Where there is a dispute regarding the genuineness and voluntariness of a final settlement, and the named arbitrator refuses to enter upon reference, the court has the jurisdiction to appoint a sole arbitrator under Section 8 of the Arbitration Act.

D.J. Jagannadha Raju, J. - This C.R.P. is filed by the respondent in O.P. No. 284 of 1990 on the file of the V Additional Judge, City Civil Court, Hyderabad. The O.P. was filed by the contractor under Sections 5, 8, 11 and 12 of the Indian Arbitration Act, requesting the court to appoint a sole arbitrator to adjudicate the disputes between the parties arising out of the Agreement No. HUDA/DEV/17/85, dated 3.8.1985. The agreement related to the construction of a mini stadium in the city college grounds.

2. In this revision, Sri Kotamraju Janardana Rao questions the order passed by the V Additional Judge appointing Sri G. Appa Rao, retired Chief Engineer, as the sole arbitrator. He contends that for all claims over the value of Rs. 50,000/-, a regular civil suit has to be filed. He also contends that in this case as the final bill was settled and the final bill was paid on 3.7.1989 after the contractor withdrew all his protests and as he has received the payment on 6.7.1989, the agreement no longer subsists and hence the contractor is not entitled to invoke arbitration clause in the agreement. According to him, as there is a full and final settlement, there is nothing that has to be arbitrated and there is no arbitrable dispute. He specifically points out that though originally the contractor wrote "under protest", that was struck off and he made an endorsement and accepted and final settlement and received the final bill payment. In such circumstances, there is no question of any arbitration. He also contends that earlier to the filing of the present O.P., he filed a claim petition in the II Additional Judge's Court on 7.6.1990 and the same was returned on 11.6.1990 without assigning any reasons. That cannot be treated as a refusal to enter upon an arbitration by the civil court. When there is no refusal to enter upon arbitration, it cannot be said that there is a vacancy in the post of an arbitrator and hence the present proceedings and the order appointing the sole arbitrator are bad. Mr. Janardana Rao contends that there is no plea raised by the contractor to the effect that the endorsement in Ex. B. 7 which resulted in the full and final settlement and the payment of the final bill is vitiated by coercion or fraud or misrepresentation and hence those pleas which are now raised by way of an additional affidavit at the stage of revision cannot be countenanced. If the contractor feels that he is entitled to claim any amount as a result of disputes that arose in connection with the execution of the contact, he has necessarily to file a regular civil suit and claim the amounts. Mr. Janardana Rao relies heavily upon Govt. of A.P. v. United Construction Company (1990 (2) ALT 495), N.T.P.C. Ltd. v. P. K. Ramaiah & Co. (1992 (1) ALT 100) in support of his arguments.

3. On behalf of the contesting respondent, the contractor Sri M.R.K. Choudhary contends that in this case the High Court is not entitled to go into the questions of finding of fact. The V Additional Judge considered the material placed before him, construed Ex. B. 7 and held that there is no final settlement and that there is a dispute as to whether there was a proper final settlement of the claim or not and that itself is a dispute which is arbitrable. He also contends that V Additional Judge went into the question of the consequences of the II Additional Judge returning the O.P. (claim petition) without any endorsement. The court construed that it amounts to refusal to enter upon arbitration. This finding of fact cannot be disturbed in the revision. Placing reliance upon the recitals and endorsements found in Ex. B. 7, Mr. Choudhary contends that there is any amount of material to show that the so called endorsement is brought into existence in very peculiar circumstances and the contractor was coerced and pressurised to delete the words "under protest" which are earlier written. He also contends the present case is governed by G.O. 430 and the decision repor