1. This appeal has been placed before me for hearing on account of difference of opinion between H.L.Agrawal,J. and C.S.Sinha,J. While the appeal was allowed by H.L.Agrawal,J.,it was dismissed by C.S.Sinha,J. Both the Judges, however, agreed that they would make no order as to costs in favour of the successful party.

2. The facts of the case are elaborately stated in the judgment of H. L. Agrawal. J, and I do not consider it necessary to restate them in any detail. As it appears the appellant submitted a tender in the prescribed form which was accepted by the respondent and thus there was a contract between them dated 16th of December, 1956 according to which the appellant was required to manufacture and supply certain furniture to Garrison Engineer, M.E.S. (Independent) Dinapore at Ramgarh at the rates mentioned in the document. The contract contained an arbitration clause according to which the parties were to refer all disputes as required by condition 36 to the sole arbitration of an Engineer/Officer to be appointed by the Chief Engineer, Eastern Command, whose decision was to be final, conclusive and binding. Condition No. 36 read as follows :-

"All disputes between the parties to the contract (other than those for which the decision of the C. W. R or any other person is by the contract expressed to be final and conclusive) shall, after written notice by either party to the contract to the officer appointed by the authority mentioned in the tender document......"

As the appellant did not supply the furniture, the C.W.E., Ranchi, on behalf of the respondent wrote a letter dated 31st of July, 1957 to the appellant informing it that the respondent would get the work done through other agency at the risk and cost of the appellant. Thereafter the respondent entered into two separate contracts with other firms who supplied the furniture and incurred extra cost amounting to Rs. 21,535/-. The Chief Engineer, Eastern Command by his letter dated 10th of July, 1959 appointed Lt. Col. J. S. Sandhu as the sole arbitrator to decide the dispute between the parties. The Arbitrator by his letter dated 15th of July, 1959 called upon both the parties to forward to him terms of reference preferably a joint statement signed by both the parties and in case they were unable to come to an agreement as to the points in dispute to be referred to him, they should forward to him separately their statements of the items in dispute with a copy to the either party. The appellant refused to submit its case to the arbitrator and took a stand that there was no legal and valid contract between the parties. It further challenged the validity of the appointment of the arbitrator. The respondent submitted its claim before the arbitrator claiming the aforesaid sum of Rs. 21,535/- being the extra cost incurred by it in getting the two contracts executed later on on the failure of the appellant to perform the same. It also claimed Rs. 500.00 as cost. As the appellant did not attend the arbitration proceeding, the arbitrator proceeded with it ex parte and made an award on 2nd of May, 1961 in favour of the respondent for the sum of Rs. 21,535/- but rejected the claim for cost. Thereafter he sent an application dated 24th of May, 1961 to the court of Special Subordinate Judge, Ranchi, for making the award a rule of the court and passing a decree in terms thereof which was received in court on 13th of June, 1961. That was registered as Title Suit No. 60 of 1961. The case was, however, transferred to Patna under orders of this court in M.J.C. No. 380 of 1962 and finally disposed of by the 3rd Additional Subordinate Judge, Patna, by his judgment and decree dated 24th of June, 1968. It also appears from the order sheet of the Special Subordinate Judge, Ranchi that both the parties had appeared before that court by 26th of March, 1962 and thus the appellant had notice of the filing of the award by that date. At any rate, the appellant must have had notice of the