JUDGMENT : 1. The First Appeal filed under Section 39(1) (iv) of the Arbitration Act, 1940 [for short, “the Arbitration Act” ] challenges the impugned judgment dated 25 th August, 1995 passed by the Bombay City Civil Court in Arbitration Petition No. 81 of 1995, dismissing the objection to the Award and making the Arbitration Award rule of the Court under Section 17 of Arbitration Act. 2. Award No. 168 of 1994 was passed in favor of Respondent for sum of Rs. 35,770.10/-, which was filed in the Court under Section 14 of Arbitration Act. The Appellant challenged the Award by filing Arbitration Petition No. 81 of 1995 under Section 30 and Section 33 of Arbitration Act, which was dismissed and Award was made rule of the Court, which is impugned in the present Appeal. 3. The dispute arose between the parties out of alleged claim for payment of the goods supplied by Respondent to Appellant. The Respondent invoked the arbitration clause in the invoice which provided for the dispute to be subject to the Arbitration Rules of Bharat Merchants’ Chamber. The Respondent approached Bharat Merchants’ Chamber and appointed one Mr. Anil Agrawal from the panel of arbitrators of Bharat Merchants’ Chamber vide letter dated 28 th March, 1994. On 29 th March, 1994, Bharat Merchants’ Chamber called upon the Appellant to appoint its arbitrator from the panel of arbitrators. In response, Appellant vide communication dated 7 th April, 1994 declined to appoint Arbitrator and refused to participate in arbitration proceedings. Bharat Merchants’ Chamber appointed an Arbitrator for the Appellant and proceeded with arbitration. The Appellant did not participate in the arbitration proceedings and Award came to be passed in favor of Respondent. 4. Upon the Award being filed in the Court, Respondent filed its objection to the Award being made decree of the Court by filing Arbitration Petition No. 81 of 1995. It was pleaded that there was no Arbitration Agreement between the parties and Appellant had declined to appoint an Arbitrator. It was pleaded that Award was invalid, and not binding. 5. The Petition was resisted by Respondent by filing its reply contending that invoice was signed and terms are binding. It was pleaded that there was no Arbitration Agreement between the parties and Appellant had declined to appoint an Arbitrator. It was pleaded that Award was invalid, and not binding. 5. The Petition was resisted by Respondent by filing its reply contending that invoice was signed and terms are binding. The Trial Court held that terms which are printed on the bills were binding upon the parties and there was an Arbitration clause, which has been properly considered by the Arbitrator and that the award passed is proper. The Trial Court passed a composite order dismissing the Arbitration Petition and passing Decree in terms of Award No. 168 of 1994. 6. Ms. Khairnar, learned counsel appearing for Appellant would submit that Arbitration clause was printed overleaf of the bill for supply of goods and provided for dispute to be subject of the Arbitration Rules of Bharat Merchants’ Chamber, Bombay. She has fairly stated that the same would constitute an Arbitration agreement. Her objection, however, is that despite declining to appoint an Arbitrator, without recourse to Section 20 of Arbitration Act, the unilateral appointment and unilateral reference is illegal. In support, she relies upon the decision of Apex Court in the case of Dharma Prathishthanam vs. Madhok Construction (P) Ltd., (2005) 9 SCC 686. 7. Though the matter was adjourned from time to time, none appears for Respondent. 8. The following point arises for determination: (i) Whether in facts of present case, there has been an unilateral appointment and unilateral reference rendering the Award passed by Arbitrator an illegal award by reason of non-compliance of Section 20 of the Arbitration Act, 1940? As to Point No. (i) : 9. The present Appeal has been filed under Section 39(1)(iv) of Arbitration Act. Though Section 17 of Arbitration Act restricts the nature of appeal against the decree only to the question whether the decree is in excess or not in accordance with the award, Section 39(1) (iv) of Arbitration Act provides for appeal against the order refusing to set aside the Award. In the present case, the order is a composite order refusing to set aside the award and passing decree in terms of the Award and the appeal under Section 39(1)(iv) is not restricted to the nature set out in Section 17 of Arbitration Act. In the present case, the order is a composite order refusing to set aside the award and passing decree in terms of the Award and the appeal under Section 39(1)(iv) is not restricted to the nature set out in Section 17 of Arbitration Act. It is thus, open for the Appellant to challenge the refusal to set aside the Award on all grounds. 10. Ms. Khairnar has fairly conceded that condition printed overleaf of the invoice agreeing to dispute being made subject to the arbitration rules of Bharat Merchants’ Chamber constitutes an Arbitration Agreement. The condition in the invoice was that dispute relating to transactions will be subject to Arbitration Rules of Bharat Merchants’ Chamber, Bombay only. The Arbitration Rules of Bharat Merchants’ Chamber are not produced on record. However, the fact remains that Arbitration clause did not name any Arbitrator and only provided for the dispute to be subject to Arbitration Rules. From the communication dated 29 th March, 1994 addressed by the Bharat Merchants’ Chamber to the Appellant, calling upon Appellant to appoint an Arbitrator of his choice and from the Arbitral Award, it is evident that the Rules provided for appointment of two arbitrators, one by each party. The Appellant by communication dated 7 th April, 1994 specifically informed Bharat Merchants’ Chamber that it is not willing to appoint an Arbitrator. 11. Chapter II of Arbitration Act provides for arbitration without intervention of Court and Section 8 which is contained in Chapter II provides that where an Arbitration Agreement provides that the reference shall be to one or more arbitrators to be appointed by consent of the parties and all parties do not concur in the appointments, the Court may on application of the party who gave notice and after hearing, appoint an arbitrator to enter upon the reference. Chapter III deals with arbitration with intervention of Court and Section 20(4) provides that where no sufficient cause is shown, the Court shall order the agreement to be filed and make an order of reference to the arbitrator appointed by the parties and in absence of concurrence, to an arbitrator appointed by the court. 12. Admittedly in the present case, the Appellant did not concur in appointment of arbitrator and in such eventuality, the Respondent should have taken recourse to Section 20 of Arbitration Act. 12. Admittedly in the present case, the Appellant did not concur in appointment of arbitrator and in such eventuality, the Respondent should have taken recourse to Section 20 of Arbitration Act. The Arbitration Agreement between the parties merely provided that Arbitration is subject to Rules of Bharat Merchants’ Chamber and there was no named arbitrator. In absence of named arbitrator, Bharat Merchants’ Chamber could not have unilaterally appointed an Arbitrator for the Appellant. The Appellant did not acquiesce in the appointment and did not participate in the arbitration proceedings. 13. Ms. Khairnar is right upon relying upon the decision of Apex Court in the case of Dharma Prathishthanam vs. Madhok Construction (P) Ltd. (supra) where the Court has held in Paragraph Nos. 7 and 12 as under:- " 7. An arbitrator or an Arbitral Tribunal under the Scheme of the 1940 Act is not statutory. It is a forum chosen by the consent of the parties as an alternate to resolution of disputes by the ordinary forum of law courts. The essence of arbitration without assistance or intervention of the Court is settlement of the dispute by a Tribunal of the own choosing of the parties. Further, this was not a case where the arbitration clause authorized one of the parties to appoint an arbitrator without the consent of the other. Two things are, therefore, of essence in cases like the present one: firstly, the choice of the Tribunal or the arbitrator; and secondly, the reference of the dispute to the arbitrator. Both should be based on consent given either at the time of choosing the Arbitrator and making reference or else at the time of entering into the contract between the parties in anticipation of an occasion for settlement of disputes arising in future. The law of arbitration does not make the arbitration an adjudication by a statutory body but it only aids in implementation of the arbitration contract between the parties which remains a private adjudication by a forum consensually chosen by the parties and made on a consensual reference. 12. The law of arbitration does not make the arbitration an adjudication by a statutory body but it only aids in implementation of the arbitration contract between the parties which remains a private adjudication by a forum consensually chosen by the parties and made on a consensual reference. 12. On a plain reading of the several provisions referred to hereinabove, we are clearly of the opinion that the procedure followed and the methodology adopted by the respondent is wholly unknown to law and the appointment of the sole arbitrator Shri Swami Dayal, the reference of disputes to such arbitrator and the ex parte proceedings and award given by the arbitrator are all void ab initio and hence nullity, liable to be ignored. In case of arbitration without the intervention of the Court, the parties must rigorously stick to the agreement entered into between the two. If the arbitration clause names an arbitrator as the one already agreed upon, the appointment of an arbitrator poses no difoculty. If the arbitration clause does not name an arbitrator but provides for the manner in which the arbitrator is to be chosen and appointed, then the parties are bound to act accordingly. If the parties do not agree then arises the complication which has to be resolved by reference to the provisions of the Act. One party cannot usurp the jurisdiction of the Court and proceed to act unilaterally. A unilateral appointment and a unilateral reference - both will be illegal. It may make a difference if in respect of a unilateral appointment and reference the other party submits to the jurisdiction of the arbitrator and waives its rights which it has under the agreement, then the arbitrator may proceed with the reference and the party submitting to his jurisdiction and participating in the proceedings before him may later on be precluded and estopped from raising any objection in that regard. According to Russell (Arbitration, 20th Edn., p. 104) - "An Arbitrator is neither more nor less than a private judge of a private court (called an arbitral tribunal) who gives a private judgment (called an award). According to Russell (Arbitration, 20th Edn., p. 104) - "An Arbitrator is neither more nor less than a private judge of a private court (called an arbitral tribunal) who gives a private judgment (called an award). He is a judge in that a dispute is submitted to him; … He is private in so far as (1) he is chosen and paid by the disputants, (2) he does not sit in public, (3) he acts in accordance with privately chosen procedure so far as that is not repugnant to public policy, (4) so far as the law allows he is set up to the exclusion of the State courts, (5) his authority and powers are only whatsoever he is given by the disputants' agreement, (6) the effectiveness of his powers derives wholly from the private law of contract and accordingly the nature and exercise of these powers must not be contrary to the proper law of the contract or the public policy of England, bearing in mind that the paramount public policy is that freedom of contract is not lightly to be interfered with." 14. The Apex Court in the case of Banwari Lal Kotiya vs. P. C. Aggarwal, [ (1985) 3 SCC 255 .] considered the question of validity of reference against the issue whether an arbitrator can enter upon a reference which is not consensual and explained the law laid down in Thawardas Pherumal vs. Union of India, [ (1955) 2 SCR 48 ] , that consent is not necessarily required to be expressed at the time of making the reference if it is already provided by the agreement or is sanctioned by the statutory rules, regulations or bye-laws. The Apex Court noted thus: “….The expression “arbitration agreement” is wider as it combines within itself two concepts - (a) a bare agreement between the parties that disputes arising between them should be decided or resolved through arbitration, and (b) an actual reference of a particular dispute or disputes for adjudication to a named arbitrator or arbitrators. When the arbitration agreement is of the former type, namely, a bare agreement, a separate reference to arbitration with fresh assent of both the parties will be necessary and in absence of such consensual reference, resorting to Section 20 of the Arbitration Act will be essential” 15. When the arbitration agreement is of the former type, namely, a bare agreement, a separate reference to arbitration with fresh assent of both the parties will be necessary and in absence of such consensual reference, resorting to Section 20 of the Arbitration Act will be essential” 15. In the absence of consensual reference, the unilateral reference and unilateral award would render the reference void ab initio. 16. In the present case, admittedly the petitioner did not concur in an appointment of Arbitrator, in which case, in absence of any Application under Section 20 of the Arbitration Act seeking appointment of Arbitrator, the unilateral appointment and unilateral reference would be illegal. In the absence of any recourse to Section 20 of the Act, the Arbitrator did not have an inherent jurisdiction to enter into reference. Under Section 30 of Arbitration Act, the Award is liable to be set aside where the Award is otherwise invalid. 17. The Trial Court has failed to note the settled position in law and has dismissed the objection by arriving at a finding that there was Arbitration Agreement between the parties. What had to be considered is the validity and legality of the unilateral appointment and unilateral reference, which was not done. Resultantly, Award No. 168 of 1994 is illegal and cannot be made rule of the Court. Point No (i) is accordingly answered in favor of Appellant. 18. Hence, following order is passed:- : ORDER : [i] First Appeal is allowed. [ii] The impugned judgment dated 25 th August, 1995 passed by the City Civil Court in Arbitration Petition No. 81 of 1995 is hereby quashed and set aside. [iii] Arbitration Petition No. 81 of 1995 is allowed. [iv] Award No. 168 of 1994 dated 1 st August, 1994 stands quashed and set aside.