The power of nomination of an arbitrator by the Director General of Supply is exhausted after the first appointment.

Bhandari, J.

1. The short point for decision in the present case is whether the Director General of Supply was at liberty to nominate an arbitrator when the original arbitrator nominated by him had neglected or refused to act.

2. When the Second World war was in progress the Government of India decided to inaugurate a scheme in pursuance of which certain buying agents were appointed with the object of purchasing wool for certain manufacturers employed by Government. The price of these goods was primarily to be paid to the vendors by the vendees themselves but in order to safeguard the interests of the parties the Government of India accepted responsibility for the commitments which had been entered into by any of the parties on its behalf. One of the clauses in the agreements which were executed with the buying agents under the Central Wool Purchase Scheme was in the following terms:

"In the event of a dispute arising between the Buying Agents and the Mills, or other consumers, in connection with the Central Purchase Scheme the dispute, if it cannot be settled amicably, shall be referred to the Director General of Supply or his nominee whose decision shall be final and binding on both parties."

3. In pursuance of this scheme Messrs. Shamji Mal, a joint Hindu family firm carrying on business at Delhi, supplied a quantity of wool to Messrs. E. Sefton and Company Limited, Mirzapur. Certain disputes arose between the parlies concerning the prices of the goods supplied and the matters in controversy were referred to the arbitration of one Mr. K. B. Rao, a nominee of the Director General of Supply. Mr. Rao entered upon the arbitration, issued notices to the parties and proceeded with the case but owing to certain reasons which do not appear on the file he had to leave for the United States before the award could be announced.

On 31-7-1950 the Director General nominated one Bakhshi Shiv Charan Singh, another officer of the Supply Department, as arbitrator. The latter gave his award on 31-8-1951. Messrs. Shamji Mal filed the award in Court on 28-9-1951 & on 27-11-1951 Messrs. E. Sefton and Company raised a number of objections. They questioned the validity of the award on the ground that the power conferred upon the Director General having once been exercised was exhausted, that he had no power to nominate Bakhshi Shiv Charan Singh, and consequently that Bakhshi Shiv Charan Singh had no power to make the award. The commercial Sub-Judge of Delhi upheld the objection and Messrs. Shamji Mal have come to this Court in revision.

4. The learned counsel for the respondents raises a preliminary objection that this application under Section 115, Civil P. C., is not competent as the petitioner who had a right to prefer an appeal to the District Judge has not chosen to do so and has come to this Court in revision. This objection cannot bear a moments scrutiny. Section 115 empowers the High Court to entertain a petition "when no appeal lies thereto" and it is within the competence of this Court to entertain a petition in this case as neither a first appeal nor a second appeal lies to this Court from an order of this kind (vide--Sashikanta Acharya Bahadur v. Nasirabad Loan Office Co. Ltd., AIR 1936 Cal 786 (A); -- Tipan Prasad Singh v. Secy. of State, AIR 1935 Pat 86 (B); -- Mahadeo Prasad v. Khubi Ram, AIR 1929 All 793 (C)).

5. The only point of importance which has arisen in the present case is whether it was open to the Director General of Supply, after having nominated an arbitrator on one occasion, to revise his decision and to nominate another arbitrator.

6. An arbitration agreement is a contractual proceeding by which the parties to a dispute voluntarily agree to refer the matters in controversy to-persons selected by themselves or in the manner provided by law or by the terms of the agreement. As it is a contract, all the necessary elements thereof must exist including an agreement as to the manner in which the arbitrators are to b