Judgment

S.MOHAN, J.

(1) LEAVE granted.

(2) THE appellant is a government company being wholly owned by the government of Maharashtra. Respondent 1 M/s Motiram Budharmal is a partnership firm carrying on business as builders and contractors. Respondent 3 is a Chief Engineer of the appellant company.

(3) ON 8/02/1982, the appellant firm issued work order to the first respondent for construction of E type building in Sector 10, Vashi, New Bombay. It was stipulated that the work .should be completed by 7/08/1983. The work was not completed by the first respondent within that date. On 30/06/1984, the work was completed. On 29/06/1987, the first respondent wrote to the appellants Executive Engineer alleging breach on the part of the appellant. He also put forth various claims. The first respondent inyoked the arbitration clause in the agreement. It was contested by second respondent stating that claims put forth were not arbitrable. Thereafter, the first respondent by a letter dated 15/10/1987 protested and alleged bias against Respondent 3. He also prayed for removal of Respondent 3 as arbitrator. After a gap of nearly 2-1/2 years on 15/05/1990, the first respondent issued notice requesting Respondent 3 to proceed with the arbitration alleging that if this was not done, proceedings for revocation of his authority and/or for his removal would be adopted.

(4) THE first respondent filed Arbitration Petition No. 125 of 1990 in the Bombay High court. In that proceeding, he prayed for removal of Respondent 3 as arbitrator and for revocation of his authority. It was directed that Respondent 3 should decide on the question whether the claims are arbitrable or not and to render a decision on the claims on merits by 31/12/1992. Inview of this direction, the third respondent wrote to the parties intimating that he proposed to enter upon the reference and fixed the meeting for that purpose. However, the letter erroneously stated that the meeting was to take place on 17/02/1992. On receipt of this letter, the first respondent stated that since the letter was received only on 15/05/1992, it was not possible to attend the meeting. Therefore, on 15/04/1993, the first respondent filed another Arbitration Petition No. 78 of 1993 seeking the removal of the third respondent as sole arbitrator. On this petition, the High court passed the impugned order on 14/06/1993 directing the removal of third respondent as sole arbitrator and appointed an Advocate of the High court as arbitrator in his place. It is the correctness of this order, which has been questioned in this appeal.

(5) THE learned counsel for the appellant would urge that having regard to the terms of arbitration clause where there is a named arbitrator namely, the Chief Engineer, it is not open to the court to appoint an advocate arbitrator. If the intention of the parties was that the dispute being technical in nature, it should be decided by a person with technical expertise, appointment of an advocate will not remedy the situation.

(6) IN order to invoke Section 8 of the Arbitration Act (hereinafter referred to as the Act), it has to be decided first whether the parties intended to supply the vacancy. When the arbitration agreement evinces an intention not to supply the vacancy, the court will have no power under Section 8(l)(b) of the Act. This is not a case where the contract is silent about supplying the vacancy.

(7) THE High court, it is urged, had failed to take into account the conduct of the first respondent, the party applying for removal. Such a conduct clearly shows that he was not interested in proceeding with the arbitration. After writing the letter dated 18/05/1992, no step, whatever, was taken by the first respondent. When the first respondent was not interested, the High court should have held that the arbitration agreement ceased to have effect. A declaration to that effect ought to have been made: that would