Tarkeshwar Nath, J.:— This appeal by the defendant is directed against an order passed by the Special Subordinate Judge, Ranchi, directing it to submit to the Court within seven days the name of an agreed person as the sole arbitrator to whom reference would be made. The facts leading to this case are these. The defendant invited tenders for various works in the power plant of the Hindustan Steel Ltd. Rourkela. The plaintiff filed tenders in respect of some of the works and they are accepted on 25-11-1958. There was an agreement between the plaintiff and the defendant in respect of the work undertaken by the plaintiff. The plaintiff completed the work on 15-9-1959 and later on there was a dispute between the plaintiff and the defendant in respect of several claims of the former, after the bills were submitted to the latter. The plaintiff served a notice on the defendant under Section 8 of the Arbitration Act informing it that the plaintiff had appointed Shri B.N Choudhary, retired District and Sessions Judge, residing at Lucknow, as the sole arbitrator to decide the dispute. The former asked the latter to concur in his appointment as sole arbitrator within 15 days from the date of the receipt of the notice. The defendant received the notice on 5-9-1962, but did not care to send reply.

2. In these circumstances, the plaintiff filed at petition under Section 20 of the Indian Arbitration Act in the Court of the Subordinate Judge at Ranchi and made a prayer that the defendant should be ordered to file the agreement and the contract and on the defendant's failure to do sq the agreement and the contract filed by the plaintiff along with the application should be deemed to have been filed. The plaintiff made a further prayer that Shri B.N Choudhary should be deemed to be the arbitrator or, alternatively, the Court should appoint an arbitrator and in that event the dispute should be referred to that arbitrator for making an award. This application was registered as Title Suit No. 122 of 1962. The defendant showed cause and challenged the maintainability of the application under Section 20 of the Arbitration Act. The defendant's case was that the Managing Director was no doubt appointed as the sole arbitrator according to the contract, but the post of Managing Director having been abolished, the duties assigned to the Managing Director were being carried on by the General Manager of the Company and as such the dispute should be referred to the General Manager for making an award. The defendant did not agree to the appointment of Shri B.N Choudhary as arbitrator.

3. The Special Subordinate Judge took the view that no one being the Managing Director of the Hindustan Steel Private Ltd. it was not possible to have an arbitration by a Managing Director and as such the plaintiff was entitled to ask the Court for filling up the vacancy and get an arbitrator appointed by the Court. He thus directed the parties to agree to the appointment of a sole arbitrator acceptable to both the parties or to submit a few names within a week of his order for appointment of an arbitrator failing which he decided to nominate an arbitrator him-self. He further held that the agreement and the contract (Ext. A) filed by the plaintiff should be deemed as filed. The defendant being aggrieved by this order has preferred this appeal under Section 39(1)(iv) of the Arbitration Act.

4. Learned Counsel for the appellant contended that the agreement between the parties was to refer the dispute to an officer specifically named, meaning thereby, the Managing Director of the Company, but the constitution of the Company having been changed, there was no Managing Director now and hence the General Manager should be deemed to be the arbitrator. Clause (25) of the agreement (Ext. A) dated 30-1-1959 provides thus:

“Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality of workmanship, or materials used on the work, or as to any other question, claim, right, matter or thing whatsoever, in any way arising out of, or relating to the contract designs,… shall be referred to the sole arbitration of the Managing Director, Hindustan Steel Private Ltd. and if the Managing Director, Hindustan Steel Private Ltd. is unable or unwilling to act, to the sole arbitration of some other person appointed by the Managing Director, Hindustan Steel Private Ltd. (is?) if willing to act as such arbitrator. It will be no objection to any such appointment that the arbitrator so appointed is an employee of the Company, that he had to deal with the matters to which this Agreement relates and that in the course of his duties as such employee of the Company he had expressed views on all or any of the matters in dispute or difference. The award of the arbitrator so appointed shall be final, conclusive and binding on all parties to this contract.”

5. The Articles of Association has not been produced and it is not known on the present materials as to what were the duties assigned to the Managing Director and who is the exact person who is performing those duties. It is not known what are the powers of the General Manager and which work has been entrusted to him. In course of the argument, learned counsel for the respondent submitted that there were more than one General Managers. Another objection on behalf of the respondent was that the General Manager was an employee of the defendant and the plaintiff respondent could not agree to the appointment of a person who was an employee of the Company in a matter like this. On a consideration of these matters, I find that there is no merit in the contention that the General Manager should be substituted in place of the Managing Director according to clause 25 of the agreement.

6. Next question is as to whither the Court had jurisdiction to call upon the parties to agree to the appointment of an arbitrator. Learned counsel for the appellant urged that on account of the non-availability of the Managing Director, who was appointed as an arbitrator, the agreement for arbitration could not be enforced and the Court had no jurisdiction under Section 20 to entertain the application of the plaintiff. In other words, according to him, the agreement to refer the dispute to an arbitrator could no longer be enforced and the contract in that respect was frustrated in accordance with the provisions of Section 56 of the Contract Act. Section 56 provides inter alia that a contract to do an act, which, after the contract is made, becomes impossible, or, by reason of some event which the promiser could not prevent, unlawful, become void when the act becomes impossible or unlawful. Impossibility of performance is one of the modes of discharge of contract. Impossibility of fulfilment may be due to some supervening circumstance and in that case the party liable is discharged from performance. He thus urged that the post of Managing Director having been abolished, there was no Managing Director and as such, the plaintiff had no right to get the dispute referred to anyone as arbitrator.

7. In support of this, he referred to a decision of this Court in Tara Prasad v. Baijnath Prasad, ILR 19 Pat 927 : (AIR 1941 Pat 155). The agreement there was to refer the dispute to the arbitration of four gentlemen named in the agreement. The arbitrators made some attempt to carry on the arbitration, but, on account of laches of the parties, they could not proceed in the matter. Thereupon a petition was filed under paragraph 17 of Schedule 2 of the Code of Civil Procedure praying that the agreement dated 11-5-1937 should be filed in Court. That application was opposed on various grounds, the most important of which was that the arbitrators had refused to act and give their award. The Subordinate Judge refused to make reference to any arbitration and hence there was an appeal against that order. It was urged on behalf of the appellants that there being a valid agreement, the Court was bound to make a reference, although all the arbitrators were not willing to proceed with the arbitration. The contention was that under paragraph 5 of the same Schedule it was open to the Court to appoint new arbitrators in their place. Clause (4) of paragraph 17 of Schedule 2 of the CPC, reads as follows:

“Where no sufficient cause is shown, the Court shall order the agreement to be filed and shall make an order of reference to the arbitrator appointed in accordance with the provisions of the agreement or if there is no such provision and the parties cannot agree, the Court may appoint an arbitrator.”

8. It was pointed out in that case that when there was a mere agreement for reference to arbitration which was sought to be filed in Court, the Court could not go beyond the terms of the agreement. The agreement in that case specified the persons who were to be appointed arbitrators, but made no provision for the case when the arbitrators would refuse to act. That being the position, it was held that the Court could not substitute in place of named arbitrators certain other persons. Clause (4) of paragraph 17 made it clear that the reference should be made

“to the arbitrator appointed in accordance with the provisions of the agreement.”

9. In that case, four persons were specifically named as arbitrators in the agreement and in face of that agreement and the clear provision of clause (4) of paragraph 17, the Court had no power to substitute anyone else in their place. That case depended on the interpretation of clause (4) of paragraph 17 of schedule 2, but we are concerned in the present case with the terms of sub-s. (4) of Section 20 of the Arbitration Act, 1940. So long as clause (4) of paragraph 17 was in force and governed the rights of the parties with regard to the appointment of an arbitrator, the position was that if the arbitrator happened to be named in a contract between the parties, then the Court could make a reference to that arbitrator alone and no one else. Clause (4) did not contemplate a situation where the parties could agree to the appointment of a person as an arbitrator in any other manner, but the position, according to Section 20(4) of the Arbitration Act, is different. Thus, the decision relied upon by learned counsel has to be considered in view of the state of law which was in force at that time. That decision is accordingly of no assistance to the appellant.

10. Learned counsel then referred to Abdul Hamid v. Abdul Aziz, AIR 1934 Oudh 67. In that case, three persons were named in a deed as arbitrators, one of them having been appointed as Sarpanch or umpire. That umpire refused to act as an umpire and thereafter there was an application to the Court under paragraph 17 of schedule 2 of the CPC, to have an order of reference on the basis of the said deed containing an agreement to refer the dispute to arbitration. On behalf of the defendants, the objection was that on the refusal of the umpire to act the remaining two arbitrators could not proceed and the agreement had become unenforceable. The Subordinate Judge held that the said agreement was not enforceable inasmuch as the persex appointed as umpire had declined to act and, in that view of the matter, he dismissed the application. On appeal, it was urged that the lower Court should lave taken proceedings under paragraph 5 of schedule 2 of the Code. It was observed that the question whether after the refusal of the umpire to act as an arbitrator the deed of agreement could still be enforced and given effect to by the Court passing an order of reference had to be determined with reference to the provisions of clause (4) of paragraph 17, schedule 2. Those provisions clearly indicated that when the agreement was to refer the matter to certain named arbitrators, the Court was bound to make an order of reference to such arbitrators and the Court; could not make an order of reference to two out of the three arbitrators named in the deed of agreement, inasmuch as such an order of reference would not be in accordance with the terms of the agreement within the meaning of Cl. (4). For these reasons, it was held that the Court had no power to appoint a fresh arbitrator in place of that umpire who had refused to act. The facts that case as well were governed by clause (4) of paragraph 17 and it was not open to the Court to fill up the vacancy and appoint another person as arbitrator in place of that umpire.

11. In Satyanarayanamurthi v. Venkataramanamarthi, AIR 1948 Mad 312 (FB), the agreement was to refer the dispute to one individual only, but he died before making an award. A question arose as to whether the Court had power to appoint another arbitrator in his place. This question was answered with reference to the provisions of schedule 2 of the CPC. It was held that when the agreement provided for arbitration by named arbitrator or arbitrators, and such arbitrator or any one of such arbitrators was not available on account of death, refusal to act or other reasons before an application was made under paragraph 17, the Court had no power to appoint an arbitrator in his place. The language of paragraph 17, sub-paragraph (4) Tendered such a conclusion inevitable and it was only when there was no provision in the agreement for the appointment of an arbitrator and the parties could not agree, that the Court had power to appoint an arbitrator. The fact of this case also attracted the provisions of paragraph 37(4) of the second schedule and the power of the Court to appoint an arbitrator was limited in the sense that it had to look to the contract in each case and find out as to whether any person was named as an arbitrator.

12. The power of the Court in this case to appoint an arbitrator has to be considered with reference to the provisions of Section 20(4) of the Arbitration Act, 1940. To begin with. Chapter III of the Arbitration Act makes provisions for arbitration with intervention of the Court where there is no suit pending. Section 20(1) (which is the first section in this chapter) provides that where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject-matter of the agreement/or any part of it, and where a difference has arisen to which the agreement applies, they, or any of them, instead of proceeding under Chapter II may apply to a Court having jurisdiction in the matter to which the agreement relates, that the agreement be filed in Court. Before an application under this section can be entertained, it has to be seen whether certain conditions have been fulfilled. The conditions are, (1) whether the parties have entered into an arbitration agreement, (2) whether the agreement has been entered into before the institution of any suit with respect to the subject-matter of the Agreement or any part of it, (3) whether a difference has arisen between the parties to which the agreement applies, and (4) whether the Court to which the application is made has jurisdiction in the matter to which the agreement relates.

13. In the present case, learned counsel for the respondent rightly urged that there was an agreement between the parties for referring a dispute, if any, to the managing Director that agreement was entered into before the institution of any suit, a difference had arisen and the Court Had jurisdiction to entertain this application. These facts could not be controverted. The real controversy between the parties is with regard to the power of the Court laid down in sub-section (4) of Section 20, which reads thus:

“Where no sufficient cause is shown, the Court shall order the agreement to be filed, and shall make an order of reference to the arbitrator appointed by the parties, whether in the agreement) or otherwise or, where the parties cannot agree upon an arbitrator, to an arbitrator appointed by the Court.”

14. Learned counsel for the appellant submitted that the provisions of this sub-section (4) were almost similar to those of clause (4) of paragraph 17 of second schedule of the CPC, and although different words were used in sub-section (4) to the certain extent, yet sub-section (4) intended to convey the same meaning which clause (4) of Paragraph 17 did. He referred to the Legislative Assembly Bill No. 34 of 1939 relating to the consolidation and amendment of the law relating to arbitration in British India, published in Part V of the issue dated the 22nd July 1939, of the Gazette of India and pointed out that clause 21(4) of the bill was copied word for word in Section 20(4) without making any change.

15. Learned counsel referred to Thakur Prasadi v. Baleshwar Ahir, AIR 1954 Pat 106 where distinctions between statutes which codified and those which consolidated the law were noted. It was observed that the Arbitration Act, 1940, was an Act passed mainly to consolidate the law relating to arbitration and where words and expressions in a statute were plainly taken from earlier statutes in part material which had received judicial interpretation it must be assumed that the legislature was aware of such interpretation, and intended it to be followed in later enactments. The preamble of the Arbitration Act indicates that it was an Act to consolidate and amend the law relating to arbitration. In various aspects, there has been an amendment of the previous law relating to arbitration. The position thus is that this Act is an amending Act apart) from being a consolidating Act. I would presently indicate that the terms of Section 20(4) are very wide and it gives a larger power to the Court to appoint an arbitrator. According to this sub-section, the Court has power to make reference (1) to an arbitrator appointed fey the parties in the agreement (2) to an arbitrator appointed by the parties even subsequent to a deed and in any manner, and (3) to an arbitrator appointed by it where the parties do not agree to the appointment of one or other arbitrator. In all such cases, the Court has jurisdiction to appoint an arbitrator and refer the dispute to him. The crucial point in the provisions of Section 20(4) is whether the parties are agreed or not as to an arbitrator, whereas under paragraph 17(4) of schedule 2, the crucial question was whether there was any provision in the arbitration agreement as to the appointment of a named arbitrator. Accordingly, the power of the Court has been widened to a considerable extent under S. 20(4) Previous to this, the Court was not entitled to fill up the vacancy in place of an arbitrator named in an agreement between the parties.

16. Learned counsel for the appellant referred to Chief Engineer, Buildings and Roads, Jaipur v. Harbans Singh, AIR 1955 Raj 30. In that case, parties had agreed that the Chief Engineer should be the sole arbitrator and judge in case of dispute between them. The Chief Engineer did not enter upon arbitration within the time fixed and hence one of the parties gave notice to the other to concur in the appointment of a new arbitrator. The Chief Engineer had sent a reply that the claims were still under examination and that it would take time as the case was old and complicated one and new officers were handling it. Thereafter, the party aggrieved on account of the delay in arbitration filed an application under Section 8 of the Arbitration Act for appointment of a new arbitrator, on the ground that the arbitrator appointed by the parties had neglected to work. On considering the terms of the agreement and other circumstances, their Lordships took the view that the intention of the parties was that the dispute would only be referred to the arbitration of the Chief Engineer and no one also would replace the Chief Engineer in the case of a vacancy. Accordingly, the conclusion was that the terms of Section 8 which entitled the Court to appoint another arbitrator in place of the appointed arbitrator had not been fulfilled and the lower Court had no jurisdiction to call upon the parties to nominate another person as arbitrator. It was thus a case where the intention of the parties was not to replace the arbitrator appointed by them ill case of a vacancy.

17. The intention of the parties has to be ascertained from the facts and circumstances of each case and the terms of the agreement entered into by them. In Bharat Construction Co. Ltd. v. Union of India. AIR 1954 Cal 606 cited by learned counsel for the appellant, agreement of the parties was to refer the dispute to the sole arbitration of Major General I/C Administration, Eastern Command, whose decision was to be final, conclusive and binding on all parties to the contract. The Post and/or office of the Major General I/C Administration, Eastern Command, was abolished and there was no such officer in existence since about 1947. A question arose as to what was the intention of the parties about filling-up of the vacancy in the office of the Administrator and whether the arbitration clause had become infructuous and inoperative. A person holding the rank of Major General in the Army could-well be regarded as a man of mature age, developed judgment and status sufficient to enable him to decide rightly without hesitation a dispute even if he were to decide it against his employer. Having those considerations in view, the parties had agreed to arbitration by the Major General. It was held that the use of the expression “Major General” was not a mere surplusage. On a consideration of the terms of the agreement in that case, it was further held that the intention of the parties was not to fill up a vacancy if any, occurring in the office of the arbitrator. The provisions of Section 8(1)(b) of the Arbitration Act were considered and it was pointed out that, on the facts of that case those provisions could not be attracted.

18. In the present case, the plaintiff-respondent is relying upon the provisions of Section 20(4) and the question for consideration is whether the-Court had the power to appoint an arbitrator on account of the non-availability of the Managing Director and the disagreement between the parties. I can usefully refer to the Governor General in Council v. Associated Live Stock Farm (India) Ltd., AIR 1948 Cal 230 as the facts are in pari materia. The agreement between the parties in that case was that any dispute or difference arising out of the contract should be referred to the arbitration of the officer sanctioning the contract, and his decision shall be final and binding. Cl. (12) of the “instructions to tenderers” and clause 1 of the “Trader” indicated clearly that Q.M.G (Quarter Master General) India was the Offices sanctioning those contracts. The particular officer who held the post of Q.M.G in India at the date of those contracts and who actually sanctioned those contracts had been transferred or had retired and was not in British India when the matter went to Court. It was urged that during the war officers were constantly being transferred and the intention of the parties could not be that a particular officer who held the office of Q.M.G in India would remain in that office all the time-the contract would be in force. Reading the contract, S.R Das, J. (as he then was) did not find anything in the Arbitration clause suggesting that the parties agreed that any vacancy in the office of arbitrator should not be filled up. His Lordship observed as follows:

“In the absence of any such agreement the vacancy can be easily supplied and there is no reason to think that the arbitration will be in-fructuous at all. If the particular officer sanctioning the contracts refuses to act or is incapable of doing so by reason of his absence or ‘otherwise’ there are provisions in the Indian Arbitration Act for the appointment of another arbitrator in his place and the arbitrator so appointed will be quite competent to proceed with the arbitration” (the underlined (here in ‘’) is mine).

19. In the present case, the situation is similar, inasmuch as the post of the Managing Director has been abolished and there is no one now functioning as Managing Director. It is thus a case where the arbitrator appointed by the parties is not able to act. Learned counsel for the appellant stressed that, on account of the non-availability of the Managing Director the agreement to refer was unenforceable. The present agreement envisaged that it was open to the Managing Director to appoint some other person as well for acting as an arbitrator. The relevant clause 25 did not lay down that, on account of the abolition of the post of the Managing Director or his refusal to act as an arbitrator the agreement for arbitration itself would come to an end. On the other hand, the intention of the parties appears to be that they wanted the dispute, if any, to be settled by an arbitrator instead of going to Court. In this view of the matter, it is open to the plaintiff in the present case to apply for a filling up of the vacancy. In my opinion, the agreement to refer to arbitration has not come to an end and the Court can give relief to the plaintiff. Learned counsel for the respondent relied on Yar Muhammad v. Ghulam Sarwar, AIR 1950 Lah 145. It was held there that the authority of the Court under S. 20(4)(sc) was considerably widened and the omission or failure on the part of the arbitrator first appointed by the parties would not make the agreement wholly ineffectual, the agreement could still be kept alive by the parties by agreement, and failing that by the Court itself. This decision supports the view which I have taken.

20. Learned counsel for the respondent further contended that it was open to the plaintiff in the present case to seek a relief and ask the Court for appointing an arbitrator in accordance with the provisions of either Section 8(1)(b) or Section 20(4) of the Arbitration Act find he referred to Balika Devi v. Kedar Nath Puri, (S) AIR 1956 All 377 and Gannon Dunkerley and Co. v. Union Carbide (India) Ltd., AIR 1962 Cal 360. It is not necessary to go into that question in the) present case; for the reasons given above, the plaintiff had a right to get an arbitrator appointed in accordance with the provisions of S. 20(4). I am, therefore, of the view that the Court was right in calling upon the parties to agree to the appointment of a sole arbitrator acceptable to both the parties or to submit a few names for appointment of an arbitrator. In the result, the appeal is dismissed but without costs.

Mahapatra, J.:— I agree.

GH/LGC/D.V.C

21. Appeal dismissed.