ORDER Gopi Nath, J. - This is an application in revision from an order passed by the Civil Judge, Gorakhpur. D/- 13-1-1982 allowing an application fill under S. 8 (2), Arbitration Act, and appointing one Sri Jinendra Jain as an Arbitrator in a dispute arising between the parties. 2. The opposite party is a registered partnership Firm with its Head Office at Golghar, Gorakhpur. It carries on a business of transport on contract basis. On 16-9-1977 the representatives of the applicant asked for quotation from the opposite party for transporting sugarcane to the various centres of the applicant's Mill. The opposite party gave quotations. The quotations included the charging of good- tax at the rate of 8% on the bills submitted. This quotation was accepted by the General Manager of the applicant and a formal agreement was drawn between the parties. The relevant clauses of the agreement are as follows : "1 (a) That the transporters agree to transport all the cane purchased by the factory or its representatives by whatever nomenclature they may be called at different cane purchasing centres during the season 1977-78 to the factory as may be required by the factory, from time to time at the following rates : Name of Centre Rate per quintal Chandradeep Ghat Rs. 1/90 p.a quintal Rudhauli Rs. 1/93 p.a quintal Athdama Rs. 1/05 p.a quintal Upadhi Rs. 1/88 p.a quintal Kanchanpur Rs. 1/88 p.a quintal (b) 8% Goods Tax will be paid extra. (c) ............................... (d) Octroi and Bridge Charges will have to be paid by the factory against actual receipts. 11. That the transporters will submit their bills every week ending 7th, 15th, 22nd and the end of the month and 95% of the amount found payable after scrutiny by the factory will be paid to the transporters by the Factory against such bills within the next week. The balance along with the security will be paid to the Transporters by the factory after clearance and settlement of all the accounts within 3 months after close of the season 1977-78. 24. That in the event of any dispute or difference between the parties in connection with the construction, execution or any other matter will be referred to the General Manager of the Factory whose decision shall be final and binding upon both the parties." 3. The agreement by cl. 24. That in the event of any dispute or difference between the parties in connection with the construction, execution or any other matter will be referred to the General Manager of the Factory whose decision shall be final and binding upon both the parties." 3. The agreement by cl. 1 (b) provided for payment of goods tax at the rate of 8% by the applicant to the opposite party. The opposite party transported the goods of the applicant and submitted a bill charging 8% extra as goods tax. The applicant withheld payment of the amount charged as goods tax and insisted for production of receipt or prima facie proof of payment thereof. The opposite party did not produce any receipt and pressed for the payment of a sum of Rs. 36,558-63 claimed by way of goods tax. This payment was refused. Another amount of Rs. 4,772-41 forming part of the bills besides the goods tax was refused payment by the applicant on the ground that it was legally deducted. Two items of dispute thus ;arose between the parties (1) the amount of Rs. 36,558-63 charged by way of goods tax under cl. 1 (b) of the agreement and (2) the amount of Rs. 4,772-41 deducted from the bills. The opposite party wrote a letter dated 6-4-1979 to the General Manager for settling the dispute. The General Manager refused to act as an Arbitrator. The opposite party hence filed the application under S. 8 (2). Arbitration Act, hereinafter referred to as the Act, to the court for the appointment of an Arbitrator. 4. An objection was filed by the applicant on the ground that the payment of goods tax was withheld for want of prima facie proof of payment thereof and the amount of Rs. 4,772-41 was legally deducted from the bills. According to the applicant there was no dispute arising between the parties as it was prepared to pay the goods tax on production of receipt. No reason was, however, shown why the deduction of Rs. 4,772-41 did not constitute a dispute. It was further pleaded that the General Manager had not refused to act as an Arbitrator and the reference made to the court in the circumstances was not maintainable. 5. No reason was, however, shown why the deduction of Rs. 4,772-41 did not constitute a dispute. It was further pleaded that the General Manager had not refused to act as an Arbitrator and the reference made to the court in the circumstances was not maintainable. 5. The opposite party filed a replication pleading that it was never stipulated between the parties that goods tax would be paid on production of receipt of verification of payment only. The opposite party was accordingly entitled to ask for payment of goods tax as also of the amount of Rs. 4,772 41, illegally deducted from the bills. The applicant having refused to pay the amounts claimed, a dispute arose between the parties and the General Manager having declined to arbitrate in the dispute the opposite party rightly moved the court. 6. It is admitted by the applicant that the amount of goods-tax claimed by the opposite party was not paid to it it is further admitted by it that a sum of Rs. 4,772-41 was deducted from the bills of the opposite party, and was not paid to it. There was thus a difference between the parties as regards the two items mentioned above. 7. The court below rejected the objection holding that the refusal to pay the goods-tax as also the amount of Rs. 4,77241 deducted from the bills constituted a dispute between the parties, and the General Manager having refused and neglected to act as Arbitrator, the application filed under S.8(2) was maintainable. It was allowed, and an arbitrator was appointed. 8. Aggrieved, the applicant has come up in revision. 9. Learned counsel for the applicant made the following submissions : 1. That the applicant was prepared to pay the goods-tax but on production of the receipt or prima facie proof of payment thereof, hence on a true construction of cl. 1 (b) of the agreement, no dispute arose between the parties in that regard, and a mere failure to pay did not constitute a dispute. Since no dispute had arisen between the parties, the reference made to court was bad in law. 1 (b) of the agreement, no dispute arose between the parties in that regard, and a mere failure to pay did not constitute a dispute. Since no dispute had arisen between the parties, the reference made to court was bad in law. Reliance was placed on Uttam Chand Saligram v. Mahmood Jewa Mamooji (AIR 1920 Cal 143); Chandmull Goneshmull v. Nippon Munkwa Kabushiki Kaisha (AIR 1921 Cal 342); Nandram Hunatram v. Raghunath and Sons Ltd. ( AIR 1954 Cal 245 ); Union of India v. Birla Cotton Spinning and Weaving Mills Ltd. ( AIR 1967 SC 688 ); Dilip Construction Co. v. Hindusthan Steel Ltd. (AIR 1973 Madh Pra 261) and State of Orissa v. B.C. Pasayat (AIR 1983 Orissa 29). 2. That in view of cl. 11 of the Arbitration Agreement, so long as the accounts were not settled, a dispute could not legally arise between the parties, and the claim laid was premature and the reference made bad in law. 3. That the General Manager had not refused to act as an Arbitrator. He alone was competent to act as an Arbitrator under cl. 24 of the Arbitration Agreement. No Arbitrator could be appointed unilaterally by a court under S. 8 (2) of the Act. Reliance was placed on Freshwater v. Western Australian Assurance Company, Limited (1933-1 KB 515) and Jones v. Birch Brothers Limited, (1933-2 KB 597). We shall take up these points seriatim. 10. The goods-tax was made payable by cl 1 (b) of the Arbitration Agreement. That clause did not contemplate the production of any receipt. Clause 1 (d) relating to Octroi and bridge charges specifically provided for production of receipt. The goods-tax accordingly was payable without the production of a receipt. The applicant admittedly did not pay the goods-tax. It was not a case of mere failure to pay but repudiation of a claim. A dispute means a contest or a controversy or a disagreement between the parties (see Corpus Juris Secundum Vol. 27, page 601). A dispute arises when an assertion of a right is made by one party and is repudiated by the other (see State of Orissa v. B.C. Pasayat, AIR 1983 Orissa 29). The applicant clearly denied its liability to pay the goods-tax under the terms of the contract until a receipt was produced. 27, page 601). A dispute arises when an assertion of a right is made by one party and is repudiated by the other (see State of Orissa v. B.C. Pasayat, AIR 1983 Orissa 29). The applicant clearly denied its liability to pay the goods-tax under the terms of the contract until a receipt was produced. In Union of India v. Birla Cotton Spinning and Weaving Mills Ltd. ( AIR 1967 SC 688 ) it was held that denial of liability under the terms of the contract undoubtedly raises a dispute between the parties. The case was concerned with the interpretation of the words "under" or "in connection with" the contract under which the liability sought to be enforced had arisen. The Union of India in that case desired to appropriate the amount payable by way of price of the goods supplied towards another claim under another independent contract. The Supreme Court observed at p. 690) : "........A dispute that the Union is not liable to pay the price under the terms of the contract is undoubtedly a dispute under the contract, and in any event in connection with the contract. But a plea that the Union though liable to pay the amount under the terms of the contract will not pay it because it desires to appropriate it towards another claim under another independent contract cannot reasonably be regarded as a dispute "under or in connection with" that contract under which the liability sought to be enforced has arisen." This case instead of helping the applicant goes against it. The case of Dilip Construction Company v. Hindustan Steel Ltd. (AIR 1973 Madh Pra 261) does not assist the applicant. It laid down the following propositions : (i) the existence of a difference or dispute is an essential condition for the arbitrator's jurisdiction to act under an arbitration clause in an agreement; (ii) the jurisdiction of an arbitrator depends not upon the existence of a claim or the accrual of a cause of action, but upon the existence of a dispute. A dispute implies an assertion of a right by one party and repudiation thereof by another; (iii) a failure to pay is not a difference, and the mere fact that a party could not or would not pay does not in itself amount to a dispute unless the party who chooses not to pay raises a point of controversy regarding, for instance, the basis of payment or the time or manner of payment." There is a clear distinction between a mere failure to pay and a refusal to pay by denying the claim. A failure to pay may occur for various reasons, and that may not constitute a dispute between the parties but a refusal to pay by denying the liability would constitute a dispute enabling the parties to make a reference for arbitration. The instant was a case of the assertion of a right by the opposite party and repudiation of the same by the applicant. A dispute accordingly clearly arose between them. The cases of Uttam Chand Saligram v. Mahmood Jewa Mamooji (AIR 1920 Cal 143); Chandmull Goneshmull v. Nippon Munkwa Kabushiki Kaisha (AIR 1921 Cal 342) and Nandram Hanutram v. Raghunath and Sons Ltd. ( AIR 1954 Cal 245 ) which lay down the general rule that the existence of a dispute is a condition precedent for the making of a reference, and a mere failure to pay does not raise a dispute, do not need any detailed discussion as we have reached the conclusion that a dispute did exist in the instant case which was not a case of mere failure to pay but was One of repudiation of a right. The second item of dispute viz. the deduction of Rs. 4772-41 from the bills, in any view of the matter, was a dispute arising between the parties, and a partial arbitration could not be asked for. Further, "if the parties are agreed that a binding contract was made and it is necessary to have recourse to the contract to settle the dispute that has arisen, then it is a "dispute arising out of the contract" (See Russell on Arbitration, 18th Edn. page 69). This position is made clear by cl. 24 itself. The court was rightly moved for appointing an arbitrator. 11. As regards the second point, cl. 11 provides for the manner of submission of bills and the mode of their payment. page 69). This position is made clear by cl. 24 itself. The court was rightly moved for appointing an arbitrator. 11. As regards the second point, cl. 11 provides for the manner of submission of bills and the mode of their payment. The stage at which a dispute could arise is not the scope of cl. 11. It does not prevent the arising of a dispute at a stage prior to the finalisation of accounts. The dispute raised and the stage at which it has arisen is not a matter falling under cl. 11. It is not the case of the applicant that the amounts deducted and the payments withheld were to be considered again by the applicant at any subsequent stage of accounts. The question now raised was never raised in the court below nor have we found any merit in it. It is accordingly rejected. 12. The third point relates to the appointment of arbitrator. The applicant's contention is that no one other than the General Manager could act as arbitrator, and the court below erred in appointing Sri Jinendra Jain as an arbitrator unilaterally. Reliance was placed on Freshwater v. Western Australian Assurance Company. Limited (1933-1 KB 515) and Jones v. Birch Borthers, Limited (1933-2 KB 597). These cases are not in point and are inapplicable in the instant case. The court below has found that the General Manager had refused to act as an arbitrator. The question accordingly is whether in the absence of an arbitrator named in the agreement, the court had the power to appoint another arbitrator. In Union of India v. Raghunath Singh and Co. ( AIR 1980 SC 103 ): (1979 All LJ 1317) it was held that it is not a named arbitrator in an agreement who alone can be asked to arbitrate in a dispute. The court can appoint an arbitrator of its own, and it is open to the court to supply the vacancy in his place under S. 8 (1) (b), of the Act. This case concludes the point against the applicant. Learned counsel for the applicant, submitted that this case has mainly relied on Prabhat General Agencies v. Union of India ( AIR 1971 SC 2298 ), facts of which are clearly distinguishable from the facts of the instant case. It is not necessary to consider the facts of Prabhat General Agencies v. Union of India (supra). Learned counsel for the applicant, submitted that this case has mainly relied on Prabhat General Agencies v. Union of India ( AIR 1971 SC 2298 ), facts of which are clearly distinguishable from the facts of the instant case. It is not necessary to consider the facts of Prabhat General Agencies v. Union of India (supra). The case of Union of India v. Raghunath Singh and Co. ( AIR 1980 SC 103 ) has clearly ruled that even where there was a named arbitrator, it was open to the court to supply the vacancy by nominating another person to act as an arbitrator. 13. During the pendency of the proceedings of the instant revision, the arbitrator appointed by the court below had given his award and that had been made a rule of the court by an order D/- 21-3-1983. Learned counsel for the applicant sought to challenge that order on the ground that since the reference was bad in law and the order passed on it was without jurisdiction the award and the order making it a rule of the court were also without jurisdiction and could be set aside by this Court. It was submitted that subsequent events could be taken notice of, and in order to avoid multiplicity of proceedings it was necessary that the award and the order making it a rule of the court be set aside. Reliance was placed on Shikharchand Jain v. Digamber Jain Praband Karini Sabha ( AIR 1974 SC 1178 ); Nair Service Society Ltd. v. K.C. Alexander ( AIR 1968 SC 1165 ); R.M. Subramaniam v. N. Sundaram Iyer ( AIR 1963 Mad 217 ) (FB): Ram Chander v. Jamna Shankar ( AIR 1962 Raj 12 ); Biridi Chanda Mada v. State of Orissa (AIR 1958 Orissa 159): Kapila Bai v. H.S. Madhava Rao (AIR 1957 Mys 71); Gopi Chand v. Lal Chand (AIR 1956 Pepsu 74); S. Dhillu Singh v. S. Sohan Singh (AIR 1956 Pun 253); Niwas v. Election Tribunal at Lucknow ( AIR 1955 All 251 ); Mt. Taja v. Mst. Azizi (AIR 1954 J & K 31); Rajendra Singh v. Ramganit Singh ( AIR 1954 Pat 556 ); Shital Prasad v. Mst. Tapesara Kurmin ( AIR 1953 All 573 ); Sm. Taja v. Mst. Azizi (AIR 1954 J & K 31); Rajendra Singh v. Ramganit Singh ( AIR 1954 Pat 556 ); Shital Prasad v. Mst. Tapesara Kurmin ( AIR 1953 All 573 ); Sm. Annapurnabai v. Bhanji (AIR 1953 Nag 307); Beevathuma v. Lekshmi Animal (AIR 1952 Trav-Co 92) and Shamu Patter v. Abdul Kadir Ravuthan (1912) ILR 35 Mad 607) (PC) for the submission made. The argument is misconceived, and the cases have no application in the instant case. We have already held that the reference made to the court was valid in law, and the order passed by it did not suffer from any defect much less a jurisdictional error. The court below rightly appointed an arbitrator. The award and the order making it a rule of the court accordingly could not be challenged in these proceedings. The ground being clearly unsustainable, the challenge fails. Further, an appeal lies against an award and the same cannot be challenged in a revision. This submission of the learned counsel also fails and is rejected. 14. In the result, the revision fails and is dismissed with costs.