S. K. MAHAJAN ( 1 ) UNDER the agreement dated 4th September, 1982, the petitioner was appointed the architect for preparing the plans and drawings and to supervise the work in connection with the construction of sugar factory and allied works at village Rakhra, Nabha, Patiata Road, District Patiala, Punjab on the terms and conditions as contained in the said agreement. For preparing of the plans and drawings and for supervision of the work, the architect was to be paid remuneration including the site visits at the rate of 1. 30 per cent of the total value of the work subject to a ceiling of Rs. 2. 60 lakhs. Payment was to be made in the manner mentioned in paragraph 10 of the agreement. In a meeting of Board of Directors of the Patiala Cooperative Sugar Mills Limited, held on 16th July, 1994, the performance of the petitioner was considered and it was resolved that the architect being negligent in the performance of his duties, the contract be terminated under para 6 (c) (ii) of the agreement without notice at the risk and cost of the architect. By letter dated 19/20th July, 1984 the petitioner was informed that his contract stood terminated at his risk and cost and the Society will be appointing another architect for performance of the duties which the petitioner was required to perform under the agreement. There was an arbitration agreement between the parties as contained in clause 13 of the said agreement. Said clause 13 reads as under: - "in the event of any question of dispute arising in connection with this Agreement (except as to the matter the decision whereof is herein before specifically provided for) the same will be referred to a joint arbitrator of two persons, one nominated by the MILL SOCIETY and the other nominated by the ARCHITECT and in case of the said Arbitrators not agreeing then to the umpire appointed by them under the provision of Indian Arbitration Act, 1940 and the rules made therein and any statutory modifications thereon shall be deemed to apply and be incorporated in this Agreement and both parties will abide by the award made. " ( 2 ) ON account of the disputes having arisen by termination of the agreement by the Society, the petitioner is alledged to have invoked the arbitration agreement and further alleged to have written letter dated 21st August, 1985 to the Managing Director of the respondent informing him that the petitioner had by virtue of Section 9 of the Arbitration Act appoint Mr. B. K. Dewan, F-24, Deshbandhu Gupta Road, Karol Bagh, New Delhi, as the arbitrator on his behalf and the respondent should also within fifteen days, as required by law, appoint an arbitrator in terms of clause 13 of the arbitration agreement. The case of the petitioner is that in spite of the said letter having been received, no appointment was made by the respondent and consequently by a letter dated 12th September, 1985 Mr. B. K. Dewan was appointed as a sole arbitrator. The disputes which were sought to be referred to the arbitrator are incorporated in annexure-A to the letter dated 21st August, 1985. ( 3 ) THE arbitrator on 3rd October, 1985 wrote a letter to both the parties informing them his appointment as an arbitrator and further calling them to submit their contentions within fifteen days. Another notice was sent on 1st November, 1985 and still another notice on 14th November, 1985. in response to the notice dated 14th November, 1985 Mr. J. R. Gupta, Assistant Engineer of the respondent appeared before the arbitrator and handed him over a letter dated 29th November, 1985. It was stated by the said Mr. J. R. Gupta, the Assistant Engineer of the respondent, that the respondent had not received letter dated 21st August, 1985 whereby the petitioner had appointed Mr. B. K. Dewan as the arbitrator and had requested the respondent to appoint its arbitrator. By another letter of 9th December, 1985 the respondent informed Mr. B. K. Dewan that as per clause 13 of the agreement, the disputes were to be referred to joint arbitration of two persons and as they had received complaint of the complainant only on 30th November, 1985 through the arbitrator, the respondent would like to appoint an arbitrator as per arbitration agreement. B. K. Dewan that as per clause 13 of the agreement, the disputes were to be referred to joint arbitration of two persons and as they had received complaint of the complainant only on 30th November, 1985 through the arbitrator, the respondent would like to appoint an arbitrator as per arbitration agreement. On 9th January, 1986 the respondent informed the arbitrator that he had no right to proceed ex parte against them as his appointment has been made arbitrarily by the claimant and the respondent would be appointing their arbitrator shortly. No one appeared before the arbitrator on 29th January, 1986 when the statement of the petitioner was recorded by the arbitrator and he made and published his award on 31st January, 1986 awarding a sum of Rs. 2. 65 lakhs to the claimant. He has further awarded interest on the aforesaid amount at the rate of 12 per cent per annum. ( 4 ) OBJECTIONS to this award have been filed by the respondent. The objections are that firstly, there was no dispute which could have been referred to arbitration and secondly, Mr. B. K. Dewan had no jurisdiction to act as an arbitrator in a matter which was not covered by the arbitration agreement. It was also stated that there was no reference before the arbitrator before he was allegedly appointed as sole arbitrator and in any case there was not a valid reference before him. The reference is also stated to be illegal and unilateral. It is also stated that inspite of the respondent having intimated the arbitrator that they would be appointing an arbitrator, proceedings should not have been taken against the respondent and the arbitrator having continued to conduct the proceedings has allegedly misconducted himself and the proceedings. It is also stated that while under the agreement the petitioner was entitled to a maximum amount of Rs. 2. 60 lakhs on satisfactory completion of the work and on his own admission he had already received a sum of Rs. 1,43,750. 00, the award of Rs. 2. 65 lakhs could not be made by the arbitrator, it is also stated that the arbitrator has misconducted himself and the proceedings by accepting fee from the claimant. ( 5 ) ON the pleadings of the parties, the following issues were framed : - 1. 1,43,750. 00, the award of Rs. 2. 65 lakhs could not be made by the arbitrator, it is also stated that the arbitrator has misconducted himself and the proceedings by accepting fee from the claimant. ( 5 ) ON the pleadings of the parties, the following issues were framed : - 1. Whether the award is liable to be set aside on the grounds mentioned in para 8 of the objections? Before I proceed to decide the objections on merit, the question which comes for consideration is whether Mr. B. K. Dewan could have become the sole arbitrator and his appointment as sole arbitrator is proper. The appointment of Mr. B. K. Dewan as sole arbitrator goes to the very root of the case. Before the arbitrator not only that objection was taken by Mr. J. R. Gupta, Assistant Engineer who had appeared before him on 30th November, 1985 about his jurisdiction to proceed with the matter but a letter of 29th November, 1985 was also written to him which was followed by letters dated 9th December, 1985 and 9th January, 1986. It has been categorically stated by the respondent in letter dated 29th November, 1985 which forms part of the proceedings as well as in the statement of Mr. J. R. Gupta, Assistant Engineer of the respondent before the arbitrator that the respondent had not received the letter dated 21 st August, 1985 whereby the petitioner is alleged to have appointed Mr. B. K. Dewan as his arbitrator arid had called upon the respondent to appoint its arbitrator. In view of this categorical statement made by the respondent, it was the duty of the petitioner to satisfy the arbitrator as well as the Court that the appointment of Mr. B. K. Dewan as sole arbitrator was proper. B. K. Dewan as his arbitrator arid had called upon the respondent to appoint its arbitrator. In view of this categorical statement made by the respondent, it was the duty of the petitioner to satisfy the arbitrator as well as the Court that the appointment of Mr. B. K. Dewan as sole arbitrator was proper. With a view to properly appreciate the arguments, it will be useful to reproduce Section 9 of the Arbitration Act, which reads as under: - "where an arbitration agreement provides that a reference shall be to two arbitrators, one to be appointed by each party, then, unless a different intention is expressed in the agreement a) if either of the appointed arbitrators neglects or refuses to act, or is incapable of acting or dies, the party who appointed him may appoint a new arbitrator in his place; b) if one party fails to appoint an arbitrator, either originally or by way of substitution as aforesaid, for fifteen clear days after the service by the other party of a notice in writing to make the appointment, such other party having appointed his arbitrator before. giving the notice, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference and his award shall be binding on both parties as if he had been appointed by consent;" ( 6 ) FROM a reading of the Section, it is clear that before an arbitrator can be said to have become sole arbitrator, it is incumbent upon the party who has appointed him as the sole arbitrator to give a notice in writing to the other party to make the appointment of his arbitrator within fifteen days of the service of the notice and in case no such arbitrator is appointed by the second party, the party giving the notice may appoint the arbitrator appointed by him as the sole arbitrator in the reference. The notice which is to be given must be given in accordance with the provisions of Section 42 of the Arbitration Act. The notice which is to be given must be given in accordance with the provisions of Section 42 of the Arbitration Act. In terms of Section 42 of the Act, any notice required by the Act to be served by a party to an arbitration agreement shall be served in the manner provided in the agreement or if there is no such provision either: a) by delivering it to the person on whom it is to be served or; (b) by sending it by post in a letter addressed to that person at his usual or last known place or business in India and registered under Chapter vi of the Indian Post Office Act 1898. The effect of this provision is that either the notice has to be sent by registered post or has to be delivered in person to the party. In the present case, the copy of the notice dated 21 st August, 1985 is on record. However, it has not been shown as to how this copy was delivered to the respondent. Neither the postal receipt has been placed on record nor acknowedgement card which might have come back after service of this notice on the respondent has been placed on record. Similarly, the notice dated 12th September, 1985 whereby the respondent was informed that on account of the failure of respondent to appoint an arbitrator within fifteen days, Shri B. K. Dewan has become the sole arbitrator has not been shown as to how it was sent to the respondent. Once an objection had been taken by the respondent before the arbitrator that the respondent had not received the notice dated 21st August, 1985, it was incumbent upon the petitioner to satisfy the arbitrator that the said notice was duly served upon the respondent in accordance with Section 42 of the Arbitration Act. The arbitrator should also have, in my opinion, given a finding on the point as to whether this notice was properly served upon the respondent and whether his appointment as sole arbitrator was valid. The petitioner has also not taken any steps to satisfy the Court that such a notice was sent by registered post as provided by Section 42 of the Arbitration Act. In the award, the arbitrator has not discussed as to how these two notices were sent by the claimant to the respondent. The petitioner has also not taken any steps to satisfy the Court that such a notice was sent by registered post as provided by Section 42 of the Arbitration Act. In the award, the arbitrator has not discussed as to how these two notices were sent by the claimant to the respondent. In the absence of any postal receipt or the acknowledgement card about the proof of sending these notices by registered post to the respondent, I am not inclined to accept the contention of the petitioner that these notices were sent by registered post and had been served upon the respondent. ( 7 ) IN my opinion, therefore, as the notices themselves appointing Mr. B. K. Dewan as a sole arbitrator are not proper notices as per the provisions of Section 9 of the Arbitration Act, he had no jurisdiction to act as a sole arbitrator. The award of the arbitrator is, therefore, liable to be set aside on this ground alone. ( 8 ) AS I have held that award of the arbitrator is liable to be set aside only on the ground that he had no jurisdiction to deal with the matter in the absence of any proof that the notices have been served upon the respondent in accordance with the provisions of Sections 9 and 42 of the Arbitration Act, I need not go into the merits of the award and I am not dealing with any other contention of the respondent for setting aside the award. ( 9 ) FOR the reasons stated above, the award of the arbitrator dated 31st January, 1986 is set aside. ( 10 ) IN the circumstances of the case, I however leave the parties to bear their own costs,