1. This second appeal by the plaintiff is directed against the judgment and decree of the lower appellate Court dismissing the suit mainly on the ground that it was not maintainable. The trial Court had held that the suit was maintainable and decreed it.

2. The appellant is a contractor and admittedly he constructed a quarter for an Assistant Sub-Inspector of Police attached to Harsidhi Police Station District Champaran. for which he had entered into an agreement with the respondent the State of Bihar. The agreement was in Form F (2) and contained the terms and conditions of the contract and the extent and nature of work and the rates. According to the case of the appellant he completed the construction of the said quarter according to the specifications under the terms of the contract and after completing it made it over to the official of the respondent on 15th of July. 1957. The officials of the Public Works Department of the respondent, however, dishonestly began to find fault with the construction. Then the appellant required the Executive Engineer to refer the case to the Superintending Engineer for arbitration of his claims. The appellant admitted that the Superintending Engineer made an award but that according to him was haphazard and thus vitiated, perverse and unjust. Having failed in his attempt to pursue the Executive Engineer to finalise his accounts and make payment he instituted the suit for accounts.

3. The defence of the respondent was that the appellant did not complete the work within time and had to be granted extension. He did not make over the building to the officials of the respondent on 15th of July, 1957 as claimed by him. The construction of the quarter was not according to the specification. As he had used defective mate- rials and of inferior quality the defects had to be rectified and the appellant was liable to compensate the respondent for that. The appellant also signed the final bill in token of the acceptance of the accounts. It was lastly pleaded that the award of the Superintending Engineer was binding on the appellant as per terms of the contract and the suit was not maintainable. It was stated in the written statement that on account of rectification of the defects the appellant was liable to pay a sum of Rs. 1,363.77 to the respondent and after deducting that amount he was entitled to get only a sum of Rs. 284.25.

4. The appeal was first placed for hearing before a learned single Judge who has referred it to a Division Bench. Mr. Md. Khaleel appearing for the appellant has contended that the Court of appeal below has erred in holding that the suit was not maintainable. According to him as the award of the Superintending Engineer was not made a rule of the Court it should be treated as nonexistent and the respondent should not be allowed to plead that award as a bar to the maintainability of the suit. He has further submitted that the arbitration agreement in the contract has merged in the award and that too cannot be pleaded as a bar to the maintainability of the suit. Otherwise also he contends that an arbitration agreement is not a bar to the institution of an action. The only remedy open to the respondent was to get the suit stayed under Sec.34 of the Arbitration Act (hereinafter referred to as the Act) and having not availed of that remedy and having submitted to the jurisdiction of the Court by filing written statement the respondent could not and cannot raise the plea that the arbitration agreement was a bar to the maintainability of the suit. In support of his contentions he has placed reliance on the decisions in Seonarain Lal V/s. Prabhu Chand, AIR 1958 Pat 252 (FB); Sait Faman-dass Sugnaram V/s. T. S. Manikyam Pillai, AIR 1960 Andh Pra 59 (FB) and O. Moha-med Yusuf Levai Saheb V/s. S. Hajee Mohammed Hussain Rowther, AIR 1964 Mad 1 (FB). These decisions no doubt to some extent support his contention. In Seonarain Lals case it was held that an award is not effective unle