JUDGMENT (1.) THE parties to this application excluding the respondents Nos. 33, 34 and 35 were members of a Hindu Mitakshara Joint Family. On or about 26.9.75, the petitioner instituted a partition suit being title suit No. 185 of 1975 (Rabindra Kumar Lohia v. Durgadutt lohia and Ors.) in Alipore court. Thereafter at the instance of the friends and relatives, the parties to that suit entered into an arbitration agreement in writing on 4. 11. 76 to refer all the disputes in suit to the arbitration of the respondents nos. 33, 34 and 35 herein. The said partition suit No. 185 of 1975 was withdrawn. The respondents Nos. 33, 34 and 35 as arbitrators entered upon the reference and held several sittings. The time to make the award by the Arbitrators was extended by mutual consent several times upto 15.10.78. During the pendency of this reference there were deaths and the consequential substitutions of the legal heirs and representatives of the deceased parties. The time to make the award having again expired, the petitioner took out an application under section 28 of the Arbitration Act which was contested by the respondents Nos. 1 to 32 herein. At the hearing of that application it was submitted on behalf of the respondents therein that the Arbitrators were not willing to act any further. Under the circumstances, I directed the respondent No. 34 herein to ascertain from, the other two arbitrators whether they were willing to act or not. Pursuant to that direction the respondent No. 34 informed me on 16. 7. 79 that all the three arbitrators were willing to act. I therefore, by an order dt. 16. 7. 79. extended the time to make the award peremptorily till 13. 8. 79. The arbitrators did not make any award within the extended time. Hence this application by this petitioner for further extension of time to make the award or alternatively for revocation of the authority of the arbitrators and in the further alternative for super session of the arbitration agreement dated 4.11.76. It is alleged in paragraph 10 of this petition that after the last extension of time the Arbitrators held altogether 4 sittings, and all such sittings were attended to by all the parties and/or their respective advocates. Ultimately on 9) 13.8.79, viz. It is alleged in paragraph 10 of this petition that after the last extension of time the Arbitrators held altogether 4 sittings, and all such sittings were attended to by all the parties and/or their respective advocates. Ultimately on 9) 13.8.79, viz. on the last date of the extended period, the Arbitrators by a letter intimated the parties as follows :-- "we regret that notwithstanding several long sittings of the arbitration held by us after the last order extending the time for making the award, we find that it is not possible for us to narrow the dispute between the parties. In the circumstances, we are not proceeding with this reference any further, and not making any award. We are sorry all our efforts have failed. " (2.) TO contest the present application the respondent No. 1 Durgadutt lohia filed his affidavit -in- opposition affirmed on 7-11-79 and the respondent no-5 Gourisankar Lohia affirmed his affidavit -in- opposition on 3.11.79, Other respondents did not use any affidavit but appeared at the time of' hearing. The arbitrators did not file any affidavit -in- opposition and did not contest the application. The respondents Nos. 3 and 4 were supporting the petitioner. During hearing, Mr. Bhabra, counsel for the petitioner submitted that he would not press prayers for extension of time or for supersession of the arbitration agreement. But he will press the prayer for removal of the arbitrators and appointment of new ones. The joint arbitrators by refusing to make the award within the extended time had failed to comply with the peremptory order dated 16.7.79 and failed to discharge their duties as arbitrators. Their conduct therefore, amounted to legal misconduct. Hence they were liable to be removed under section 11 of the Arbitration Act and on their removal, the court would appoint a sole arbitrator under the provisions of section 12 (1) of the Act. ' (3.) ON behalf of the contesting respondents it was submitted that on account of the abandonment of the prayers for extension of time and super session of the agreement the present application became misconceived and anfractuous and should be dismissed. The main ground for such submission was that once the arbitrators become functus officio due to expiry of time, no application for their removal or revocation of their authority would lie. The main ground for such submission was that once the arbitrators become functus officio due to expiry of time, no application for their removal or revocation of their authority would lie. In support of this contention, strong reliance was placed on A.I.R. 1953 S.C. 95 (Strawboard Manufacturing Co. Ltd. v. Gutta Mill Workers Union). This case was under section 14 and 21 of the U.P. General Clauses Act of 1904 and section 6 (1) of the U. P. Industrial Disputes act. The facts in short was that there was an industrial dispute between the parties and by the Labour Department notification dated 18.2.50, the Governor of Uttar Pradesh was pleased to refer the matter to the Labour Commissioner, U. P. with a direction that the adjudicator should conclude the adjudication proceeding and submit his award within 5.4.50. The adjudicator, however, submitted his award on 13. 4. 50. By a subsequent notification dated 26.4.50 time to submit the award was extended up to 30. 4. 50 and by another notification dated 1.8.50 the, said award was directed to be enforced for six months. An appeal was preferred by the company on the grounds that the award was made out of time and was bad in law and that the order of extension dated 26.4.50 which was made after the expiry of the original time was invalid. This appeal was dismissed. The company then moved the Supreme Court. The Supreme Court, after construing the aforesaid sections held that the subsequent order of extension dated 26.4.50 did not operate retrospectively and was of no legal consequence and the award was bad. This case has no application on the facts of this present case as section 28 of the Arbitration Act expressly empowers courts to extend time both prospectively and retrospectively. The next case relied on by the respondents was A.I.R. 1962 S.C. 78 (Hari Sankar Lal v. Shambhu Nath). In this case, the arbitrators entered upon the reference and four months period expired. Long thereafter a party by a notice called upon the Arbitrators to act and, an award was made within 4 months from the date of this notice. There was ho extension of time to make the award under section 28 of the Act. The question arose whether the award was validly made or not. Long thereafter a party by a notice called upon the Arbitrators to act and, an award was made within 4 months from the date of this notice. There was ho extension of time to make the award under section 28 of the Act. The question arose whether the award was validly made or not. The trial Court passed a decree upon the said award but the appeal court, set aside the said decree. The matter came up to the Supreme Court. It was argued that an arbitrator would have right to act even after the expiry of four months time though the award could not be filed unless the time would be extended under section 28 of the act. The majority Judgment while accepting that an award made beyond time could be validated by an order under section 28 disagreed with the view that an arbitrator after expiry of the time would have any right to act. No reasoning, was however, given in the majority judgment as to on what principle an award made by an arbitrator after expiry of time could be validated by an order of extension or what happens to the authority of the arbitrator conferred by the parties to the reference after expiry of time. I will deal with this case more elaborately later on in this judgment. (4.) THE last case relied on by the contesting respondents on this point was A.I.R. 1967 C 291 (Hindusthan steel v. Apeejay Pvt. Ltd.). This was a case under sections 5, 28 and schedule 1, rule 3 of the Arbitration Act. In this case, during the pendency of an arbitration proceeding Ape jay Pvt. Ltd instituted a suit regarding the subject matter of the arbitration proceeding. Hindusthan Steel did not make any attempt to stay the suit under section 34 of the Arbitration Act. On the contrary, it filed a written statement and prosecuted the suit. The result was that both the parties abandoned the arbitration agreement. The Hindusthan Steel thereafter took out an application for revocation of the authority of the arbitrator and for super session of the arbitration agreement after expiry of four months' period. On the contrary, it filed a written statement and prosecuted the suit. The result was that both the parties abandoned the arbitration agreement. The Hindusthan Steel thereafter took out an application for revocation of the authority of the arbitrator and for super session of the arbitration agreement after expiry of four months' period. Relying on the majority decision in A.I.R. 1962 S.C. 78, (Supra) the learned Judge held in paragraph 7 : in my opinion, there can be no question of revoking the authority of an arbitrator when in law the arbitrators do not exist and or cannot function. Hence the prayer for removal and revocation of the authority on these grounds are misconceived. " There was no finding in this case as to what would happen to the arbitrator's position factually after expiry of time. (5.) ON the basis of the aforesaid three authorities, it was submitted on behalf of the respondents that prayer for removal of the arbitrators could not be granted and no new appointment could be made in this case. (6.) THE counsel for the petitioner submitted that neither A.I.R. 1962 S.C. 18 (supra) nor A.I.R. 1967 Cal. 291 (supra) held that on expiry of time, arbitrators ceased to exist as arbitrators factually. Both the decisions were on the point that the arbitrators only ceased to exist in law. It naturally followed that the arbitrators remained arbitrators but they could not act due to loss of jurisdiction on account of expiry of time. The petitioner's counsel invited my attention to the separate concurrent judgment of Raghubar Dayal J. in A.I.R. 1962 S.C. 78 (supra) where the learned Judge held in paragraphs 18 and 19 as follows :- Para 18 : "the award made on October 3, 1950, was made beyond the period of four months of the Arbitrator's entering upon the reference and was, therefore, made, when the arbitrators had no jurisdiction to make it," Para 19). "the competency of the Arbitrators to act in pursuance of the reference arises out of the reference made by the parties and is not dependent on the period during which they ought to made the award. So long as the power vested, in them to decide the dispute between the parties is not withdrawn, they continue to be competent to act on the reference in expectation that the period for making the award would be extended by the court. So long as the power vested, in them to decide the dispute between the parties is not withdrawn, they continue to be competent to act on the reference in expectation that the period for making the award would be extended by the court. " It was submitted on behalf of the respondents' counsel that there was a conflict of views between the majority and the separate judgments in A.I.R. 1962 S.C. 78 (supra) regarding the arbitrator's position after expiry of time. A careful scrutiny of these two judgments will, however, prove that both the decisions proceeded on the basis that an act of an arbitrator done beyond time can be validated by an order under section 28 of the Arbitration act. If on expiry of the time, the arbitrator ceased to exist both de facto and de jure, then his award made beyond time would be an act of a stranger. How such an award can be validated by an order of extension? Section 28 does not empower a court to validate an award not made by an arbitrator. If an arbitrator ceases to exist in law as well as in fact then his re-instatement as an arbitrator will be necessary before his award can be validated by an order under section 28 of the Act. The provision of section 28 of the Act however, do not empower a court to restore an ex-arbitrator to his former position and then validate his award. The only possible logical conclusion will be then that on expiry of the time, an arbitrator remains an arbitrator de facto by virtue of the authority given to him by the parties to the reference but he ceases to exist in law due to loss of jurisdiction. The arbitrator gets his competency or authority from the parties but his jurisdiction to exercise such authority is dependent on the period of 4 months' time allowed by the statute. On expiry of this time, his competency remains but he cannot act in law. This is exactly the reasoning given by Raghubar Dayal J. in his separate judgment. The only point of difference between the two judgments is that while Mr. Justice Raghubar Dayal thinks that an arbitrator remains competent to act even after expiry of time in expectation that the time will be extended, the majority view says "no". This is exactly the reasoning given by Raghubar Dayal J. in his separate judgment. The only point of difference between the two judgments is that while Mr. Justice Raghubar Dayal thinks that an arbitrator remains competent to act even after expiry of time in expectation that the time will be extended, the majority view says "no". The word "competent" used in the judgment of Raghubar Dayal J., obviously referred to the "legal character" of the arbitrator and not to his "jurisdiction" and the majority view while saying "no" obviously referred to the arbitrator's "jurisdiction" to act and not to his "legal character" as arbitrator. All this simply means that according to Raghubar Dayal J., an arbitrator, although he has no jurisdiction to act after the time is over, can still act by virtue of his retaining his legal character in expectation that his jurisdiction will be revived but according to the majority view, it will be improper for the arbitrator to act until his jurisdiction is revived. But in view of the express provision of section 28 empowering courts to revive jurisdiction retrospectively irrespective of the question of propriety or impropriety of Arbitrator's act, this little difference, if any, in my opinion has hardly any legal consequence and really amounts to no difference at all. The net result is that on expiry of time the arbitrators retain their legal character and remain arbitrators de facto but not de jure and this character will continue until their deaths, resignations, or removals. In the premises, i am unable to accept the submission on behalf of the respondents that there is conflict of decision in A.I.R. 1962 S.C. 78. (supra). (7.) AS a matter of fact, this case was considered in A.I.R. 1965 C 183 Surendra v. Union of India, where a Division Bench of our Court had accepted that the reasoning in the separate judgment of Raghubar Dayal J. was the elucidation of the rule laid down by the majority judgment. The division Bench quoted' this separate judgment expensively and then held in paragraph 14 of the judgment as follows :- Para 14 : "if Sri Desai had not resigned it might be said that he was not actually functus officio. The division Bench quoted' this separate judgment expensively and then held in paragraph 14 of the judgment as follows :- Para 14 : "if Sri Desai had not resigned it might be said that he was not actually functus officio. He might still proceed with the arbitration even after expiry of the prescribed period and might made the award but such award would be a nullity if the time to make the award was not ultimately extended by the court. This is clear from the decision of the Supreme Court reported in Hari Sankarlal v. Shambhu nath A.I.R. 1962 S.C. 78". The Division Bench further held in paragraph 15 :- "by resigning, Sri Desai had formally divested himself of the character of an arbitrator:" (8.) THIS observation also goes, to show that an arbitrator after expiry of time only becomes functus officio in law, but retains his character as an arbitrator until the same comes to an end by revocation, removal or resignation. The co-use for the contesting respondents strongly relied on A.I.R. 1967 Cal. 291 (supra) and invited my attention to paragraph 7 where the learned Judge relying on the majority decision held that separate judgment of Raghubar Dayal J., was not the elucidation of the rule laid down by the majority decision :-Para 7 : "in the face of these observations it is difficult for me to accept the contention advanced by Mr. D. 6. Sen appearing on behalf of the respondent that the observation of Raghubar Dayal j., to the following effect. "the competency of the arbitrator arises out of the reference and is not dependent on the period during which they ought to make the award" is only an elucidation of the rule laid down by the majority of their Lordships". The learned Judge further held :-- "the authority of an arbitrator cannot be revoked when in law the arbitrator does not exist and/or cannot function. " (9.) THE aforesaid observation of this single Bench was contrary to the observation of the Division Bench in A.I.R. 1965 cal, which was not cited in A.I.R. 1967 cal. 291. (supra) Moreover, as already pointed out in A 1967 Cal. 291 not only the time had expired, but the parties had abandoned arbitration agreement by filing a suit and contesting the same. The arbitration agreement came to an end by the conduct of the parties. 291. (supra) Moreover, as already pointed out in A 1967 Cal. 291 not only the time had expired, but the parties had abandoned arbitration agreement by filing a suit and contesting the same. The arbitration agreement came to an end by the conduct of the parties. Hence there was no occasion or necessity for revoking the authority of the arbitrators in that case in a later decision of this court reported in A t974 Cal. 307, Skabes v. State of West Bengal it was held that the decision in A.I.R. 1967 Cal. 291 (supra) was given on the peculiar facts of that case. Mr. Bhabra, invited my attention to section 11 (1) and (2) of the Act in support of his contention that the language of these sections would also support his submission that after expiry of time the authority of the arbitrator could be revoked and the arbitration agreement could be superseded. Sec. 11 (1) "the Court may, on the application of any party to a reference, remove an arbitrator or umpire who fails to use all reasonable dispatch in entering on and proceeding with the reference and making an award (emphasis supplied). (2) The Court may remove an arbitrator or umpire who has misconducted himself on the proceeding. " (10.) RELYING on sub-section (1) of section 11, Mr. Bhabra submitted that failure to make the award within time would be a ground for removal of the arbitrator. The cause of action for his removal on this ground would not arise until the expiry of the last day because an arbitrator could make and publish his award on the last date if he so liked. But as soon the period would expire the cause of action would arise and an application could be made for his removal. An application taken out before expiry of time would be premature and misconceived. He also invited my attention to sections 16 (1) and (3) and 19 of the act. Sec. 16 (1) The court may from time to time remit the award or any matter referred to arbitration to the arbitrator or umpire for reconsideration upon such terms as it thinks fit. (a) (b) (c) (3) An award remitted under sub-section (1) shall become void on the failure of the arbitrator or umpire to reconsider it and submit his decision within the time fixed. (a) (b) (c) (3) An award remitted under sub-section (1) shall become void on the failure of the arbitrator or umpire to reconsider it and submit his decision within the time fixed. Sec. 19 "where an award has become void under sub-section (3) of section 16 has been set aside, the court may by order supersede the reference and shall thereupon order that the arbitration agreement shall cease to have effect with respect to the difference referred. " Mr. Bhabra, on the basis of these two sections submitted that after expiry of time, the arbitration agreement as well as the arbitrator would remain alive and to put an end to the agreement, order for super session would be necessary and to kill the arbitrator, his authority should be revoked or he should be removed. I accept this submission of Mr. Bhabra. (11.) THE next point urged on behalf of the respondents was that section II of the Act would not apply on the facts of this case. The arbitrators' refusal to make the award would not amount to their "failure to use reasonable dispatch in making the award." Morever, an application under this section must be taken out before expiry of time. In support of this contention AIR 1974 Cat. 307 was cited. But the learned Judge in that case was not called upon to construe sections 11 (1) of the Act or to give his finding whether an application for removal of the Arbitrator on the ground of his failure to make the award could be taken out before expiry of time. In my opinion if an application is taken out before expiry of time on this ground it will be premature. The language of section 11 (1.) clearly indicates that an application on this ground must be made after the whole period is over. In this case, the arbitrators had misconducted themselves in not complying with my peremptory order dated 16.7.78 and as such they were also liable to be removed under section II Sub-section (2) of the Act. Their refusal to make the award certainly amounts to failure to use all reasonable dispatch and will attract the provisions of section 11 (1) of the Act. (12.) THE next point taken by the respondent's counsel was that the parties had great faith and confidence in the three arbitrators selected by them. Their refusal to make the award certainly amounts to failure to use all reasonable dispatch and will attract the provisions of section 11 (1) of the Act. (12.) THE next point taken by the respondent's counsel was that the parties had great faith and confidence in the three arbitrators selected by them. On proper construction of the arbitration agreement, it would be clear that parties never intended to fill up the vacancy. On the removal of the arbitrators, therefore the vacancy should, not be filled up and the arbitration agreement should be superseded. According to the petitioners' counsel the parties intention to fill up or not to fill up the vacancy is material only for the purpose of appointment under section 8 (1) (b) of the Arbitration Act. It has no relevancy for the purpose of appointment under section 12 of the Act. The Court has the right to appoint an arbitrator even if the parties did not intend to fill up the vacancy. The respective submissions of the counsels require careful consideration. In AIR 1971 SC 2298 Prabhat General Agencies v. Union of India while dealing with section 8 (1) (b) the supreme Court laid down the principles when a vacancy can be filled up by court. "the language of the provision is not that the parties intended to supply the vacancy but on the other hand it is that "the parties did not intend to supply the vacancy. " In other words if the agreement is silent as regards supplying the vacancy, the law presumes that the parties intended to supply the vacancy. To take the case out of section 8 (1) (b) what is required is not the intention of the parties to supply the vacancy but their intention not to supply the vacancy. " Relying on this case it was submitted on behalf of the respondents that the parties have given very wide, unusual and summary powers to the arbitrators selected by them which would go to show that they never intended to fill up the vacancy and the agreement in question should be construed in that manner. In AIR 1976 Cal. " Relying on this case it was submitted on behalf of the respondents that the parties have given very wide, unusual and summary powers to the arbitrators selected by them which would go to show that they never intended to fill up the vacancy and the agreement in question should be construed in that manner. In AIR 1976 Cal. 448 (Bijay Kumar swaika v. Shyam Sundar Swaika) our division Bench held as follows :-Para 20 : "it is again hardly arguable that the fact that the arbitrators had been invested with summary powers, necessarily implies that it was intended not to supply the vacancy. The argument that the parties might not have invested the substituted arbitrators with summary powers not having the same trust and confidence in them as they had in the original arbitrators of their choice is of little force. Ordinarily parties choose only such persons to act as arbitrators in whom they can repose trust and confidence, the more so, when the arbitrator is a persona designata. It may also be said that in appointing an arbitrator, the parties expect and contemplate that the award will be made in by the arbitrator of their choice. Nevertheless, in proper circumstances, the court removes him and appoints a fresh arbitrator. " The latest case on this point is AIR 1980 SC 103 (Union of India v. Raghunath Singh and Co.) wherein Supreme Court has held : "the Court had no power to supply the vacancy under section 8 (1) (b)only if the arbitration agreement did show that the parties did not intend to supply the vacancy. If no such intention could be called out from the arbitration clause, the court could supply the vacancy. When there was a named arbitrator even though he was named by office, it was open to the court to supply the vacancy in his place under section 8 (1) (b). " (13.) IT appears, from the aforesaid authorities that if the arbitrators are appointed by their names or by their designations or they are invested with summary or wide powers, that will not be treated as an expression of the parties intention not to fill up the vacancy. The intention not to fill up the vacancy must be made in express terms. The intention not to fill up the vacancy must be made in express terms. It may also be ascertained on basis or implication upon construction of the agreement, provided such intention can be found out beyond doubt. In my opinion, the present agreement does not contain any such intention either expressly or by necessary implication and there is nothing in this agreement to rebut the presumption in law in favour of court's power to appoint. Mr. Bhabra, however, argued that court's power to appoint a sole arbitrator under section 12 of the Act would not depend on the parties' intention to fill up or not to fill up the vacancy. That factor would be immaterial and irrelevant. Such powers are not controlled by the agreement of the parties. According to him this would be clear from the comparison of the language used in section 8 (1) (b) and section 20 (4) on one hand and section 11 and 12 of the other. Even if the parties did no intend to fill up the vacancy, but the appointed arbitrator was removed by court under section 11 of the Act, the court would be competent to appoint ah arbitrator under section 12 inspite of such agreement. In support of his submission he cited AIR 1972 Jammu and Kashmir 63. Mohindar Singh and Co. v. The Union of India. In this case under the arbitration clause 25, the partners authorised Additional Chief Engineer, CPWD in charge of the work for the time being or if there be no such officer then the Administrative head of the said C.P.W.D. to appoint an arbitrator in case of dispute. No other person would have the right to appoint and there would be no arbitration at all if appointment was not made in the manner agreed. The appointed arbitrator having misconducted, the court decided to remove him. The question then arose as to who would appoint the next arbitrator the court or the appointing authority under the agreement. It would be significant to note also in this case, the parties reserved their right not to continue the arbitration proceeding if appointment would not be made according to the agreement which amounted to reservation of right by the parties to supersede the agreement without recourse to court. The parties, however, had expressed their clear intention to fill up the vacancy by agreed mode. The parties, however, had expressed their clear intention to fill up the vacancy by agreed mode. It was submitted that the term regarding the mode of appointment of this substituted arbitrator ran counter to the provisions of section 12 (1) of the Act. This submission was accepted by the learned Judge and the ratio of his decision was very aptly given in the head note (D) of this report; "when an arbitor is remove by the court, the new arbitrator can be appointed only by the court and even if there is any clause in the agreement giving such power to any person, the agreement being contrary to provisions of section 12, cannot be enforced". In AIR 1976 C. 448 para 23 our Division Bench held that parties to the arbitration cannot reserve right to supersede the agreements :- "in sharp contrast to the provisions for revocation of authority of the Arbitrator or umpire by the parties without taking recourse to intervention by court, the Act does not provide that by or under a stipulation made in the arbitration agreement the parties to an arbitration may supersede an arbitration of their own accord. The power to supersede an arbitration inheres in the court and the court alone. In the present case, the stipulation in the arbitration for super session of the arbitration in the arbitration agreement could never have been implemented unless the court made one order to that effect. " (14.) THE aforesaid two cases are authorities on the points that the court's authority to appoint an arbitrator under section 12 (1)and courts power to supersede arbitration proceeding under sections 12 (2) and 19 cannot be taken away by agreement of the parties. Any such agreement which runs counter to these provisions of the Act will be of no legal consequence. But the respondents' counsel posed a different question. Could the court on removal of an arbitrator under section 11 of the Act appoint another under section 12 (1) and compel the parties to continue the reference if the arbitration agreement clearly showed that the parties never intended to fill up the vacancy ? But the respondents' counsel posed a different question. Could the court on removal of an arbitrator under section 11 of the Act appoint another under section 12 (1) and compel the parties to continue the reference if the arbitration agreement clearly showed that the parties never intended to fill up the vacancy ? Such a clause in an arbitration agreement obviously would not amount to reservation of the right to supersede the agreement or to take away the court's power to appoint under section 12 (1) as was done in A 1972 J and K. It seems that if the parties to the arbitration agreement clearly intend not to fill up the vacancy created by the death, inability or resignation of the arbitrator or due to revocation of his authority or his removal, the agreement will automatically come to an end with the happening of one of the aforesaid events. In such a case a court will not compel the parties to continue the agreement by appointment of a sole arbitrator under section 12 (1) of the Act. To meet such a [situation, the provisions of section 12 (2) (b)has been enacted. The court will declare that the agreement shall cease to have effect with respect to the difference referred. Hence I am unable to accept the submission of Mr. Bhabra on this point. Those questions are also mere academic so far as the present case is concerned. The present agreement does not contain any provision either expressly or by implication that vacancy should not be filled up and on the facts of this case, court will be perfectly within its right to appoint an arbitrator. It was submitted by the respondents that one of the parties had filed a partition suit in Dibrugarh Court in the mean time. I do not think that filing of such suit will affect the judgment or this application in any way. (Parties are entitled to take appropriate step to enforce the arbitration agreement if they were so advised. (15.) ON behalf of the respondents, it was submitted, that present application was a belated one and should be rejected. But i find there is hardly any substance in this submission. It is undisputed that the parties attended the sittings of the arbitrators upto 3.8.76. Thereafter the arbitrators wrote the letter dated 9/13.8.79 expressing their unwillingness to proceed any further. (15.) ON behalf of the respondents, it was submitted, that present application was a belated one and should be rejected. But i find there is hardly any substance in this submission. It is undisputed that the parties attended the sittings of the arbitrators upto 3.8.76. Thereafter the arbitrators wrote the letter dated 9/13.8.79 expressing their unwillingness to proceed any further. The present application was taken out on 3.9.79. The delay in hearing of this application cannot be attributed to the petitioner alone. It is also on records that some of the parties have certain grievances against the respondents Nos. 33, 34 and 35. It was submitted on behalf of the respondents that the arbitration would be lengthy proceeding and a suit would be more appropriate. In this case, a partition suit was in fact instituted by the petitioner. The parties, instead of resolving their disputes in court preferred to go to arbitration with full knowledge of its advantages and disadvantages. I personally do not think that the disputes could be resolved easily by any proceeding because of the extremely bitter relationship amongst the parties. If good sense prevails, an arbitration will be the most suitable proceedings for resolving the disputes considering its magnitude. In this view of the matter there will be an order in terms of prayer (b) for removal of the respondents No. 33, 34 and 35 from further acting as Arbitrators. Mr. Amiya kumar Mukherjee, a retired Judge of this high Court is appointed the sole Arbitrator to arbitrate upon the disputes in the reference. The sole Arbitrator is given liberty either to proceed denovo, or to continue the unfinished proceeding left by the outgoing arbitrators, from the stage it was left by them if he thinks fit. The remuneration of the sole arbitrator is fixed at 30 gms. per kitting irrespective of hours Ha will be entitled to engage a stenographer, interpreter and a clerk and their remunerations are to be fixed at a meeting of the parties If the parties cannot agree, then the sole arbitrator will decide the same at his sole discretion. The arbitrator is directed to enter upon the reference forthwith and to make his award within 8 months from the date of his entering upon the reference. The arbitrator is directed to enter upon the reference forthwith and to make his award within 8 months from the date of his entering upon the reference. In view of the fact that this application was necessitated due to the conduct of the outgoing arbitrators, I direct that each party to pay and bear his own costs. All parties and the arbitrator to act on a signed copy of the minutes. The respondents prayed for stay of order. The stay is refused. Parties are entitled to take inspection of this judgment. Application allowed. Each party.