The court has the discretion to appoint an arbitrator under Section 8(2) of the Arbitration Act, 1940, but such discretion must be exercised properly and not arbitrarily.

Raj Kishore Prasad, J.

1. This application, in revision, is by the Union of India, as owner of the Northern Railway Administration, which, was opposite party to the application, made by the opposite party in this Court, under Section 8 of the Arbitration Act, 1940 (X of 1940), hereinafter referred to as "the Act", which has been allowed by the Court below and a pleader has been appointed as arbitrator in the case.

2. The relevant history of the case, leading up to the present application, may briefly be stated thus:

Samples of Mankatha sand were called for by the petitioner from the opposite party, who is a contractor, and, finally, sample No. 3 was approved. According to the terms of the contract between the parties, which is Ex. A, certain quantity of the said sand was to be supplied by the 2nd of July, 1956, which was the stipulated time for the supply. Admittedly, the opposite party supplied sand, as contracted for, but, two wagons, out of three wagons, of sand, which were sent out of time, after the stipulated date -- the 2nd of July, 1956, -- were not accepted, on the ground that those two wagons did not contain sand of the specification contracted for.

In the contract (Ex. A) there was an Arbitration Clause to the following effect:

"In the event of any dispute or difference of opinion between the Railway Administration and the contractor as to the respective rights and obligations of the parties hereunder, or as to the true intent and meaning of these presents or any articles or conditions thereof such dispute or difference of opinion (except the matter regarding which the decision has been specially provided for in this agreement) shall be referred to the sole arbitrator of an officer who shall be nominated for the purpose by the General Manager, N. Railway for the time being, and his decision shall be final, conclusive and binding on the parties. For the purpose of this agreement, the General Manager will mean the head of the Railway Administration."

The opposite party, therefore, served a notice (Ex. 1(b)) under Section 8 of the Act on 25-8-1958 on the General Manager of the Northern Railway of the petitioner, to appoint an arbitrator, as stipulated in the above quoted Arbitration Clause of the contract. Ex. A, The General Manager, however, in spite of admittedly receiving this notice did not reply nor did he take any step for appointing an arbitrator. The opposite party, thereafter, filed an application under Section 8 of the Act on 29-4-59 for appointment of an arbitrator by the Court and to refer the matter in dispute for his arbitration and submission of his award on it.

This application of the opposite party was con-tested by the petitioner on the ground, inter alia, that the application under Section 8 of the Act was not maintainable because it had no application to the facts of the present case. The Court below overruled the objection of the petitioner and held that the application made by the opposite party under Section 8 of the Act was maintainable, and, that as admittedly differences had arisen between the parties regarding the con-tents of the two wagons of sand which were admittedly returned by the petitioner to the opposite party, the latter was entitled to get an arbitrator appointed under Section 8 of the Act, and, accordingly, appointed Sri Ram Bahadur Sinha, Pleader, as arbitrator in the case to make an award on the basis of the contract between the parties.

The petitioner, therefore, has moved this Court against the aforesaid order.

3. It was argued by Mr. P. K. Bose, in support of the rule, that Section 8(1)(a), under which alone the application of the opposite party could possibly come, if at all, does not apply here, because the General Manager, as contemplated by the Arbitration Clause in Ex. A, has not yet refused to appoint an Arbitrator, He further contended that, in any view of the matter, in a case like the present, where knowledge of engineering was essential, a pleader should not