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Judgment
Shanmukham, J.
A party to the arbitration has laid this application as against the other party for appointment of an arbitrator in terms of clause No. 37 of the
agency agreement dated 8-3-1973 on the ground that by, the appointment of the arbitrator by the respondent, justice will not be done to the
applicant. It is also alleged that originally, the respondent appointed one Sri V. T. Ramadoss as the arbitrator, but then on his transfer, one S P.
Adarkar, Deputy L. P. G. Manager, I. O. C. Bombay had been appointed instead as arbitrator. According to the applicant, the manner in which
the respondent''s men took possession of cylinders, will reveal that the respondent and naturally its employees are prejudiced against the applicant.
This application is stoutly opposed on the ground that the applicant agreed to the terms contained in the agency agreement dated 8-3-1978, that
Cl. 37 enabled the respondent to appoint its own arbitrator and that the allegation of prejudice is not well founded.
It is nowhere complained in the affidavit that clause 37 which enables, the respondent to appoint its own officer as an arbitrator, is illegal. It
means that such a clause Is binding on the respondent as well. Having agreed to such an appointment of its own officer by the respondent as
arbitrator, should there be any difference between the contracting parties, it is not now open to the applicant to pray for appointment of arbitrator
by resorting to Section 9(b) of the Arbitration Act. Section 9(b) of the Arbitration Act provides that it one party fails to appoint an arbitrator, either
originally or by way of substitution as aforesaid, for fifteen clear days after the service by the other party of a notice in writing to make the
appointment, such other party having appointed his arbitrator before giving the notice, the party who has appointed an arbitrator may appoint that
arbitrator to act as sole arbitrator in the reference, and his award shall be binding on both parties as if he had been appointed by consent. Here, the
only party who is entitled to appoint arbitrator, has exercised its option and appointed the arbitrator. There Is no discretion vested in the applicant
but to accept such appointment by virtue of clause 37. So long as the arbitrator has been appointed, there is no vacancy so that the Court would
appoint one,
The result is application is not only unsustainable, but is also devoid of merits. Therefore, it is dismissed without costs.
Application dismissed.