M. K. Chawla ( 1 ) IN a petition under Section 20 of the Arbitration Act the petitioner Shri Ram Ditta Mal seeks the issuance of directions to the respondent for filing the original agreement and in furtherance thereof appointment of an arbitrator by respondent No. 2 in terms of the arbitration clause. ( 2 ) AS per the averments the petitioner entered into a contract with the respondent-Food Corporation of India for the execution of the construction of Food grain godowns at various places in District Raipur and the construction of a covering of verandah for which proper agreements were executed between the parties: that the works awarded to the petitioner were executed and completed in all respects as per the applicable specifications and directions issued from time to time; that the possession of the works was taken over by the respondents in or around 1979 itself; that it was one of the terms of the contract that any dispute which may arise in relation to the aforesaid contracts is required to be adjudicated upon in terms of the arbitration clause embodied therein; that the execution of the work was delayed because of the failure on the part of the respondents in fulfilling their obligations viz. the issue of stipulated materials at the appropriate time, making available the complete site free from hindrances and issue of drawings, decisions, designs etc. at the appropriate time so as to enable the petitioner to complete the work within the contract period; that because of the prolongation of the work the petitioner has been subjected to losses/damages on account of establishment and rise in prices ; that even though the work has been executed and completed in all respects but the accounts have still not been finalised though a number of requests have been made in this regard ; that serious disputes and differences have arisen between the parties which are required to be adjudicated upon in terms of the arbitration clause embodied in the contract; that various disputes enumerated in the petition have arisen for which a notice indicating the provisions of the arbitration clause was sent to the defendants: that even though more than 4 months period has expired since the receipt of the said notice, the respondent No. 2 has still to appoint an arbitrator. Hence the present petition. Hence the present petition. ( 3 ) IN the written statement the respondents took up number of preliminary objections inter alia alleging that the petition is liable to be dismissed in accordance with clause 25 of the agreement, if the arbitration is not invoked within 90 days of receiving of the intimation from the respondents that the bill is ready for payment; that the respondents stand discharged and released from all liabilities and the contract in respect of those claims; that there remains no dispute which can be referred to arbitration; that the works under the 4th agreement dated 8-11-1979 were completed in April 1980 and the present application as such is hopelessly barred by time. On merits the respondents took up the stand that the execution of the work by the petitioner was delayed due to the failure on their part, as a result of which the respondents suffered losses ; that the petitioner is not entitled to any damages whatsoever; that the claims raised by the petitioner are totally baseless and do not arise out of the contract and there is no question of their reference for arbitration. It was finally submitted that as the petitioner failed to invoke the arbitration clause within 90 days from the date of the intimation of the final bill the present petition is liable to be dismissed. ( 4 ) IN the rejoinder the petitioner controverted the please raised by the respondents in their written statement and reiterated the facts as stated in the petition itself. It is also alleged that the cause of action for filing the present petition arose only when the accounts in relation to the contract are finalised and then invocation of arbitration is to be made in terms of the arbitration clause and as such the present petition cannot be said to be barred by limitation. ( 5 ) LEARNED counsel for the parties agreed that this matter can be disposed of on the basis of the affidavits and documents. The petitioner preferred to file the affidavit of Shri Ram Ditta Mal while the respondents preferred to file the affidavit of Shri S. S. Aggarwal, Deputy Manager, Food Corporation of India, Raipur. I have heard arguments of the learned counsel for the parties and with their help gone through the record carefully. The petitioner preferred to file the affidavit of Shri Ram Ditta Mal while the respondents preferred to file the affidavit of Shri S. S. Aggarwal, Deputy Manager, Food Corporation of India, Raipur. I have heard arguments of the learned counsel for the parties and with their help gone through the record carefully. ( 6 ) THERE is no dispute about the four agreements which were entered into between the petitioner and the respondents for the construction of food grain godowns at three places in Distt. Raipur and for the covering of the verandahs, six in number at Raipur. It is also not disputed that the said agreements contained an arbitration clause which is incorporated in para 4 of the petition. By virtue of this clause if any dispute has arisen, respondent No. 2. the Managing Director of Food Corporation of India is to appoint a sole arbitrator for deciding disputes between the parties. ( 7 ) THE only question that now requires consideration is as to whether the disputes mentioned in the petition have arisen between the parties or not which are required to be referred to the sole arbitrator. Before that one has to dispose of the preliminary objection of the respondents that the present petition has been filed after passing of more than three years from the date of the completion of the work. According to the learned counsel the work awarded to the petitioner was completed in all respects and the possession was taken over by the respondents in the year, 1979 itself while the present petition was preferred in the month of February, 1984. Learned counsel further submits that the work allotted in the 4th agreement was completed in April, 1980 and as such the present petition must be held to be hopelessly barred by time. The second contention of the learned counsel for the respondents is that in accordance with clause 25 of the agreement the petitioner was required toinvoke the arbitration clause within 90 days of the receiving of the intimation from the respondents that the bill is ready for payment. This information according to the learned counsel was conveyed to the respondents by various letters, the last being dated 26-9-1981 and the petitioner having failed to invoke the arbitration clause within the stipulated period, the present petition is liable to be dismissed on this score also. This information according to the learned counsel was conveyed to the respondents by various letters, the last being dated 26-9-1981 and the petitioner having failed to invoke the arbitration clause within the stipulated period, the present petition is liable to be dismissed on this score also. ( 8 ) I do not find any substance in any of the preliminary objections. The limitation period of 3 years will not start running from the date of completion of the work or the non-payment of the running bills. The cause of action will arise only after the petitioner is intimated of the preparation of the final bill or his having accepted the payment. It is not disputed that till the filing of the petition the final bill had not been prepared nor any intimation in this regard had been conveyed to the petitioner. In this case the period of limitation will not start running from the date of completion of the work. This view was taken in a judgment reported as M. L. Dalmia and Co. v. Union of India1; Dealing with this aspect, during the course of the judgment it was observed as under :- 1. AIR 1963 Calcutta 277. "the contractor has got another right to be paid after the final bill is made on the completion of works. If any payment is made on a running bill, such sum will be deducted from the final bill as being an advance payment on account of the final bill. If one or more of the running bills submitted by the contractor has or have not been paid and the cause of action for the realisation of the same has become time-barred due to the passage of time, nevertheless, the contractor will be entitled to recover the same as a part of the final bill. Failure to pay the final bill constitutes a new cause of action and the starting point of limitation for payment will arise from the date of default in the payment of the final bill. Thus, it is clear that even if the cause of action to enforce payment of intermediate or running bills is barred by lapse of time, the payment of the same can, nevertheless be enforced as a part of the payment of the final bill. Thus, it is clear that even if the cause of action to enforce payment of intermediate or running bills is barred by lapse of time, the payment of the same can, nevertheless be enforced as a part of the payment of the final bill. "on the same analogy in a case reported as Bhawani Shankar and Others v. State of Rajasthan2; the contractor s suit for the recovery of the amount for the completion of the contract was dismissed on the short ground that the contractor accepted the final bill on 10-2-1956 but filed the suit only on 13-4-1959 after serving notice under Section 80 Civil Procedure Code It was observed that the time began to run from 10-2-1956 when the plaintiff signed the final bill and the suit was barred by limitation by 3 days after allowing two months time for notice under section 80 Civil Procedure Code ( 9 ) SIMILAR view was taken by Kirpal, J. in Suit No. 148/80 titled as M/s. Jialal Kishore Lal v. Union of India, decided on 13-9-1984. In this case also the contractor had signed the final bill on 27-9-1977 and the cause of action for filing the petition arose only on that date and not on the date of preparation of the final bill on 21-8-1976 for which no intimation was conveyed to the contractor. It was also observed that it is only at the time when the contractor came to know that some of his claims have not been accepted in the final bill the limitation of 3 years will start running. ( 10 ) AS stated earlier in the case in hand even the final bill has not been prepared and the question of sending any intimationdoes not arise. The limitation period under these circumstances has not yet started running and the present petition in these circumstances cannot be said to be barred by limitation. ( 11 ) THE second objection also is covered by a Division Bench Judgment of this court reported as Ved Prakash Mithal v. Union of India and Ors. , wherein it was observed :- "so much for Kishan Chand. We now turn to the facts of this case. The first question is : Why should the agreement be not filed ? The petitioner by his letter dated 29th June, 1981 asked the respondents to appoint an arbitrator. , wherein it was observed :- "so much for Kishan Chand. We now turn to the facts of this case. The first question is : Why should the agreement be not filed ? The petitioner by his letter dated 29th June, 1981 asked the respondents to appoint an arbitrator. The Chief Engineer refused to make the appointment. The reason he gave was that the petitioner had made the request for appointment of the arbitrator after the expiry of 90 days and it is a term of the clause that such a request should be 2. AIR 1970 Rajasthan 268. made within 90 days otherwise the Government shall be discharged and released of all liabilities and all claims will be deemed to have been waived. Is this a good reason ? Now a Division Bench of this court in Jai Chand Bhasin v. Union of India, AIR 1983 Delhi 508 (Sachar and Khanna, JJ.) has held that this question falls within the province of the arbitrator to whom the dispute shall be referred. Whether the demand for arbitration has been made within the stated time and whether the claim should be deemed to have been waived in terms of the clause is essentially a question for the arbitrator to decide. The Court is not concerned with it at this stage. The Court has only to see that there are disputes and those disputes are to be referred to arbitration as per agreement between the parties and the arbitrator can decide those questions. Applying Jai Chand s case we find that there are disputes between the parties which ought to be referred to arbitration. "this very provision is incorporated in the agreements in dispute and even if the petitioner has invoked the arbitration clause beyond the period of 90 days, the objection can be disposed of by the arbitrator and on this ground the petitioner cannot be thrown out of the court. ( 12 ) THE disputes mentioned in the petition do arise out of and touching the interpretation of the agreements. The learned counsel for the respondents was not able to point out any dispute which is not covered by the agreements and the arbitration clause as incorporated in paragraph 4 of the petition. ( 12 ) THE disputes mentioned in the petition do arise out of and touching the interpretation of the agreements. The learned counsel for the respondents was not able to point out any dispute which is not covered by the agreements and the arbitration clause as incorporated in paragraph 4 of the petition. As a result of the above discussion I hereby allow the petition and direct the respondent No. 2 to appoint an arbitrator for deciding the disputes which have arisen between the parties and are incorporated in the petition, within one month from today. The respondent shall also be at liberty to file the counter claim, if so advised, before the learned arbitrator.