JUDGMENT R.N. SAHAY, J. 1. This is an appeal under section 39 (IV) of the Indian Arbitration Act, preferred by M/s. steel Authority of India Limited against the order of subordinate Judge, Chas in Title (Arbitration) Suit No. 40/91, whereby the learned Subordinate Judge set aside the award rendered by the sole Arbitrator to whom the dispute was referred for arbitration. The Award is as contained in Annexure–1 to the memorandum of appeal. 2. It appears that the dispute arose between the appellant and the respondent with regard to the price of mixed coke in terms of Bokaro Steel Plant's sale order No. 83/09/52/0007 dated 6-7.9.1983 along with its amendment vide No. CD/M. Coke/SPL/90/4747 dated 14.6.1990. The following dispute was referred to the Arbitrator vide agreement dated 30.7.1990:– "Whether for the delivery of the mixed coke on and w. e. f. 10.7.1990 in terms of the contract the price payable should be Rs. 800/- per tonne or any other price in between Rs. 750/- to Rs. 800/- per tonne." 3. The Arbitrator was appointed by the Managing Director of the appellant. The Arbitrator having examined the written statements, Exhibits filed by the parties and arguments of the parties gave following Award. "(1) I award that for the delivery of the mixed coke on and w. e. f. 10.7.1990 in terms of the contract, the payable price of mixed coke be Rs. 800/- per tonne subject to other terms and conditions of contract remaining unaltered and herely direct that Messrs steel products limited must pay the price accordingly to Messrs Steel Authority of India Limited, Bokaro Steel Plant. (ii) I direct that the cost of the arbitration shall be equally shared by the parties" 4. The respondent steel products Limited flied an application under sections 5, 11, 12, 16, 30 and 33 of the Indian Arbitration Act, to set aside the Award of the Arbitrator aforesaid and appoint another sole Arbitrator to decide the matter in dispute and/or to remit the award directing the Arbitrator to decide the specific issue referred to his. The respondent objected the Award inter alias on the following grounds:– (a) The Award on the face of it would show that the Arbitrator had misconducted himself and the proceeding is as much as he has not answered the matter referred to him. The respondent objected the Award inter alias on the following grounds:– (a) The Award on the face of it would show that the Arbitrator had misconducted himself and the proceeding is as much as he has not answered the matter referred to him. (b) The arbitrator had given the Award on the then prevailing price of mixed coke whore as the terms of reference to him was for the fixation of price as per the terms of the contract between the parties subject to such price being within Rs. 800/- and Rs. 750/- per MT. (c) The Arbitrator has not applied his mind at all to the terms of reference the contract between the parties and the evidence adduced by the parties while giving his award and thus misconducted himself and the proceedings. (d) The Award was vague in as much as the price fixed was stared as filed "subject to the other terms and conditions of contract." (e) The Arbitrator had ignored the very terms of the reference/contract in coming to the conclusion. 5. In order to decide the controversy whether the learned subordinate Judge rightly set aside the award it would he proper at this stage to consider the ground of the dispute between the parties which led to Arbitration Proceeding. 6. The respondent is a Company currying on business inter alia in Coke. The appellant is a Company registered under Company Act, and is a Government undertaking. The appellant owns various steel plants in India including one known as Bokaro Steel Plant at Bokaro Steel City (hereinafter called BSP). Huge quantities of coal are used by BSP in the production of steel and huge mixed coke arises during production as wastage which is dumped at various places inside BSP. The appellant after failing to get any response to the advertisement inviting quotation for purchase of mixed coke dumped floated a tender on or about June, 1983 for the sale of 2 lakh tonns of mixed coke from the dump as is where basis is. In response to the said invitation the respondent submitted the tender which after negotiations was accepted by the appellant in terms of their letter dated 19th August 1983 on the terms and conditions stipulated therein which included price escalation clause also. The said letter of acceptance was followed by a Sale Order dated 6.9.1983 by the appellant. In response to the said invitation the respondent submitted the tender which after negotiations was accepted by the appellant in terms of their letter dated 19th August 1983 on the terms and conditions stipulated therein which included price escalation clause also. The said letter of acceptance was followed by a Sale Order dated 6.9.1983 by the appellant. During the pendency of the said contract, the appellant allegedly committed breach of the same and issued a latter dated 2.1.1984 purporting to terminate the contract. The appellant initiated criminal proceedings against the respondents without any justification and also sought to cancel the contract on about January, 1984 unilaterally in view of the criminal proceedings and the respondent challenged the wrongful actions of the appellant by filing two separate petitions in Calcutta High Court. During the pendency of the writ petitions, the Hon'ble High Court at Calcutta directed the appellant to hold a quantity of about 175000 MT of mixed coke. There respondent further moved for the quashing of the criminal proceeding instituted against it before Patna High Court at Ranchi Bench and the High Court was pleased to quash the criminal proceedings by an order dated 20.5.1986 with the quashing of the criminal proceedings, the termination of the contract by appellant unilaterally became patently wrong as the termination itself was based on the criminal proceeding. 7. While the disputes between the parties in the form of writs filed by the respondent before the Calcutta High Court were pending decision of the court, the parties tried to amicably settle their dispute and after a prolonged discussion and correspondence the parties agreed that:– (a) The appellant will allow lifting of the balance mixed coke of about 175000 MTS by the defendant. (b) The original terms of the contract between the parties would stand amended as agreed to and incorporated in the modified sale order as issued by the appellant. (c) The respondent will initially pay at the rate of Rs. 800/- per MT for the quantities to be lifted pending decision of the final price payable. (b) The original terms of the contract between the parties would stand amended as agreed to and incorporated in the modified sale order as issued by the appellant. (c) The respondent will initially pay at the rate of Rs. 800/- per MT for the quantities to be lifted pending decision of the final price payable. (d) In regard to the dispute in regard to the price payable for the material under the contract, the matter is agreed to be referred to a sole Arbitrator to be nominated by the Managing Director of the appellant to decide the question whether for the delivery of mixed coke on and i.e. 10.7.1990 in terms of the contract the price pal able should be Rs. 800/- per MT or any other Price in between Rs. 750/- to Rs. 800/- per MT. 8. In view of the settlement arrived at between the parties outside the Court the writ petition pending in the Calcutta High Court was withdrawn. Originally during negotiations for settlement, the respondent agreed to pay for the balance quantities initially at the then prevailing price of Rs. 750/- per MT pending final fixation of price by the Arbitrator. However, taking advantage of increase in prevailing price effective from 13.2.1990, the appellant insisted that insisted payments should be on the basis of Rs. 800/- per MT being the then prevailing price pending the decision of Arbitrator to which respondent had agreed with a view to settle the issue, subject to arbitration. It was submitted that the issue before the sole Arbitrator is what should be the price of the mixed coke. The sole arbitrator could not fix the same below Rs. 750/- or above Rs. 800/-per MT. There was no necessity for the respondent to enter into the Arbitration agreement or withdraw the writs if he were to purchase the balance quantity at the market price as prevailing then since he could have purchased the same at the open price itself. The matters in dispute were referred to Sri M.G. Singh, the then E.D. (Projects) of SAIL at BSP and he gave the Award. In view of the above the respondent prays for setting aside the Award. 9. The appellant filed a rejoinder contesting the objection filed on behalf of the respondent on the basis of the arbitration agreement entered into between the parties and also to the Sale Orders and letters referred therein. In view of the above the respondent prays for setting aside the Award. 9. The appellant filed a rejoinder contesting the objection filed on behalf of the respondent on the basis of the arbitration agreement entered into between the parties and also to the Sale Orders and letters referred therein. The appellant submitted that the terms of settlement were as under:– (i) The price of mixed coke as fixed by BSL and runling in March 1990 was Rs. 800/- per tonne Ex BSL on as in where is "and no complaint" basis exclusive of duties and taxes for delivery by road. M/s. SPL was to be allowed to lift the balance quantity of mixed coke against the Sale Order provisionally at the price of Rs. 800/- per tonne. Meantime, the matter regarding fixation of the final price as to whether it should be Rs. 800/- per tonne or any price in between Rs. 750/- and Rs. 800/- per tonne will be referred to sole arbitrator to be appointed by BSL for adjudication. (ii) The above base price of Rs. 800/- per tonne will be subject to escalation in terms of price escalation clause already provided in the S/O dated 6-7.9.1983. (iii) The writ petitions pending before the High Court, Calcutta will have to be withdrawn unconditionally before the contract can be revived. (iv) Lifting of the balance quantity of material shall be permitted to be done with the help of Mechanical Pay Loader only at the cost of M/s. SPL. (v) The entire balance quantity is to be lifted within a period of 10 months @ 17,465 tonnes (approx) per month against advance payment. (vi) Period of 10 months will be counted from the 15th day of the date of withdrawal of the writ petition or actual commencement of lifting operation whichever is earlier. 10. It was submitted on behalf of the appellant before the Subordinate Judge that the sale order/contract between the parties contains escalation clause and the question raised by the respondent was answered by reference to the terms and clause of the sale order. The appellant relied upon a letter dated 4.4.1990 of the respondent wherein it has stated as follows:– "We agree to lift the said entire quantity at a price of Rs. 800/- per tonne exclusive of duties and taxes ex works Bokaro. The appellant relied upon a letter dated 4.4.1990 of the respondent wherein it has stated as follows:– "We agree to lift the said entire quantity at a price of Rs. 800/- per tonne exclusive of duties and taxes ex works Bokaro. The matter would be referred to the Arbitrator to adjudicate fair and correct price as suggested in your letter and price escalation would also prevail, as explained." 11. It was submitted on behalf of the appellants that as per the arbitration agreement the Sole Arbitrator was not required to take into consideration the dispute between the parties in the writs filed before the Calcutta High Court. In view of the terms of policy no single buyer could allocated such a large quantity of mixed coke at the price prevailing at the time when compromised proposal was accepted. It was lastly contended that the respondent vide his letter dated 24.6.1991 requested for refund of security deposit and advance amount. The appellant refunded Rs. 3,06,731/- vide his letter dated 9.8.1991 which was accepted by the respondent. Hence in view of the fact and circumstances stated above the respondent having accepted and acted upon the said award it was estopped from challenging the same. 12. The learned Subordinate Judge on consideration of the objection and rejoinder tiled by the appellants only set aside the Award but also appointed a retired Judge of this Court as Arbitrator to decide the dispute afresh The Subordinate Judge was called upon to decide as to what was the scope of the arbitration agreement. If the scope of the arbitration agreement was to fix the prevailing price of mixed cob, the respondent's objection to the award would have little merit. However, if the scope of the arbitration agreement was to fix the price as per the contract the award would no doubt be bad. The appellant contended that the scope of the arbitration agreement was already decided by the agreement and it was for the arbitrator to interpret the agreement and the Court could not decide the matter at all whereas the respondent submitted that the scope of the arbitration agreement could be decided only by the Court and not by the arbitrator. The respondent in support of their contention referred to Section 33 of the Arbitration Act. The respondent in support of their contention referred to Section 33 of the Arbitration Act. The appellants in support of their contention referred a decision of the Supreme Court reported in AIR 1989 S.C. 268 . In the said decision it was held:– "Even assuming that there was an error of construction of the agreement or even that there was an error of law in arriving at a conclusion. Such an error is not amenable to correction even in a reasoned award under the law." 13. This contention was answered by the Subordinate Judge as follows:– "However, in the present case the award does not disclose any attempt on the part of the arbitrator to interpret the arbitration agreement nor does the arbitrator give any reasons as to why be interprets the agreement in the manner he did. Further, the matter in question in the present case is the interpretation or arbitration agreement and not the interpretation of the contract. Interpretation of the arbitration agreement goes to the root of the jurisdiction of the arbitrator as classified in the other case cited by the defendants them selves." 14. The learned Subordinate Judge has referred two decisions of the Supreme Court reported in AIR 1992 S.C. 232 and AIR 1985 S.C. 1156 . In AIR 1992 S.C. 232 the Supreme Court has observed as follows:– "A dispute as to the jurisdiction of the arbitrator is not a dispute wit bin the award, but one which bas to be decided outside the award An umpire or arbitrator cannot widen his jurisdiction by deciding a question not referred to him by the parties or by deciding a question others wise than in accordance with the contract. He cannot say that he does not care what the contract says. He is bound by it. It must bear his decision. He cannot travel outside its bonds. If the exceeded his jurisdiction by so doing, his award would be liable to be set aside. Evidence of matters not appearing on the face of the award would be admissible to decide whether the arbitrator traveled outside the bounes of the contract and thus exceeded his jurisdiction. In order to see what the jurisdiction of the arbitrator is, it is open to the Court to see what dispute was submitted to him. Evidence of matters not appearing on the face of the award would be admissible to decide whether the arbitrator traveled outside the bounes of the contract and thus exceeded his jurisdiction. In order to see what the jurisdiction of the arbitrator is, it is open to the Court to see what dispute was submitted to him. If that is not clear from the award, it is open to the court to have recourse to outside sources. The court can look at the affidavits and pleadings of parties, the court can look at the agreement itself." 15. The learned Subordinate Judge has relied upon a decision of the Supreme Court reported in AIR 1985 SC 1156 and held that the scope of the reference/arbitration agreement can only be decided by the Court and not by the arbitrator since the reference was limited and not general. The learned subordinate judge held that it was for the court to interpret the arbitration agreement. The learned Subordinate Judge referred to the Arbitration Agreement in Para 13 of the judgment which is as follows:– "Whereas by an agreement of sale vide sale order no. 83/09/52/0007 dated 6-7.9.1983 as modified vide letter no CD/M. Coke/SPL/90/4747 and 5276 dated 14.7.1990 and 5.7.1990 respectively/sale order/PIM No. 83/09/52/0007/A-2 dated 7.7.1990 and SPL's letter no. SPL/APK/UK/90 dated 10.3.1990 and B.S.L's letter no. GM/MM/OP/05/234 dated 10.4.1990 made exchange between the parties the selleters has agreed to sale to the purchaser mixed coke as per detail in the sale order referred to above subject to the terms and conditions referred to therein. And whereas dispute and difference has arisen and is subsisting between the parties hereto relating to and concerning whether the price finally payable should be Rs. 800/- per MT or any other price in between Rs. 750/- to Rs. 800/- per MT for the mixed coke to be lifted on and with effect from 10.7.1990 and it is hereby agreed that the dispute and difference to be referred to arbitration." 16. The learned Subordinate Judge in Para 15 of the judgment has observed as follows:– "Thus the sale in question is a continuation or the sale order dated 6-7.9.1983 and is not an independent transaction. Otherwise there was no necessity to refer to a transaction dated 6-7.9.1983 in an agreement being signed in 1990. In fact the sale order dated 6-7.9.1983 was amended. Otherwise there was no necessity to refer to a transaction dated 6-7.9.1983 in an agreement being signed in 1990. In fact the sale order dated 6-7.9.1983 was amended. If the present transaction was to be independent and separate transaction unconnected with the sale order dated 6-7.9.1983 there would not have been any necessity to amend the said sale order or 1983 in the year 1990. Therefore it becomes necessary to appreciate why the parties had to refer to the original sale order dated 6-7.9.1983 while entering into the arbitration agreement in question and what is the connection between the original sale order and the arbitration agreement." 17. According to the learned Subordinate Judge on analysis of the arbitration agreement it would be clear:– "(i) Parties were never in dispute in regard to the then prevailing or the then current selling price of mixed coke and therefore the question of referring such matter to arbitration never arose. In fact the maximum price which the arbitrator could fix was Rs. 800/- per tonne which was the then prevailing price. Thu the arbitrator has answered a question which was never referred to him. (ii) One of the conditions precedent to reference to arbitration was the withdrawal of the writ petitions. The basic consideration for the plaintiffs for agreeing to withdraw the writs was the reference to the arbitration regarding the final price. Otherwise there was no necessity for the plaintiffs to withdraw the writ petition. More so, because the claimant/plaintiff would not agree to withdraw the writs for obtaining mixed coke at open market price. In fact the prices, at which people could lift the material was stated in the price circulars of the defendants which were widely published. (iii) If the word "in terms of the contract" were to govern only the delivery but not the price as contended by the defendants then the arbitration agreement otherwise does not stipulate any where the factors if any to be taken into consideration by the arbitrator while fixing the price. It would thus be impossible for the arbitrator to give any reasons for an award and the arbitration agreement entered into by the parties after great deliberations would thus be just a vague one. The parties after such detailed discussions could not have entered into such vague agreement. Thus the words "in terms of the contract" appearing in the reference become important. The parties after such detailed discussions could not have entered into such vague agreement. Thus the words "in terms of the contract" appearing in the reference become important. The final price has therefore to be fixed "in terms of the contract" one of the factors for consideration by the arbitrator would also be the validity of the termination of such contract. The price payable was itself subject to escalation. Thus the arbitrator was to take into consideration the escalation also as per contract that have taken place since 1983. 18. The learned subordinate judge has held that Arbitrator was to fix the final price "in terms of the contract". He held that in view of criminal proceedings against the respondent which were ultimately quashed the very termination of the contract becomes had and the respondents become entitled to receive the good as per the original contract rate as escalated, subject to the minimum of Rs. 750/- per MT as stipulated in the arbitration agreement. 19. The learned Subordinate Judge rejected the plea of the appellants that the respondent was estopped from questioning the award. The Subordinate Judge has held that the arbitrator has failed to address himself the question of price payable in terms of the contract and ignored all material documents before him. The award was perverse having regard to the material on record. The arbitrator tad clearly given a decision on a question about which there was no dispute and it was in fact never referred to him for decision. The arbitrator had failed to consider the material dispute between the parties and had given no reason for the same. The Subordinate Judge set aside the award but did not remit the dispute to the arbitrator to decide the dispute. The learned Subordinate Judge thought it proper to appoint a retired judge of the High Court as Arbitrator. 20. Shri G.M. Mishra, learned counsel for the appellants in his able and precise argument strongly defended the award by submitting that the arbitrator has given the award in accordance with law and there is no infirmity in the award. The Subordinate Judge has no jurisdiction to set aside the award. 21. Having regard to section 30 of the Act, he has submitted that the award can be set aside only on the ground enumerated in that section. The Subordinate Judge has no jurisdiction to set aside the award. 21. Having regard to section 30 of the Act, he has submitted that the award can be set aside only on the ground enumerated in that section. It was further submitted that section 11 of the Act, empowers the Court to remove an Arbitrator or umpire who has misconducted himself or the proceeding. He has submitted that the allegation of misconduct of the arbitrator misconducting himself or the proceeding has neither been properly pleaded nor established nor there is any finding of the learned Subordinate Judge to this effect. 22. It was further submitted that appointment of fresh arbitrator is improper and illegal. Learned Counsel submitted that court while considering objection u/s 30 cannot took into the document which are not appended/incorporated or recited in the Award and as such cannot look into the contract document and/or any correspondence or documents for that matter. It was further submitted that the Court can set aside the award only if there is error apparent from the record and that there is no evidence to support the conclusion the award is based on any legal proposition which is erroneous. In the instant case reasons have been assigned and the award is not based upon any legal proposition which is erroneous, the award in question cannot be set aside. The learned counsel for the appellants slates that much emphasis has been laid by the opposite party on the expression "in terms of the contract" which means the other clauses of the contract which have been indicated in paragraph nos. 3 to 6 of the memorandum of appeal. The expression simply means that the arbitrator while fixing the price will not ignore/over ride the clauses in terms of the contract. Accordingly the arbitrator in has award has stated as follows:– "I award that for the delivery of mixed coke on and w. e. f. 10.7.1990 in terms of the contract the payable price of mixed coke be Rs. 800/- per tonne subject to other terms and conditions of contract remaining unaltered." 23. It is submitted that the sole Arbitrator has given valid reason for the award. There is no error of fact or law and the view taken by the arbitrator is a plausable one hence not liable to be questioned at all. 24. 800/- per tonne subject to other terms and conditions of contract remaining unaltered." 23. It is submitted that the sole Arbitrator has given valid reason for the award. There is no error of fact or law and the view taken by the arbitrator is a plausable one hence not liable to be questioned at all. 24. The legal argument of the learned counsel no doubt is correct. The most question for consideration is whether the arbitrator has failed to decide the question referred to him for arbitration. 25. Shri Binod Poddar, learned counsel for the respondent has submitted that the Subordinate Judge has rightly set aside the award. The Subordinate Judge held that the award was perverse in the sense that the arbitrator had given a decision on a question about which there is no dispute and which was in fact never referred to him for decision. In terms of the agreement the dispute referred to was whether for the delivery of the mixed coke on and w. e. f. 10.7.1990 in terms of the contract the price payable should be Rs. 800/- per tonne or any other price in between Rs. 750/- to Rs. 800/- per tonne. The award under consideration did not resolve the dispute between the parties. 26. Mr. Poddar has further submitted that the arbitrator was to decide the price of mixed coke as per the contract anti he was not to decide the prelevant price as on 10.7.1990 as decided by him. Further the arbitrator was to take into consideration the dispute raised by the respondent in the writ petition before the Calcutta High Court and in view of the fact that the Arbitrator has not taken into consideration the dispute railed by the respondent before the Calcutta High Court was ultimately withdrawn by the respondent the Arbitrator committed misconduct in law. 27. Learned counsel for the respondent has submitted that when the writ petition was pending before the Calcutta High Court the parties entered into negotiation for amicable settlement of the disputes. After prolonged 4iscussion the parties agreed in principle that the mixed coke would be lifted by the respondent at a price to be agreed pending fixation of the final price by an arbitrator. Pursuant to the aforesaid discussions, on or about 7 February 1990 the appellants suggested that mixed coke be lifted at a price of Rs. After prolonged 4iscussion the parties agreed in principle that the mixed coke would be lifted by the respondent at a price to be agreed pending fixation of the final price by an arbitrator. Pursuant to the aforesaid discussions, on or about 7 February 1990 the appellants suggested that mixed coke be lifted at a price of Rs. 750/- per MT which price the respondent agreed to accept inter alia, by its letters dated 14 February 1990. Thereafter the price of mixed coke was increased to Rs. 800/- per MT with under haste by the appellant on 14 February 1990 and the appellant wrongfully and illegally represented that it would not allow any mixed coke to be lifted unless and until the respondent paid a sum of Rs. 800/- per MT. Not having any option the respondent was forced to agree to fixation of price in terms of the contract by an Arbitrator, subject to a minimum of Rs. 750/- per MT and a maximum of Rs. 800/- per MT. 28. Learned counsel for the respondent farther submitted that the contemplation of the parties at the time of the entering into the said arbitration agreement was that the rate to be paid for mixed coke by the respondent would be determined in terms of the contract having regard inter alia to the following:– (i) The price would be fixed in terms of the existing contract. (ii) The price would be determined keeping in mind that the original contract was awarded in 1983 and that the respondent had furnished security deposit of Rs. 4,00,000/- in cash and Bank Guarantee of Rs. 16.6. lacs which had been lying with the appellant resulting in loss of interest and bank charges. (iii) The price would be determined having regard to the fact that the mixed coke to be lifted was a decade old and in a deteriorating state and was worth less than the price of fresh material. (iv) The price would be fixed having regard to the proposals of the parties and the negotiations between them leading to the acceptance by the respondent of a price of Rs. 750/- per MT. 27. Learned counsel for the respondent vehemently argued that there was no point in referring the matter to arbitration as the market price then was admittedly Rs. 800/- per MT. In the circumstances arbitration would have served no purpose. 30. 750/- per MT. 27. Learned counsel for the respondent vehemently argued that there was no point in referring the matter to arbitration as the market price then was admittedly Rs. 800/- per MT. In the circumstances arbitration would have served no purpose. 30. It is further submitted that in any event if at all payment of market price was contemplated (which is not admitted), the price payable would be the price at the time of the negotiations and the price accepted by the respondent i.e. Rs. 750/- per MT. In this connection the respondent hat referred to correspondences by and between the parties. 31. Learned counsel for the respondent submitted that the arbitrator failed to take into account these facts. The arbitrator merely decided the question as to what the price was on 11 July 1990. In the circumstances the Arbitrator has been guilty of total non application of mind. 32. It would be significant that the appellants had filed rejoinder to the objection petition filed by the respondent relying upon the SAIL order and the references referred therein. The appellants also referred to the terms of the statement. Before the Arbitrator the parties referred to the documents. The appellants referred to several letters that passed between the parties. 33. It was submitted by the Mishra that the appellants had filed the price line to show that at the time when the delivery was affected the price of mixed coke was Rs. 800/- and the Arbitrator taking in to consideration the price list had no other alternative than to fix the price at Rs. 800/- for the supply of mixed coke from 10.7.1990. As no material was placed by the respondent before the Arbitrator, the Arbitrator rightly taking into consideration the price lilt filed by the appellants showing that the price of mixed coke was Rs. 800/- not only at the time when the delivery was affected but even prior to that has fixed Rs. 800/- as the price. 34. In view of the above, it was submitted that the price could not be fixed without any basis. 35. The appellants submit that the expression 'in terms of contract' refers exclusively to delivery and not price. 800/- not only at the time when the delivery was affected but even prior to that has fixed Rs. 800/- as the price. 34. In view of the above, it was submitted that the price could not be fixed without any basis. 35. The appellants submit that the expression 'in terms of contract' refers exclusively to delivery and not price. As such the contention raised by the respondent before the Court below that the Arbitrator was to fix the price as per the terms of the contract is not only misconceived but without any basis. 36. In my considered opinion it is not possible to accept the contention of Shri G.M. Mishra the arbitrator was bound to consider the background of the disputes. By giving the impugned Award the Arbitrator his not resolved the dispute. It is not disputed by the respondent that at the relevant time the price of mixed coke was Rs. 800/- per MT. It appears from the arbitration agreement also hence there was no necessity for reference of dispute to arbitrator. The subordinate Judge took the correct view and set aside the award. 37. However in any view of the matter the learned Subordinate Judge had no jurisdiction to appoint another Arbitrator because the Arbitration agreement provided that the Arbitrator shall be appointed by the Managing Committee, Bokaro Steel Plant. In Food Corporation of India and another vs. Mohammed Yunus reported in AIR 1987 Kerala 231, Division Bench of Kerala High Court let aside the award of the Arbitrator appointed by the Court. Where the agreement between the parties provided that the matter in dispute shall be referred to the Sole arbitration of any person appointed by one party to the agreement. It was held that no person other than a person appointed by that party should Act, as arbitrator and if for any reason that is not possible the matter is not to be referred to arbitration at all. Where the arbitration clause provided that the dispute had to be referred to a Sole Arbitrator, who had to be an engineer officer and had to be appointed by the authority concerned i.e. the Chief Engineer it was held by the Orissa High Court in AIR 1969 Orissa 280 that the agreement could not be said to provide for the appointment of an arbitrator by consent of parties so as to attract S. 8 (1) (a). In AIR 1961 Patna 228 the clause in the agreement provided 'All question and disputes' shall be referred to the sole Arbitration of a Superintending Engineer of the State. It was held that there was an implied consent amongst both the parties that the concerned Chief Engineer would make the selection out of the two groups referred to in the arbitration clause. 38. The order of appointing of new arbitrator cannot be sustained and is accordingly set aside. 39. Shri Mishra argued that the respondent for refund of security deposit and advance amount after the Award and the amount was refunded as such the award was acted upon. I do not find merit in this contention only because respondent was refunded the security does not mean it could not file objection u/s 30 of the Arbitration Act. The view of the Additional Judge is correct. 40. In the result, the appeal is allowed in part end the dispute is remitted back to the arbitrator for passing fresh award in terms of the contract. It would be open to the General Manager/Managing Director to appoint another Arbitrator in place of Sri M.G. Singh. There shall be no order as to costs. Appeal allowed in part.