' The brief facts of the case are that between 29-1-1976 and 3-3-1976 the petitioners entered into the following four contracts with the respondent for the supply of Grey Cotton Sheeting to the petitioners :
(1) Contract No, 1/76 dated 29th January, 1976.
(2) Contract No, 2/76 dated 29th January, 1976.
(3) Contract No, 3/76 dated 24th February, 1976.
(4) Contract No, 4/76 dated 3rd March, 1976.
' The terms and conditions which govern the above four contracts are separately recorded in writing and the same need not be reproduced herein as they are not relevant for the purposes of decision of this application except as to the arbitration clause which appears in all the contracts and which reads as follows "Any dispute arising out of this order shall be settled by both parties amicably by mutual negotiation failing which the dispute shall be settled by Arbitration in Karachi."
2. Dispute having arisen between the parties the petitioner appointed their arbitrator on 25-5-1977 but the said arbitrator resigned and on 8-10-1977 he was replaced by another arbitrator. The respondents appointed their own arbitrator on 11-6-1977. However, the two arbitrators so appointed failed to enter upon the reference and were accordingly removed by the order of this Court passed on 18-2-1981 in J. M. No, 61/1980 where in the learned Court while removing the said arbitrators observed that it would be open to the parties to have such further recourse to the proceedings as may be available to them under the law.
3. The petitioners advocate thereupon wrote to the respondents on 9-3-1981 appointing Mr. Naseem Faruqui, Advocate Karachi as the Sore Arbitrator and requested the respondent's concurrence with the said appointment. By their reply dated 15-3-1981 the advocate for the respondents notified the petitioners advocate that his clients did not concur with the appointment of Mr. Naseem Faruqui Advocate as the Sole Arbitrator. He further stated in the aforesaid letter that his Clients did not wish to appoint another Arbitrator for the reasons that the subject-matter of the dispute for proposed arbitration has become time-barred and, therefore, nor arbitration proceedings can be taken up in respect of a time-barred claim. In the circumstances stated above the petitioners have moved this application under section 20 of the Arbitration Act for the appointment of an Arbitrator and for filing of the agreement in Court.
4. In spite of the notices having been served 'upon the respondents who were represented on the last date of hearing by Mr. Saghir Hussain Jafri Advocate and at whose request the case was adjourned for today the respondents and their above named Advocate have chosen to remain absent. No counter-affidavit has been filed to the application moved by the petitioners for filing the agreement of arbitration in Court.
5. From the perusal of above facts which are supported by the affidavit and the documents filed alongwith it, I find that there is valid Arbitration Agreement between the parties in each of the contracts and that in fact the disputes had been referred to the Arbitrators earlier to adjudicate upon the disputes between the parties. The said arbitrators, however, were removed as they failed to enter upon the reference, by the order of the Court passed on 18-2-1981, in J. M. No, 61 of 1980. I have already noted above the observations of the learned Court made at the time of removing of the said Arbitrators whereby it was left" open to the parties to have such further recourse to the proceedings as may be available to them under the law". It is significant to note that no pleas of the claim being barred by limitation was raised when initially the arbitration clause was invoked the Arbitrator was appointed on 25-5-1977 and thereafter in June, 1977. Further more the Arbitrators were removed by the order of the Court on 18-2-1981 but the reference was not superseded.
Immediately thereafter the petitioners' advocate' by notice dated 9-3-1981 invoked the arbitration clause and called upon the respondents to concur in the appointment of the Sole Arbitrator.
Having failed to obtain the consent of the respondents to the appointment of the Sole Arbitrator proposed nominated by the petitioners the present application was filed on 27-4-1981.
6. The learned counsel for the respondents, when he appeared on 27-10-1981 was unable to point out as to how the claim had become time-barred. He, however, took adjournment on the ground that he was not well. The case at his instance was adjourned for 11-11-1981 but today he has chosen to remain absent. In the circumstances there is nothing to substantiate the plea raised in the respondents letter dated 15-3-1981 that the claim has become barred by time. In any case this will be a question for the Arbitrators to consider and adjudicate upon and I would not like to enter into that controversy at this stage.
7. On the facts on record as no sufficient cause has been shown as to why the agreement should not be filed, I hereby direct that the Arbitration Agreement shall be filed in Court and I further order that the disputes be referred to the Sole Arbitrator to be appointed by the parties. In case the parties fail to concur upon the appointment of the Sole Arbitrator within one month of the passing of this order it shall be open to the parties or any one of them to move an application to the Court for appointment of an Arbitrator to adjudicate upon the disputes between the parties.
' With the above observations this application stand disposed of. Since the respondents have not contested the matter there shall be no order as to costs.