( 1 ) THIS is an application under Sec. 11 (5) and (6) of the Arbitration and Conciliation act, 1996 (for short the Act) filed by the applicant praying to appoint sole arbitrator to adjudicate the dispute/claims raised by the petitioner. Be it noted that the applicant was awarded work of construction of Type v Quarters one Unit for Officers at guntakal. He entered into agreement no. 33/co-ord/gtl/97, dt. 27-3-1997. The value of the work is Rs. 4,19,641. 00 which has to be completed within a period of six months. He completed the work by 31-10-1997. A final bill was prepared by the respondents which he alleges to be defective. He therefore signed the final bill allegedly under protest and claims that the same is not settled. Therefore, by letter dated 31-12-2001 he demanded the respondents to pay the alleged dues within fifteen days, or else to refer the dispute/claims to the arbitrator under Clauses 63 and 64 of the general Conditions of Contract (GCC), which were incorporated in the agreement. As no response was received by him, he filed the application. After receiving notice, the first respondent filed a counter-affidavit opposing the application inter alia on the following grounds: (i) The applicant claims an amount of rs. 3,97,800/- vide his letter dated 31-12-2001 and therefore unless he served notice under clauses 63 and 64 of GCC claiming an amount of rs. 9,31,981/- this application is not maintainable; (ii) The applicant submitted no claim certificate to the effect that he has no claims standing against railways and therefore in accordance with clause 43 (2) read with clause 63 the dispute if any falls in the excepted categories, it is not arbitrable; and (ii) The claims under various heads are false.

( 2 ) IN the counter-affidavit it is, however, admitted that the final bill for an amount of rs. 21,000/- is under process of payment and that the same will be paid on receipt of sanction by the competent authority. Likewise, balance of 10% security deposit of rs. 2,981/- will be released immediately on payment of final bill.

( 3 ) SRI S. Venkateswarlu, learned counsel for the applicant, submits that even if it is assumed that the applicant has given no claim certificate, the dispute does not cease to be arbitrable. Alternatively he contends that on their own admission the applicant has accepted the final bill under protest and therefore the dispute still subsists especially when the amounts under various claims are not settled by the first respondent. He also brought to the notice of this Court a recent judgment of this Court in Y. Chenna Reddy v. Union of India in support of the contention that mere submission of "no Claim certificate" by a contractor cannot be a ground for refusing Arbitration Application and whether or not a dispute falls in excepted category has to be decided by the arbitrator.

( 4 ) PER contra, Sri Gouri Shankar Sanghi, learned counsel for respondents, placed reliance on judgment of this Court in Y. Babu rao v. Union of India and judgment of the supreme Court in General Manager, Northern railway v. Sarvesh Chopra in support of the contention whether or not "no Claim certificate" submitted by the contractor is disputed, when once the dispute falls within the ambit of clause 43 (2) read with clause 63 of GCC there is no arbitrable dispute and therefore Arbitrator cannot be appointed in exercise of power under Section 11 of the act.

( 5 ) HAVING regard to the rival submissions the only issue that falls for consideration is whether the prayer for referring the dispute for arbitration is maintainable?

( 6 ) IT is not disputed or denied that the contract between the applicant and the respondents is subject to binding covenants in GCC. Clause 43 (2) of GCC reads as under: 43 (2 ). Signing of no claim certificate:- the contractor shall not be entitled to make any claim whatsoever against the railway under or by virtue of or arising out of this contract, nor shall the railway entertain to con