B. K. MEHTA, J. ( 1 ) THIS appeal is directed against the order of Joint Civil Judge (S. D.) Baroda directing to file the arbitration agreement contained in the contract of supply of December 1x 1970 executed by and between the parties hereto since the disputes and differences had arisen in the matter of the price of supply of liquid ammonia by the defendant-Corporation to the plaintiff-Company and for appointment of arbitrators to arbitrate upon the said disputes and for certain other incidental reliefs in the matter. In order to appreciate the grievance of the appellant-defendant-Corporation in its proper perspective it would be profitable to advert to a few facts which led to the suit between the parties. ( 2 ) THE respondent-plaintiff. Company was incorporated somewhere between June and August 1969. However one Shri S. S. Agrawal who happens to be the director of the plaintiff-Company was before the incorporation of the Company carrying on business under the firm name and style as Frontier Chemical Works. FIe was desirous of promoting a Company for purposes of carrying on the business of manufacture of Sodium Nirate having regard to its heavy internal market demand on account of short supply of its import. Said Shri Agrawal therefore applied for a Letter of Intent for the purpose of establishing a factory in Gujarat for manufacturing Sodium Nitrate and Sodium Nitrite. Therefore in 1967 negotiations commenced between the said promoter of the plaintiff-Company on one hand and the defendant-Corporation on another for assured supply of liquid ammonia which is the basic raw material for the manufacture of Sodium Nitrite etc. Accordingly a request was made by the aforesaid firm Frontier Chemical Works by its letter of May 8 1967 to the defendant-Corporation to draw and forward a draft agreement containing the terms and conditions under which he said Corporation would supply liquid ammonia to the proposed Company. It is claimed by the plaintiff-Company that the defendant-Corporation under the cover of their letter of May 15 1967 forwarded a draft agreement to the aforesaid firm. It is claimed by the plaintiff-Company that the defendant-Corporation under the cover of their letter of May 15 1967 forwarded a draft agreement to the aforesaid firm. It is claimed on behalf of the plaintiff-Company that Clause 3 of the draft agreement inter alia provided the price at which the liquid ammonia would be supplied and the basis of the price offered subject to the firm final sale price to be varied according to the fluctuations in the prices of the raw materials of liquid ammonia which would be exclusive of all taxes duties and incidental charges. On the eve of the incorporation of the plaintiff-Company the aforesaid firm Frontier Chemical Works addressed a letter to the defendant-Corporation on May 2 1969 inquiring as to what the price of ammonia was. The defendant-Corporation by their letter of May 10 1969 stated that the price was Rs. 1050. 00 per M. T. ex-factory for quantity of over 1000 M. T. per annum. The aforesaid Shri Agrawal thereupon contacted the then General Manager of the defendant-Corporation one Shri B. C. Dalal and inquired whether the Corporation would be able to supply to the Company with about 10 M. T. of ammonia per day as the Company intended to start immediately the Sodium Nitrite Unit in the State of Gujarat. The defendant-Corporation therefore by their letter of June 14 1969 expressed their readiness to satisfy the proposed Companys requirements. After the incorporation of the Company somewhere about August 1969 a letter was addressed on behalf of the plaintiff-Company to the defendant-Corporation on August 30 1969 informing the defendant-Corporation about the registration of the Company and requesting them to give a Letter of Assurance that they would be supplying the requirements of ammonia so as to enable the plaintiff-Company to apply for conversion of the Letter of Intent into an Industrial Licence. The defendant-Corporation by their letter of September 15 1969 gave the required assurance. On October 2 1970 a draft agreement was handed over to one Shri Adi Amroliwala who happens to be the Executive of the plaintiff-Company containing the terms and conditions of the supply of ammonia. The defendant-Corporation by their letter of September 15 1969 gave the required assurance. On October 2 1970 a draft agreement was handed over to one Shri Adi Amroliwala who happens to be the Executive of the plaintiff-Company containing the terms and conditions of the supply of ammonia. The plaintiff-Company approved the said draft agreement and informed the defendant-Corporation by its letter of October 8 1970 Accordingly on December 16 1970 a contract for supply of liquid ammonia was entered into by and between the parties whereby the defendant-Corporation agreed to sell and supply to the plaintiff-Company for a period of five years from the date of the delivery of the first commencement at the rate approximately of 10 M. T. per day. Clause 3 of the said contract provided that the price at which the seller will supply liquid ammonia to the buyer will be such as is prevailing from time to time at the time of despatch; such price shall be net and exclusive of all taxes duties and charges. . . . . . . and will be subject to revision from time to time. Clause 9 of the said contract provided for arbitration of disputes and differences arising between the parties. It is claimed by the plaintiff-Company that it was envisaged between the parties for commencement of the supply of liquid ammonia not later than March 31 1972 Since the plaintiff-Company could not commission its factory by the beginning of the year 1972 a letter of February 2 1972 was addressed to the defendant-Corporation postponing the commencement of supply to July 1972 which letter was acknowledged by the defendant Corporation by their letter of February 11 1972 Meanwhile an anomalous situation arose as a result of the excise duty proposed by the Union Government in its Budget for the financial year 1973-74 whereby a duty was suggested on Naptha which is an important raw material for manufacturing liquid ammonia the rate of which depended upon its varied user. Since the defendant-Corporation had been using Naptha for manufacturing liquid ammonia which though a petro-chemical item and not fertilizer the plaintiff-Company was informed by their letter or June 19 1972 that the current price for the supply of liquid ammonia would be Rs. 1670/ per M. T. as against Rs. 1059. 00 as agreed between the parties under the aforesaid contract. 1670/ per M. T. as against Rs. 1059. 00 as agreed between the parties under the aforesaid contract. The plaintiff-Company by its letter of July 18 1972 also made representation to the Central Board of Excise and Customs New Delhi as advised by the defendant-Corporation requesting the Board to adopt a rational basis for the levy of excise duty on Naptha used for manufacturing chemical products. The plaintiff-Company had also inquired from the defendant-Corporation by its letter of July 29 1972 as to the exact component of excise duty on the original price quoted and also that on the increased price quoted by the defendant Corporation. The plaintiff-Company claims that it was orally informed that the excise duty on Naptha reflected in the ammonia price was Rs. 620 per M. T. of ammonia. The matter rested therefor some lime though the supply of liquid ammonia commenced from November 1972 According to the aforesaid contract of supply which provided effective period of five years from the date of commencement of supply the said contract was therefore to remain in force upto November 1977 The plaintiff Company however informed the defendant-Corporation by its letter of January 27 1973 that they would be making payment of the price of the goods supplied under protest or as provisional payments subject to re- adjustment which may be necessitated as a result of the final decision as to rate of excise duty. The defendant-Corporation by their letter of February 2 1973 informed the plaintiff-Company that their invoices were final and not provisional. To the surprise of the plaintiff-Company it received a letter from the defendant-Corporation on March 21 1973 informing that the Corporation has decided to revise the rates and the current rates for supply of liquid ammonia would be Rs. 1840. 00 per M. T. and requested the plaintiff-Company to confirm the same. Since the plaintiff-Company had no other alternative course open to it for obtaining its requirement of ammonia the question of confirming the acceptance of the revised prices did not arise though it was very much on higher size. The defendant-Corporation however by their letter of March 29 1973 assured the plaintiff Company that the immediate upward revision had to be resorted to having regard to the increased cost of production and that the Corporation always believed in having reasonable price structure. The defendant-Corporation however by their letter of March 29 1973 assured the plaintiff Company that the immediate upward revision had to be resorted to having regard to the increased cost of production and that the Corporation always believed in having reasonable price structure. The supply of liquid ammonia continued thereafter at the revised price of Rs. 1840. 00 per M. T. Again pursuant to the new budget by the Union Government for the financial year 1974-75 the plaintiff- Company received from the defendant-Corporation a cable of March 6 1974 informing the Company that there would be a revision in the price of ammonia with effect from March 1 1974 By a further telegram of March 9 1974 the defendant-Corporation intimated that the revised basic price would be in the vicinity of Rs. 5 0 to Rs. 6000/-per M T. and therefore called upon the plaintiff-Company to deposit a sum of Rs. 3 200 per M. T. over and above the price then paid by the plaintiff- Company which deposit would be subsequently adjusted. The plaintiff- Company therefore by its letter of March 16 1974 lodged its protest against the exorbitant increase in the price of ammonia. The plaintiff- Company also placed on record by the aforesaid letter that the defendant- Corporation was not justified in revising the prices on the ground of increased excise duty incidence since Naptha used for manufacturing a product which is classified as fertilizer and/or petro-chemical would not be liable to the increased excise duty at Rs. 2 600 per K. L. of Naptha and ammonia was admittedly classified as fertilizer and/or petro-chemical product. The defendant-Corporation by their letter of March 8 1974 referred to the discussion which the representatives of the plaintiff-Company had with the Corporation officials but informed that the decision for revised price was taken under circumstances beyond their control. In the meantime the defendant-Corporation by their cable of March 16 1974 intimated the plaintiff-Company that the price of ammonia had been revised at Rs. 4 915 per M. T. with effect from 2nd March 1974. The plaintiff-Company again by its letter of March 19 1974 lodged the protest against the unreasonable increase in the price and pointed out to the defendant-Corporation that the Fertilizer Corporation of India Limited who were consuming 100 per cent Naptha for manufacturing ammonia had maintained their prices at the uniform level of Rs. The plaintiff-Company again by its letter of March 19 1974 lodged the protest against the unreasonable increase in the price and pointed out to the defendant-Corporation that the Fertilizer Corporation of India Limited who were consuming 100 per cent Naptha for manufacturing ammonia had maintained their prices at the uniform level of Rs. 2 550 as against the defendant-Corporation who were consuming only 40 to 50 per cent of Naptha in manufacturing ammonia. However pursuant to the decision of the Petroleum Minister announced in the Parliament on March 25 1974 to reduce the prices of Naptha for the manufacture of petro-chemicals the defendant-Corporation by their telegram of March 27 1974 intimated the plaintiff-Company that the price of ammonia was reduced from Rs. 4 915 to Rs. 4 99 with effect from March 27 1974 The supply of the liquid ammonia continues thereafter by the defendant-Corporation and the plaintiff-Company made payments at the rate of Rs. 4 99 M. T. under protest and subject to the reasonable prices being fixed. On July 2 1975 the plaintiff-Company addressed a letter to the defendant- Corporation settling out the relevant facts and circumstances and particularly the payments by the plaintiff-Company from March 6 1974 the price of liquid ammonia at the rate of Rs. 4 99 under protest and which price the defendant-Corporation was not entitled to recover in view of the price clause contained in the supply contract of December 16 1970 and contended that the defendant-Corporation were not entitled to fix any prices arbitrarily and/or capriciously and therefore called upon the said Corporation to make refund of the amount which has been charged by the Corporation in excess of the price which had to be reasonable having regard to the overall circumstances of the question in dispute. The defendant- Corporation by their letter of August 13 1975 denied that their prices had to be fixed keeping in view any structure or circumstances and the revision of the prices had been made on the basis of the cost of production and other factors obtaining from time to time. The defendant- Corporation invited the attention of the plaintiff-Company that it had failed to take delivery from March 31 1972 as originally agreed between the parties and therefore rendered itself liable in damages to the Corporation. They declined to make the refund of any part of the price to the plaintiff-Company. The defendant- Corporation invited the attention of the plaintiff-Company that it had failed to take delivery from March 31 1972 as originally agreed between the parties and therefore rendered itself liable in damages to the Corporation. They declined to make the refund of any part of the price to the plaintiff-Company. Some correspondence had ensured between the parties thereafter in this connection. Ultimately however the plaintiff- Company by its letter of September 13 1975 claimed from the defendant- Corporation a sum of Rs. 78 32 391 being the amount recovered in excess of the reasonable price with effect from March 1974 till the date of the said letter. The plaintiff-Company therefore pursuant to Clause 9 of the contract of supply of December 16 1970 appointed Shri J. C. Shah former Chief Justice of India as a sole arbitrator and called upon the defendant-Corporation to concur in this appointment as such. The defendant-Corporation by their letter of September 22 1975 repudiated the plaintiffs claim and declined to refer the dispute between the parties to arbitration. The plaintiff-Company thereupon by its letter of September 26 1975 appointed said Shri J. C. Shah as their arbitrator and called upon the defendant-Corporation to appoint their arbitrator so that the reference to the two arbitrators could commence. The defendant-Corporation again by their letter of October 10 1975 refused to appoint their arbitrator on the ground that no genuine dispute to the arbitration existed and contending further that the appointment of Shri J. C. Shah as a sole arbitrator would be without jurisdiction. The plaintiff-Company therefore called upon the defendant-Corporation by its letter of October 18 1975 to appoint an arbitrator on their behalf failing which the plaintiff-Company would request Shri J. C. Shah to act as a sole arbitrator. The attorneys of the defendant- Corporation sought some time for obtaining instructions from the Corporation. The plaintiff-Company again by their attorneys letters of November 11 1975 and November 21 1975 requested the defendant-Corporation to appoint their arbitrator. The defendant-Corporation had sent no reply to the said letters (reminders ). However the defendant-Corporation by their cable of September 24 1975 and also by their letter of the same date intimated the plaintiff-Company that the price of liquid ammonia per M. T. had been revised from Rs. 4 99 to Rs. 2 430 with effect from 24-9-1975. The defendant-Corporation had sent no reply to the said letters (reminders ). However the defendant-Corporation by their cable of September 24 1975 and also by their letter of the same date intimated the plaintiff-Company that the price of liquid ammonia per M. T. had been revised from Rs. 4 99 to Rs. 2 430 with effect from 24-9-1975. In these circumstances the plaintiff was compelled to file the suit in the Court of Civil Judge (S. D.) at Baroda being Special Civil Suit No. 140 of 1976 to file arbitration agreement and to make reference to Shri J. C. Shah or to some other person to be appointed arbitrator to arbitrate and decide the dispute between the parties. ( 3 ) THE defendant-Corporation resisted the suit contending inter alia that the Court had no jurisdiction to direct them to file the arbitration agreement and to make reference accordingly inasmuch as there was no valid or justifying dispute between the parties which would require arbitration for its resolution and in any case the plaintiffs suit was barred by law of limitation and the Court should refuse to exercise its discretion in the matter since the plaintiff was guilty of laches and-gross delay and especially because two suits involving similar facts and concerning the effect of the alleged representations and the clause regarding the price which are identical with those involved in the present dispute were pending before the same Court in respect of the sale of liquid ammonia by the defendant-Corporation to the other parties. ( 4 ) THE parties have filed necessary documents in support of their averments in their rival pleadings. ( 5 ) THE learned Judge rejected these contentions of the defendantcorporation and by his order of May 7 1977 directed the parties to nominate the sole arbitrator if they mutually agree or in case of disagreement to appoint their respective arbitrators within one month from the date of the order and in case of their failure the Court will appoint arbitrator to decide the dispute and to file the award in the Court according to its directions. It is this order of the learned Civil Judge (S. D.) Baroda which has been challenged by the defendant-Corporation by way of this appeal. It is this order of the learned Civil Judge (S. D.) Baroda which has been challenged by the defendant-Corporation by way of this appeal. ( 6 ) AT the time of hearing of this appeal the learned Counsel on behalf of the defendant-Corporation which is the appellant before me moved civil application for production of additional evidence comprising of the plaint and written statement filed in Special Civil Suit No. 310 of 1975 by M/s Saurashtra Chemicals against the present appellant-Corporation and in Special Civil Suit No. 107 of 1975 in the Court of Civil Judge (S D.) Baroda by M/s Dhrangadhra Chemical Works Limited against the present appellant-Corporation in order to support his contention that the learned Civil Judge ought to have refused to exercise his discretion to order filing of the reference under sec. 20 of the Indian Arbitration Act 1940 inasmuch as the said two suits involved similar facts and were concerned with the effect of the alleged representations and the price clause which were identical with those involved in the present suit out of which this appeal arises in respect of the supply and sale of liquid ammonia. This Court has by its order refused to give permission to the appellant-Corporation to adduce additional evidence under Order 41 Rule 27 of the Civil Procedure Code for the reasons which were to be pronounced at the time of this final order. ( 7 ) IN K. Venkataramiah v. A. Seetharama Reddy and Ors A. I. R. 1963 S. C. 1526 the extent of the power of appellate Court to admit additional evidence was considered and what would amount to substantial cause or requirement of the Court for granting permission to admit additional evidence was also considered. Das Gupta J. speaking for the Court held that under Rule 27 (1) the appellate Court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment but also for any other substantial cause. Das Gupta J. speaking for the Court held that under Rule 27 (1) the appellate Court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment but also for any other substantial cause. According to the Supreme Court there may be cases where even though the Court finds that it is able to pronounce judgment on the state of record as it is and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. The Court further ruled following the decision of the Privy Council in Parsotim Thakur v. Lal Mohar Thakur A. I. R. 1931 P. C. 143 that such requirement of the Court is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent ton an examination of the evidence though such defect may be pointed out by a party or that a party may move the Court to supply the defect but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. In view of this settled legal position I have to decide whether additional evidence sought to be produced at this stage should be permitted or not. The learned Counsel appearing for the respondent-Company before me vehemently opposed the application moved on behalf of the appellant-Corporation since the said Corporation did not make any effort in the trial Court to produce even uncertified copies of the documents in question much less to produce the certified copies thereof. It should be noted that there was some dispute before me on the question whether the compilation containing these two documents produced by the Corporation in this Court and the copies whereof served on the respondent-Company was actually taken on record by J. B Mehta J (as he then was) before whom this matter was part-heard since he could not finish the hearing on account of his resignation pursuant to the unfortunate development in this Court as a result of elevation of Justice D. A. Desai to the Supreme Court ? Affidavits and counter-affidavits have been filed on behalf of the appellant-Corporation and the respondent- Company before me. Affidavits and counter-affidavits have been filed on behalf of the appellant-Corporation and the respondent- Company before me. In my opinion these affidavits do not serve any purpose since it is an admitted position that no order in writing recording the reasons has been passed by J. B. Mehta J either allowing or disallowing the production of the additional evidence. Ultimately therefore it is a question whether there is substantial cause to adduce additional evidence or the additional evidence is required by the Court for enabling itself to pronounce its judgment ? I do not thing that it can be successfully urged that the Court will require this evidence to enable it to pronounce its judgment because in the ultimate analysis it is the requirement of the Court for pronouncing its Judgment in a more satisfactory manner that it may permit additional evidence to be adduced for clearing some obscurity Court cannot exercise the discretion under Order 41 Rule 27 (1) of the Civil Procedure Code for filling in the lacuna in the case of a party or to give it a charge or an opporunity to have the second innings in the matter. The learned Council for the appellant-Corporation urged that the Corporation has in terms raised this plea in sub-para (d) of paragraph 1 of their written statement He invited my attention tot the draft issues submitted by the parties before the trial Court wherein Issue Nos. The learned Council for the appellant-Corporation urged that the Corporation has in terms raised this plea in sub-para (d) of paragraph 1 of their written statement He invited my attention tot the draft issues submitted by the parties before the trial Court wherein Issue Nos. 4 of the draft issues submitted on behalf of the appellant-Corporation and Issue No. 6 of the draft issues submitted on behalf of the respondent-Company raised the question as to the efforts of this plea of the discretion of the Court I have not been able to appreciate how the specific plea in the written statement or the suggested issues in connection therewith can absolve the appellant-Corporation from establishing by satisfactory documentary evidence as to what are the issues involved in those two suits where the appellant-Corporation was a parity-defendant It may be that those two suit may be involving the interpretation of identical price clause but unless it is established by satisfactory documentary evidence as to what were the representation on which the plaintiffs in those suits were relying it would not be possible for the trial Court or for that matter this Court to refuse to exercise the discretion if the exercise of which is warranted on the facts and in the circumstances of this case and under law. In that view of the matter therefore the civil application for production of additional evidence should be rejected for the reasons stated hereinabove. ( 8 ) THE real question therefore is whether the trial Court was justified in making the order to file reference in the Court and in directing the parties to appoint the sole arbitrator or their individual arbitrators failing which the trial Court directed the appointment of arbitrator by the Court. The learned Counsel for the appellant-Corporation contended that there is no valid or justifying dispute which requires to be resolved by arbitration and therefore the Court has no jurisdiction to make the order to file arbitration agreement as done by the trial Court. In this connection he invited my attention to the relevant pleadings and also took me through the important relevant correspondence ensued between the parties In submission of the learned Counsel for the appellant-Corporation the letters between the parties do not indicate any dispute but on the contrary they establish that the respondent-Company had accepted the revision of the price. In this connection he invited my attention to the relevant pleadings and also took me through the important relevant correspondence ensued between the parties In submission of the learned Counsel for the appellant-Corporation the letters between the parties do not indicate any dispute but on the contrary they establish that the respondent-Company had accepted the revision of the price. Merely because the respondent-Company made payments under protest would not indicate much less establish that there was a dispute between the parties since the appellant-Corporation has clearly rejected the frivolous objections of the respondent-Company by their letters of February 2 1973 and March 29 1973 and the respondent-Company has thereafter taken the supply of ammonia from the appellant-Corporation till they intimated by their letter of July 2 1975 that the Company was paying for the supply at the revised prices under protest since March 6 1974 To quote exactly the words of the learned Counsel the respondent-Company has accepted the revision of the prices from time to time by paying for the supply at that rate and have never protested effectively except by making some noises here or there in some part of their correspondence. The crux of the problem therefore is whether there is really a dispute between the parties which requires to he resolved in terms of Clause 9 of the contract of supply? The answer in my opinion is obviously in the affirmative. It cannot be gainsaid that the price clause contained in the aforesaid supply contract provided that the seller would supply liquid ammonia to the buyer at the price which will be such as is prevailing from time to time at the time of dispatch. In other words the appellant-Corporation agreed and undertook to supply liquid ammonia at the prevailing price from time to time. Whether the term price. . . . prevailing from time to time at the time of dispatch would mean the price of the suppliers from time to time or the market price or the reasonable price is the moot question. The price clause is so ambivalent that there is bound to be dispute between the parties. The appellant-Corporation want to construe the prevailing price at the time of dispatch to mean the price fixed by the suppliers as prevailing from time to time. The price clause is so ambivalent that there is bound to be dispute between the parties. The appellant-Corporation want to construe the prevailing price at the time of dispatch to mean the price fixed by the suppliers as prevailing from time to time. On the other hand the respondent-Company seeks to interprete the term prevailing price at the time of dispatch to mean the reasonable price. In support of this interpretation the respondent-Company sought to rely on the corresponding clause 3 of the draft agreement forwarded by the appellant-Corporation under the cover of their letter of May 15 1967 Clause 3 provided as under:price: the prices at which the seller will supply liquid ammonia to the buyer will be 1 For Over 100 tonnes. (a) Rs. 1050. 00 (Rupees one thousand and fifty only) per tonne of liquid ammonia delivered at the sellers factory in the buyers lorry tankers. (b) Rs. 1140. 00 (Rupees One thousand one hundred forty only) per tonne of liquid ammonia delivered at the sellers factory in buyers own cylinders. (c) Rs. 1190. 00 (Rupees One thousand one hundred and ninety only) per tonne of liquid ammonia delivered at the sellers returnable cylinders. 2 For quantities less than 100 tonnes: rs. 1. 50 (Rupees One and paise fifty only) per kilo of liquid ammonia delivered at sellers factory in sellers returnable cylinders. The price of Rs. 1050. 00 per tonne has been arrived at on the basis of raw material prices of Naptha at Rs. 10 per tonne (based on a calorific value of 10 0 kcl/kgm.) Associated Gas at Rs. 10. 00 per 1000 NM3 (based on a calorific value of 10 0 Kcl/nb3) Electric power at 6 paise per Kwh and water at 0 75 rupee per 1000 gallons. If there would be any fluctuations in the raw material prices they would be related in the final selling price of ammonia which would be mutually agreed upon both the parties. The above said prices shall be net and exclusive of all taxes duties or charges like sales tax octroi delivery expenses etc". ( 9 ) IT is no doubt true that the price clause in the contract of supply finally executed between the parties was not in pari materia with the aforesaid Clause 3 of the draft agreement. The above said prices shall be net and exclusive of all taxes duties or charges like sales tax octroi delivery expenses etc". ( 9 ) IT is no doubt true that the price clause in the contract of supply finally executed between the parties was not in pari materia with the aforesaid Clause 3 of the draft agreement. I my view however the price clause as contained in the final contract of supply executed between the parties really created difficulties inasmuch as it did not give any indication clearly as to how the prevailing price was to be ascertained. If the price clause is to be interpreted as claimed by the appellant-Corporation as price fixed by them it may be tantamount to saying that it can be any price irrespective of the realities. Prima facie I do not think that this can be the intention of the parties In that case the price clause would not have been worded as it had been. If the intention of the parties was as claimed by the appellant-Corporation the price clause would not have stated that the supply would be at the prevailing price. If that had been the intention it would have been provided that the seller would supply liquid ammonia to the buyer at the price to be fixed by the suppliers from time to time. In my opinion the word price gets its colour in the present context from the word prevailing. On behalf of the appellant-Corporation it has been strenuously urged that there is no warrant to introduce the concept of reasonable or fair price in the context of the price clause which emerged in the supply contract ultimately executed between the parties. If the concept of reasonable or fair price was the intention of the parties the price clause would have been similarly worded as one which we find in the draft agreement. If the concept of reasonable or fair price was the intention of the parties the price clause would have been similarly worded as one which we find in the draft agreement. This submission on behalf of the appellant-Corporation was sought to be fortified by the learned Counsel of the appellant-Corporation by inviting my attention to the averments made in paragraph 25 of the plaint wherein it is stated that though no working method as to how price chargeable was to be arrived at was stipulated in the agreement itself it was understood and agreed that the price chargeable shall be reasonable and realistic and in consonance with the rates prevailing in the market and depending on the cost of production and other factors obtaining from time to time keeping however in view the basic structure of the price as was informed by the defendant in the draft agreement during the negotiations and those assurances and understandings were conveyed and re-iterated by the defendant from time to time as stated above. In view of these averments it was urged on behalf of the appellant-Corporation the respondent-Company admits that in effect and substance the appellant-Corporation gave certain assurances and agreed that the price chargeable shall be reasonable and realistic and in accordance with the prevailing rate in the market depending upon the cost of production. It was therefore further submitted on behalf of the appellant-Corporation that unless this new agreement subsequently alleged to have been arrived at between the parties did not provide for arbitration of the disputes or differences arising between the parties the Court cannot exercise its jurisdiction to direct the parties to file arbitration agreement contained in the original contract of supply. The learned Counsel for the appellant-Corporation relied on the decision of the learned Single Judge of the Bombay High Court in Ramdas Dwarkadas v. The Orient Pictures (1942) 44 Bom R. 739 holding that where the rights and liabilities created by an agreement between the parties containing an arbitration clause were materially altered by a subsequent agreement which did not contain such a clause a suit based on both the agreements was maintainable in absence of reference to arbitration under the subsequent agreement. It is no doubt true that the respondent-Company has made averments in para 20 of its plaint in the suit that since there was no method prescribed in the price clause as to how the prevailing price was to be ascertained it was understood and agreed that the price chargeable by the appellant Corporation would be reasonable and in tune with reality prevailing in the market and depending on the actual cost of production which understanding was re-iterated by the appellant Corporation from time to time. ( 10 ) I do not think that it is possible to spell out a new and subsequent agreement between the parties so as to modify their right and liability under the first agreement. The case of the respondent-Company as disclosed in the plaint in effect and substance is that there was clear understanding between the parties at the time when the contract for supply was effected between them that the prevailing price that would be charged would not be de hors the reality and the actual cost of production and the appellant-Corporation had assured the respondent-Company from time to time accordingly. I have therefore not been able to appreciate how the decision of the Bombay High Court in Ramdas case (supra) can be of any assistance to the cause of the appellant-Corporation. The learned counsel for the appellant-Corporation very fairly conceded that if the Court takes the view which I am indeed that the understandings and assurances alleged were part and parcel of the contract of supply and there was no subsequent agreement arrived at between the parties the decision in Ramdas case (supra) would not be applicable. Blackwell J. in Ramdas case (supra) observed at page 744 as under:"i think that the subsequent agreement evidenced by exhibit 13 conferred upon the plaintiff a right which he had not previously got and imposed upon the defend ants a liability which they had not previously undertaken. . . . . . . . In my opinion the arbitration clause has no applicability whatever to these new rights and liabilities so imposed and conferred. In my opinion an arbitrator or arbitrators appointed under the original agreement would have no jurisdiction to entertain any dispute arising between the plaintiff and the defendants in respect of the new agree ment. . . . . . . In my opinion the arbitration clause has no applicability whatever to these new rights and liabilities so imposed and conferred. In my opinion an arbitrator or arbitrators appointed under the original agreement would have no jurisdiction to entertain any dispute arising between the plaintiff and the defendants in respect of the new agree ment. Moreover the validity of the fresh arrangement evidenced by exhibit B to the plaint is disputed by the defendants. The arbitrator or arbitrators appointed under the first agreement would certainly have no jurisdiction to determine whether the second alleged arrangement was or was not binding upon the plaintiff and the defendants or what effect it had upon the provisions of the first agreement". ( 11 ) I do not think that the ratio of the decision in Ramdas case (supra) can be pressed into service in the present context before me. Similarly the ratio of the Court of Appeal in Rurnock v. Sertoris (1890) 43 Chancery Division 150 which was also a case of two agreements where the subsequent agreement did not contain an arbitration clause the Court held that it would not be right to split up the action by referring to arbitration the matters arising under the lease leaving the action to proceed as to the other matters and that even if the arbitration clause could be construed so widely as to cover all the matters in respect of which damages were claimed it would not be proper to refer them to an arbitrator as he would have no power to determine the construction of the agreement and its effect upon the provisions of the lease cannot be pressed into service in the present context before me. ( 12 ) THE learned Counsel for the appellant-Corporation therefore made an attempt to persuade me that having regard to the correspondence which has passed between the parties it is clear that though the differences arose between the parties regarding the price clause in about Januaryfebruary 1973 the respondent-Company appears to have raised effective dispute regarding the price for the supply of liquid ammonia for the first time by its letter of July 2 1975 when it set out the genesis of its dispute and invited the attention of the appellant-Corporation that since 6 March 1974 the respondent-Company was paying the price for the supply under protest and it was entitled to a refund of such amount as was in excess of the reasonable price and requested for continuous supply charging reasonable price therefor. The exact amount of the claim for refund was to be intimated in due course on hearing from the appellant Corporation the basis of the price charged. In submission of the learned Counsel for the appellant-Corporation the earlier correspondence clearly shows that there was dispute between the parties and the appellant-Corporation has in no unmistakable terms inform d the respondent-Company by their letters of 2nd February 1973; 25th March 1973 and 29th March 1973 denying the right of the respondent-company for making provisional payment and rejecting the request for re-adjustment of the price ultimately. The learned Counsel for the appellant-Corporation therefore submitted that the arbitration suit filed by the respondent-Company on April 8 1976 was clearly time barred and the Court has no jurisdiction to refer to the arbitrator any dispute assuming without admitting that there was one which arose prior to April 8 1973 since the application to file an arbitration agreement in the Court would be governed according to Article 137 of the Limitation Act 1953 corresponding to Article 181 of the Limitation Act 1938 According to the learned Counsel for the appellant-Corporation the limitation would begin to run under Article 137 when the right to apply accrues to a party and for an application under sec. 20 of the Arbitration Act such right accrues when the dispute or difference arises between the parties. 20 of the Arbitration Act such right accrues when the dispute or difference arises between the parties. In the present case the learned Counsel for the appellant-Corporation submitted that on the own showing of the respondent-Company the dispute arose for the first time in January 1973 when the respondent-Company by its letter of January 27 1973 produced at page 73 of the paper-book informed the appellant Corporation to make the payment on account of excess duty on Naptha to the authorities concerned under protest since the case of reduction of excise duty on Naptha with retrospective effect was accepted by the then Minister for Petroleum and Chemical of the Union Government and necessary instructions were issued in that behalf and therefore requested the appellant-Corporation to supply liquid ammonia on the provisional payment of price at the revised rate subject to re-adjustment in view of the final decision on the subject. In support of this submission the learned Counsel for the appellant-Corporation relied on the decision of Allahabad High Court in L. Amarnath v. The Union of India and Others A. I. R. 1957 Allahabad 206. It is no doubt true that this decision of Allahabad High Court in L. Amarnaths case (supra) is held to be no longer a good law by the subsequent decision of a Division Bench of the same Court in Union of India v. Mohmad Usman A. I. R. 1965 Allahabad 269 so far as the previous decision held that Article 181 of the Limitation Act 1908 would apply to all applications irrespective of the fact whether they were under the Civil Procedure Code or not. The Division Bench of Allahabad High Court in Mohamad Usmans case (supra) following the decision of the Supreme Court in Shah Mulchand and Co. Ltd. v. Jawahar Mills Ltd. Salem A. I. R. 1953 SC 98 held that Article 181 is confined to applications under the Civil Procedure Code. However the said Article was hell to be applicable to application under see. 20 of the Arbitration Act since the application is one under the Code. The Division Bench held in Mohamad Usmans case (supra) that since the difference arose clearly three years before the making of the application under sec. 20 it would be clearly time barred. However the said Article was hell to be applicable to application under see. 20 of the Arbitration Act since the application is one under the Code. The Division Bench held in Mohamad Usmans case (supra) that since the difference arose clearly three years before the making of the application under sec. 20 it would be clearly time barred. This decision of the Division Bench of the Allahabad High Court in Mohamad Usmans case (supra) is also no longer a good law in view of the decision of the Supreme Court in Wazir Chand Mahajan and Another v. The Union of India A. I. R. 1967 SC 990 where a Division Bench of three Judges following a catena of decisions dating back to 1883 when a Division Bench of the Bombay High Court in Bai Manekbai v. Manekji Kavasji (1883) ILR 7 Bom. 213 right upto 1964 when the Supreme Court in The Bombay Gas Co. Ltd. v. Gopal Bhiva and Others A. I. R. 1964 SC 752 found it to be a settled position for over a period of 70 years that Article 181 would apply only to applications which are made under the Civil Procedure Code and therefore held that Article 181 would not govern application under sec. 20 of the Arbitration Act since no provision in the Arbitration Act indicated contrary intention. This decision of the Supreme Court in Wazir Chand Mahajans case (supra) in the context of Article 181 of the Limitation Act 1908 would have clinched the issue of limitation against the appellant-Corporation and governed the question of limitation arising under Article 137 of the Limitation Act 1963 in view of two Judges Division Beach decision in Town Municipal Council Athani v. Presiding Officer Labour Court Hubli A. I. R. 1969 SC 1335 where it was held in the context of an application made to the Labour Court under sec. 33c (2) of the Industrial Disputes Act that there was no reason to held that the subsequent amendments of Articles 158 and 178 of the Limitation Act 1908 had the effect of altering the long acquired meaning of Article 181 on the sole and simple ground that after the amendment the reason on which the old construction was founded was no longer available and the view expressed by the Court as to restriction of Article 181 to applications under Civil Procedure Code only must be held to be applicable even when considering the scope and applicability of Article 137 of the new Limitation Act 1963 This settled position however seems to have been altered in view of the latest decision of three Judges Division Bench of the Supreme Court in The Kerala State Electricity Board Trivandrum v. T. P. Kunhaliumma A. I. R. 1977 SC 282 where a contention was urged on behalf of the Electricity Board that the petition filed by the respondent on March 10 1972 before the District Judge Tellicherry-under sec. 16 (3) of the Indian Telegraph Act 1885 claiming enhanced compensation for removal of trees standing on her property for purposes of laying electrical line was clearly time barred under Article 137 of the Limitation Act 1963 since the notice intimating fixation of compensation was served on March 4 1969 The District Judge dismissed the petition as time barred since he was of the opinion that Article 137 of the 1963 Act would apply to such applications. The Kerala High Court however reversed that decision in view of its earlier decision in Kerala State Electricity Board v. Parvathi Amma A. I. R. 1974 Ker 2029 following the decision of two Judges Division Bench in Athani Town Municipal Councils case (supra ). The Kerala State Electricity Board carried the matter in appeal before the Supreme Court. The Kerala High Court however reversed that decision in view of its earlier decision in Kerala State Electricity Board v. Parvathi Amma A. I. R. 1974 Ker 2029 following the decision of two Judges Division Bench in Athani Town Municipal Councils case (supra ). The Kerala State Electricity Board carried the matter in appeal before the Supreme Court. A three Judges Division Bench consisting of Ray C. J. (as he then was) Beg and Shinghal JJ found that the earlier decision in Athani Town Municipals case (supra) was doubted in the later decision of the Supreme Court in Nityananda M. Joshi v. Life Insurance Corporation of India A. I. R. 1970 SC 209 in so far as the two Judges Division Bench in Athani Town Municipal Councils case (supra) did not find any compelling reasons to depart from the well established earlier view that the residuary clause contained in Article 181 of 1908 Act applied only to applications under the Civil Procedure Code and held that view would be applicable to similar questions arising under Article 137 of the Limitation Act. Ray C. J. in Kerala State Electricity Boards case (supra) speaking for the Court considered the scheme of the 1963 Act and found that in view of the entirely changed scheme of the 1963 Act the earlier decision of the two Judges Division Bench in Athani Town Municipal Councils case (supra) was a doubtful authority. The Supreme Court therefore held as under:"the alteration of the division as well as the change in the collocation of words in Art. 137 of the Limitation Act 1963 compared with Art. 181 of the 1508 Limitation Act shows that applications contemplated under Art. 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other application as in the 1963 Limitation Act. The words any other application under Art. 137 cannot be said on the principle of edjusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Art. 137 would be petition or any application under any Act But it has to be an application to a Court for the reason that secs. Any other application under Art. 137 would be petition or any application under any Act But it has to be an application to a Court for the reason that secs. 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when Court is closed and extension of prescribed period if applicant or she appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period. (emphasis supplied by me)"the Supreme Court therefore held that in the case before it the application contemplated under sec. 16 (3) of the Telegraph Act was necessarily application to the Court of District Judge and therefore Article 137 would be attracted and inasmuch as the same was presented before the District Judge three years after the accrual of the cause of action the application was clearly time barred. The appeal was accordingly allowed. A strange position therefore arises in view of the three Judges Division Bench decision in Kerala State Electricity Boards case (supra ). The neat effect of this decision appears to be that the settled legal position about the residuary clause contained in Article 181 of the old Limitation Act having been confined to applications under the Civil Procedure Code only and therefore not governing the applications under sec. 20 of the Arbitration Act is reversed and therefore by implication the decision of the three Judges Division Bench of the Supreme Court in Wazir Chand Mahajans case (supra) that Article 181 did not govern applications under sec. 20 of the Arbitration Act would not hold good when the question of limitation arises under Article 137 of the new Act qua such applications under sec. 20 of the Arbitration Act. ( 13 ). Article 137 of the Limitation Act 1963 provides as under: Description Period of Time from which period of application. limitation. begins to run. 137 application for Three years When the right to apply which no period of limita- accrues. tion is provided elsewhere in this Division. article 137 is in Part II of the Third Division. ( 13 ). Article 137 of the Limitation Act 1963 provides as under: Description Period of Time from which period of application. limitation. begins to run. 137 application for Three years When the right to apply which no period of limita- accrues. tion is provided elsewhere in this Division. article 137 is in Part II of the Third Division. In Part I the Legislature has provided in Article 119 limitation for filing in Court of an award or for setting aside an award or getting an award remitted for reconsideration under the Arbitration Act 1941 Articles 131 and 133 of Part I of the Third Division refer to applications under Code of Criminal Procedure and Article 132 refers to applications under the Constitution of India. The Third Division is therefore not limited to applications under the Code of Civil Procedure and Article 137 should therefore consequently govern all applications or petitions under any Act (vide Kerala State Electricity Boards case (supra)) not otherwise provided for in the Third Division. ( 14 ) ON behalf of the respondent-Company an attempt was therefore made to persuade me that limitation would begin to run according to sec. 37 of the Arbitration Act and my attention was particularly invited to the provision contained in sub-sec. (3) of sec. 37 of the Arbitration Act which provides as under;"37 For the purposes of this section and of the Indian Limitation Act. 1908 (9 of 1908) an arbitration shall be deemed to be commenced when one party to the arbitration agreement serves on the other parties thereto a notice requiring the appointment of an arbitration or where the arbitration agreement provides that the reference shall be to a person named or designated in the agreement requiring that the difference be submitted to the person so named or designated". I have not been able to appreciate how this provision would be of any assistance to the respondent-Company since the provision appears to have been envisaged for applying the law of limitation to the proceedings before arbitrators. By sub-sec. (1) of sec. 37 all the provisions of the Indian Limitation Act 1908 have been made applicable to arbitration as they apply to proceedings in Court. By sub-sec. (1) of sec. 37 all the provisions of the Indian Limitation Act 1908 have been made applicable to arbitration as they apply to proceedings in Court. In order to provide an answer to the question how the limitation is to be computed sub sec (3) prescribed notional or fictional commencement by providing that arbitrator would commence when one party to the arbitration agreement serves on the other parties a notice requiring the appointment of arbitrator or when the difference is submitted to a named or designated arbitrator under the agreement. Under sec. 3 of the Limitation Act a suit is instituted in ordinary cases when the plaint is presented to the proper officer of the Court. Similarly by fiction of law a point is determined when arbitration is said to have commenced. However in the present case before me I am concerned with a stage anterior to the commencement of the proceedings before the arbitrator and in that context I have been called upon to determine whether application for filing arbitration agreement at that prior stage is within limitation or not. I do not think therefore sec 37 (3) can be of much assistance to me for resolving the dispute raised on the point of limitation. ( 15 ) THE Supreme Court in Wazir Wazir Mahajans fate (supra) has considered the scope of sec. 37 of the Arbitration Act and repelled the contention advanced on behalf of the Union of India before it that sec. 37 of the Arbitration Act 1940 indicated a contrary intention for purposes of the commencement of the period of limitation Shah J speaking for the Court held as under after question with approval the passage from the decision of the Judicial Committee of the Privy Council in Ramdult Ramkissendass v. E D. Sassoon and Co. 56 Ind App 128 (A. I. R. 1929 PC 103):"there is no doubt that Cl. (1) of sec. 37 of the Arbitration Act deals only with the authority of the arbitrator to deal with and decide any dispute referred to him it has no concern with an application made to the Court to file an arbitration agreement and to refer a dispute to the arbitrator. (1) of sec. 37 of the Arbitration Act deals only with the authority of the arbitrator to deal with and decide any dispute referred to him it has no concern with an application made to the Court to file an arbitration agreement and to refer a dispute to the arbitrator. After an agreement is filed in Court and the matter is referred to the arbitrator it is for the arbitrator to decide by the application of the law contained in the Limitation Act whether the claim is barred. But sec 37 (1) does not confer authority upon the Court to reject the application for filing of an arbitration agreement under sec. 20 of the Arbitration Act because the claim is not made within three years from the date on which the right to apply arose. In dealing with an application for filing an arbitration agreement the Court must satisfy itself about the existence of a written agreement which is valid and subsisting and which has been executed before the institution of any suit and also that a dispute has arisen with regard to the subject-matter of the agreement which is within the jurisdiction of the Court. But the Court is not concerned in dealing that application to deal with the question whether the claim of a party to the arbitration agreement is barred by the law of limitation; that question falls within the Province of the arbitrator to whom the dispute is referred". In other words the question whether right to claim some relief as a result of reference to arbitration falls within the domain of arbitration The contention advanced on behalf of the respondent-Company is clearly misconceived. I have therefore to examine whether the application for filing arbitration agreement in the Court is within the limitation or not According to Article 137 such application is to be made within three years from the date of accrual of the right to apply. The words when the right to apply accrues mean when the right to apply first accrues. It cannot be gainsaid that there cannot be any right to sue until there is an accrual of the right asserted in the suit and its infringement or atleast clear and unequivocal denial of that right by the defendant against whom the suit is instituted (vide Balo v. Koklank and Others A. I. R. 1930 PC 270 ). It cannot be gainsaid that there cannot be any right to sue until there is an accrual of the right asserted in the suit and its infringement or atleast clear and unequivocal denial of that right by the defendant against whom the suit is instituted (vide Balo v. Koklank and Others A. I. R. 1930 PC 270 ). It is of course a question depending to a large extent upon the particular facts of the case and the relief sought. I have therefore to find out when the right accrued in favour of the respondent-Company to apply for reference. The contention advanced on behalf of the appellant-Corporation that the Court has no jurisdiction to refer to arbitrator any dispute which arose prior to April 8 1973 is not of much substance in view of the decision of the Supreme Court in Wazir Chand Mahajans case (supra ). What claim should be actually allowed and what claim is time barred would be within the domain of the arbitrator that may be appointed as a result of the reference. It should be recalled that the supply of liquid ammonia by the appellant-Corporation to the respondent-Company commenced from November 1972 Before the commencement of the supply of liquid ammonia the appellant-Corporation had informed by their letter of June 19 1972 the respondent-Company about the upward revision of price from Rs. 1050/ per M. T. to Rs. 1607/ since there was a proposal for levy of excise duty at different rates on Naptha according to its user which was the main raw material for manufacturing liquid ammonia. On January 27 1973 the respondent-Company wrote a letter to the appellant-Corporation that it would be making payment of the price of the goods supplied under protest or as provisional payment subject to re-adjustment which may be necessitated as a result of the final decision of levying excise duty. It is no doubt true that the appellant-Corporation has by their reply of February 2 1973 informed the respondent-Company that their invoices were final and not provisional. Again on March 21 1973 the appellant-Corporation revised the price of liquid ammonia to Rs. 1840. 00as against Rs. 1607 per M. T. The appellant-Corporation by their letter of March 29 1973 assured the respondent-Company that the Corporation believed in having reasonable price structure. Again on March 21 1973 the appellant-Corporation revised the price of liquid ammonia to Rs. 1840. 00as against Rs. 1607 per M. T. The appellant-Corporation by their letter of March 29 1973 assured the respondent-Company that the Corporation believed in having reasonable price structure. Again the price was revised on March 6 1974 as intimated in the cable of the appellant-Corporation of March 9 1974 to the respondent-Company that the revised basic price would be in the vicinity of Rs. 5000. 00 to Rs. 6000. 00 per M. T. and called upon the respondent-Company to make a deposit of Rs. 3200. 00 per M. T. over and above the price paid by it and which deposit would be subsequently adjusted. The respondent-Company therefore protested by its letter of March 10 1974 by putting on record that the Corporation was not justified in revising the prices on alleged ground of increased excise duty incidence on Naptha used for manufacturing end product classified as fertilizer or petro-chemical in which case the excise duty would be at Rs. 2500. 00 per kilo-ltr and admittedly ammonia was a fertilizer or petro chemical product. On March 16 1974 the appellant-Corporation intimated the respondent-Company that the price of ammonia had been fixed at Rs. 4915. 00 per M. T. with effect from March 2 1974 The respondent-Company again protested by its letter of March 19 1974 against the unreasonable increase in the price from time to time and painted out that Fertilizer Corporation of India Limited had maintained their prices at the uniform level of Rs. 2553. 00. Surprisingly appellant-Corporation again by their letter of March 27 1974 intimated the respondent-Company that the price of ammonia was reduced from Rs 4915/-to Rs. 4099. 00with effect from March 27 1974 It is in this background of repeated increase in the price on the ground of increased excise duty incidence from time to time and surprising downward revision with effect from March 27 1974 that the respondent-Company was con trained to record its protest by putting the record straight and reminding the appellant-Corporation that it was paying the price as inform d by the Corporation for the supply of ammonia under protest and that the Corporation was not entitled to recover the price and therefore to make refund of the price so recovered in excess of the reasonable price due to them. The appellant-Corporation by their letter of August 13 1975 denied that they were under any obligation to fix the prices keeping in view any structure or circumstances as suggested by the respondent-Company and warned it that any payment under protest or subject to any condition would amount to violation of the terms of agreement which may compel the Corporation to discontinue the supply and to recover damages suffered by them if any. The respondent-Company therefore by its letter of September 13 1975 claimed from the appellant-Corporation a sum of Rs. 78 32 391 the amount recovered in excess of the reasonable price with effect from March 19 1974 till the date of the said letter. In my opinion therefore it cannot be said that the difference arose between the parties in or about January 1973 or thereabout. The appellant-Corporation was revising the prices from time to time and ultimately it decided to revise the price with effect from 2nd March 1974 by rising it to Rs. 4915. 00 and again reducing it to Rs. 4099. 00 with effect from March 27 1974 that the parties came to head and the differences crystallized. Merely because in the beginning of 1973 and thereafter the respondent-Company was drawing the attention of the appellant-Corporation about the unrealistic price policy it cannot be said that the dispute in effect and substance arose between the parties. As a matter of fact the appellant-Corporation had in their cable of March 9 1974 addressed to the respondent-Company stated as under:" Further to our telegram dated sixth regarding price revision stop To enable us to continue dispatches kindly deposit a sum of rupees three thousand two hundred per metric tonne over and above the price being paid by you stop Deposit will be adjusted against the revised price stop Likely revised basic price will be around rupees five thousand to rupees six thousand per tonne stop Other terms and conditions remain the same"the respondent-Company by its letter of March 16 1974 in the last paragraph informed the appellant-Corporation that they would be drawing the material by making the payment of difference in price of Rs. 3200. 00 per MT as desired under protest subject to re-adjustments. This proposed revision in the above cable was fixed at Rs. 4915. 00 per MT as intimated in the cable of March 16 1974 of the appellant-Corporation. 3200. 00 per MT as desired under protest subject to re-adjustments. This proposed revision in the above cable was fixed at Rs. 4915. 00 per MT as intimated in the cable of March 16 1974 of the appellant-Corporation. This was again revised downward and fixed at Rs. 4099. 00 with effect from March 27 1974 as intimated in the telegram of the appellant-Corporation of March 27 1974 This makes it clear that the respondent-Company was not knowing as to what exactly the price was to be paid on account of this revision from time to time atleast from March 27 1974 In the circumstances therefore I am of the opinion that the dispute as to the price and the refund really arose between the parties when the appellant-Corporation refused by their letter of August 13 1974 to make refund as claimed by the respondent Company in its letter of July 2 1974 since from March 1974 onwards the respondent-Company was required to make provisional payments which were to be adjusted against the price to be fixed as intimated in the cable of March 9 1974 The application under sec. 20 of the Arbitration Act to file arbitration agreement was mad on April 8 1976 and therefore was clearly within time and the contention of the appellant- Corporation that it was time barred should he rejected. ( 16 ) THE learned Counsel for the appellant-Corporation therefore urged that the trial Court ought not to have exercised the discretion to direct the filing of reference having regard to the various circumstances namely (1) the conduct of the respondent-Company (2) delay and laches on its part (3) the nature of allegations and inquiry (4) involvement of heavy stake and (5) the disputes of similar nature pending between the parties. I do not think that on any of the alleged grounds the trial Court should have refused to exercise its discretion. ( 17 ) I will now deal with the grounds in the reversed order in which they are stated: The appellant-Corporation has not been able to establish or place on record sufficient material that disputes of similar nature were pending between the appellant-Corporation and other parties. ( 17 ) I will now deal with the grounds in the reversed order in which they are stated: The appellant-Corporation has not been able to establish or place on record sufficient material that disputes of similar nature were pending between the appellant-Corporation and other parties. There is nothing on the record to indicate as to what were the terms and conditions of the contract of supply between the appellant-Corporation and the other purchasers namely the Dhangadhra Chemical Works Limited and Saurashtra Chemicals nor any material has been placed on record to satisfy this Court as to what was the nature of the disputes between the parties as disclosed from the correspondence between them and what were the questions at issue in the suits. The 5th ground therefore is not at all borne out by the evidence on record. ( 18 ) THE magnitude of stake can hardly justify the Court to refuse to implement and enforce the arbitration agreement between the parties. It is hardly required to be stated that the arbitrator appointed by the respondent-Company or that may be appointed by the Court would be person/s of such repute learning and experience that the parties would have no cause to make any grievance on that count. Having regard to the pleadings between the parties I do not think that the trial Court was in any way in error in directing the filing of the reference because of the nature of the allegations and inquiry to be male th erein. I do not think that the learned Counsel for the appellant-Corporation was justified in reading in the plaint of the respondent-Company in paragraph 25j that there were any allegations of fraud or want of bona fides which may justify the Court in refusing the reference to arbitration. The relevant part of the averments relied on the learned Counsel for the appellant- Corporation in support of his third ground for refusal to exercise discretion reads as under:"the contention of the defendants contained in their letter dated 25-3-1974 that the revision of price had to be made looking at their liabilities in procurement of inputs was untenable and more a colourful device in an attempt to justify the price increase. The plaintiffs submit that the prices as revised from time to time were exhorbitant and totally untenable. The plaintiffs submit that the prices as revised from time to time were exhorbitant and totally untenable. having regard to the terms of the agreement and the assurances conveyed by she defendants from time to time". I do not think that this allegation of colourful device if at all it was one can amount to allegation of fraud which may warrant the refusal of exercise of the discretion for reference to arbitration. I have not been able to appreciate as to how the nature of inquiry of this allegation can be said to be one which should not be entrusted to a competent arbitrator. Whether there was in fact levy of excise on Naptha used by the appellant Corporation for manufacturing ammonia and whether its incidence really required increase in the price cannot be held to be such as to justify the Court in refusing to implement and enforce the arbitration agreement. There iq no question of delay or laches on the part of the respondent- Company in making this application to the Court for filing the reference to arbitration. Of course the question whether the respondent-Company is entitled to refund of the whole amount as claimed by it in its plaint a question within the domain of arbitrator having regard to the law of limitation and other relevant factors that may be established in evidence before the arbitrator. I have not been able to appreciate how the conduct of the respondent-Company is found wanting by the learned counsel for the appellant-Corporation as to disentitle it for asking for reference to arbitration. At all relevant times the respondent-Company had abided by the revision of prices and made payments accordingly of course under protest and without prejudice to its right. I do not think that on that count alone the trial Court ought to have refused the reference to arbitration. ( 19 ) THE result is that there are no justifying and compelling reasons for me to interfere with the ultimate conclusion of the trial Court to direct the appellant-Corporation to file reference to arbitration. The learned Counsel for the appellant-Corporation however wanted me to crystallise the points on which the reference is to be made to the arbitrator if in case the appeal of the Corporation is rejected. I think that the learned Counsel for the appellant-Corporation was perfectly justified. The learned Counsel for the appellant-Corporation however wanted me to crystallise the points on which the reference is to be made to the arbitrator if in case the appeal of the Corporation is rejected. I think that the learned Counsel for the appellant-Corporation was perfectly justified. I therefore propose to make the following order which would substitute the order made by the trial Court: ( 20 ) UPON reading the application (plaint) and the written statement dated 8th April 1976 and 26th July 1976 respectively and the affidavits in support thereof presented to the trial Court it is hereby ordered that. the following matters in difference specified in the Schedule to this order arising in this suit be referred for determination of the sole arbitrator as may be agreed upon by the parties hereto and in case of default to two arbitrators one to be nominated and appointed by each of the parties hereto within six weeks from today and in case of difference between the said two arbitrators to the umpire to be appointed by the Court after individual nomination and appointment is made as directed. It is further directed that in case of failure on the part of either of the parties to appoint its/their nominee the Court will refer the following matters in dispute to the arbitrator of its choice and such arbitrator or arbitrators will make his/their award in writing on or before 31st March 1979 and in case of the said. arbitrators not agreeing in award the umpire to be appointed by the Court is to make his award in writing within three months after the time during which it is within the powers of the arbitratorss to make an award shall have ceased. Liberty to apply.-:schedule :- 1 Whether the defendant-Corporation is under obligation to charge and recover reasonable price for supply of liquid ammonia having regard to the prevailing rate in the market and depending upon the cost of production ? 2 Whether the defendant-Corporation had assured the plaintiff-Company that the price chargeable would be reasonable and realistic and in consonance with the rates prevailing in the market and depending upon the cost of production and other factors obtaining from time to time ? 3 If answers to questions Nos. 2 Whether the defendant-Corporation had assured the plaintiff-Company that the price chargeable would be reasonable and realistic and in consonance with the rates prevailing in the market and depending upon the cost of production and other factors obtaining from time to time ? 3 If answers to questions Nos. 1 and/or 2 in the affirmative what was the price which the defendant-Corporation was entitled to charge from time to time for supply of liquid ammonia ? 4 Whether the claim of the plaintiff-Company for refund or any part thereof is time barred ? 5 Whether plaintiff-Company is entitled to recover from the defendant- Corporation a sum of Rs. 78 32 391 or any other sum by way of refund being the amount in excess of the price as above ? 6 What should be the order of the costs ? . ( 21 ) THE result therefore is that this appeal fails and is dismissed with substitution of the order as directed above. The appellant- Corporation shall pay costs to the respondent-Company. Appeal dismissed. .