P L D 1962 (W (PLP)

Dates of hearing : 20th and 27th August 1962. This is an application under section 20 of the Arbitration Act and arises in the following circumstances. The plaintiff entered into an agreement with the University of Karachi for the construction of Vice‑Chancellor's residence. Clause 25 of the agreement provides as follows :‑ "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 any other question, claim right, matter or thing whatsoever, in any way arising out of, relating to the contract, designs drawings, specifications, estimates, instructions orders or these conditions or otherwise concerning the works or the execution or failure to execute the same, whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the Vice‑Chancellor for arbitration in the manner provided by law relating to arbitration for the time being in force who after such investi gation as he may think proper shall deliver his award which shall be final, conclusive and binding on all parties to this contract."

2. Disputes as regards the execution of the work etc., having arisen between the plaintiff on the one hand and the defendants on the other, the plaintiff invoked the arbitration clause. In the meantime the then Vice‑Chancellor Mr. B. A. Hashemi was replaced by the present incumbent Dr. I. H. Qureshi. The plaintiff on being advised that Dr. Qureshi was not willing to act as arbitrator, suggested four names to the defendants out of which anyone could be selected. The defendants rejected all these four names and suggested the name of Mr. Mohsin Ali, Consultant, Planning Commission, Govern ment of Pakistan and another person for appointment as arbit rator. The plaintiff has accepted the nomination of Mr. Mohsin Ali on 18‑10‑1961 and the defendants confirmed this appointment by their letter dated 28‑11‑1961.

3. Later on it appears that upon the objection of the Legal Adviser of the University, the defendants attempted to revoke the appointment of Mr. Mohsin Ali, and relying upon clause 25 of the agreement took up the position that the Vice‑Chancellor alone could arbitrate. The plaintiff has filed the present applica tion for the filing of the agreement whereby Mr. Mohsin Ali was appointed the arbitrator and for a reference to him as a sole arbitrator to decide the disputes in respect of the said construction. In the application the University of Karachi have been named as defendant No. 2 and the University Engineer of Karachi University has been described as defendant No. 1.

4. Mr. Nasiruddin, the learned counsel for defendants, has filed the agreement as well as all the documents in connection with the construction of the bungalow and other correspondence. He frankly admitted that the contract as well as all the corres pondence in this case were signed by the University Engineer who had also signed the letter regarding the appointment of Mr. Mohsin Ali as the sole arbitrator. However, he pointed out that the form of the contract which contained clause 25 was approved by the Syndicate of the University on 23‑1‑1957 by its resolution on item No. 26 and urged that having regard to section 19 of the University of Karachi Act it was the Syndicate which was the executive authority of the University and therefore, any amendment in the arbitration clause of the agreement could only be made by the Syndicate, and as this was not done, the act of the University Engineer in proposing Mr. Mohsin Ali as arbit rator and accepting him as such was beyond the scope of his authority and not binding on the University.

5. In the present case the contract itself and all the relevant correspondence have throughout been signed by the University Engineer. The University Engineer agreed to have a person other than the Vice‑Chancellor appointed as sole arbitrator because the new Vice‑Chancellor himself was at that time not agreeable to work as an arbitrator in the dispute in respect of his residential bungalow. The mere fact that the form of the agreement was approved by the Syndicate does not render the act of the University Engineer ultra vires in so far as it related to the appointment of another arbitrator, in the place of the Vice‑Chancellor. The plaintiff has dealt through out with the University Engineer and it was with him that they had signed the main contract. The fact that another person had to be substituted as an arbitrator when the Vice-- Chancellor was not agreeable to act as such must be treated as an act in the day to day discharge of the duties of the University Engineer who was the man in charge of all the affairs, in connection with the construction and the disputes arisen there from. I am, therefore, of the opinion that Mr. Mohsin Ali was validly appointed the sole arbitrator in this case.

6. I, therefore, order that the agreement be filed and I further order that the reference be made to the said arbitrator for deciding the dispute which has arisen between the parties. He shall make his award within three months of his entering upon the reference. Having regard to all circumstances of the case, I order that the parties shall bear their own costs of these proceedings before me. K. B. A. Case remanded