The Court has the power to appoint an Arbitrator under S. 8(1) of the Arbitration Act when the designated person refuses to act as an Arbitrator or appoint another person, unless the intention of the parties in the arbitration clause is to supply the vacancy.

This revision petition is directed against the judgment dated 31-5-85 passed by the Subordinate Judge, West Tripura District, Agartala in T.S. No. 118 (Arb) of 1983, rejecting the application under S. 8(2) of the Arbitration Act.

2. The petitioner filed an application under S. 8(2) of the Arbitration Act (for short "the Act"), praying for appointment of an Arbitrator. The said application was registered as Suit (T.S. 118 (Arb)/83). The facts of the case are in narrow compas : the petitioner submitted a tender in respect of supply of stone boulders. His tender was accepted and a deed of agreement was executed between the parties. As per the agreement the work was to be completed within 31-12-82. The value of the tender was Rupees 11,90,000/-. After execution of the deed of agreement, the petitioner took up the work but the work could not be completed in time. The third respondent therefore extended time up to 31-12-82. Meanwhile, there had been a hike in the price of diesel, engine oil and railway freights etc. which compelled the petitioner to make a request for enhancement of the rate as per terms and conditions of the contract agreed upon. The petitioner claimed Rs. 62,710.67, but the respondent paid Rs. 14,476.57 leaving a balance of Rs. 48,233.50. In spite of repeated requests, the third respondent did not pay the balance amount. The amount was still pending with the respondents. The respondents prepared a final bill in connection with the contract work without making the payment as claimed by the petitioner. At that time, the petitioner was passing through financial difficulties and, therefore, he was compelled to receive the amount of the final bill under objection and this was recorded by the petitioner in the original final bill. The agreement contained an arbitration clause. Clause 14 is that clause. The said clause of the agreement provides that in case of any dispute that may arise in relation to the contract work is to be referred to the sole Arbitration of the Chief Engineer, Public Works Department, Tripura, and in the event of his inability to act as an Arbitrator, any person to be appointed by such Chief Engineer.

3. A dispute arose in respect of the said contract work. The petitioner, therefore, filed a petition before the second respondent to decide the dispute by making an award, the second respondent by his letter dated 21-5-83 informed the petitioner that his request was receiving his attention. Thereafter, the second respondent by yet another letter dated 30-7-83 informed the petitioner that as he received the payment in full and final settlement, the arbitration clause ceased to subsist. He accordingly refused to decide the dispute. On receipt of the said letter, the petitioner again sent another letter dated 8-8-83 informing the second respondent that he had received the payment of the final bill under objection. This letter was, however, not responded.

4. Situated thus, the petitioner issued a notice under S. 8 of the Act requesting to refer the dispute to arbitration. However, the second respondent refused to decide the dispute by his letter dated 19-11-83. Under this circumstance, the petitioner filed an application before the Subordinate Judge, West Tripura, Agartala, under S. 8(2) of the Act, with a prayer for appointment of an Arbitrator. This application was registered as a suit (TS 118(Arb)/83). The respondents filed objection against the petition. The Subordinate Judge after hearing the parties by his order dated 31-5-85 rejected the prayer of the petitioner. Hence this petition.

5. The Subordinate Judge by the impugned judgment rejected the prayer of the petitioner on the following grounds :

(a) The original final bill was prepared and the petitioner put his signature acknowledging the payment in full and final settlement of his claim.

(b) Section 8(1) of the Act is applicable only where parties agree to appoint Arbitrator by consent and in the present case Arbitrators were already name