Where one party to an arbitration agreement refuses to concur in the appointment of an arbitrator or is incapable of acting, the court has the authority to appoint an arbitrator under S.8 of the Arbitration Act, 1940.

1. This application in revision is directed against an order by which the court below has appointed arbitrators under S.8 of the Arbitration Act, 1940 (hereinafter to be referred to as the Act).

2. It appears that there was a contract between the petitioner and the opposite party by which the latter undertook to make some constructions. As a result, an agreement was entered into on the 22nd of March, 1972, Some further work was, however, found necessary to be done and the opposite party was asked to do that work as well. For such extra work he submitted a bill at the rate prescribed by the original agreement. After negotiation he reduced it by 2% and claimed a sum of Rupees 76,908.12, out of which the petitioner paid a sum of Rs. 26,596.49 paise, with the result that there remained due an amount of Rs. 54,311.63 paise. The petitioner refuted the claim on the ground that the opposite party was entitled to receive payment for the extra work at the rate prescribed in the subsequent agreement and not at the one prescribed by the original. It is said that according to the agreement a dispute or differences regarding the claim of the contractor is to be referred to arbitration. In view of the dispute aforesaid, therefore, the opposite party sent a notice dated the 12th of Oct. 1973 to the General Manager of the Railway, asking for nomination of arbitrators for deciding the dispute. There was no reply to this notice. Therefore, again on the 26th of April, 1974, the petitioner sent another notice through a lawyer. The petitioner, however, rejected the claim for arbitration on the ground that there was no dispute at all. Hence the opposite party filed an application under S.8 of the Act.

3. The petitioner, however, contended before the learned Subordinate Judge (1) that there was no dispute, (2) that the court had thus no jurisdiction to entertain the petition under S.8 of the Act, (3) that the petition was barred by limitation and (4) that the Union of India not having been impleaded the petition was not maintainable. The learned Sub-ordinate Judge held that the petition was maintainable, it was not barred by time and that a dispute existed which could be referred to arbitration, and accordingly he appointed two arbitrators directing them to submit their award within three months. Hence this application.

4. Counsel for the petitioner has virtually raised the same points as were raised before the court below. Further he has urged that the order of the learned Subordinate Judge appointing the arbitrators is wrong also on the ground that the claim being for an amount of Rs. 50,311.63 paise, only one arbitrator could be appointed.

5. The points thus which arise for consideration are (1) whether a dispute between the parties exists, (2) whether the application under S.8 of the Act is barred by limitation, (3) whether the aforesaid petition is maintainable in the absence of Union of India being a party, and (4) whether the order of the court below appointing two arbitrators is correct.

6. It is not necessary to say much with regard to the first contention of learned counsel in order to reject it. Whether or not a dispute exists is a question of fact. On that question there is a finding of the court below. This court will not interfere with it in revision. In Sm. Balik Devi V/s. Kedar Nath Puri, AIR 1956 All 377 it was held that the question whether there is a dispute or not is a question of fact and it cannot be agitated in revision. This decision was relied on in a subsequent case of Union of India V/s. Gorakh Mohan Das, AIR 1964 All 477. Apart from that, it is so obvious that a dispute exists that, it is impossible to accept the contention of learned counsel. The dispute between the parties obviously is whether the payment for the extra work done is to be made at the rate prescribed in the original agreement or the one in the subsequent agreement. The parties have joined issues in this respect. There is thus no scope for the argum