( 1 ) APPOINTMENT OF AN ARBITRATOR IS CLAIMED BY THE petitioner BY THIS PETITION UNDER SECTION 20 OF THE arbitration ACT, 1940. THE PETITIONER IS A CONTRACTOR and RESPONDENT NO. 1 IS A MILITARY ENGINEER SERVICES AN organization UNDER MINISTRY OF DEFENCE AND RESPONDENT no. 2 IS TH ENGINEER IN CHIEF OF RESPONDENT NO. 1. TENDERS were INVITED BY RESPONDENT NO. 1 FOR THE WORK OF construction OF PRODUCTION SHOP AT PROJECT SITE IN ANDHRA pradesh. THE PETITIONER BEING A ELIGIBLE CONTRACTOR participated IN THE TENDER AND SUBMITTED HIS TENDER AND upon ACCEPTANCE OF THE TERMS OF THE TENDER, THE SAME WAS awarded TO THE PETITIONER BY VIRTUE OF THE ORDER DATED 15th FEBRUARY 1985. IT IS NOT DISPUTED THAT THE WORK WAS completed BEYOND THE STIPULATED TIME AND THE PETITIONER thereafter RAISED CERTAIN DISPUTES WHICH WERE NOT referred TO ARBITRATION LEADING TO THE PRESENT PETITION.

( 2 ) THE PETITIONER HAS RELIED UPON CLAUSE 70 OF THE general CONDITIONS OF CONTRACT IAFW 2259 WHICH indisputably IS THE ARBITRATION CLAUSE COMPRISED IN THE agreement BETWEEN THE PARTIES. THE RELEVANT PORTION OF the SAID CLAUSE 70 READS AS UNDER:

"arbitration - ALL DISPUTES, BETWEEN THE PARTIES TO THE contract (OTHER THAN THOSE FOR WHICH THE DECISION OF THE c. W. E. OR ANY PERSON IS BY THE CONTRACT EXPRESSED TO BE final AND BINDING) SHALL, AFTER WRITTEN NOTICE BY EITHER party TO THE CONTRACT TO THE OTHER OF THEM, BE REFERRED to THE SOLE ARBITRATION OF AN ENGINEER OFFICER TO BE appointed BY THE AUTHORITY MENTIONED IN THE TENDER documents. "

( 3 ) IT IS THE PETITIONER s CASE THAT THE DEMAND FOR appointment OF AN ARBITRATOR WAS RAISED BY THE PETITIONER by ITS LETTER DATED 31st DECEMBER 1990 WHICH ALSO LISTED the CLAIMS RAISED. HOWEVER, PARAGRAPH 2 OF THE SAID letter ACKNOWLEDGED THAT THE FINAL BILL HAD BEEN PAID though SAID TO BE UNDER PROTEST.

( 4 ) THIS APPOINTMENT OF AN ARBITRATOR HAS BEEN resisted BY THE RESPONDENT, INTER ALIA, BY PLACING reliance ON CLAUSE 65 OF THE IAFW 2259 GENERAL conditions OF CONTRACT, WHICH STIPULATES AS UNDER:

" NO FURTHER CLAIM SHALL BE MADE BY THE CONTRACTOR AFTER submission OF FINAL BILL AND THESE SHALL BE DEEMED TO BE waived AND EXTINGUISHED. "

( 5 ) IT IS ALSO SUBMITTED THAT SINCE REQUESTS FOR extension OF TIME WERE MADE AT THE BEHEST OF THE petitioner/contractor AS PER CONDITION 11 IT COULD NOT have ANY FINANCIAL EFFECT UPON THE RESPONDENT. THE learned COUNSEL FOR THE PETITIONER, SHRI THOMAS, submitted THAT THIS COURT MAY PROCEED TO DECIDE THIS CASE on THE BASIS THAT FINAL BILL HAD BEEN SUBMITTED BY THE petitioner. RELIANCE WAS PLACED ON UNION OF INDIA AND another VS. M/s L. K. AHUJA AND CO. REPORTED AS AIR 1988 sc 1172 AND M/s NAVBHARAT DAL MILLS VS. FOOD corporation OF INDIA AND ANOTHER REPORTED AS AIR 1993 delhi 97 TO CONTEND THAT SUBMISSION OF FINAL BILLS WERE not A BAR TO REFERENCE OF DISPUTES TO ARBITRATION. THE relevant PORTION OF THE JUDGMENT IN UNION OF INDIA VS. L. K. AHUJA AND CO. (SUPRA) RELIED UPON BY THE PETITIONER reads AS UNDER:

"4. THE SOLE QUESTION INVOLVED IN THIS APPEAL, IS whether THE HIGH COURT WAS RIGHT IN DISMISSING THE application. IN MATTERS OF THIS NATURE, THE MAIN question IS WHETHER THE APPLICATION UNDER S. 20 WAS within TIME. . . . . . . . . . ". . . . . . . . . . . . . . . . . . . .

"8. . IN VIEW OF THE WELL SETTLED PRINCIPLES, WE ARE OF the VIEW THAT IT WILL BE ENTIRELY WRONG TO MIX UP THE TWO aspects, NAMELY, WHETHER THERE WAS ANY VALID CLAIM FOR reference UNDER S. 20 OF THE ACT, AND SECONDLY, WHETHER the CLAIM TO BE ADJUDICATED BY THE ARBITRATOR, WAS BARRED by LAPSE OF TIME. THE SECOND IS A MATTER WHICH THE arbitrator WOULD DECIDE UNLESS, HOWEVER, IF ON ADMITTED facts A CLAIM IS FOUND AT THE TIME OF MAKING AN ORDER under S. 20 OF THE ARBITRATION ACT, TO BE BARRED BY limitation. IN ORDER TO BE ENTITLED TO ASK FOR A reference UNDER S. 20 OF THE ACT, THERE MUST BE AN entitlement TO MONEY AND A DIFFERENCE OR DISPUTE IN respect OF THE SAME. IT IS TRUE THAT ON COMPLETION OF the WORK, RIGHT TO GET P