NARAYAN CHANDRA SIL, J. ( 1 ) THIS is to consider an application under Sections 5, 8, 11 and 12 of the Arbitration Act, 1940 with a prayer for appointment of an independent person to act as a sole Arbitrator/umpire in order to settle the disputes/ differences as raised in the statement of claims. ( 2 ) IT is stated in the petition that there was an agreement between the parties for execution of the work. Clause 63 of the General Conditions of Contract contained the arbitration clause and formed the part of the agreement. During execution of the work due to laches and negligence of the respondents, the petitioner suffered substantial loss and damages for which the petitioner preferred claims before the Chief Engineer (Sandc) eastern Railway by a letter bearing No. Cl/skb/167/95 dated 14. 8. 1995. But as no response was received from the Chief Engineer (Sandc) the petitioner by a letter dated 14. 12. 1995 requested the General Manager, eastern Railway to take action in terms of Clause 63 of the agreement which was followed by a further reminder by letters dated 22. 2. 1996 and 9. 7. 1996. It is also stated that thereafter the said General Manager sent a panel of names to the petitioner to nominate his Arbitrator, Accordingly, the petitioner nominated Sri S. K. Sinha as its Arbitrator while the respondents nominated Sri. A. Bandopadhyay as their Arbitrator and the said Joint Arbitrators entered into reference. It may be mentioned here that Centax (India) Engineers (P) Ltd. is the petitioner while the Union of india and Ors, are the respondents. It is also mentioned that the said Joint arbitrators thereafter nominated one A. K. Ganguly as the Umpire. The procedural follow-ups were made and the petitioner submitted statement of claims while the respondents submitted the counter-statement of facts before the learned Joint Arbitrators. Although the learned Joint Arbitrators had entered into reference on 15. 9. 19s7 the time to make and publish the award expired on 14. 1. 1998. The petitioner thereafter had given consent to the Joint Arbitrators to extend the time for making and publishing the award upto 30. 6. 1998 and asked the respondents to do so. But the respondents did not extend the time. Thus, the learned Joint Arbitrators became functus officio for which the petitioner by its letter dated 28. 6. 1999 requested the Umpire, Sri. 6. 1998 and asked the respondents to do so. But the respondents did not extend the time. Thus, the learned Joint Arbitrators became functus officio for which the petitioner by its letter dated 28. 6. 1999 requested the Umpire, Sri. A. K. Ganguly to enter into reference as per clause IV of the 1st Schedule of the Arbitration Act, 1940. In such background, the Dy. Chief Engineer (Construction), Eastern Railway by his letter dated 25. 8. 1999 asked the Joint Arbitrators to take further action and the Joint Arbitrators by letter dated 31. 8. 1999 gave notice to the disputing parties for the arbitration hearing and the date for the parties was fixed on 4. 9. 1999. It is alleged that the said letter dated 25. 8. 1999 was motivated as the Joint Arbitrators became functus officio after 14. 1. 1998 and the purported notice dated 31. 8. 1999 issued by the Joint arbitrators was invalid and infractuous. The petitioner accordingly informed the Joint Arbitrators their position by its letter dated 14. 9. 1999. But despite all efforst of the petitioner, the respondents did not stop and the General manager, Eastern Railway sent a panel of four names of Railway Officer to the petitioner by his letter dated 14. 2. 2000 in order to nominate an arbitrator from the said panel. In such imbroglio the Umpire, Sri. A. K. Ganguly failed to enter into reference despite the request of the petitioner. It is also stated that Clause 63 (3) (c) as introduced by addendum and corrigendum of 15 is inapplicable here as neither the Joint Arbitrators nor the Umpire have resigned their respective appointments and/or unable or unwilling to act as such. In such circumstances, the present application arose for appointment of an independent Arbitrator/umpire in order to resolve the disputes between the parties. ( 3 ) THE petition has been contested by the respondents by filing affidavit-in-Opposition in which all the material allegations are denied and it is inter alia stated that the originally appointed Arbitrators had been transferred and submitted their resignation letters dated 30th December, 1999. ( 3 ) THE petition has been contested by the respondents by filing affidavit-in-Opposition in which all the material allegations are denied and it is inter alia stated that the originally appointed Arbitrators had been transferred and submitted their resignation letters dated 30th December, 1999. In such circumstances in exercise of Clause 63 (3) (c) of the said general Conditions of Contract, the General Manager of the Eastern railway (Administration) by his letter dated 14th February, 2000 nominated a panel of Railway Officers and requested the petitioner to select one of them from the panel as nominee Arbitrator. But the petitioner did not nominate any person from the said panel and in such circumstances it is prayed by the respondents that the Court may give an opportunity to the respondents to appoint Arbitrators in terms of the arbitration clause in order to resolve the disputes between the parties. ( 4 ) BESIDE the oral arguments made by the learned counsels for the parties the petitioner has furnished the written arguments before this Court. It is stated there that the facts as canvassed in the petition would prove that the learned Joint Arbitrators as well as the learned Umpire failed to use all reasonable despatch in entering on and proceeding with the reference and making and publishing the award and therefore a situation has arisen for their removal as per Section 11 of the Act, 1940. It is also stated that the Court has power under Section 12 of the said Act to remove such Arbitrators and/or Umpire and to appoint a person to act as sole arbitrator. It is also mentioned that Section 3 of the Arbitration Act, 1940 that the provisions of the 1 st Schedule of the Act shall not apply as there is a different intention expressed in the arbitration agreement. It is further stated that Section 3 of the Arbitration Act, 1940 provides that the provisions of the 1st Schedule are deemed to be included in the arbitration agreement, unless there is a different intention expressed in the agreement. It is further stated that Section 3 of the Arbitration Act, 1940 provides that the provisions of the 1st Schedule are deemed to be included in the arbitration agreement, unless there is a different intention expressed in the agreement. It is also stated that under Clause 4 of the 1st Schedule there are two situations when the disputes have to be referred to the Umpire i. e. firstly, when the arbitrators have allowed their time to expire without making an award and secondly when the Arbitrators cannot agree and inform the Umpire in writing that they cannot so agree. Thereafter the petitioner in the written argument has stated about the different provisions of the different sub-clauses of clause 63 of the agreement. It is also pointed out that the arbitration agreement did not specifically stipulate that only in case of differences between Arbitrators the matter would be referred to the Umpire and not in case of the Arbitrators becoming functus officio and for that purpose the written arbitration agreement "has to be interpreted literally and there is no scope for importing any other terms which have not been specifically excluded' (emphasis added ). It is further stated that the learned Joint arbitrators became functus officio on 14. 1. 1998 and once they became functus officio their purported resignations on 30. 12. 1999 are totally immaterial. Thus, the first limb of Clause 63 (c) does not apply. It is again stated that during the term of office of the Arbitrator i. e. in between 15. 9. 1997 and 14. 1. 1998, when the Arbitrators became functus officio and did not vacate their offices the second limb of Clause 63 (c) is also not applicable. It is further stated that during the term of office neither the arbitrators nor the Umpire expressed their unwillingness or inability to perform their functions as such. Thereafter, the petitioner has referred to the case law and at the same time stated the inapplicability of the case law referred to by the learned Counsels for the respondents. ( 5 ) THE learned Counsel for the petitioner has referred to the ratio decided in the case of Easf India Construction Co. (P) Ltd. v. Union of india (AIR 1970 Calcutta 243 ). In the said case the General Manager appointed two Arbitrators as contemplated by the clause. ( 5 ) THE learned Counsel for the petitioner has referred to the ratio decided in the case of Easf India Construction Co. (P) Ltd. v. Union of india (AIR 1970 Calcutta 243 ). In the said case the General Manager appointed two Arbitrators as contemplated by the clause. Sometime after the said arbitrators entered upon the reference, one of them expressed his inability to continue to work as arbitrator in the matter. On a question whether the General Manager or the Court was competent to appoint arbitrator in the vacancy caused, it was held that the provisions of section 8 (1) (b) of the Arbitration Act, 1940 was attracted and the Court was competent to appoint the arbitrator in the vacancy caused, and not the General Manager. It was also held that as arbitrators were not to be appointed by the consent of the parties, Section 8 (1) (a) was not attracted. It was also held that Section 8 (1) (b) did not contemplate cases where arbitrators were to be appointed by consent of the parties and even assuming that the said section did contemplate such cases, the parties in the case might be said to have consented to the appointment of two arbitrators. It was further held that in the absence of specific provision in agreement giving General Manager power to fill up vacancy, power to appoint arbitrator got exhausted once it was exercised by the General manager and in such a situation Court only was competent to appoint arbitrator. It was also held in that case that the power of an appointing authority to appoint successive arbitrators could not be lawfully exercised unless there was special clause to that effect in the arbitration clause itself. There must be some evidence to show that the parties had intended that, in such a case, the power of the appointing authority to appoint a new arbitrator was revived and the arbitration clause itself was the proper medium where such intention could find its expression. The learned Judge observed further as below :-"further, there were good reasons why the power of the appointing authority should be exhausted, once he had exercised that power. The learned Judge observed further as below :-"further, there were good reasons why the power of the appointing authority should be exhausted, once he had exercised that power. If the power was not exhausted, a difficult situation might arise; for instance, if the Union of India was not satisfied with the conduct of the appointed arbitrator, such arbitrator might be transferred by the Union of India to enable the appointing authority to have a substituted arbitrator on the plea of the first arbitrator's inability to continue as arbitrator. " ( 6 ) THE learned Counsel for the respondents argued that from the facts and circumstances of the case it is can did enough that earlier the arbitrators and may be the umpire also could not act as such and thus the provisions of Clause 63 (3) (c) comes into operation empowering the General manager to act in terms of Clause G3 (3) (a) (i) or sub-clause (b ). That being the situation the position before the General Manager to take up the case of appointment of arbitrators appeared afresh. The learned Counsel for the respondents has drawn my attention to the provisions of Section 28 of the Act and tries to impress upon me that besides everything the Court has ample power to extend the time for passing and putting the award by the arbitrators. It is pointed out further that the petitioner did not take any steps in spite of the letter of the respondents dated 14. 02. 2000 although the respondents acted positively as regards nominating their arbitrator from the fresh panel. Thus, the learned Counsel for the respondents submitted that direction may be given to the petitioner to nominate their arbitrator in view of the letter dated 14. 02. 2000. The learned Counsel for the respondents has referred to the ratio decided in the case of Surendranath paul v. Union of India ( AIR 1965 Cal. 183 ). In the said case according to the arbitration clause in a contract between A and the Government, the disputes between the parties arising out of the contract were to be referred to the arbitration of the Secretary to the Government of India, Ministry of works, Housing and Supply and if he was unable or unwilling to act to the sole arbitration, some other person appointed by him, and willing to act as such arbitrator. The award of the arbitrator so appointed was to be final, conclusive and binding on the parties. Differences having arisen between the parties. A referred the same to the Secretary to the Govt. of India, ministry of Works, Housing and Supply, in terms of the arbitration agreement. The Secretary appointed one D as an arbitrator in respect of the reference Purporting to enter upon the reference D directed A to file a statement of claim. A's solicitor wrote to D stating that his appointment was bad and that he had no jurisdiction to act in the matter. The Union of india applied for extension of time for making the award. No orders were passed upon this application. After the expiry of the time for making the award D resigned the office of arbitrator. Then the Secretary appointed one R as the arbitrator in place of D. His appointment was also challenged by the solicitor of A. Meanwhile A had filed a suit against the Union of india. R was informed accordingly not to proceed with the reference. In the suit the Union of India applied under Section 34 of the Arbitration Act for the stay. It was contended by A that having once appointed D as arbitrator, the power of the Secretary had exhausted and he could not appoint R. ( 7 ) IN such background it was held by the Division Bench of this Court that the appointment by the Secretary was virtually an appointment made by consent of parties because the parties agreed while entering into the contract to leave the choice of another person as Arbitrator to the Secretary, in case the Secretary himself was unable or unwilling to act as arbitrator. So in effect instead of the parties themselves choosing or appointing an arbitrator, they consented that the appointment would be made by the person designated in the agreement, namely, the person holding the office of Secretary, Ministry of Works, Housing and Supply. In other words, the appointment was the result of consent of the parties themselves, it was further held. It was also held in that case as below :- "when D had refused to act and expressed his unwillingness to act, there was no longer any Arbitrator willing to act as contemplated by the Arbitration clause. After his resignation be became functus officio. It was also held in that case as below :- "when D had refused to act and expressed his unwillingness to act, there was no longer any Arbitrator willing to act as contemplated by the Arbitration clause. After his resignation be became functus officio. Willingness to act meant continued willingness to act till the arbitration was complete and not merely acceptance of office or willingness to act at the initial stage. It could not mean that Arbitrator could proceed half way and if thereafter he neglected or refused to act, the arbitration would come to an end. The contingency which would enable the Secretary to appoint a fresh arbitrator happened as there was no Arbitrator willing to act after the resignation of D. There was no indication in the arbitration clause that vacancy would not be supplied in such a case or that the power of the Secretary was extinguished by a single execution. " ( 8 ) THE learned Counsel for the petitioner stated in the written argument that the ratio decided in the case of Surendranath Paul (supra) is on different facts as in the said case a suit was filed on the basis of the arbitration Act which became ineffective and an order under Section 34 of the Arbitration Act was passed staying the suit, against which order an appeal was made. In the said case the first arbitrator had resigned and a second arbitrator was already appointed. Upon such facts the Court held that the contingency for appointment of a second arbitrator had happened and in fact a second arbitrator was already appointed and, therefore, the suit was stayed. It is further argued by the learned Counsel for the petitioner that when the arbitrators resigned there is no question to extend the time for making and publishing the award without appointing any fresh arbitrator. ( 9 ) ). Let us now see what is the relevant clause of arbitration in the agreement made between the parties. It may be pointed out here that both the parties have relied on Clause 63 of the agreement in this regard. Clause 63 (1) subsequently brought by way of addendum and corrigendum dated 17th September, 1979 speaks of demand for arbitration. Let us now see what is the relevant clause of arbitration in the agreement made between the parties. It may be pointed out here that both the parties have relied on Clause 63 of the agreement in this regard. Clause 63 (1) subsequently brought by way of addendum and corrigendum dated 17th September, 1979 speaks of demand for arbitration. And Clause 63 (3) (c) which has been referred to by the learned Counsel for the respondents reads as below :"if the sole Arbitrator appointed under sub-clause (i) or one or both of the Arbitrators appointed under sub-clause (b) above resigns his appointment/resign their appointment or vacates his office/vacate their offices is/are unable or unwilling to act for any reason 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/the reference from the stage at which it was left by the previous Arbitrator/arbitrators. "the learned Counsel for the petitioner in the written argument submitted that the above quoted clause is to be interpreted literally and no extra reason can be added to the same. ( 10 ) SECTION 8 (1) (b) of the Arbitration Act, 1940 reads as under: "if any appointed arbitrator or umpire neglects or refuses to act, or is incapable of acting, or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied, and the parties or the arbitrator, as the case may be, do not supply the vacancy. " now, if the provision of Clause 63 (3) (c) of the agreement made between the parties and that of Section 8 (1) (b) of the Arbitration Act, 1940 are juxtaposed it would be sufficiently perspicuous that the act of the respondents is not at all violative of the provisions of the Arbitration Act in order to attract the claim of the petitioner for the appointment of the arbitrators at the intervention of the Court. In this connection, it may be mentioned that it is not the case of the petitioner that the respondents did not supply the vacancies of the arbitrators in terms of the agreement and it is rather admitted case that the respondents by their letter dated 14. 02. In this connection, it may be mentioned that it is not the case of the petitioner that the respondents did not supply the vacancies of the arbitrators in terms of the agreement and it is rather admitted case that the respondents by their letter dated 14. 02. 2000 asked the petitioner to choose one of the names from the panel of the arbitrators mentioned in that letter. While the contesting respondents responded to the letter dated 14. 02. 2000 the petitioner remained silent for the reason best known to the petitioner. ( 11 ) NOW, it is to be seen whether there was any occasion for the railway Authorities to write such letter dated 14. 02. 2000 to the contesting parties. In this connection, we may hark back at the facts of the case stated in the earlier pages and the same suggest sufficiently that the Railway authority had the reasons to write such letter dated 14. 02. 2000 to the contesting parties in consonance with the provisions of Clause 63 (3) (c) of the agreement between the parties. ( 12 ) IN the instant case the Joint Arbitrators were appointed on the consent of both the parties and as such the provisions of Section 8 (1){a) of the Arbitration Act has no application to the instant case and so also the ratio decided in the case of East India Construction Company (Private) ltd. (supra) as referred to by the learned Counsel fo the petitioner. On the other hand, the facts and circumstances of this case suggest that the ratio decided in the case of Surendranath Paul (supra) as referred to by the learned Counsel for the respondents appears to have application in the instant case. Thus, in view of what has been discussed in the foregoing lines I do not find any merits in the present application filed by the petitioner for appointment of Arbitrator. The application is, thus, dismissed.