M. R. MALLICK, J. ( 1 ) THIS is an application under section 28 of the Indian Arbitration Act praying for extension of the period of six months so as to enable Shri Bhaskar Sen the Sole Arbitrator, to proceed with the reference and make and publish his award in the matter within the above period. ( 2 ) THE petitioner has moved this Court on the following allegations: on or about 25th September, 1975 an agreement was entered into between the petitioner and the respondent whereby the respondent appointed the petitioner for preparation of master plan for Mohanpur Campur, Project report. Soil investigation work and design and drawings for all building, structures, infra structure, inter alia comprised of electronics, Public health, water supply, roads and paths, bridge, landscape planning etc. upon terms and conditions at a remuneration duly specified in the said agreement. That agreement clause contained an arbitration clause being clause (8) which is set out in paragraph 3 to the application as follows:"in case of any dispute arising out of or in any way touching this agreement shall be referred to a mutually agreed Arbitrator and his decision will be binding on these parties. In case of inability to choose the sole Arbitrator within one party's demand of such appointment the provisions of Indian Arbitration Act, 1940, shall apply to the arbitration under this clause". ( 3 ) IT is submitted on behalf of the petitioner that even though the petitioner did a lot of work in terms of the said agreement and submitted the bill amounting to Rs. 41,62,482. 28p. the respondent only paid a total sum of Rs. 37,96,638. 21p and a sum of Rs. 3,65,844. 07p. remain unpaid. ( 4 ) BY the letter dated 29/30th March 1984 the respondent wrongfully terminated the agreement with effect from 1st July 1984. Subsequent to the purported termination of agreement the petitioner asked the Respondent to make payment of the outstanding dues. It is also submitted that the matter was referred by the Vice-Chancellor to the Chief Engineer, P. W. D. for payment of the petitioner's dues. But even though the petitioner submitted the papers before the Chief Engineer nothing was done. The petitioner, thereafter, applied before the Vice-Chancellor to concur the appointment of Mr. It is also submitted that the matter was referred by the Vice-Chancellor to the Chief Engineer, P. W. D. for payment of the petitioner's dues. But even though the petitioner submitted the papers before the Chief Engineer nothing was done. The petitioner, thereafter, applied before the Vice-Chancellor to concur the appointment of Mr. Bhaskar Sen, Bar-at-law, at 147, S. P. Mukherjee Road, Calcutta as the arbitrator to arbitrate upon the disputes and differences between the parties. The Vice-Chancellor did not make any response. Therefore the petitioner appointed Mr. Bhaskar Sen and asked him to enter into the reference. Shri Bhaskar Sen, thereafter, entered into the reference and axed 2nd December 1988 with notice to all parties as sitting of the arbitration proceedings in his chamber in the office of the Bar Library Club. But the respondent did not attend such meeting and the Arbitrator, thereafter, held sittings of the arbitration proceedings on several dates upto 2nd, June 1989. Pursuant to the direction of the Learned Arbitrator, the petitioner duly filed the statement of claim. Copies of the pleadings and documents filed by the petitioner were sent to the respondent but the respondents have not appeared in the arbitration proceedings. The Learned arbitrator, upon giving peremptory notice, proceeded with the reference ex parte. But as in the meantime four months have passed after the Arbitrator had entered into the reference, this application has been filed. ( 5 ) THE respondents have contested this application contending, inter alia, that the reference was illegal and that is why the respondent did not participate in the proceedings. It is also submitted that the respondent also intimated the Arbitrator challenging the validity of the reference and asked him to stay hands. It is therefore submitted that as the reference was illegal and there was no valid arbitration proceedings, the Court should not extend the period for making the award in such an illegal arbitration proceedings. ( 6 ) ON perusal of the arbitration agreement set out as above, I find that in the arbitration agreement, the Arbitrator has to be appointed by consent of the parties. ( 6 ) ON perusal of the arbitration agreement set out as above, I find that in the arbitration agreement, the Arbitrator has to be appointed by consent of the parties. Under sub-section (1) (a) of section 8 of the Indian Arbitration Act where an agreement provides that the reference shall be to one or more arbitrators to be appointed by consent of the parties and if differences have arisen to concur in the appointment then any party to the arbitration agreement may ask the other party to make the appointment within a period of 15 clear days from the date of service of the notice. In this case the arbitration agreement provided for the arbitrator to be appointees by consent of parties and the petitioner served such notice upon the respondent. But the respondent did not respond. In such case sub-sec. (2) of section 8 is attracted and the petitioner has to apply before the Court to appoint the Arbitrator and cannot appoint the Arbitrator himself. ( 7 ) MR. Chatterji, appearing on behalf of the petitioner concedes that such a course, as provided in sub-section (2) of sec. 8, has not been adapted by his client before appointing Mr. Bhaskar Sen, Bar-at-law, as the Arbitrator,. Therefore there is some legal infirmity in the appointment of Mr. Bhaskar Sen. If the respondent participated in such arbitration proceedings then I would have said that the defect had been cured. But the respondent admittedly wrote to the Arbitrator that the appointment of Shri Bhaskar Sen was not in accordance with the provisions of the Indian Arbitration Act and refused to participate in the proceeding, ( 8 ) IN view of the above when it found that the appointment of Shri Sen was not in accordance with the provisions of sub-section (2) of sec. 8 of the Indian Arbitration Act and the reference being prima facie not a proper reference, this Court, by invoking sec. 28 of the Indian Arbitration Act, should not extend the time for making such an award. The discretionary power which is given to this Court under sec. 28 should not be exercised in favour of the petitioner when the Arbitrator has not been. appointed in accordance with the provisions of this Act and the award made and published even if time were extended would be vitiated. ( 9 ) IN that view, this application is dismissed. The discretionary power which is given to this Court under sec. 28 should not be exercised in favour of the petitioner when the Arbitrator has not been. appointed in accordance with the provisions of this Act and the award made and published even if time were extended would be vitiated. ( 9 ) IN that view, this application is dismissed. However I give the liberty to the petitioner again to apply before the respondent to concur in the appointment of Shri Bhaskar Sen and if the respondent does not concur then the petitioner will be at liberty to apply under the provisions of the Indian Arbitration Act for appointment of an Arbitrator. ( 10 ) NO order for costs is passed. ( 11 ) ALL parties shall act on the signed copy of the operative portion of this judgment upon usual undertaking. Application rejected.