S. K. SEN, J. ( 1 ) THIS is an application for appointment of an Arbitrator by Court on the ground that although the Chairman and Managing Director of the respondent Company was called upon to nominate an Arbitrator in terms of the Arbitration Clause by letter dated 21/09/1991, the Chairman and Managing Director failed to appoint any arbitrator. No reply was sent to the said letter. When there was no reply to the said letter dated 21st of September, 1991, the petitioner again wrote a reminder dated 26th of October, 1991 calling upon the appointing authority to appoint an Arbitrator within 15 days from the receipt of the said letter. Copy of the said letter is Annexure 'f' to the petition. This letter also failed to elicit any response of the appointing authority and the petitioner was again constrained by letter dated 12/11/1991 to write to the appointing authority being the Chairman and the Managing Director of the respondent to appoint a Sole Arbitrator positively within 15 days of the receipt of the letter, failing which the petitioner stated that it would take an appropriate legal action for reference of the disputes to arbitration. Having no alternative, as the appointing authority had failed and refused to appoint any Arbitrator in spite of three letters by the petitioner, the petitioner moved the instant application praying inter alia for appointment of an Arbitrator by this Court to adjudicate the dispute and claims mentioned in the letter dated 21/09/1991, being Annexure 'e' to the petition. It is the contention of the learned advocate for the petitioner that the disputes were set out in Annexure 'a' to the said letter dated 21/09/1991, addressed to the Chairman and Managing Director of the respondent Company. Since no reply was given to any of the letters that only suggests that the Chairman and Managing Director refused to appoint any arbitrator in terms of the arbitration clause. The case of the respondent is that the disputes referred to in Annexure 'a' to the said letter do not come within the purview of the arbitration clause and as such no arbitrator should be appointed and as such the application is not maintainable. The respondent has particularly objected to Sl. Nos. The case of the respondent is that the disputes referred to in Annexure 'a' to the said letter do not come within the purview of the arbitration clause and as such no arbitrator should be appointed and as such the application is not maintainable. The respondent has particularly objected to Sl. Nos. 6, 7, 8, 9 and 10 referred to in the said claim of the petitioner being Annexure 'a' to the petition on the ground that the said items do not relate to terms and conditions for payment. It has also been submitted on behalf of the respondent that the Arbitration Clause in the instant case provides for a particular machinery for appointment of named Arbitrator and since that machinery has not failed, it is not open to the Court to appoint an arbitrator. I have considered the submissions of the learned Advocate of the parties. In my opinion the Arbitration Clause is very wide. The said Arbitration Clause is set out heroin below :- "if any dispute arises between the Contractor and the Sub-Contractor about the terms and conditions of payment and execution of the work the same shall be referred to an arbitrator as per Arbitration Act to be appointed by the Chairman and Managing Director of the Contractor. " ( 2 ) IT cannot be said from a proper interpretation of the Arbitration Clause that the disputes and/or claims mentioned in Annexure 'a' to the petition are not covered by the Arbitration Clause. On the contrary the disputes really relate to terms and conditions of payment and execution of the work. It cannot also be said that the particular items of disputes, namely 6, 7, 8, 9 and 10 do not fall within the purview of the Arbitration Clause. ( 3 ) IN fact the plea of the respondent appears to be an afterthought otherwise it could have raised this objection by way of reply to the letters of the petitioner seeking to enforce Arbitration Clause. It appears to me that on proper interpretation of the Arbitration Clause each and every claim raised in Annexure 'a' to the letter dated 21st September, 1991 relates to the execution of the work and terms and conditions of payment, and, as such, the disputes appear to be very much within the scope of the Arbitration Clause on proper interpretation thereof. ( 4 ) IT has further been submitted on behalf of the respondent that the Court has no power to appoint independent person to act as an arbitrator but the said prerogative rests only with the Chairman and the Managing Director to the respondent under the terms of the Arbitration Agreement. I am unable to accept such contention. ( 5 ) IN the facts of the instant case there is no doubt that the Chairman and Managing Director was on several occasions called upon to appoint an arbitrator but since no step was taken by the Chairman and Managing Director there is failure or neglect on the part of the appointing authority and as such this Court is competent to appoint an arbitrator. It is well settled that if the appointing authority fails to appoint an arbitrator in spite of the fact that the parties have called upon to appoint or nominate such arbitrator, the court has power to fill up the vacancy. ( 6 ) RELIANCE was placed upon the judgment and decision in the case of Union of India v. Prafulla Kumar Sanyal reported in AIR 1979 SC 1457 , Kailasam, J. on behalf of the Supreme Court stated as follows :-"para 3. Under Section 20 (4) of the Arbitration Act when an agreement is filed, the Court is required to make an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or where the parties cannot agree upon an arbitrator, to an arbitrator appointed by the Court. The Sub-Section requires that the Court shall make an order of reference to the arbitrator appointed by the parties whether in the agreement or otherwise. If no such arbitrator had been appointed and when the parties cannot agree upon an arbitrator, the Court may proceed to appoint an arbitrator by itself. Thus if an arbitrator had been appointed whether in the agreement or otherwise, the court shall make an order of reference to him. In this case, clause 29 of the agreement provides that every dispute shall be referred to the sole arbitration of the person appointed by the President of India or if he is unwilling to act to the person appointed by the arbitrator. An arbitrator, in fact, has not been appointed by the President though the provision has been made for such appointment. An arbitrator, in fact, has not been appointed by the President though the provision has been made for such appointment. Construing strictly the words of Sub-Section (4) the Court is not bound to make an order of reference to the person that is to be appointed by the President of India or in the event of his not being willing to a person to be appointed by the administration, for the arbitrator has not been appointed as contemplated in the Sub-Section. Therefore, it will not be obligatory on the part of the court to make an order of reference to the arbitrator that may be appointed by the President. If an arbitrator had not been appointed as required in the Sub-Section, the Court is to find whether the parties could agree upon an arbitrator. If the parties agree the Court has to appoint the person agreed to as an arbitrator. If there is no such agreement, the Court will have to appoint an arbitrator of its choice. " ( 7 ) IN Ved Prakash Mithal v. Union of India, AIR 1984 Del 325 , Avadh Behari Rohatgi, J. speaking on behalf of the Full Bench stated as follows :"para 39. To sum up. The Clause provides for an agreed method. The method is appointment of the arbitrator by a named appointer. This agreed method or machinery must be invoked. But if the arbitration machinery fails because the Chief Engineer does not appoint, the Court has the power to fill in the gap. The Court steps in the Chief Engineer's stead. Section 20 (4) confers upon the court a general residual power to appoint an arbitrator when the parties do not agree upon the arbitrator. The purpose of the Section is to effectuate the intention of the parties in certain events in which one would expect them to intend that the provision for arbitration should stand but which are not covered in terms by the arbitration provision. If the arbitrator is not appointed by the agreed appointer such a case is contemplated by the authors of Section 20 (4 ). They were the authors of Section 4 also where the power of appointment can be committed to some other party. 40. The Arbitration Act applies to the proceedings. If the arbitrator is not appointed by the agreed appointer such a case is contemplated by the authors of Section 20 (4 ). They were the authors of Section 4 also where the power of appointment can be committed to some other party. 40. The Arbitration Act applies to the proceedings. The clause says so expressly, where the machinery of appointment breaks down one can legitimately say that the parties do not agree upon the appointment of the arbitrator. But this cannot be said without approaching the appointer. On this refusal or neglect clause (4) of Section 20 will spring into action. Failure of the arbitration machinery is essential for the invocation of the Court's power. 41. The intention of Section 20 (4) is to confer power on the court to make an appointment where the machinery of appointment has broken down. This is a sensible meaning to give to the clause and the statute. To this aspect the learned Judge, did not address their minds. The result is that their pronouncement is leading to most unhappy results. " ( 8 ) IN Arvind Construction Company (Pvt.) Ltd. , v. Engineering Projects India Ltd. , 1988 (2) Arbi LR 236, B. N. Kirpal, J. following the decision in Ved Prakash Mithal's case as also the unreported judgment of the Supreme Court in V. K. Construction Works Pvt. Ltd. v. F. C. I. , S. L. P. (Civil ). No. 12320 of 1986 directed the appointing authority to appoint any retired Judge. ( 9 ) IN Haryana Housing Board v. Banarasi Dass Mittal, (1989) 2 Arbi LR 351, J. V. Gupta, J. on behalf of the Punjab and Haryana High Court held that the learned Sub Judge was correct in appointing an independent arbitrator as the Chief Administrator being the appointing authority had failed to appoint an arbitrator in spite of demands. ( 10 ) IN the unreported judgment and decision in the case of Union of India v. G. K. Bose (Appeal from Original Order No. 198 of 1989, Matter No. 4079 of 1988) the Division Bench of this Court to which I was a party upheld the order of the learned single Judge appointing Mr. M. K. Bose, as arbitrator, as the appointing authority had failed to appoint an arbitrator in spite of repeated requests. M. K. Bose, as arbitrator, as the appointing authority had failed to appoint an arbitrator in spite of repeated requests. The question regarding the power of the Court to appoint an arbitrator of its choice, in the event the appointing authority fails to do so in spite of being called upon to do so therefore stands concluded by the aforesaid Division Bench judgment of this Court also. ( 11 ) IN the circumstances aforesaid the defence raised by the respondent appears to be frivolous and misconceived and in my opinion no possible prejudice can occur to the parties if the matters in dispute as specified in the letter dated 21/09/1991 is referred to a retired High Court Judge of his Court. ( 12 ) UNDER such circumstances considering the facts and circumstances of the case it is directed that the disputes referred to in Annexure A to the said letter dated 21/09/1991 be referred to Arbitration to be held by a retired Judge of this Court. I hereby appoint Mrs. Justice Monjula Bose (Retd.) as the sole arbitrator for the purpose. ( 13 ) THE arbitrator will submit his Award within 6 months from the date of entering upon the Reference. The remuneration of the arbitrator is fixed at 120 G. Ms. per sitting to be shared by the parties equally. Arbitrator will be at liberty to appoint a Stenographer and a clerk for the purpose. ( 14 ) ALL parties including the arbitrator shall act on a signed copy of the operative portion of this judgment on the usual undertaking. Order accordingly.