1. This is an application by Nalini Ranjan Guha under Section 8, Arbitration Act for appointment of an Arbitrator. The arbitration agreement provides for reference of the disputes to the Superintending Engineer of the Circle for the time being. In a previous application Das Gupta J. expressed the view that the office of the Arbitrator is now vacant and that the vacancy can be filled by this Court. It is now conceded by counsel that there is such vacancy and that the condition laid down in Sub-section (1) (b) of Section 8 is fulfilled. The appointed Arbitrator is incapable of acting and the Arbitration agreement does not show that it was intended that the vacancy should not be supplied.
2. Before a party can apply under this section for appointment of an arbitrator he must serve the other party with a written notice to concur in the appointment of an arbitrator. The written notice relied on by the petitioner is a notice dated 28-4-1951 addressed to the Union of India and its attorney Mr. S. K. Mandal and signed by M. K. Roy Chowdhuri & Co. attorneys for Nalini Ranjan Guha. The notice states that the applicant appoints Mr. S. K. Achariya, Barrister-at-law, as Arbitrator and requests the addressee to concur in his appointment and to treat the notice as one under Section 8, Arbitration Act. Mr. S. K. Mandal in his letter dated 2-5-1951, to Messrs. M. K. Roy Chowdhury & Co. stated that he was forwarding a copy of the notice to the department and would deal further with the matter on hearing from them.
Thereafter Mr. S. K. Mandal by his letter dated 8-5-1951, to Messrs. M. K. Roy Chowdhury & Co. stated that he had been informed by the department that the matter had been referred to the Additional Chief Engineer, Central Public Works Department, New Delhi, for appointment of an Arbitrator, and he would write again on hearing from the department. On 15-5-1951, Mr. Mandal again wrote to Messrs. M. K. Boy Chowdhury & Co. that he had been informed by the department that they suggested that one of several Superintending Engineers in the employ of the Union of India named in that letter should be the arbitrator. The applicant did not agree to this suggestion and hence this application,
3. It is contended on behalf of the Union of India that the notice under Section 8, Arbitration Act must be signed and served by the party himself and that a notice signed and served by the attorney of the party is invalid. In my judgment, there is no substance in this contention. The following passage appears in Halsbury, 2nd Edition at 346 page 195 :
'It may be stated as a general proposition that whatever a person has power to do himself he may do by means of an agent x x x There are however two exceptions to the general rule that a person may do by means of an agent whatever he has power to do himself :
(a) Where the transaction is required by statute to be evidenced by the signature of the principal himself.
(b) Where the competency to do the act, arises by virtue of the holding of some public office or by virtue of some power, authority, or duty of a personal nature and requiring skill or discretion for its exercise.'
This passage accurately summarizes the law on this point. Admittedly the second exception has no application to the question raised in this case. The general rule and the first exception were recognised in -- 'Commr. of Agricultural Income-tax, West Bengal v. Keshab Chandra' : 18ITR569(SC) (A). In my view Section 8, Arbitration Act does not either expressly or by necessary implication and intendment exclude the general common law rule. Under the section the party himself can sign and serve the notice and what the party can do himself he may do by means of an agent. The Section does not require any signature on the notice, far less the signature of the party. I see nothing in the Section or in the general policy of the Arbitration Act to exclude the general common law rule. The Arbitration Act does not require even the basic transaction of arbitration agreement to be signed far less to be signed by the party himself. I find, nothing in the Act which requires the notice under Section 8 to be evidenced by the signature of the party himself.
4. It is not contended in this case that M. K. Roy Chowdhury & Co., was not duly authorised by the applicant to write or serve the notice. Once it is conceded that they had this authority it must be held that the requisite notice has been written and served by their principal Nalini Ranjan Guha. The act of Messers. M. K. Roy Chowdhury & Co., is the act of Nalini Ranjan Guha.
5. It was also contended on behalf of the Union of India that the notice has not been served in accordance with Section 42, Arbitration Act which requires that the notice must be delivered to the Union of India. The notice here was sent to Mr. Mandal who in his turn sent its copy to the pro-per Department of the Union of India. The-written notice under the section was therefore delivered to the Union of India through Mr. S K. Mandal. The receipt of notice by the Union of India is not denied in the affidavits. I hold that the notice was duly served.
6. In my view, all the conditions of Section 8, Arbitration Act have been satisfied. I should therefore-appoint an Arbitrator under that section.
7. The learned Standing Counsel appearing on behalf of the Union of India strenuously contended that although the particular Superintending. Engineer mentioned in the agreement is no longer available some other Superintending Engineer in the employ of the Union of India should be appointed as arbitrator. In the circumstances of the case I am unable to accede to this contention.
8. There are serious charges and countercharges and prolonged and bitter litigation is going on between the petitioner and the Union of India. When the court is called upon to appoint an arbitrator it is the duty of the Court to select, an impartial person for that office. In the absence of special circumstances I am unable to appoint an employee of one of the parties. Where the arbitrator chosen by the parties is available, the court will in the absence of special circumstances compel the parties to abide by their contract, But that is not the case here. A very strong and special case must be made out for the appointment of an employee of a party as arbitrator.
9. The selection of the Arbitrator is always avery delicate matter. The parties have askedfor time to see whether they could agree upon anArbitrator. If they cannot agree they will mention the matter within 7 days and I will thenname the Arbitrator. Each party will pay andbear its own costs.