Judgment

K. RAMASWAMY, J.:- These three Special Leave Petitions arise out of Arbitration Agreement said to be executed by the petitioner on May 27, 1978 which provided that the petitioner had to execute the work within 9 months. It is his claim that while executing the work he sent the bills on July 12, 1979 but payment was not made. For the first time he sent notice on Nov. 28, 1989 to the respondent for reference to the arbitration. On receipt thereof, the respondent filed an arbitration suits in the Calcutta High Court under Ss. S. 12 and 33 of the Arbitration Act, 1940 for short the Act. The learned single Judge held that the claim was hopelessly barred by limitation. There was no proof that the petitioner had sent any claim in July, 1979. Since the claim was made long after 10 years the arbitration cannot be proceeded with. Accordingly finding that it to be an exceptional case for interference, the learned single Judge cancelled the arbitration clause 68 of the contract in matters Nos. 1326, 1364 and 1365/90 dated November 23, 1990. On further appeals the Division Bench by its order dated December 18, 1992 it, Appeal Nos. 104/90 etc. dismissed the appeals. Thus these special leave petitions.

2. The contention of the petitioner appearing in person is that Clause 68 of the Contract provides for appointment of an arbitrator and when the petitioner has legally Invoked Clause 68 and issued notice to the respondent, the respondent is duty bound to appoint an arbitrator and on its failure it is open to him to approach the Court for appropriate remedy under S. 8 of the Act for appointment of an arbitrator. The High Court scuttled this procedure in exercising the power under S. 5 of the Act which is illegal and ultra vires. He further contented that Section 5 has no application to the facts of this case. We have heard also Shri D. P. Gupta, the learned Solicitor General for the respondent.

3. The question for consideration is whether the High Court was Justified in permitting the respondent to rescind the contract of arbitration provided in Clause 68 of the Contract. Undoubtedly, Clause 68 provides reference to arbitration of all or any of the disputes or differences enumerated therein that have arisen between the parties, at the instance of either party to the contract. It empowers either party to issue notice calling upon the Engineer to refer the dispute or difference for arbitration. In this case, as found by the High Court that though the petitioner was said to have made the claim for payment for the first time in July 12, 1979, though there is no proof in that behalf, and the respondent claimed that the petitioner had abandoned the contract, even assuming that any claim was as a fact made in July, 1979 and payment was not made, the petitioner had not taken follow up action thereafter for well over 10 years. It was open to him to avail Clause 68 of the Contract seeking reference to the arbitration. No such action was taken till November 28, 1989. Immediately on receipt of the notice, the respondent invoked the jurisdiction of the Calcutta High Court under Ss. 5 and 12 at 33 of the Act.

4. Section 5 provides thus:

"The authority of an appointed arbitrator or umpire shall not be revocable except with the leave of the court, unless a contrary intention is expressed in the arbitration agreement".

Therefore, Section 5 postulates that there must be an order of appointing an arbitrator or umpire and thereafter the same cannot be revoked except with the leave of the Court, unless a contrary intention is expressed in the agreement. Ex-facie it would appear that appointment of an arbitrator is a condition to avail the remedy u/ S. 5. Section 12 accords consequential power which postulates that the power of the Court where Arbitrator is removed or his authority revoked. Sub-sec. (2) says that:

"Where the authority of an arbitrator or arbitrators or an umpire is revoked by leave of the Court, or where the Court removes an umpire who has entered