The court's power to appoint a sole arbitrator under Section 8(2) of the Arbitration Act, 1940, when the arbitration agreement does not provide for the appointment of fresh arbitrators in the event of the removal of the named arbitrators.

J. ESWARA PRASAD, J.

( 1 ) THESE two revision petitions arise out of the common judgment of the learned II addl. Judge, City Civil Court, Hyderabad in o. P. Nos. 518/89 and 4/90. The first petitioner is the State of Andhra Pradesh and the second petitioner is the concerned Engineer for whom the first respondent carried out contract works.

( 2 ) THE first respondent entered into agreement with the first petitioner, the State of Andhra. Pradesh, for carrying out certain works. Disputes arose between the first petitioner and the first respondent and claims were preferred by the first respondent before the named arbitrators, respondents "2 to 4, and award was passed in respect of some of the claims of the first respondent and rejecting the rest of the claims. Suit was filed by the first respondent to make the awards the rule of the Court and OP was filed by the first respondent to set aside the award. By a common judgment, the award was set aside by the learned Judge and the matter was remanded to the arbitrators under Sec. 16 of the Arbitration Act, 1940 ( the Act , for short) fixing a period of four months from 19. 2. 1988. Alleging that the arbitrators refused or neglected to enter on reference, the first respondent filed OP Nos. 518/89 and 4/90 under Secs. 3, 5, 11 and 12 read with Secs. 8 and 9 of the Act, for removing respondents 2 to 4 and to appoint one of the four named arbitrators mentioned in the petition O. P. No. 4/90 filed by the Petitioners for intimation of time. The learned Judge held that the arbitrators refused or neglected to enter on reference and removed respondents 2 to 4 and appointed Sri Justice P. Ramachandra raju, a retired Judge of this Court, as the sole arbitrator in both the matters, and dismissed op. No. 4/90 which is questioned in these revision petitions.

( 3 ) THE learned Government Pleader, appearing for the petitioners, firstly contended that there were no grounds for removing the arbitrators as there was neither refusal nor neglect on the part of respondents 2 to 4 to enter on reference. He further contended that the appointment of a sole arbitrator, is illegal and that a panel of three arbitrators should have been appointed in accordance with the agreements entered into between the petitioners and the first respondent.

( 4 ) THE learned Counsel for the first respondent submitted that the arbitrators totally neglected to enter on reference which amounted to refusal and that under the said circumstances, the lower court was justified in holding that the arbitrators refused or neglected to enter on reference. He further" submitted that the court below was justified in appointing a sole arbitrator when the court came to the conclusion that the arbitrators have refused or neglected to enter on reference.

( 5 ) IN view of the submissions made by the learned Counsel, the questions for consideration are, whether the lower court was justified in removing respondents 2 to 4 and whether the learned Judge was correct in appointing the sole arbitrator in the place of a panel of arbitrators mentioned in the agreements.

( 6 ) ELABORATING the first contention the learned Government Pleader submitted that there was no indifference on the part of the arbitrators and that they could not enter on reference, as the original award and records were not received by them in spite of their requesting the lower court for the said documents. While setting aside the earlier awards, the court below fixed a period of four months from 19-2-1988 for passing of the award by the arbitrators. The first respondent gave a notice dated 16. 8. 88 by enclosing a certified copy of the judgment dated 19. 2. 88 and requested the arbitrators to enter on reference and to proceed with arbitration. One of the arbitrators by the letter dated 29. 8. 88 requested the court for the return of the original awards and the relevant records. The court below sent all the relevant papers to the arbitrator on 5. 4. 89 which was received in the Office o

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