P. VENKATARAMA REDDY, J. ( 1 ) THIS revision petition is filed by Union of India represented by the General Manager, South Central Railway questioning the order of the Third Addl. Judge, City Civil Court in O. P. No. 117 of 1993 whereby the learned Judge allowed the respondent s application under Section 8 of Arbitration Act for appointment of sole arbitrator to settle the disputes arising out of the Agreement No. 50/w/bg/91 dated 14-2-1992 entered into between the petitioner and the respondent. The learned Judge appointed Sri Padmanabha Gowd, retired District Judge as sole arbitrator. ( 2 ) THE respondent was awarded a contract by the Railway Administration for stacking and leading of 50 mm gauge stone ballast between KM 129-135 SC-WD Section. The respondent contractor claimed that the Railway Administration did not pay for the work done pursuant to the said agreement. As the agreement contains an arbitration clause as per clause 64 of the General Conditions of Contract, the respondent applied to the General Manager to appoint an arbitrator. There was no response to the request made by the respondent. Hence, he filed the O. P. in the Civil Court for arbitration under various Sections of Arbitration Act, 1940 including Section 8. The stand taken by the petitioners was that the contractor did not collect and spread the ballast and did not execute the work as per the terms of the agreement and as the ballast was urgently required to ensure the safety of railway track, the contract was terminated and was entrusted to another agency. Various allegations made by the contractor were denied and it was contended that the claim of the contractor being untenable, the matter was not referred to arbitration. It was also contended that the claim was barred by limitation. The relevant portion of clause 64 (3) of the General Conditions of Contract is as follows :"64 (3) (a) Matters in question, dispute or difference to be arbitrated upon shall be referred to for decision to: (i) A sole Arbitrator who shall be the General Manager or a Gazetted Railway Officer nominated by him in that behalf in cases where the claim in question is below Rs. 5,00,000. 00 (Rs. five lakhs) and in cases where the issues involved are not of a complicated nature. 5,00,000. 00 (Rs. five lakhs) and in cases where the issues involved are not of a complicated nature. The General Manager shall be the Sole Judge to decide whether or not the issues involved are of a complicated nature. (II) Two Arbitrators who shall be Gazetted Railway Officers of equal status to be appointed in the manner laid in Clause 64 (3) (b) for all claims of Rs. 5,00,000. 00 (Rs. Five lakhs) and above, and for all claims irrespective of the amount or value of such claims if the issues involved are of a complicated nature. The General Manager shall be the sole Judge to decide whether the issues involved are of a complicated nature or not. In the event of the two Arbitrators being divided in their opinions the matter under disputes will be referred to an Umpire to be appointed in the manner laid down in clause 3 (b) for his decision. (III ). . . . . . . . . . . . . . . . . . . . . . . (b) For the purpose of appointing two arbitrators as referred to in sub-clause (a) (ii) above, the Railway will send a panel of more than three names of gazetted Railway Officers of one or more departments of the Railway to the Contractor, who will be asked to suggest to the General Manager one name out of the list for appointment as the contractor s nominee. The General Manager, while so appointing the contractor s nominee, will also appoint a second arbitrator as the Railway s nominee either from the panel or from outside the panel, ensuring that one of the two arbitrators so nominated is invariably from the Accounts Department. Before entering upon the reference the two Arbitrators shall nominate an Umpire who shall be a Gazetted Railway Officer to whom the case will be referred to in the event of any difference between the two arbitrators. Officers of the Junior Administrative grade of the Accounts Department of the Railways shall be considered as of equal status to the Officers in the intermediate administrative grade of other departments of the Railway for the purpose of appointment as arbitrators. Officers of the Junior Administrative grade of the Accounts Department of the Railways shall be considered as of equal status to the Officers in the intermediate administrative grade of other departments of the Railway for the purpose of appointment as arbitrators. (c) If the sole arbitrator appointed under sub-clause (a) (i) or one or both of the arbitrators appointed under sub-clause (b) above resigns his appointment/resign their appointments or vacates his Office/vacate their offices or is/are unable or unwilling to act for any person whatsoever or dies/die, the General Manager may appoint a new arbitrator/arbitrators to act in his/their place in accordance with the provisions of sub-clause (a) (i) or sub-clause (b) above as the case may be. Such arbitrator/arbitrators, as the case may be, shall be entitled to proceed with the reference from the stage at which it was left by the previous arbitrator/arbitrators. . . . . . . . . . . . . . . . . . . . " ( 3 ) THE learned trial Judge observed that in view of the neglect and refusal of designated arbitrator - General Manager to adjudicate upon or appoint his nominee or nominees as arbitrators, a vacancy had arisen and the Court gets the jurisdiction to appoint the Arbitrator. The learned Judge further observed that the intention not to fill up the vacancy is not inferable from the agreement and therefore, the Court can exercise its jurisdiction by appointing an arbitrator of its choice. The learned trial Judge relied on the decision of Supreme Court in Nandyal Co-operative Spinning Mills v. K. V. Mohan Rao, 1993 (2) SCC 654 : (1993 AIR SCW 2260 ). ( 4 ) THE arbitrator appointed by the Court entered on the reference and the respondent filed a claim statement and the second petitioner herein filed counter thereto. While contesting the claims of the contractor, the petitioners sought adjournment on the ground that the present C. R. P. was filed. The case was being adjourned from time to time by the learned Arbitrator either on account of the absence of the petitioners or the request for adjournment made on behalf of the petitioners. While contesting the claims of the contractor, the petitioners sought adjournment on the ground that the present C. R. P. was filed. The case was being adjourned from time to time by the learned Arbitrator either on account of the absence of the petitioners or the request for adjournment made on behalf of the petitioners. ( 5 ) THE only contention urged on behalf of the learned counsel for the Railways is that the Court ought to have directed the General Manager either to arbitrate himself or to appoint another Railway Officer or official as Arbitrator. But, it has no jurisdiction to appoint an outsider as an arbitrator. Reliance is placed on the decision in S. Rajan v. State of Kerala, AIR 1992 SC 1918 , in that case, the application was made under Section 20 of the Arbitration Act, 1940. According to the arbitration agreement "the arbitrator for fulfilling the duties set forth in the arbitration clause of the Standard Preliminary Specification shall be the Superintending Engineer, Buildings and Roads Circle, Trivandrum". Their Lordships observed at Page 1922 :"thus, this is a case where the agreement itself specifies and names the arbitrator. It is the Superintending Engineer, Buildings and Roads Circle, Trivandrum. In such a situation, it was obligatory upon the learned Subordinate Judge, in case he was satisfied that the dispute ought to be referred to the arbitrator, to refer the dispute to the arbitrator specified in the agreement. It was not open to him to ignore the said clause of the agreement and to appoint another person as an arbitrator. Only if the arbitrator specified and named in the agreement refuses or fails to act, the Court does get the jurisdiction to appoint another person or persons as the arbitrator. This is the clear purport of sub-section (4 ). " ( 6 ) HOWEVER, I am of the view that as far as the present case is concerned, the decision in Nandyal Co-op. Mills supra directly applies and the decision relied upon by the petitioners counsel is distinguishable. In Nandyal Co-op. Mills case, the Supreme Court was dealing with more or less a similar arbitration clause and held that in a similar situation like this, the Court gets jurisdiction under Section 8 (1) (a) to appoint an arbitrator. Mills supra directly applies and the decision relied upon by the petitioners counsel is distinguishable. In Nandyal Co-op. Mills case, the Supreme Court was dealing with more or less a similar arbitration clause and held that in a similar situation like this, the Court gets jurisdiction under Section 8 (1) (a) to appoint an arbitrator. The relevant portion of the clause is as follows at Page 2264; of AIR SCW :"the application for appointment of an arbitrator is not maintainable when an arbitrator has already been appointed and the applicant has been informed of the said facts before the expiry of 15 days as envisaged under Section 8 (1) (a ). . . . . . The contract did not expressly provide for the appointment of a named arbitrator. Instead power had been given to the administrative head of the appellant to appoint sole arbitrator. When he failed to do so within the stipulated period of 15 days enjoined under Section 8 (1) (a), then the respondent has been given a right under the terms of the contract (see para 4) to avail the remedy under Section 8 (1) (a) and request the Court to appoint arbitrator. " ( 7 ) THE Supreme Court after referring to the decision in Union of India v. Praful Kumar Sanyal, 1979 (3) SCC 631 : ( AIR 1979 SC 1457 ) which dealt with the application under Section 20 (4) of the Act, held as follows :"it would thus be clear that if no arbitrator had been appointed in terms of the contract within 15 days from the date of receipt of the notice, the administrative head of the appellant had abdicated himself of the power to appoint arbitrator under the contract. The Court gets jurisdiction to appoint an arbitrator in place of the contract by operation of Section 8 (1) (a ). The contention of Sri Rao, therefore, that since the agreement postulated preference to arbitrator appointed by the administrative head of the appellant and if he neglects to appoint, the only remedy open to the contractor was to have recourse to civil suit is without force. It is seen that under the contract the respondent contracted out from adjudication of his claim by a Civil Court. It is seen that under the contract the respondent contracted out from adjudication of his claim by a Civil Court. Had the contract provided for appointment of a named arbitrator and the named person was not appointed, certainly the only remedy left to the contracting party was the right to suit. That is not the case on hand. The contract did not expressly provide for the appointment of a named arbitrator. Instead power has been given to the administrative head of the appellant to appoint sole arbitrator. When he failed to do so within the stipulated period of 15 days enjoined under Section 8 (1) (a), then the respondent has been given right under Clause 65. 2 to avail the remedy under Section 8 (1) (a) and request the Court to appoint an arbitrator. If the contention of Shri Rao is given acceptance, it would amount to putting a premium on inaction depriving the contractor of the remedy of arbitration frustrating the contract itself". ( 8 ) IT is apparent from the above observations that a distinction has been drawn between a contract providing for appointment of a named arbitrator and a contract empowering an Administrative head of the Department to appoint the arbitrator. Their Lordships held that to the latter case, Section 8 (1) (a) is attracted. ( 9 ) THERE is a weighty authority for the proposition that Section 8 cannot be invoked where the arbitrator is to be appointed by a named authority and not by the consent of the parties. It is only the provisions of Section 20 (4) that can be availed of in such a situation. Sawant, J. (as he then was) speaking for the Division Bench of the Bombay High Court in Union of India v. Ajit Mehta, AIR 1990 Bom 45 expressed the above view on an exhaustive review of the authorities on the subject. In Nandyal Co-op. Mills case, the said decision was referred to and distinguished in the following words :"clause 70 of the contract therein provided an arbitration clause which postulated that all disputes between the parties to the contract shall, after written notice given by either parties to the contract to either of them, will be referred to the sole arbitration of an Engineering Officer to be appointed by the authority mentioned in the tender documents. Engineer-in-chief was the authority concerned. Engineer-in-chief was the authority concerned. On those facts, it was held that the contract excluded the invocation of the jurisdiction of the Court under Section 8 of the Act and the arbitration Award made pursuant thereto was held to be a nullity". ( 10 ) VIRTUALLY, the decision of the Bombay High Court was disapproved by the Supreme Court though it was not stated in so many words. With great respect, I must also point out that in Nandyal Co-op. Mills case, their Lordships of the Supreme Court did not consider the effect and impact of the stipulation in the arbitration clause that no person other than a person appointed by the Administrative Head should act as an arbitrator and if that is not possible, there should be no reference to arbitration at all. In the instant case, however, such a provision is not incorporated in the arbitration clause. I am therefore relieved of the necessity to delve further into this aspect. Suffice it to observe that the absence of such clause in the present agreement would make the ratio of the decision of the Supreme Court apply with greater force to the case on hand. However much I am inclined to fall in line with the view taken by the Bombay High Court in Ajit Mehta s case (supra), I cannot ignore the binding decision of the Supreme Court. The contention of the petitioners should be rejected in the light of the said decision. The decision in G. Ramachandra Reddy v. Chief Engineer, Madras Zone, Mes , AIR 1994 SC 2381 seems to suggest that the proper remedy in a case of this nature is Section 20. However, no definite view was expressed on the question whether Section 8 (a) is attracted. The decision in Govt. of A. P. v. Mastan Rao, AIR 1994 SC 490 , relied upon by the learned Standing Counsel for the Railways does not come to his aid. In that case the arbitration agreement itself provided for appointment of named officials by designation as arbitrators. ( 11 ) TRUE, the Court while dealing with the application under Section 8 (1) (a) should have had regard to the terms of the agreement and appointed the arbitrators as contemplated by the arbitration clause itself, so as to give effect to the underlying spirit and intention of the Agreement. ( 11 ) TRUE, the Court while dealing with the application under Section 8 (1) (a) should have had regard to the terms of the agreement and appointed the arbitrators as contemplated by the arbitration clause itself, so as to give effect to the underlying spirit and intention of the Agreement. But, the petitioners did not make any such request, on the other hand, they persisted in the unreasonable stand that it is not an arbitrable matter. Moreover, as already stated, the Arbitrator appointed by the Court had entered on the reference long back and partly conducted the proceedings. It is therefore not desirable to interfere with the order of the lower Court appointing a retired Judge as an arbitrator. ( 12 ) THE CRP is dismissed. No costs. Revision dismissed.