P. C. MALLICK, J.

( 1 ) THIS is an application challenging the existence and validity of an arbitration agreement and an award made thereunder.

( 2 ) THE Respondent is a Contractor who was entrusted with certain construction works to be done in Ghuskara, Bolepur, Rampurhat and Madhaiganj. The contract is evidenced by the acceptance of a tender in the usual term. All the works done under this contract were done sometime in the year 1944/45. The contract contains the usual arbitration clause whereby "all disputes and differences between the parties under the contract shall be referred to the arbitration of the Superintending Engineer of the Circle for the time being. . . . . "

( 3 ) DISPUTES and differences arose between the parties in respect to and in connection with the contract and one C. S. Mathur, Chief Engineer, referred the disputes to the arbitration of Mr. B. K. Guha, Superintending Engineer, Delhi Aviation and Planning Circle, New Delhi. The latter ot reference is dated May 11, 1951. It appears that altogether there were five disputes referred to the arbitration of the said Mr. B. K. Guha.

( 4 ) SHORTLY thereafter Mr. B. K. Guha as such arbitra-tor entered upon the reference and pursuant to his direec-tions the parties filed their respective State of Facts and Counter State of Facts. Subsequently on November 12, 1952 the parties entered into an agreement in respect to the five disputes referred to arbitration as stated above. This agree-ment modified and amended the arbitration clause in the contract. The operative part of the agreement reads as follows :1. That the disputes and differences between the par ties in respect of the recovery made from the con tractors bills for materials supplied and service rerdered by the C. P. W. D. in connection with the said agreements and work orders be referred to the arbitration of Mr. B. K. Guha, Superintending Engineer, Calcutta Aviation Circle C. P. W. D. and that his award shall be final, conclusive and bind ing on the parties and the provision of the Indian : Arbitration Act of 1940 shall apply to said arbitra tion. 2. That the respective arbitration clauses and the said agreements be read and construed as if there was inserted therein the words 'mr. B. K. Guha, Superintending Engineer, Calcutta Aviation Circle C. P. W. D. Calcutta Aviation Circle' in place of 'superintending Engineer of the Circle for the time being. ' this agreement is signed by N. V. Rao, Executive Engineer, Calcutta Aviation Division No. 111 Calcutta "for and on he-half of the President of India. "

( 5 ) THE arbitration proceedings then went on before Mr. B. K. Guha. The parties tendered their respective statements and evidence and there were a number of sittings held. Under the direction of the arbitrator the parties prepared a joint statement of recoveries which were actually disputed and this joint statement as to the disputed items with respect to recoveries was placed before the arbitrator. The arbitrator finally published his award on June 21, 1960, whereby he allowed some of the recoveries but disallowed most of them. It should, incidentally, be noted that apart from this award, four other disputes were referred to the same arbitrator under the same arbitration clause in the contract and the arbitrator made four other awards. These four awards have been accepted fay the Government and it is stated in paragraph 8 of the petition that they have been satisfied. The award in due course was filed by the arbitrator and a notice under Section 14 (2) of the Indian Arbitration Act was served on the Government on August 17, 1960. The present notice was taken out by the Government on September 17, 1960.

( 6 ) IT is contended in the petition that at the time when the disputes were referred to arbitration, Sri B. K. Guha was the Superintending Engineer of the Delhi Aviation and Planning Circle, New Delhi and not the proper Superintending Engineer competent to act as arbitrator under the-arbitration clause i

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