A. SEETARAM REDDY, J.

( 1 ) TIRUMALA Tirupati Devas- thanams, Tirupati are the petitioners-defendants in both these revision petitions which could be disposed of by a common order as common point is involved.

( 2 ) THE plaintiff, a contractor filed the suit under Section 8 of the Arbitration Act (for short the Act ) for the appointment of a sole arbitrator by the court out of the panel submitted by him, on the ground that he had entered into a contract with the defendants for the improvement of first ghat road to Tirumala by hot mix process, after due formalities observed on the basi s of tenders, arranged the entire infrastructure facilities like machinery and so forth for executing the work. The plaintiff s offer of hypothecation of machinery was refused by the defendants as he was asked to produce Bank guarantee for interest-free advance and pending that the plaintiff was prevented from performing the contract and so he gave a notice but was no response from the defendants and, therefore,by invoking relevant clauses in the contract sent a claim petition to the arbitrator i. e. Superintending engineer, Roads and Buildings, cuddapah, for which the arbitrator called upon the defendants to file statement and thereafter the arbitrator informed that there was no valid agreement concluded between the parties and so he had no jurisdiction to enter on the reference. Hence the suit.

( 3 ) THE averment in the suit was that the rejection of the claim petition by the arbitrator amounted to neglect or refusal of the arbitrator to act and, therefore, the assistance of the Court is sought for to appoint a sole arbitrator out of the panel submitted.

( 4 ) IN the written statement it has been alleged inter alia that the agreement could not Be" completed due to plaintiff s failure to furnish Bank guarantee and unless a written agreement is entered into, there cannot be any foundation of rights for both the parties and, therefore, the contract was not concluded. The issues inter alia framed were: (1) Whether there is a concluded contract or agreement between the parties to refer the matter to an arbitrator? (2) Whether the rejection of claim by the arbitrator is not correct? (3) Whether the suit as framed is maintainable? and (4) Whether the Civil Court has got jurisdiction?

( 5 ) IT was held by the lower court that there was a concluded contract between the parties; there was provision for referring of disputes for arbitration and when the arbitrator was approached by the plaintiff, he refused to act by stating that there was no concluded contract and since the suit is maintainable, the plaintiff has invoked the jurisdiction of the Court very rightly under Sec. 8 of the act; therefore, the Civil Court is entitled to accede to the prayer and resultantly one Sri a. P. Ranganadha Swamy, Retired chief Engineer (Irrigation), hyderabad is appointed as sole arbitrator.

( 6 ) THE contention of the revisionists-defendants is that the rejection by the arbitrator to enter on reference for arbitration does not amount to neglect or refusal to act within the meaning of Section 8 of the arbitration Act. Secondly the plaintiff has a remedy under section 31 or Section 33 of the act to challenge the order of the arbitrator as erroneous. Whereas the counter contention on behalf of the plaintiff is that the rejection tantamounts not only to refusal to act but also incapable of acting witn in the meaning of Section 8 (l) (b) of the Act and so, the order under revision is justified.

( 7 ) THE relevant case law cited across the Bar may now be noticed. In Jawahar Lal v. Union of india (1) AIR 1962 S. C. 378, the supreme Court held:"it is significant that under S. 31 (2) of the Act all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or persons claiming under them shall be decided by the Court in which the award under the agreement has been, or may be, filed, and by no other court. Indee

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