JUDGMENT : A. Pasayat, A.C.J. 1. This is an application for appointment of an Arbitrator in terms of Section 11 of the Arbitration and Conciliation Act, 1996 (in short, the 'Act'). 2. It is the Petitioner's case that an Arbitrator is to be appointed to resolve the dispute between the parties. According to it, opposite parties invited tender for disposal of "Swarf" for 240 MTs (plus or minus 25%.). Petitioner submitted its tender. Along with other tenders, its tender was considered and accepted. A formal agreement was signed incorporating the terms and conditions of the work to be undertaken. Railway authorities (the opposite parties) committed various breaches of conditions, and did not fulfil its part of the contract. Instead of compensating Petitioner for such breaches, several penal measures were resorted to. Petitioner made a demand for compliance of terms by the opposite parties which they refused. That being the position, Petitioner demanded appointment of an Arbitrator to settle the dispute on which opposite parties avoided to act. Though there is an arbitration clause in the agreement, opposite parties did not act according to it. Therefore, this petition has been filed. 3. In the counter affidavit filed it was stated by opposite party Nos. 1 to 4 as follows: ... The Petitioners ha's rightly been asked to' submit 'No claim for taking back the security deposit'. There is no reason or necessity for appointment of an Arbitrator. As the same was not done it cannot be said that for not appointment of arbitrator the railway is obstructing the legitimate dues of the Petitioner and have fallen a deaf ear and are completely biased." (Since this is a verbatim quotation from the counter, there appears to be spelling/typing mistakes). An additional affidavit has been filed by the opposite stating that during pendency of the case opposite party No. 1 has appointed one Mr. R.C. Sethy, Senior Divisional Accounts Officer, South Eastern Railway, Khurda Road as a sole Arbitrator for adjudicating the dispute or difference between the parties. It has been stated that this fact has been communicated to the Petitioner vide letter dated 22-4-1999. According to learned Counsel for the Petitioner, the course adopted is impermissible. 4. At this juncture it is necessary to take note of certain observations made by the Apex Court in. G. Ramachandra Reddy and Co. Vs. It has been stated that this fact has been communicated to the Petitioner vide letter dated 22-4-1999. According to learned Counsel for the Petitioner, the course adopted is impermissible. 4. At this juncture it is necessary to take note of certain observations made by the Apex Court in. G. Ramachandra Reddy and Co. Vs. Chief Engineer, Madras Zone, Military Engineering Service "Thus when the notice was given to the opposite contracting party to appoint an arbitrator in terms of the contract and if no action had been taken, it must be deemed that he neglected to act upon.the contract. When no agreement was reached, even in the court between the parties, the court gets 'jurisdiction and power to appoint on arbitrator. Even if Section 8(a) per se does not apply notice was an intimation to the opposite contracting party to act upon the terms of the contract and his/its non-availment entails the forfeiture of the power to appoint an arbitrator in terms of the contract and gives right to the other party to invoke the court's jurisdiction u/s 20. In the instant case the Respondent did not appoint an arbitrator after the notice was received. The Respondent averred in the written statement that it was under consideration,. Even before the learned single Judge he did not even state that he was willing to appoint an arbitrator. The learned single Judge rightly exercised the power u/s 20(4) of the Act and appointed the arbitrator. The Division Bench, therefore, was not right in holding that the Respondent has by giving option to the Appellant to agree for appointment of an arbitrator out of the five named persons had left it to the Appellant to appoint an arbitrator and allowing Appellant to appoint an arbitrator made by the learned single Judge must be deemed to have been approved by us. The aforesaid decision of the apex Court was followed by this Court in Union of India and Anr. v. Prahallad Moharana: A.I.R 1996 Ori 19. When a notice was given by the contractor to the opposite contracting party to appoint an arbitrator in terms of the contract and if no action was taken on the same it must be deemed that the said opposite party had neglected to act upon the contract. (See Nandyal Coop. Spinning Mills Ltd. Vs. K.V. Mohan Rao, ). 5. When a notice was given by the contractor to the opposite contracting party to appoint an arbitrator in terms of the contract and if no action was taken on the same it must be deemed that the said opposite party had neglected to act upon the contract. (See Nandyal Coop. Spinning Mills Ltd. Vs. K.V. Mohan Rao, ). 5. In view of the aforesaid legal position it is to be seen whether the appointment of the aforestated Arbitrator as indicated in the additional affidavit would have any effect on the factual scenario. The original order which was passed has been produced before me: The first paragraph is very significant and reads as follows: M/s. Devee Supply Syndicate contractor filed the above suit for adjudicating claims and disputes. The Hon'ble Court after hearing the parties passed orders for the appointment of Arbitrators in terms of the agreement (copy on closed). Pursuant to the said orders the General Manager has appointed you as an Arbitrator. (underlined for emphasis) 6. It is fairly accepted that this Court has not passed any order for appointment of an Arbitrator' as stated in the order appointing Arbitraror. Therefore the basis of appointment is unfounded. That being the position. I appoint Shri Biranchi Narayan Misra, Retired Chairman of the Orissa Arbitration Tribunal as Arbitrator in this case. Necessary follow-up action be taken. 7. The M.J. C. application is accordingly disposed of. Application disposed of.