JUDGMENT P.A. Mohammed, J. 1. In this batch of appeals the main question that arises for decision iswhether the court has power or jurisdiction to appoint an arbitrator not namedin the arbitration agreement under S.20 (4) of the Arbitration Act, 1940(hereinafter referred to as 'the Act'). 2. The broad common features of these appeals are thus: The main appellantin these appeals is the Union of India represented by the General Manager,Southern Railway Headquarters, Madras and the respondents are the railwaycontractors who had undertaken railway contract work under the appellant.They have executed separate agreements with the appellant for carrying outthe contract work on certain terms and conditions which are specified in therelative agreements. Since dispute and difference arose between the parties inrelation to or arising out of the arbitration agreements the respondents filedapplications under S.8 and 20 of the Act before the civil courts for compellingthe appellants to file the arbitration agreements in court and to appoint anarbitrator by the court itself. The Trial Court after the enquiry appointedarbitrators not named in the arbitration agreement under S.20 (4) of the Act.The appellants being aggrieved by the Judgments and decrees so passed 'bythe courts below have filed the present appeals. The respondents, inter alia,raised a preliminary objection that the present appeals are not maintainableunder S.39 of the Act. 3. What confers jurisdiction on the arbitrators to adjudicate the difference anddispute between the parties is an arbitration agreement as defined in S.2 (a) ofthe Act. The terms and conditions contained in the agreement have decisiverole to play in resolving the dispute in the process of arbitration. In the presentcontext Clause.64 of the General Conditions of contract as amended upto1986 is most relevant and it is applicable to all contracts involved in thesecases. Hence the said clause is ectyped hereunder: 64. The terms and conditions contained in the agreement have decisiverole to play in resolving the dispute in the process of arbitration. In the presentcontext Clause.64 of the General Conditions of contract as amended upto1986 is most relevant and it is applicable to all contracts involved in thesecases. Hence the said clause is ectyped hereunder: 64. (1) In the event of any dispute or difference between the parties hereto asto the construction or operation of this contract, or the respective rights andliabilities of the parties on any matter in question, dispute or difference on anyaccount, or as to the withholding by the Railway of any certificate to which thecontractor may claim to be entitled to, or if the railway fails to make a decisionwithin a reasonable time then and in any such case, but except in any of the'excepted 'maiters' referred to in Clause.63 of these conditions, the contractor,after 90 days of his presenting his final claim on disputed matters, maydemand in writing that the dispute or difference be referred to arbitration. Suchdemand for arbitration shall specify the matters which are in question, disputeor difference and only such dispute or difference of which the demand hasbeen made and no other, shall be referred to arbitration. (2) Work under the contract shall, unless otherwise directed by the Engineer,continue during the Arbitration proceedings, and no payment due or payableby the Railway shall be withheld on account of such proceedings providedhowever it shall be open for the Arbitrator or Arbitrators to consider and decidewhether or not such work should continue during arbitration proceedings. (3) (a) Matters in question, dispute or difference to be arbitrated upon shall bereferred for decision to: (i) A sole arbitrator who shall be the General Manager or a Gazetted RailwayOfficer nominated by him in that behalf in cases where the claim in question isbelow Rs. 5,00,000 (five lakhs) and in cases where the issue involved are notof a complicated nature. The General Manager, shall be the sole judge todecide whether or not the issue involved are of a complicated nature. (ii) Two Arbitrators, who shall be Gazetted Railway Officers of equal status tobe appointed in the manner laid down in Clause.64. (3) (ft) for all claimsirrespective of the amount or value of such claims if the issues involved are ofa complicated nature. (ii) Two Arbitrators, who shall be Gazetted Railway Officers of equal status tobe appointed in the manner laid down in Clause.64. (3) (ft) for all claimsirrespective of the amount or value of such claims if the issues involved are ofa complicated nature. The General Manager shall be the sole judge to decidewhether the issues are of a complicated nature, or not. In the event of the twoarbitrators being divided in their opinion the matter under dispute will bereferred to an umpire to be appointed in the manner laid down in clause (3)(b)for his decision. (iii) It is a term of this contract that no person other than a Gazetted RailwayOfficer should act as an arbitrator/umpire and if for any reason, that is notpossible the matter is not to be referred to arbitration at all. (iv) In cases where the claim is upto 3,00,000 (Rupee three lakhs) thearbitrator(s)/umpire so appointed, as the case may be shall give the award onall matters referred to arbitration indicating therein breakup of the sumsawarded separately on each individual item or dispute. Incases where theclaim is more than Rs .3,00,000 (Rupees three lakhs) the Arbitrator(s) umpireso appointed, as the case may be, shall give intelligible award (i. e. thereasoning fading to the award should be stated) with the sum awardedseparately on each individual item of dispute referred to arbitration. (4) For the purpose of appointing two arbitrators as referred to in sub clause (a)(ii) above, the Railway will send a panelof more than three names of Gazetted Railway Officers of one or moredepartments of the Railway to the contractor, who will be asked to suggest tothe General Manager one name out of the list for appointment as thecontractor's nominee. The General Manager while so appointing thecontractor's nominee, will also appoint a second arbitrator as the Railway'snominee either from the panel or from outside the panel ensuring that one ofthe two arbitrators sonominated is invariably from the Accounts Department. Before entering uponthe reference the two arbitrators shall nominate an umpire who shall be agazetted officer to whom the case will be referred to in the event of mydifference between the two arbitrators. Officers of the junior administrativegrade of the Accounts Department of the Railways shall be considered as ofequal status to the officers in the intermediate administrative grade of otherdepartments of the Railway for the purpose of appointment as arbitrators, 4. Officers of the junior administrativegrade of the Accounts Department of the Railways shall be considered as ofequal status to the officers in the intermediate administrative grade of otherdepartments of the Railway for the purpose of appointment as arbitrators, 4. Clause.63 of the General Conditions of Contract is also relevant in thepresent cases. It provides, inter alia,that all disputes and differences of any kind whatsoever arising out of or inconnection with the contract, whetherduring the progress of the works or after their completion and whether beforeor after the determination of thecontract, shall be referred by the contractor to the Railway and the Railwayshall within a reasonable time after theirpresentation make and notify the decision thereon in writing. Clause.64(3)(a)provides that the matters inquestion, disputes or differences to be arbitrated upon shall be referred fordecision to a sole arbitrator who shall bethe General Manager or a Gazetted Railway Officer nominated by him in thatbehalf in case where the claimin question is below Rs. 5 lakhs and in cases where the issue involved is notof a complicated nature. Inasmuchas the claim involved in each of the appeals is above Rs. 5 lakhs,Clause.64(3)(a)(i) will not apply in thepresent cases. However, Clause.64(3)(a)(ii) thereof will apply in the presentcases for which parties are at one. As per this sub clause two arbitrators whoshall be Gazetted Railway Officers in equal status to be appointed in themanner laid down in Clause.64(3)(b) for all claims of Rs. 5,00,000 and aboveand for all claims irrespective of the amount or value of such claims if theissues involved are of a complicated nature. The mechanism for theappointment of two arbitrators is laid down in Clause.64(3)(b). It provides thatfor appointing these two arbitrators, Railway will send a panel of three namesof Gazetted Railway Officers of one or more departments of the Railways tocontractor. Then the contractor will be asked to suggest one name out of thatpanel to the General Manager for appointment as his nominee. The GeneralManager while so appointing the contractor's nominee will also appoint asecond arbitrator as the Railway's nominee either from the panel or fromoutside the panel ensuring that one of the two arbitrators so nominated isinvariably from the Accounts Department. Before entering upon the referencetwo arbitrators shall nominate an umpire who shall be a gazetted officer towhom the case will be referred to in the event of any difference between thetwo arbitrators. Before entering upon the referencetwo arbitrators shall nominate an umpire who shall be a gazetted officer towhom the case will be referred to in the event of any difference between thetwo arbitrators. The above procedure only indicates the appointment of twoarbitrators and an umpire by the General Manager or Gazetted Railway Officernominated by him in this behalf. On a plain reading of the above clauses whatwe could perceive is that there is no named arbitrator or specified arbitrator towhom the difference and dispute can be referred. The test normally would beto find out, is there an identifiable person or persons in the clauses of thearbitration agreement to whom the dispute can straight away be referred. Inthis context, it may well be seen that there are ever so many Gazetted RailwayOfficers who are qualified to be nominated as arbitrators or umpire. Thereforewhat is laid down in the above clauses is only the prescription of the procedurefor appointment of the arbitrator or umpire to whom the dispute can be,referred to for settlement at a stage prior to the filing of the application beforecourt under S.8 or 20 or both as the case may be. 5. The above procedural process reminds us what the Supreme Court said in Nandyal Coop. Spinning Mills Ltd. v. K.V. Mohan Rao 1993 (2) SCC 654 that- "The contract did not expressly provide for the appointment of a namedarbitrator. Instead power has been given to the administrative head of theappellant to appoint sole arbitrator." Further, it observed in G. Ramachandra Reddy and Co. v. Chief Engineer, Madras Zone Military Engg. Service 1994 (5) SCC 142 that "Thus when the notice was given to the opposite contracting party to appointan arbitrator in terms of the contract and if no action had been taken, it mustbe deemed that he neglected to act upon the contract." Let us see how the arbitrator has been named or specified in an arbitrationagreement involved in the case in The Secretary to Government, Transport Department v. Munuswamy Mudaliar AIR 1988 SC 2232 . There the arbitrator has been described as this: "Superintending Engineer (Highways and Rural Works), Rural Roads Circle, Tiruchirapalli". This is a case where the arbitrator has been named or specified. There the arbitrator has been described as this: "Superintending Engineer (Highways and Rural Works), Rural Roads Circle, Tiruchirapalli". This is a case where the arbitrator has been named or specified. That meansthe parties to the agreement haveno difficulty in identifying the arbitrator to whom the dispute can be referred.When the Clause.64 of the present agreement is analysed in the aforesaidbackground it would sufficiently reveal that this is not a case where named orspecified arbitrators have been appointed to whom the dispute and differencebetween the parties can be referred. 6. The main question referred to at the outset centres round the power orjurisdiction of the courts under S.20(4) of the Act to appoint an arbitrator notnamed in the arbitration agreement. S.20 is contained in Chap.3 which dealswith arbitration with the intervention of a court where there is no suit pending.In this contest It may be noticed that, S.8 which confers power on the court toappoint arbitrator or umpire is contained in Chap.2 which deals with arbitrationwithout intervention of a court. Sub-s.(1) of S.20 provides that where anypersons have entered into an arbitration agreement before the institution ofany suit with respect to the subject matter of the agreement or any part of it,and where a difference has arisen to which the agreement applies, they or anyof them, instead of proceeding under Chap.2, may apply to a court havingjurisdiction in the matter to which the agreement relates, that the agreementbe filed in court. This provision indicates that the party has the option either forproceeding under S.20 or under S.8 in Chap.2. But the provisions of S.20 canbe availed of only if no proceeding under Chap.2 has been initiated. (See TheUnion of India v. Shri Om Prakash AIR 1976 SC 1745 and RamvallabhTibrewalla v. Dwarka Das and Company AIR 1966 SC 402 . In all the presentcases no separate proceeding under S.8 has been initiated and therefore allthe applications involved in these appeals are substantially under S.20 of theAct. 7. After numbering and registering the application as provided in sub-s.(2) ofS.20 the court shall direct notice thereof to all the parties to the agreementunder sub-s.(3) requiring them to show cause within a time specified why theagreement should not be filed. 7. After numbering and registering the application as provided in sub-s.(2) ofS.20 the court shall direct notice thereof to all the parties to the agreementunder sub-s.(3) requiring them to show cause within a time specified why theagreement should not be filed. Sub-s.(4) of S.20 which is more relevant in thepresent context is extracted hereunder: "(4) Where no sufficient cause is shown, the court shall order the agreement tobe filed, and shall make an order of reference to the arbitrator appointed bythe parties, whether in the agreement or otherwise, or, where the partiescannot agree upon an arbitrator, to an arbitrator appointed by the court." This sub-section will be attracted only when the defendants failed to show'sufficient cause' to a notice requiring them as to why the agreement shouldnot be filed in court as provided in sub-s.(3). When sufficient cause is notestablished the court can make an order of reference to the arbitratorappointed by the parties, whether in the agreement or otherwise or where theparties cannot agree upon an arbitrator, to an arbitrator appointed by the court.The court is empowered to direct the defendants to file the agreement in courtand to make an order of reference to the arbitrator appointed by the parties inthe agreement or otherwise. That means if there is a named or specifiedarbitrator appointed by the parties in the agreement the court shallstraightaway pass an order of reference to such arbitrator. If that course is notpossible due to the absence of named arbitrator in the agreement then thecourt shall make an order of reference to the arbitrator, if any, as agreed uponby the parties when the matter is pending before the court. When this courseis also unavailable then the court is at the final stage of making an order ofreference to an arbitrator appointed by the court itself. What we perceive hereis that the court has no absolute or unqualified discretion to appoint anarbitrator under S.20(4) ignoring the named or agreed arbitrator. The power ofthe court in this regard is totally dependent on the absence of a named orappointed arbitrator in the agreement and an arbitrator agreed upon by theparties to the agreement. In the present cases the court gets power orjurisdiction to refer the dispute to the arbitrator appointed by itself onoccurrence of the two events referred to herein above. 8. The power ofthe court in this regard is totally dependent on the absence of a named orappointed arbitrator in the agreement and an arbitrator agreed upon by theparties to the agreement. In the present cases the court gets power orjurisdiction to refer the dispute to the arbitrator appointed by itself onoccurrence of the two events referred to herein above. 8. The operational technic of S.20(4) of the Act can be visibly understood ifwe examine the decision of the Supreme Court in Rajan v. State of Kerala 1992 (2) KLT 435 (SC). That was a case where subordinate Judge ignoringthe appointed arbitrator provided in the agreement, directed the parties tosubmit their respective panels for arbitrator so as to enable the court toappoint the arbitrator or arbitrators, as the case may be, out of such panels.Clause (3) of the agreement involved in that case provided that the arbitratorfor fulfilling the duties set forth in the arbitration clause shall be theSuperintending Engineer, Buildings and Roads Circle, Trivandrum. Thereforethe Supreme Court said that it was a case where the agreement itselfspecified the name of the arbitrator. Therefore the court further said that insuch situation it was obligatory upon the learned subordinate judge in case hewas satisfied that the dispute ought to be referred to the arbitrator or refer thedispute to the arbitrator specified in the agreement. Then the apex courtfurther held thus: "It was not open to him to ignore the said clause of the agreement and toappoint another person as an arbitrator. Only if the arbitrator specified andnamed in the agreement refuses or fails to act does the court get thejurisdiction to appoint another person or persons as the arbitrator. This is theclear purport of sub-s.(4). It says that the reference shall be to the arbitratorappointed by the parties. Such agreed appointment may be contained in theagreement itself or may be expressed separately. To repeat, only in caseswhere the agreement does not specify the arbitrator and the parties cannotalso agree upon an arbitrator, does the court get the jurisdiction to appoint anarbitrator or warrant for the learned subordinate Judge to call upon the partiesto submit panels of arbitrators. Such agreed appointment may be contained in theagreement itself or may be expressed separately. To repeat, only in caseswhere the agreement does not specify the arbitrator and the parties cannotalso agree upon an arbitrator, does the court get the jurisdiction to appoint anarbitrator or warrant for the learned subordinate Judge to call upon the partiesto submit panels of arbitrators. He was bound to refer the dispute only to thearbitrator named and specified in the agreement." emphasis supplied What is laid down in the above decision is that the court shall refer the disputeonly to the arbitrator named and specified in the agreement, when that isdistinctly clear from the clauses of the agreement. What emerges from theabove discussion is that after the arbitration agreement has been ordered tobe filed, the court shall proceed to make reference firstly to the arbitratorappointed by the parties in the agreement, secondly to the arbitrator notnamed in the agreement but with regard to whom the arties agreed otherwiseand thirdly when the parties cannot agree upon an arbitrator, to an arbitratorappointed by itself. 9. The counsel for the appellants contended that the courts should alwaysconsider the feasibility of appointing arbitrators according to the terms of thecontract. In other words the argument is that even in a case where there areno named arbitrators, the court should endeavour to act in terms of theagreement before taking up the burden of appointing the arbitrator by itself.The relevance of this plea is based on certain observations contained in thedecision in Union of India v. Prafulla Kumar Sanyal 1979 (3) SCC 631 . Ofcourse in the aforesaid case the Supreme Court observed in Para.5 as this: ''In the instant case, as an arbitrator has not been appointed by the parties andas the parties are not agreed upon an arbitrator the court may proceed toappoint an arbitrator, but in so doing it is desirable that the court shouldconsider the feasibility of appointing an arbitrator according to the terms of thecontract." The court is not required to appoint an arbitrator who has not actually beenagreed but for whose appointment adequate provision has been made. Insuch case the possibility of appointing an arbitrator according to the terms ofthe contract should be considered first before any arbitrator is appointed bythe court. Insuch case the possibility of appointing an arbitrator according to the terms ofthe contract should be considered first before any arbitrator is appointed bythe court. The above quoted observation of the Supreme Court in PrafullaKumar's case 1979 (3) SCC 631 was made in the context that both parties inthat case expressed a desire before the Supreme Court that the Presidentshould be asked to appoint an arbitrator according to Clause.29 of theagreement. It was in consideration of such a request the apex court has madethe observation as to the feasibility of appointing an arbitrator according to theterms of the contract. Further it must be recalled that no notice was given tothe appellants therein (Union of India) to appoint an arbitrator in terms of thecontract before the suit was filed and no action was taken pending the suitexcept contending that the matter was under active consideration. If bothparties in the said case (supra) have not expressed the desire that thePresident should be asked to appoint an arbitrator the position would havebeen different. In this context the following observation in para 3 of the abovedecision is relevant. "Construing strictly the words of sub-s.(4), the court is not bound to make anorder of reference to the person that is to be appointed by the President ofIndia or in the event of his not willing to a person to be appointed by theadministration, for the arbitrator has not been appointed as contemplated inthe sub-section. Therefore, it will not be obligatory on the part of the court tomake an order of reference to the arbitrator that may be appointed by thePresident. If an arbitrator had not been appointed as required in thesub-section, the court is to find whether the parties could agree, upon anarbitrator. If the parties agree, the court has to appoint the person agreed to asan arbitrator. If there is no such agreement, the court will have to appoint anarbitrator of its choice." 10. In Nandyal Cooperative Spinning Mitts Ltd. v. K. V. Mohan Rao 1993 (2)SCC 654 the Supreme Court observed: "It would thus be clear that if no arbitrator had been appointed in terms of thecontract within 15 days from the date of receipt of the notice, theadministrative head of the appellant had abdicated himself of the power toappoint arbitrator under the contract. The court gets jurisdiction to appoint anarbitrator in place of the contract by operation of S.8(1)(a). The court gets jurisdiction to appoint anarbitrator in place of the contract by operation of S.8(1)(a). The contention ofShri Rao, there fore, that since the agreement postulated preference toarbitrator appointed by the administrative head of the appellant and if heneglects to appoint, the only remedy open to the contractor was to haverecourse to civil suit is without force. It is seen that under the contract therespondent contracted out from adjudication of his claim by a civil court. Hadthe contract provided for appointment of a named arbitrator and the namedperson was not appointed, certainly the only remedy left to the contractingparty was the right to suit. That is not the case on hand. The contract did notexpressly provide for the appointment of a named arbitrator. Instead powerhas been given to the administrative head of the appellant to appoint solearbitrator. When he failed to do so within the stipulated period of 15 daysenjoined under S.8(1)(a), then the respondent has been given right underS.8(1)(a) and request the court to appoint an arbitrator. If the contention ofShri Rao is given acceptance it would amount to putting a premium on inactiondepriving the contractor of the remedy of arbitration frustrating the contractitself." (emphasis supplied) 11. In G. Ramachandra Reddy and Co.'s case 1994 (5) SCC 142 the Supreme Court observed: "The court should endeavour that the contract should always be given effectto, though the contracting party had failed to act according to contract. It is tobe seen whether the contract provided for the appointment of a namedarbitrator, and if so, the parties normally would be bound by the terms ofcontract and the court would not be justified to appoint any arbitrator unlessthe arbitrator refused or neglected to enter upon the reference etc. In theabsence of any named arbitrator it would be open to the contracting parties toagree for an appointment of an arbitrator by agreement even after theproceedings were laid in the court under S.20 of the Act. In the absence of anysuch agreement the court gets jurisdiction and power to appoint arbtirator." (emphasis supplied) The following factual situation contained in Ramachandra Reddy and Co'scase 1994 (5) SCC 142 is more or less similar to the facts involved in thepresent case. "In the instant case the respondent did not appoint an arbitrator, after thenotice was received. The respondent averred in the written statement that itwas under consideration. "In the instant case the respondent did not appoint an arbitrator, after thenotice was received. The respondent averred in the written statement that itwas under consideration. Even before the learned Single Judge he did noteven state that he was willing to appoint an arbitrator. The learned SingleJudge rightly exercised the power under S.20(4) of the Act and appointed thearbitrator." In view of what is discussed above we have no hesitation in holding that thecourts below in these cases were fully justified in appointing arbitrators tosettle the difference and dispute between the parties in exercise of powerconferred under S.20 (4) of the Act. 12. Now let us examine briefly the facts of each case leading to theappointment of the arbitrators by the courts below for adjudicating the disputebetween the parties. M.F.A. No. 293/97 This appeal arose from the Judgment of the Principal Sub Judge,Thiruvananthapuram in O. S. (Arb.) No. 496 of 1993, dated 30th March 1996.The plaintiff N. G. Singeraraj filed application under S.4, 8 and 20 of the Actpraying for an order for filing agreement No. 22 T.V.C./88 and to make anorder of reference of disputes to an arbitrator. The agreement was entered intobetween the parties on 23rd February 1988 for providing cement concreteapron as specified therein. Later dispute and difference arose between theparties and defendants were not amenable to settle them. Accordingly theplaintiff caused statutory notice dated 4th December 1992, but no reply wasgiven by the defendants. Thereafter the present suit was filed on 3rd April1993. The defendants in the written statement denied the allegations. Theyalso expressed their readiness to make payments for all the works done by thecontractor. After the enquiry the court directed the defendants to file theagreement in court, Basing on the decision of the Supreme Court inRamachandra Reddy and Co.'s case 1994 (5) SCC 142 (supra) the courtbelow observed that it had to appoint an arbitrator of its own choice. It isfurther observed that even though the plaintiff had sent Ext. A-l notice, thedefendants did not care to respond and that they had no case that they hadsent any reply to the notice. In the course of hearing it was submitted by thecounsel on both sides that later the court had appointed a Retired ChiefEngineer (Electrical Department) as the arbitrator. It isfurther observed that even though the plaintiff had sent Ext. A-l notice, thedefendants did not care to respond and that they had no case that they hadsent any reply to the notice. In the course of hearing it was submitted by thecounsel on both sides that later the court had appointed a Retired ChiefEngineer (Electrical Department) as the arbitrator. In the arbitration Railwayhas participated through out the proceeding and it was during the pendency ofthe arbitration proceeding the present appeal was preferred before this court.Ultimately an award was passed on 15th April 1997 but in view of the orderpassed by this court in C.M.P. No. 1109/97 award has not been enforced sofar against the appellants. M.F.A. No. 315/98 This appeal arose from the Judgment of the Sub Court, Trichur in O. S. (Arb.)No. 770/92, dated 25th September 1997. The plaintiff-contractor entered intoan agreement on 18th June 1991 with the Railway Departmentfor the construction of a new B. G. Railway line from Thrissur to Guruvayooras specified in the agreement.Later dispute and difference arose between the parties and hence a noticewas issued to the defendants on14th February 1992 calling upon the defendant to send a panel of threeGazetted Railway Officers to enable theplaintiff to suggest one name out of the panel for appointment as jointarbitrator. However no such panelwas given to the plaintiff and there was no response from the side of thedefendants. Ultimately the suit was filed on29th May 1992 for directing the defendants to file the arbitration agreement incourt and to make an order ofreference to the arbitrator appointed by the court. After the enquiry the courtbelow decreed the suit as prayed forand appointed Kumari Justice P. Janaki Amma (Retd.) as the sole arbitrator todecide the dispute. Being aggrievedby the said Judgment this appeal has been preferred. M.F.A. Nos. 764, 765 and 766/97 Plaintiff in all these cases is one K. R. Ravindranathan and he entered intoagreements with the defendants for doing three separate construction worksfor the railway. Since difference and disputes arose between the partiesplaintiff requested the railway to submit a panel of names of Gazetted RailwayOfficers to set in motion the arbitration process in the agreement. However,the General Manager has not forwarded the panel of names to the plaintiff.Therefore the suits were filed before the court below under S.2 and 20 of theAct. Since difference and disputes arose between the partiesplaintiff requested the railway to submit a panel of names of Gazetted RailwayOfficers to set in motion the arbitration process in the agreement. However,the General Manager has not forwarded the panel of names to the plaintiff.Therefore the suits were filed before the court below under S.2 and 20 of theAct. The court found that the General Manager failed to send panel ofarbitrators for referring the dispute. Ultimately the court decreed the suits byreferring the dispute to the arbitrator. The court further directed both sides tosubmit names of three retired District Judges with their consent in all thecases. However the parties failed to submit the names of the retired DistrictJudges as required. Finally on 10th January 1997 both sides made asubmission that Justice K. J. Joseph may be appointed as arbitrator. Acting onthe said submission, the court passed three separate orders appointingJustice K. J. Joseph (Retd.) as the arbitrator. The said orders were passed bythe court below on 10th October 1996 in I. A. Nos. 1421, 1422 and 1423 of1996. M.F.A. Nos. 275 and 332 0/1997 These appeals arose from the Judgments in O. S. (Arb.) No. 805/93 and1073/93, both dated 23rd August 1996. N. G. Singeraraj is thecontractor-plaintiff in both the cases and the defendants are the officers of theSouthern Railway. In view of the dispute and difference between the parties,suits were filed under S.5, 8, 11 and 20 of the Act before the court below. Thecourt below by separate Judgments directed the defendants to file the relativeagreements in court. Thereafter separate orders were passed holding that thecourt has got power to appoint arbitrator under S.20(4) of the Act. Accordinglythe parties were directed to file the panel within 15 days. It is against the saidorders the present appeals were filed. In the course of hearing, counsel onboth sides submitted that subsequent to the impugned orders awards werepassed by the arbitrators in both the cases, However, the enforcement of theaward against the appellants has been stayed in view of the interim orderspassed by this court in the present appeals. 13. The counsel for the appellants raised a contention that the appellantshave not contented to the appointment of Justice K. J. Joseph as the arbitratorin 0. S. mos. 13. The counsel for the appellants raised a contention that the appellantshave not contented to the appointment of Justice K. J. Joseph as the arbitratorin 0. S. mos. 212, 213 and 214/92- We see no substance in this contention.Learned Sub Judge directed both parties to submit panel of three names atretired District judges with their consent. However, they committed default insubmitting the panel. Thereafter both parties submitted before the court belowthat Justice K. J. Joseph may be appointed as the arbitrator in those threecases. In other words, that was an appointment on consent. If the appellantsdispute the statement of the learned Judge in the orders passed in I. A. Nos.1421, 1422 and 1423 of 1996 they should have taken steps to review thoseorders pointing out that they did not consent to such an appointment.Therefore the statements contained in those orders passed by the courts areconclusive and final. The Supreme Court in State of Maharashtra v. RamdasShrinivas Nayak AIR 1982 SC 1249 held: "The principle is well settled that statements of fact as to what transpired at thehearing, recorded in the Judgment of the court, are conclusive of the facts sostated and no one can contradict such statements by affidavit or otherwise. If aparty thinks that the happenings in court have been wrongly recorded in aJudgment, it is incumbent upon the party, while the matter is still fresh in theminds of the judges to call the attention of the very judges who have made therecord to the fact that the statement made with regard to his conduct was astatement that had been made in error." Under S.114 of the Evidence Act the court may presume the existence of anyfact which it thinks likely to have happened, regard being had to the commoncourse of natural events, human conduct and public and private business, intheir relation to the facts of the particular case. Illustration (c) to the saidsection provides, the court may presume that the judicial acts have beenregularly performed. When this being the presumption as to judicial acts weare bound to accept the statement of the judges recorded in their Judgmentsas to what transpired in court. Illustration (c) to the saidsection provides, the court may presume that the judicial acts have beenregularly performed. When this being the presumption as to judicial acts weare bound to accept the statement of the judges recorded in their Judgmentsas to what transpired in court. Where a statement appears in the Judgment ofa court that a particular thing happened or did not happen before it, it oughtnot ordinarily to be permitted to be challenged by a party unless both theparties to the litigation agree that the statement is wrong, or the court itselfadmits that the statement is erroneous. In such circumstances, the remedy ofthe party aggrieved is by way of review. [See Isac v. Appsons Pharmaceuticals( 1998 (2) KLT 724 ] Therefore the controversy now created by the counsel forthe appellants on the appointment of Justice K. J. Joseph is far from real andhas no basis at all. It is an admitted case that Justice K. J. Joseph hadalready started functioning as the arbitrator in the above three cases and bothsides without demur participated in the proceedings before the arbitrator whoconducted few sittings. That being the position, we dispel all the contentionsraised by the appellants in this regard. 14. Counsel appearing for the respondents raised on objection that thepresent appeals are not maintainable under S.39 of the Act which reads thus: 39. Appealable orders. (1) An appeal shall lie from the following orders passedunder this Act (and from no others) to the court authorised by law to hearappeals from original decrees of the court passing the order; An order- (i) superseding an arbitration; (ii) on an award stated in the form of special cases; (iii) modifying or correcting an award; (iv) filing or refusing to file an arbitration agreement; (v) staying of refusing to stay legal proceedings where there is an arbitration agreement; (vi) setting aside or refusing to set aside and award ' Provided that theprovisions of this section shall not apply to any order passed by a small causecourt. (2) No second appeal shall lie from an order passed in appeal under thissection, but nothing in this section shall affect or take away any right to appealto the Supreme Court. 15. If the impugned order's come within the purview of S.39(1), (iv) that is tosay, filing or refusing to filean arbitration agreement, the appeal shall lie to this court. (2) No second appeal shall lie from an order passed in appeal under thissection, but nothing in this section shall affect or take away any right to appealto the Supreme Court. 15. If the impugned order's come within the purview of S.39(1), (iv) that is tosay, filing or refusing to filean arbitration agreement, the appeal shall lie to this court. The question is whether the impugned orders can be treated to be orderscoming under S.39(1)(iv) of the Act. In M/s Dhanrajammal Gobindram v. M/s Shamji Kalidas and Co. AIR 1961 SC1285 the Supreme Court observed: "This argument overlooks the fact that this is a statutory arbitration governedby its own rules, and that the powers and duties of the court in sub-s.(4) ofS.20 are of two distinct kinds.The first is the judicial function to consider whether the arbitration agreementshould be filed in court or not. That may involve dealing with objections to theexistence and validity of the agreement itself. Once that is done, and the courthas decided that the agreement must be filed, the first part of its powers andduties is over. It is significant that an appeal under S.39 lies only against thedecision on this part of sub-s.(4) Then follows a ministerial act of reference toarbitrator or arbitratorsappointed by the parties. That also was perfectly possible in this case ; if theparties appointed the arbitrator or arbitrators. If the parties do not agree, thecourt may be required to make a decision as to who should be selected as anarbitrator, and that may be a function either judicial, or procedural, or evenministerial, but it is unnecessary to decide which it is." (emphasis supplied) In Union of India v. M. S. Grewal and Co. AIR 1968 Cal. 333 it has beenobserved that where an applicant sought to enforce the arbitration agreementas it was and he did not plead either that there was no arbitrator appointed bythe agreement of that the arbitrators appointed were unfit to be arbitrators orthat the portion of the agreement relating to the appointment of arbitrators wasnot being enforced, an order directing the filing of the arbitration agreementbut appointing a, person as arbitrator who was not the person mentioned inthe agreement as the arbitrator amounted to an order refusing to file thearbitration agreement and an appeal lay against such an order. Where anorder is passed under S.20 appointing a person other than the person namedin the arbitration agreement as an arbitrator it is in effect an order refusing tofile an arbitration agreement, Such an order is appealable. [See Controller ofStores v. K. T. Agencies AIR 1975 P and H 321]. Since the impugned ordersin these cases are coming within the scope of clause (iv) of S.39(1) it cannotbe said that the present appeals are not maintainable. 16. The counsel for the appellants in M.F.A. Nos. 293/97 and 315/98 pointedout that the appeals filed under S.39(1) (iv) of the Act are maintainable in viewof the decision of this court in Union of India v. V. M. Mathai ILR 1987 (2) Ker.155 wherein it has been held thus: "Whether the order is viewed as an order falling under S.39(1)(iv) being anorder made otherwise than in accordance with the agreement between theparties or, as an order totally outside the powers conferred on the court underS.20, thereby rendering it liable to be impeached in revision, the parties arenot helpless and this court is not without power to correct the error. Whetherwe consider the impugned order as a revisable order by treating this I appealas a Revision Petition, of, as an appealable order within the meaning ofS.39(1)(iv) we hold "that the impugned order has no merits. It is accordinglyset aside." What this court said in the above decision is that even if the order passed bythe court below is not an order strictly coming within the scope of S.39(1)(iv) ofthe Act, the parties are not left with no remedy in that they can challenge thedecision in a revision petition. What this court is concerned is the substance ofthe attack and not form in which it has been laid. 17. From the discussion aforesaid, we can safely conclude that the appealsfiled in these cases are maintainable. However, in this context it is necessaryto point out that in M.F.A. No. 275/97 and 332/97, appellants have notchallenged the separate Judgments delivered by the court below directing thedefendants to file the arbitration agreements. The appeals are filed onlyagainst subsequent orders separately passed by the court below appointingthe arbitrators. In these cases also, even though the earlier Judgmentsdirecting the appellants to file the arbitration agreements in court have notbeen challenged, the remedy by way of revision is available to the appellantsagainst the subsequent orders appointing the arbitrators. The appeals are filed onlyagainst subsequent orders separately passed by the court below appointingthe arbitrators. In these cases also, even though the earlier Judgmentsdirecting the appellants to file the arbitration agreements in court have notbeen challenged, the remedy by way of revision is available to the appellantsagainst the subsequent orders appointing the arbitrators. Here also the dictumlaid down by the Division Bench of this court in V. M. Mathai's case supra,would apply. That being the position, we are inclined to hold that the appealsfiled in these cases are maintainable and hence the objections raised by therespondents are disallowed. 18. Counsel for the appellant in M.F.A. Nos. 293/97 and 315/98 contendedthat as per Clause.64 of the agreement referred to above, the GeneralManager is the authority for the appointment of arbitrators. The learnedcounsel relied on Clause.64(3)(a)(ii) which says that one of the termsgoverning the contract is that no person other than the Gazetted RailwayOfficer should act as arbitrator or umpire and if for any reason that is notpossible the matter is not to be referred to arbitration at all. According to thecounsel the above terms of the contract are binding between the parties andtherefore the court is not justified in appoints? an outside arbitrator. In otherwords the counsel contends that the appointment of an outside arbitrator is notenvisaged in the arbitration clause. The counsel has no case that there is anamed arbitrator or umpire in the arbitration agreement. What is provided isthat the General Manager has to appoint an arbitrator of arbitrators. When aclear mechanism has been provided in the agreement and the contractorsapproached the General Manager for invoking that mechanism so as to enablethem to appoint their nominees it is for the General Manager to furnish a panelto the contractors as provided in Clause.64 (3). The report of the contractors inthat behalf was obviously turned down by the General Manager and in fact noreply was given by him to the contractors intimating the reasons for doing so.In the aforesaid situation, the contractors were compelled to approach thecourt invoking the provisions under the Act and that is how the matter reachedbefore this court. The report of the contractors inthat behalf was obviously turned down by the General Manager and in fact noreply was given by him to the contractors intimating the reasons for doing so.In the aforesaid situation, the contractors were compelled to approach thecourt invoking the provisions under the Act and that is how the matter reachedbefore this court. When the application j has been presented before court forinvoking the powers under the Art, the General Manager cannot turn roundand say that the Court has no power to appoint an outside arbitrator.Clause.64(3)(a)(ii) is binding between the parties and the procedure laid downtherein ought to have been adopted prior to the stage of filing the suit beforethe court. The court functions clearly under the provisions of the Act andhence appellants cannot contend that there would not be any arbitration at allby reason of the provisions contained in Clause.64(3)(a)(iii). In the absence ofa gazetted railway officer the agreement does not name or specify anarbitrator. What the clause said is that in the absence of a gazetted railwayofficers "the matter is not to be referred to arbitration at all". One of thecontracting parties cannot, by his own default make the powers of the courtunder Arbitration Act redundant. In such situation it is arduous for this court tosay the remedy of the contractors is to have recourse to civil court. If such anargument is accepted, no doubt it would amount to a premium for inactiondepriving the contractors for arbitration frustrating the contract itself. 19. Counsel for the appellants in M.F.A. Nos. 293 of 1997 and 315/98 raiseda contention that the matters referred to the arbitrator in these cases wouldcome within the purview of "excepted matters" envisaged in clause 64(1) ofthe General Conditions of Contract and that therefore they are not arbitrablematters. The contention is that "excepted matters" are not the differences ordisputes in relation to or arising out of the contracts entered into between theparties. Counsel appearing for the contractor in M.F.A. No. 293/97controverted this submission pinpointing that there was no such case for theappellants in the written statement filed before the court below. Apart fromstating that there was no dispute or difference between the parties arising forconsideration, there was no specific case for the appellant that the dispute anddifference between the parties would come within the scope of 'exceptedmatters' as provided in Clause.64 (1). Apart fromstating that there was no dispute or difference between the parties arising forconsideration, there was no specific case for the appellant that the dispute anddifference between the parties would come within the scope of 'exceptedmatters' as provided in Clause.64 (1). The counsel further pointed out that nogrounds in this regard had been raised in the appeal memorandum. On aperusal of the Judgment in O.S. (Arb.) No. 496/93, we cannot trace out anysuch points argued before the court below. On the contrary we have noticedan observation by the court below in the impugned Judgment to the effect thatthe defendants had no claim that the matters referred to in Ext. A-1 wouldcome under "excepted matters" referred to in Clause.63 of the GeneralConditions of the contract. In the above factual background we do not proposeto go into this question in M.F.A. 293/97 but in M.F.A. 315/98 this question doarise which we will presently discuss. However in this context though anidentical question was raised in M.F.A. Nos. 275/97 and 332/97 no such pointwas raised in the written statements filed by the appellants. It appears no suchquestion was raised before the court below and there was no discussion onthis question in the impugned Judgment. We therefore refrain fromconsidering this contention in these two appeals. 20. However, in M.F.A. 315/98 arising from O.S. (Arb.) No. 770/92, learnedcounsel for the appellant pressed this point for consideration by us. A specificground had been raised in the present appeal memorandum in this regard andthus contended that the difference and dispute between the parties in thatcase were excluded from the purview of the arbitration clauses in theagreement. In Para.26 of the written statement the defendant contended withreference to Para.29 of the plaint that the matters referred to by the plaintiffare "excepted matters" as per Clause.63 of the General Conditions of contractand hence not arbitrable. We have noted that though an issue has not beenspecifically framed by the Court below with regard to the point concerning"excepted matters" an issue has been framed to the effect that whether thedispute and difference between the parties are referable to arbitration.Whatever that be we are of the view that such a contention has been raisedbefore the court below, but it has not been specifically decided by it. In thiscontext what course of action do we to accept in view of the background thatdispute between the plaintiff and defendants has been referred to the arbitratorand a retired Judge of this court has already been appointed as the arbitrator,is a matter which we will presently discuss hereunder. 21. Clause.63 of the General Conditions of contract provides that thedecisions, directions, classification, measurements, drawings and certificateswith respect to any matters the decisions of which is specially provided for bythese or other special conditions, given and made by the Railway, or by theEngineer on behalf of the Railway, are matters which are referred tohereinafter as excepted matters" and shall be final and binding upon thecontractor. What is contemplated under the Clause.63 is that all disputes anddifferences of any kind whatsoever arising out of or in connection with thecontract, whether during the progress of the works or after their completionand whether before of after the determination of the contract, shall be referredby the contractor to the Railway and the Railway shall within a reasonable timeafter their presentation make and notify decisions thereon in writing. Anydecisions, direction, classification, measurements, drawings and certificateswith respect to any matters the decisions of which is specially provided for andrendered by the Railway are matters which are referred to as "exceptedmatters". When such dispute comes within the meaning of 'excepted matters'it may be possible to argue that it may not come within the purview ofsettlement by the arbitrator. But at the same time it is pointed out that itself is adispute liable to be adjudicated by the arbitrator. 22. The question is when an arbitrator has been appointed by the court underS.20(4) of the Act whether the court has got power to direct him to decide thequestion as to the arbitrability of the dispute referred to him. As far as thepresent case is concerned, it is contended that the dispute which arosebetween the parties out of or in relation to the contract are not arbitrablematters and therefore the arbitrator cannot be asked to decide that question.Before going any further, if we examine Clause.63 of the agreement it couldbe seen that matters coming within that clause itself are amounted to disputesand differences, if the aggrieved contracting party cannot agree with thedecision, direction, classification, measurements, drawings and certificateswith respect to any matters the decision on which is specially provided for. For deciding this question also the services of the arbitrator are found to be essential. 23. It is argued that the arbitrator has no power to decide the matters relatingto his own jurisdiction. It cannot be said so in absolute terms and in allcircumstances. Russel on Arbitration (20th Edition) page 91 says: "A reference of 'any dispute ..... . touching these presents or any clause ormatter or thing herein contained, or. the construction thereof has been held tocover disputes as to the scope of the arbitration clause." Willes ford v. Watson (1873) L.R. 8 Ch. 472. What is seen from the abovedecision is that practically this would depend upon whether on the face of thearbitration clause its scope is open to any real doubt. In Brown v.Genossenschqft Oesteneichischer (1954) 1 QB. it has been held that thearbitrator is always entitled to enquire whether or not he has jurisdiction.Adopting the rule in Rex v. Fulham (1951) 2 KB 1 the Queen's Bench held inBrown's case (1951) 2 KB 1 supra, thus: "Arbitrators whose jurisdiction is challenged are entitled to make their owninquiries into the question whether or not they have jurisdiction in order todetermine their own course of action, although the result of their inquiry canhave no effect on the rights of the parties. Their award is in no way affected bythe fact that it expressly or impliedly refers to a finding by the arbitrators as totheir jurisdiction." In Wadsworth v. Smitk (1871) 6 Q.B. 332 Blackburn, J. said: "Where by an agreement the right of one of the parties to have or do aparticular thing is made to depend on the determination of a third person, thatis not a submission to arbitration, nor is the determination an award; but wherethere is an agreement that any dispute about a particular thing shall beInquired of and determined by a person named, that may amount to asubmission to arbitration, and the determination, though in the form of acertificate, be an award." 24. The counsel for the respondent in M.F.A. No. 315/98 also places relianceon the following decisions. Food Corporation of India v. M/s Surendra,Devendra and Mohendra Transport Co. AIR 1988 SC 734 , Wazir ChandMahajan v. Union of India AIR 1967 SC 990 and Central WarehousingCorporation v. Varghese 1971 (1) KLT 67. 25. The counsel for the respondent in M.F.A. No. 315/98 also places relianceon the following decisions. Food Corporation of India v. M/s Surendra,Devendra and Mohendra Transport Co. AIR 1988 SC 734 , Wazir ChandMahajan v. Union of India AIR 1967 SC 990 and Central WarehousingCorporation v. Varghese 1971 (1) KLT 67. 25. In this context it is apt to refer to a recent decision of the Supreme Courtin Southern Gas Ltd. v. Visveswaraya Iron and Steel Ltd. 1998 (9) SCC 555 .That was a case where an agreement was entered Into between the appellantand the respondent towards delivering, taking, using etc. of oxygen on certainterms and conditions. Clause.7 of the agreement is the 'force majeure'. Thisclause provides that to the extent and during the period either of the parties isprevented from delivering or taking oxygen or using it in accordance with theagreement due to the operation of one or more of the force majeure eventsthey shall be relieved of their respective obligations of delivering or taking andpaying for such oxygen. The claim of the respondent was that during a certainperiod, it was unable to take oxygen as per the agreement because there weremore than 70 per cent power cuts due to which it could not run its I D Plantwhich in turn depended upon the electric pig iron furnace, which was highlypower-oriented. On this premise, a dispute arose and an arbitrator was soughtto be appointed. The court when moved appointed an arbitrator under S.20 ofthe Act. The respondent company took up the matter in appeal before the HighCourt who reversed the Judgment of the Trial Court to some extent pertainingto some items in dispute. The Supreme Court in the course of the Judgmentobserved: "The orders of the High Court have been challenged herein on the ground thatwhether or not it was a case of 'force majeure', was a preliminary questiondeterminable by the arbitrator. In other words, if the respondent couldsuccessfully plead and prove to the satisfaction of the arbitrator that 'forcemajeure' clause was attracted, it would preclude other disputes being raisedbefore and determined by the arbitrator. In any event,, the matter initially hadto go to the arbitrator to be stopped or continued after the decision on thequestion of 'force majeure'. In other words, if the respondent couldsuccessfully plead and prove to the satisfaction of the arbitrator that 'forcemajeure' clause was attracted, it would preclude other disputes being raisedbefore and determined by the arbitrator. In any event,, the matter initially hadto go to the arbitrator to be stopped or continued after the decision on thequestion of 'force majeure'. We think that the appellant is on sound ground incontending this way towards interpretation of the agreement contained inclause (7) above referred to read with clause (22) providing for arbitration.Even learned counsel for the respondent appreciated the logic of the argumentand has in the manner submitted to it before us." Therefore the court said that the arbitrator should first go into the questionwhether the dispute falls within the ambit of the arbitration agreementdependent on the determination whether the breach could invoke the 'forcemajeure' clause or not, and if not then to proceed further within his domain todetermine all questions as raised by the parties. The principle laid down in thisdecision can well be applied to the facts of the present case. In that premiseon an anxious consideration of the entire matter we feel that the arbitrator inthis case shall proceed with this question that the dispute and difference wouldcome within the ambit of 'excepted matters' as envisaged in Clause.63, andafter deciding that question if goes in favour of the appellant, the matter neednot go any further. Otherwise the arbitrator can proceed with further within hisdomain to determine all the questions raised by the parties. 26. On behalf of the respondents in M.F.A. Nos. 293/97, 275/97 and 332/97, itwas contended that the appellants acquiesced to the award passed by thecourt below inasmuch as they participated in the arbitration proceedings inconsequence of which the awards have been passed by the arbitrators. "If the parties to the reference either agree before-hand to the method ofappointment, or afterwards acquiesce in the appointment made, with fullknowledge of all the circumstances, they will be precluded from objecting tosuch appointment as invalidating Subsequent proceedings. Attending andtaking part in the proceedings with full knowledge of the relevant fact willamount to such acquiescence." (emphasis supplied) [See Rahcassi Shipping Co. S. A. v. Blue Star Line Ltd. (1969) 1 Q, .B. 173 ].Therefore the appellants in those appeals cannot now turn round and say thatthe awards passed by the arbitrator are liable to be set aside. Similar questionarises in I M.F.A. Nos. S. A. v. Blue Star Line Ltd. (1969) 1 Q, .B. 173 ].Therefore the appellants in those appeals cannot now turn round and say thatthe awards passed by the arbitrator are liable to be set aside. Similar questionarises in I M.F.A. Nos. 764, 765 and 766/97 where the arbitrator appointed bythe court had already conducted the hearings and the appellants participatedin the proceedings. There too the principle laid down in the decision (supra)would apply. 27. In view of the discussion herein above, the contentions urged by theappellants in M.F.A. Nos. 293/97, 764/97/765/97, 766/97, 275/97 and 332/97are negatived. Accordingly those appeals are dismissed. 28. In M.F.A. No. 315/98 the matter is remanded to the court below to modifythe reference directing the arbitrator appointed by the court first to decide thequestion whether the dispute and difference between the parties would comewithin the meaning of 'excepted matters' and then proceed further accordingly. No order as to costs in all these appeals.