S. B. SINHA, C. J.

( 1 ) THIS Writ Application involves a question as to whether only because a contractor accepts final payment, the same by itself disentitles him to take recourse to arbitration clause.

( 2 ) THE parties entered into an Agreement on 20-7-1996 as regards the construction of relay, Battery, Equipment and Generator rooms at Dupadu, Ulindakonda, Veldurthi and Bogolu stations between Kurnool town and Dronachellam stations.

( 3 ) THE fact that differences and disputes arose between the parties as regards performance of their respective contractual obligations thereunder is not in dispute.

( 4 ) IT is also not in dispute that there had been certain subsidiary agreements.

( 5 ) ACCORDING to the petitioner, special conditions of contract would prevail over the general conditions of contract and no claim can be entertained on the general conditions of contract.

( 6 ) AN Arbitration Application was filed by the first respondent herein purportedly under Section 11 (6) of the Arbitration and conciliation Act, 1996. A learned Single judge of this Court appointed one of the retired Judges of this Court to act as an arbitrator in the matter.

( 7 ) MR. Gouri Shankar Sanghi, learned counsel appearing for the petitioner questioning the aforementioned order dated 19-12-2000 inter alia submitted that when the final bill had been accepted by the respondent - contractor without any protest, the Arbitration agreement has become non est in the eye of law. Strong reliance in this connection has been placed in the decision in Union of India vs. M/s. Popular Industries, calcutta1 as also on the decision of one of us (S. B. Sinha, C. J.) in V. M. Thomas vs. Tata projects limited, Hyderabad2.

( 8 ) THE fact that there existed an arbitration Clause is not in dispute. A claim of about Rs. 32 lakhs was raised. The learned single Judge inter alia arrived at a finding of fact that during the subsistence of the contract, certain disputes arose between the parties and for resolving the disputes, the respondent called upon the petitioner to refer the disputes for arbitration in terms of clause (46) of the General Conditions of contract. A demand was also made by notice dated 3-3-2000 which received no response from the petitioner.

( 9 ) NO counter-affidavit to the application was filed by the petitioner herein.

( 10 ) IT is in this situation, in our opinion, the petitioner may not be permitted to raise the questions of fact for the first time in this writ petition. In any event, the petitioner admitted that the first respondent also claimed No Claim Certificate as per clause 43 (2) of the General Conditions of conduct (sic. Contract) on mentioning "subject to settlement of subsisting claims". It is, therefore, evident that it is not a case where the original contract had been given a go-by and a new agreement has come into being in supersession or by innovation of the earlier contract.

( 11 ) IN Popular Industries case (supra), the Apex Court was considering a matter arising under Sections 30 and 33 of the arbitration Act, 1940. An objection was raised in the petition to make a Award the rule of the Court. A plea was raised before the Apex Court that no arbitrable dispute existed as the respondent contractor having accepted the final bill without protest, the award should not be made rule of the court. Although no such plea was raised before the High Court, the Supreme Court upon satisfying itself that since the final bill that was prepared by the appropriate authority was accepted by the respondent without any protest, which was apparent from the letter of the claimant-contractor, held one of the claims to be not arbitrable. So far as other claims are concerned, however, the objection of Union of India was rejected. The said decision having regard to the provisions of Arbitration and conciliation Act, 1996 cannot be said to have any application whatsoever in the fact situation obtaining in the present case.

( 12 ) IN V. M. Thomas (supra) this

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