciate the situation, we may refer to the relevant clauses of the agreement (annexure 'A' at page 45 PB Vol. I) clause (3)(d) at pages 48 and 50, clauses (20) and (21) at pages 65-66 (PB Vol. I) as quoted hereafter. In terms of clause (3), the defendant, referred to as Buyers in the agreement, agreed to give the Suppliers sufficient facilities for construction of the plant and production of Oxygen and Acetylene Plants among others: "(3)(d) Supply electric power of 175 KW capacity round the clock for factory and lighting etc., all electrical energy at 400/420 Volts. Three Phase, 50 Cycles at bulk rates charged by the U.P. State Electricity Board including statutory duty if any, from the Buyers from time to time; connection being given at Supplier's factory site. The electric energy shall be measured by means of meters to be installed at Supplier's factory by the Buyers' at the Buyers' cost." 1.3. For the respective supplies, the Suppliers, as the plaintiff was referred to in the agreement, was liable to pay Rs.400/- per month to the Buyers, as the defendant was referred to therein, for giving water, electricity etc. stipulating that the said sum would be exclusive of the charges of consumption of electricity and water etc. The reading of the meters for consumption of electricity was to be taken jointly. 1.4. The agreement was subject to force majeure clause stipulated in clause (20) which reads thus : "(20) The agreement will be governed by the following force majeure clause: notwithstanding anything hereinmentioned if at any time during the continuance of this Agreement the performance in whole or in part by either party of any obligations under this Agreement shall be prevented or delayed by reasons of any one or more of the events following hostilities, acts of public enemy, civil commotion, sabotage, fire, flood, explosion, epidemic, quarantine, restriction, strikes, lock-outs, Governmental action or inaction or acts of God, failure of water-supply and/or electricity, then either party shall by reason of such event or events will not be entitled to have any claim for damage against the other in respect of such non-performance or delay in performance of the obligations under this Agreement." 1.5. The arbitration clause was expressed in clause (21) as follows : "(21) In the event of any question or dispute arising under these conditions or in connection with this contract (except as to any matters the decision of which is specially provided for in these conditions) the matter in dispute shall be referred to two arbitrators, one to be nominated by the buyers and one to nominated by the suppliers or in the case of the said arbitrators not agreeing then to an Umpire to be appointed by the arbitrators in writing before proceeding on the reference and the decision of the arbitrators or in the event of their not agreeing of the said Umpire shall be final and conclusive and the provisions of the Indian Arbitration Act 1940 and the Rules thereunder and any statutory modifications thereof shall apply." 1.6. On account of certain disputes, there was an attempt to refer the matter for arbitration in Special Suit No. 35 of 1972 through an application under section 20 of the Arbitration Act, 1940. By an order dated 24th January 1974 (annexure 'C' p. 70 PB Vol. I), this Court had held that the application under section 20 was not maintainable since the Arbitrator had entered upon the reference. Therefore, the arbitrator was supposed to proceed under Chapter II of the 1940 Act. An application under section 9 of the Arbitration Act was also filed for setting aside the order for appointment of arbitrator together with an application under section 41 for interim order. On the same date i.e., 24th January 1974 (annexure 'B' p. 74 PB Vol. I), the application under section 9 was disposed of by this Court appropriate order was made by the Court on the application under section 9 of the 1940 Act. In the said order, it was observed that "having regard to the fact that the dispute had arisen out of the contract and in connection therewith as to the rate to be charged by the defendant for the supply of electrical energy to the plaintiff's factory at Varanasi under the said agreement dated 21st April 1965, the said disputes are entirely covered by the arbitration clause" (pp. 74-76 PB Vol.I). On the basis of such observation, however, the appointment of the sole arbitrator was set aside with liberty to the parties to appoint their respective arbitrators in terms of the arbitration agreement. In terms of this order, the plaintiff appointed its own arbitrator by or under its letter dated 6th February 1974 (pp. 575-578 PB Vol.II) and called upon him to decide the disputes referred to therein, namely : "1. Whether Diesel Locomotive Works Varanasi are entitled to charge us rates of electricity higher than the bulk rates actually charged by the U.P. State Electricity Board from the Respondent for our load over and above Diesel Locomotive Works on load for the period 1.1.1970 to 31.12.1971 and from 1.1.1972 onwards.
(2.) What is the amount refundable to us by Diesel Locomotive Works for the excess charges made by them for electricity supplied to us for the period 1.1.70 onwards.
(3.) What is the amount refundable to us by the Diesel Locomotive Works for charging us statutory duty when such duty was not charged by U.P. Electricity Board from Diesel Locomotive Works.;