Bijayesh Mukherji, J. - (1.) THIS is a rule, under Section 115, of the C. P. C. (5 of 1908), obtained by Texmaco, an abbreviation for Textile Machinery Corporation Ltd., calling upon the opposite party Munshaw to show cause why the order dated March 12, 1968, of a learned Subordinate Judge, Alipore, dismissing Texmaco's application for a declaration that Shri Sasank Majumdar has been validly appointed a new arbitrator under Section 9, Clause (a), of the Arbitration Act, 10 of 1940, should not be set aside.
(2.) THE facts, which have led up to this rule, need not be referred to further than as follows:-- On April 27, 1962, Texmaco, a leading engineering concern, engaged in the manufacture of cotton spinning machinery, appointed Munshaw its Sale Technical Adviser for textile machinery imported into India from Howa Machinery Ltd. of Japan, by virtue of an agreement dated November 10, 1954, or thereabouts, for technical collaboration between Texmaco and "Howa". An appointment as this of Munshaw is evidenced by an agreement of that day (April 27. 1962), the arbitration clause of which bears: "Any dispute arising at any time between the parties hereto, concerning this agreement, its interpretation or its subject-matter, shall be settled under the rules of the Indian Arbitration Act and the decision of the arbitrators shall be final and binding on both the parties." Disputes did arise. THE arbitration clause was invoked. On January 3, 1967, Munshaw appointed Shri J. N. Choudhuri as arbitrator, and Texmaco appointed Solicitor B. P. Khaitan as arbitrator. THE two arbitrators appointed Dr. L. M Singhvi an umpire, and on February 11. 1967, entered upon the reference. On April 25 1967, the learned Subordinate Judge was moved for extending the time within which the award was to be made. And he allowed such extension until January 311968. On December 20, 1967, however, Solicitor B. P. Khaitan informed all concerned in writing that he was not willing to act as arbitrator, and wanted his letter to be treated as letter of resignation. On December 28, 1967, Texmaco wrote to Munshaw, informing him that Shri Sasanka Majumdar was the new arbitrator appointed in place of Solicitor B. P. Khaitan. only to bring forth a reply that very day (December 28. 1967) from Munshaw, proposing Shri J, N. Chaudhuri to "be the Sole Arbitrator henceforth", and inviting Texmaro's concurrence thereto. Concurrence did not come. Came instead a reply dated January 3, 1968, telling Munshaw: 'Shri Sasanka Majumdar's appointment as new arbitrator is valid We are applying to the Court for a declaration to that end'. Two days later, that is, on January 5, 1968, Texmaco did move the Court, by an application under Section 9, Clause (a), which, as noticed, the learned Judge dismissed. Hence this rule. As a matter of words, it beats me, as it beats the learned Subordinate Judge, how Section 9. Clause (a), of the Arbitration Act can be called in aid here. Taking the arbitration agreement to be valid, as the learned Counsel for both parties have taken it to be, Texmaco can appoint a new arbitrator, in terms of Section 9, Clause (a), only if the following ingredients are present-- 1. The agreement itself provides that a reference shall be to two arbitrators, 2. The agreement further provides that, of the two arbitrators, one has to be appointed by each: one by Texmaco and another by Munshaw, 3. One, in fact, has been appointed by each, 4. An arbitrator, so appointed, has refused to act. 5. The agreement expresses no intention that a new arbitrator has not to be appointed.
(3.) NOW, look to the arbitration agreement reproduced above. It does not provide that a reference shall be to two arbitrators. It provides instead that a reference shall be to arbitrators. Necessarily it does not provide either, as indeed it cannot, that, of two arbitrators, one shall be appointed by each party, that is one by Texmaco and another by Munshaw. So, the first two ingredients tabulated above -- and they are basic ingredients upon which depend the remaining three ones -- are found conspicuous by their absence in the arbitration agreement on hand. Hence, as a matter of words, Section 9, Clause (a), does not fit the facts here, and cannot, therefore, be pressed into service.;