Judgment: N. N. Mithal, J. 1. An application under section 20 of the Arbitration Act having been dismissed by the trial court the plaintiff applicant has come up in appeal. 2. The grievance of the appellants against the decision is two fold. Firstly, it is contended that the proceeding under section 20 is in the nature of a suit and the court should have recorded evidence by examining witnesses in open' court and not on affidavits. The second contention is that there being admittedly a dispute between the parties the matter should have been referred for decision through arbitration as there was an agreement between the parties to refer the dispute to arbitration but the trial court has erroneously decided the dispute itself without referring the matter to arbitration. Before we embark upon the discussion on the two points a few background facts may first be narrated. The appellants' tender for carrying out certain earth work for construction of Madhya Ganga Canal between kilometres 34800 to 35:30 kilometres i.e. for the total length of 500 metres was accepted. The rate agreed was Rs. 5-34 per cubic metre. According to the case of the appellants he deposited Rs. 12,610/- besides Rs 16,000/- deposited earlier in the form of F. d. receipts. Before the contract bond could actually be executed between the parties the appellant was directed to start the work which he complied the agreement was executed only towards the end of March, 1979 vide contract bond No. 36/S.E./78-79. For the work done by the appellant running bills 15 in number were submitted by the appellant but at the time of making payment the rate was reduced to Rs. 5 30 per cubic metres. The work was completed and its completion report was submitted on 29th April, 1980 to the department with a request that the work may be inspected, verified and if any deficiency or defect is found the same may be communicated to the appellant. The spot was actually inspected but no defect or deficiency was found therein. According to the appellant, after sufficient delay a communication was received on 30th June, 1980 making allegations that the work was defective and many discrepancies in the work was pointed out although in fact no defect was ever pointed out earlier at the time of site inspection. The spot was actually inspected but no defect or deficiency was found therein. According to the appellant, after sufficient delay a communication was received on 30th June, 1980 making allegations that the work was defective and many discrepancies in the work was pointed out although in fact no defect was ever pointed out earlier at the time of site inspection. A penalty of one percent was imposed inviolation of the terms of the agreement which was absolutely arbitrary. During the intervening period there were heavy rains and the work done by the appellant was damaged on that account causing furrous in the slopes of the canal. Final bill was passed at the flat of Rs. 5/- although the agreed rate between the parties was Rs. 534 per cubic metres. 3. Since there was a dispute regarding payment of the amount to the appellant in respect of the work done by him an application under Sec. 20, Arbitration Act for referring the dispute to arbitration was made after serving requisite notice under section 80 CPC. 4. The defence in a nut shell was that there was no dispute between the parties as the plaintiff had already received payment for the work done in full and final settlement of the claim. On this premise it was stated that the application under section 20 of the Arbitration Act was not legally maintainable. On the pleadings of the parties the trial court framed the following issues i 1. Whether there exists any dispute between the parties ? If so, its effect. 2. Whether there exists any clause in the Bond for reference to arbitration in case of any dispute ? If so, its effect ? 3. Whether the suit filed by the plaintiff is without any cause of action or any right ? If so, is the suit not maintainable 4. To what relief, if any, is the plaintiff entitled 5. Evidence of the parties was taken on affidavits and the court found that there was an arbitration clause in the agreement but on issues 1 and 3 it came to the conclusion that since the payment to the appellant was made in full and final settlement there was no surviving dispute which could be referred to arbitration. In the result the application was dismissed. It is this order which is subject of appeal before us. 6. In the result the application was dismissed. It is this order which is subject of appeal before us. 6. Sri A. D. Prabhakar for the appellant has first raised the question that the proceeding under section 20 of the Arbitration Act are registered and treated as a suit and proceedings therein had to be conducted in the manner prescribed for the trial of suit. He accordingly urged that the evidence of the witnesses should have been taken viva voce and not on affidavits. Even evidence affidavit could be taken only when there was a specific order in this behalf by the court. In the present case it is submitted that no order has been passed by the court that the evidence will be taken on affidavit and this has seriously prejudiced the right of the plaintiff. He also submitted that the crucial question for decision in the matter was that whether the receipt filed by the defendant showing full and final payment to the plaintiff was genuine and had not been obtained under duress and/on by undue influence. In support of his submission he stressed heavily .on a decision of Gujrat High Court in Bai Zabu Khima v. Amardas Balakdas, AIR 1967 Gujarat 214. In that case a Division Bench of Gujarat High Court speaking through Honourable P. N. Bhagwati (as he then was) had this to say : "There can be no doubt that when a case is a non-contentious one, the. Judge hearing an application for probate or letters of administration can act on affidavits. Order 19 Rule 2 of the Code of Civil Procedure provides that upon any application evidence may be given by affidavit, but the court may at the instance of either party, order the attendance for cross-examination , of the deponent. The Judge hearing an application for probate or letters of administration may, therefore, allow evidence to be given by affidavit and acting on such evidence given by affidavits, grant probate or letters of administration. The Judge hearing an application for probate or letters of administration may, therefore, allow evidence to be given by affidavit and acting on such evidence given by affidavits, grant probate or letters of administration. But if a contention is raised against the grant of probate or letters of administration and the case becomes a contentious one, this procedure, we are afraid, cannot be followed by the Judge When a contention is raised, section 295 of the Indian Succession Act says "the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant" The application is, therefore, converted into a suit as soon as a contention is raised and the same procedure is then required to be followed as is prescribed for a suit under the Code of Civil Procedure. Now it is elementary that in a suit the evidence of witnesses must be taken vive voce and affidavits cannot take the place of oral evidence. The only provision in the Code of Civil Procedure under which evidence may be given by affidavit is that contained in Or. 19 Rule 1 and 2. Order 19 Rule 2 obviously cannot apply for it deals with giving of evidence by affidavit only upon an application. There is a conflict of authorities amongst various High Courts as to the true meaning of the word "application" in this rule. One view is that it means "interlocutory applications" such as one for injunction, attachment before judgment and appointment of Receiver and not a substantive application while the other view is that the language of the enactment is vide enough to comprehend all applications, substantive as well as interlocutory. But on one point there is no dispute and that is that the rule applies only to giving of evidence by affidavit in an application and not in a suit. But on one point there is no dispute and that is that the rule applies only to giving of evidence by affidavit in an application and not in a suit. Order 19 Rule 1 of course applies generally to all proceedings and even in a suit a court may at any time for sufficient reason order that a particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read at the hearing on such conditions as the court thinks reasonable, but there is a proviso to this rule which is very important and it is that proviso which negatives the applicability of the rule in the present case." Proceeding further in the case although it was held that not examining the witnesses in the court was not justified the court proceeded to observe as under : "Even so we do not think that the trial of the suit was vitiated by any illegality. Though there may be no provisions in the Code authorizing the court in a case such as this to take the evidence in examination-in-chief of the witnesses by affidavits, it is always open to the parties to agree that a particular affidavit may be treated as evidence in the case and the deponent of the affidavit may be further examined in chief or cross-examined on the statement made in the affidavit. This course was clearly assented to by the parties in the present case and this assent could be implied from the fact that neither party objected to the affidavits being treated as evidence in the case. The trial of the suit cannot, therefore, be held to be vitiated despite the unusual procedure followed by the learned Civil Judge and the order made by the learned Civil Judge granting letters of administration to the applicant must be sustained." This case, therefore, does not come to the assistance of the appellants at all. In the instant case also proceedings under section 20 of the Arbitration Act under the General Rule (Civil) is registered as a suit and in all practical purposes is treated to be a regular suit to be tried in the manner laid down by the Code of Civil Procedure. In the instant case also proceedings under section 20 of the Arbitration Act under the General Rule (Civil) is registered as a suit and in all practical purposes is treated to be a regular suit to be tried in the manner laid down by the Code of Civil Procedure. It follows from this that the evidence of the witnesses is to be recorded in the manner prescribed under Order 18 of the Code by examining the witnesses in (sic) court by oral examination of the witnesses and subjecting them to cross-examination by the other side This, however, does not prevent the parties by impliedly agreeing that the evidence may be taken on affidavit. In/the instant case after issues were framed the plaintiff filed his own affidavit and thereafter the respondent filed an affidavit on its behalf. At no stage any objection was taken that the evidence on affidavit may not be recorded. No effort was also made to summon the deponent for the purposes of cross-examination. In fact the parties all along relied upon the evidence given on affidavits and for the first time this objection had been taken in appeal. In our opinion, it is too late for the appellant to raise such a plea. We in fact feel that the parties must be deemed to have impliedly agreed that the evidence be taken in affidavits only. We, therefore, do not find any force in this submission. 7. The second line of argument of the learned counsel was that the appellant had successfully established that there was a dispute between the parties and the matter should have been referred to arbitration and the court could not proceed to decide the question whether such a dispute did not exist only because a receipt of full and final payment have been filed by the defendant. The submission further was that the only points to be considered by the court are that there exists an agreement between the parties; that in the agreement there is a term according to which disputes are referable to arbitration and that a dispute exists between the parties which is covered by the clause pertaining to arbitration. In this case the court has clearly held that there was a contract between the parties which contains a term according to which the dispute were referable to arbitration. In this case the court has clearly held that there was a contract between the parties which contains a term according to which the dispute were referable to arbitration. The parties are only at issue on the question as to whether any dispute existed between them which could be referred to arbitration. 8. In support of his plea learned counsel for the appellant seeks support from a decision of the Supreme Court in The Vulcan Insurance Co. v. Maharaj Singh, AIR 1976 SC 287 . In that case the respondent had a manufacturing unit which was insured under three insurance policies having identical terms. The crucial clause in the agreement expressly stipulated that it shall be a condition precedent, to any right of action or suit on that policy that the award by such arbitrator, arbitrators or umpire of the amount of the loss or damage, if disputed, shall be first obtained. Instead of filing the suit the respondent in that case instituted proceedings under section 20 of the Arbitration Act for referring the dispute to arbitration. The Supreme Court considered the various cases cited before it in para 21 of the report observed as under ; "The two lines of cases clearly bear out the two distinct situation in law. A clause like the one in Scott v. Avery bars any action or suit if commenced for determination of a dispute covered by the arbitration clause. But if on the other a dispute cropped up at the very outset which cannot be referred to arbitration as being not covered by the clause, then the Scott v. Avery clause is rendered in operative and cannot be pleaded as a bar to the maintainability of the legal action or suit for determination of the dispute which was outside the arbitration clause." The Court analysed the earlier decision of the Supreme Court rendered in AIR 1967 SC 990 saying that if the difference which had arisen between the parties was the one to which the arbitration clause applies then the application under Section 20 of the Act could not be dismissed on the ground that the claim would not ultimately succeed either on facts or in law. The matter will have to be left for decision to the Arbitrator. 9. The above dictum, however, was not applicable to the facts of the case in Vulcan Insurance Company's case. The matter will have to be left for decision to the Arbitrator. 9. The above dictum, however, was not applicable to the facts of the case in Vulcan Insurance Company's case. In that case the Insurance Company had already repudiated the claim put forth by the respondent and in that situation there was nothing which could be referred to arbitration. On the rejection or repudiation of the claim by the insurer, the insured is under an obligation to start a legal proceedings and, therefore, obtaining an award in such a situation cannot be taken as a condition precedent. It was not possible to go for arbitration for determination to that dispute at all. In such a situation, therefore, the Supreme Court in Vulcan Insurance Company's case held that the difference which arose between the parties on Company's repudiation and the claim made by the respondent was not one to which the arbitration clause applied and hence the arbitration agreement could not be filed and no arbitrator could be appointed under Section 20 of the Act. The respondent was ill advised to commence action under section 20 instead of instituting a suit within three months of the date of repudiation to establish the Company's liability. 10. Factual situation in the instant case is also identical. Here also certain amount in respect of the work done by him at the rate Rs. 5.34 per cubic metres which, according to him, was the agreed rate between the parties. The payment made to him, however, was at the flate rate of Rs. 5/- lor each cubic metres of earth work done by him. There was thus a difference of 34 Paise per cubic metres. The defendant, however, contended that no amount was due to the plaintiff since he had received the payment of the final bill in full and final settlement thereof. The contention of the plaintiff in this regard was that this document had been obtained under undue influence, and, therefore, it was not binding on him. The controversy between the parties, therefore, consists of two parts. The first part being; was any amount as claimed by the plaintiff due from the defendant and second that if any amount is due, then how much it was ? The controversy between the parties, therefore, consists of two parts. The first part being; was any amount as claimed by the plaintiff due from the defendant and second that if any amount is due, then how much it was ? In our opinion, according to the case we have referred to earlier, the first controversy was one which had to be decided by the court where proceeding under Sec. 20 were pending. If the answer to the first question was in affirmative then only a stage will arise to make a reference to arbitration to determine the exact amount to which the plaintiff was entitled. In the instant case, the trial court was competent to decide the controversy as to whether amount as claimed by the plaintiff was due from the defendant or not. If the court found that the payment had already been made in full and final settlement there would be nothing left which could be referred to arbitration. The contention of Sri Prabbakar, that even this part of the dispute was referable to arbitration cannot be accepted. 11. Sri Prabhakar, however, submitted that the case of the plaintiff, that there was undue influence and other pressing circumstances which compelled the plaintiff to sign on the receipt, has not been considered by the trial court and that the plaintiff had no opportunity to lead evidence on this question. This submission of the learned counsel also cannot be accepted. According to para 10 of the application under Section 20 the appellant was aware that he has been paid at a lesser rate of Rs. 5/- and this point he had raised before the higher authorities and even before the Minister concerned. No documentary evidence in this respect has been placed on record. He only makes a very cryptic allegation that the fraud was played upon him which is apparent on record. Nothing more was stated in this regard. It is surprising that even after receiving a reply from the respondent repudiating the allegations made by him he did not deem it necessary either to file a replication or further pleading m the case nor did he elaborate his allegation in the affidavit that he filed subsequently. - The defendants have placed the original receipt showing full and final payment of the final Bill on record but nothing has been stated about it in his affidavit also. - The defendants have placed the original receipt showing full and final payment of the final Bill on record but nothing has been stated about it in his affidavit also. The receipt shows some witnesses also but none of them have been summoned nor their affidavits filed in order to show that the receipt had been obtained by playing fraud. As a matter of fact the affidavit in support of the application is merely a repetition of the allegations made in the application and no new facts have been stated although the affidavits have been filed much after the written statement by the defendant had been submitted in the court. 12. From the above discussion we find that there is no evidence worth the name on record which may suggest that any fraud have been committed on the plaintiff or that he had been pressurized to sign on the receipt for full and final payment was contended by the learned counsel during the course of argument before us. We, therefore, find no substance in this submission and hold that a receipt for full and final payment of the dues of the plaintiff had been given by the plaintiff and having done so there was no dispute left as to the amount which was payable to him. In such a situation, therefore, it cannot be said that any difference remained in existence which could be referred to arbitrators to resolve. In view of above, we find no merit in this appeal which is accordingly dismissed. We however, make no order as to costs. Appeal dismissed.