JUDGMENT - S.M. JHUNJHUNUWALA, J.:---By this petition, the plaintiff seeks an Order under section 20 of The Arbitration Act, 1940 (for short, "The said Act") to file the arbitration agreement in this Court as also an Order of Reference of plaintiff's claims as set out in plaintiff's advocates' letter dated 20th April, 1991 to arbitration in accordance therewith. 2. The plaintiff is the sole proprietress of M/s. Pre-Strees Products (India) (for short, "the said firm") who are registered Muncipal Contractors. In 1981, the 1st defendants had called for tenders for construction of a Muni-Power laundry at Road No. 7, Sewree Wadala Scheme, Bombay (for short, "the said work"). The said firm had tendered for the said work which was awarded to the said firm under Work's Order No. CE/PD/17289/TD dated 12th February, 1982 which was issued to the said firm on 15th February, 1982. The General Conditions of Contract for Civil Works as adopted by the 1st defendants also formed part of the contract entered by and between the said firm and the 1st defendants in respect of the said Work. 3. According to the said firm, the revised plans were given to the said firm only in the month of September, 1982 and the Work at the site thereafter commenced. There was inadequate supply of steel and other materials at site as also delay caused in removal of existing electrical cables on the site as a result whereof execution of the said work was delayed. In the month of May 1983, the 1st defendants decided to revise the plans of the building and changed the position of the staircase and consequently, the said firm was made to stop the work until the revised plans were ready. It was in the month of August, 1983 that the 1st defendants had called upon the said firm to carry out the remaining work at the site. However, by that time, the contract period had expired. The said firm communicated to the defendants that it would complete the remaining work at the site as per revised scheduled rates and not at original contractual rates. However, by that time, the contract period had expired. The said firm communicated to the defendants that it would complete the remaining work at the site as per revised scheduled rates and not at original contractual rates. The said firm asked not to carry out the remaining work at the site and on 13th March, 1984, the said firm handed over the site to the 1st defendants and by its letter dated 12th September, 1984, the said firm submitted its claim in respect of the work carried out to the Engineer of the 1st defendants at the site. Since according to the said firm the engineer-in-charge at the site refused to settle its claim, in exercise of its rights vested under Clause 96 of the said General Conditions of Contract, the said firm by its Advocates' letter dated 20th April, 1991 addressed to the 2nd defendant, referred its claim to the 2nd defendant to decide the same. As the 2nd defendant failed to give decision within the time stipulated under the said clause, through its advocates, the said firm addressed further letter dated 30th July, 1991 to the 2nd defendant and informed the 2nd defendant that in the circumstances of the case, the said firm was invoking arbitration as per Clause 97 of the said General Conditions of Contract and called upon the 2nd defendant to make reference of the disputes that had arisen to arbitration in accordance with the agreement to refer the disputes to arbitration as incorporated in the said Clause 97. Since no reply thereto was received from the 2nd defendant, further letter dated 14th March, 1992 was also addressed by the advocates for the said firm to the 2nd defendant and called upon the 2nd defendant to consent to the appointment of any of the persons named therein to act as arbitrator in respect of the disputes and differences that had arisen between the said firm and the 1st defendants. Neither any reply thereto was received by the said firm nor the 2nd defendant consent to appointment of an arbitrator. In the circumstances, the plaintiff has filed the present petition. 4. The petition has been listed for admission. It is convenient to dispose of the petition at its stage of admission. On behalf of the defendants, an affidavit has been filed to oppose the admission of the petition. 5. Mr. In the circumstances, the plaintiff has filed the present petition. 4. The petition has been listed for admission. It is convenient to dispose of the petition at its stage of admission. On behalf of the defendants, an affidavit has been filed to oppose the admission of the petition. 5. Mr. Thakker, the learned Counsel appearing for the plaintiff, has submitted that the disputes and differences which have arisen between the said firm and the 1st defendant fall within the ambit and scope of the arbitration agreement entered by and between the parties to the petition as incorporated in the said Clause 97 and as such, the plaintiff is entitled to have the same referred to arbitration in accordance with the said arbitration agreement. Mr. Thakker has further submitted that the petition filed by the plaintiff is in time since it has been filed within three years of invocation of arbitration by the plaintiff. Mr. Thakker has further submitted that as per the normal practice adopted by the 1st defendant, the final bill was to be prepared by the 1st defendant which the 1st defendant did not prepare and as such, the question of limitation even did not arise. 6. Mr. Bharucha, the learned Counsel appearing for the defendants, has submitted that the site was handed over on 13th March, 1984 and the said firm had submitted its claim to the engineer-in-charge at the site on 12th September, 1984 and as such, invocation of arbitration by the said firm vide its advocates' said letter dated 30th July 1991 is barred by limitation and that the plaintiff is not entitled to any relief whatsoever in the petition. Mr. Bharucha has further submitted that under Clause 88 of the said General Conditions of Contract, the said firm was to prepare the final bill which it did not prepare. The plaintiff, therefore, can not take advantage of her own wrong for having extension of limitation for the purpose of invocation of arbitration. Mr. Bharucha has further submitted that the plaintiff having abandoned the work, the question of the said firm, in the circumstances of the case, preparing the final bill even did not arise. 7. Clauses 96 and 97 of the said General Conditions of Contract which are relevant read as follows : "96. Any dispute or difference to be referred to Commissioner. Bharucha has further submitted that the plaintiff having abandoned the work, the question of the said firm, in the circumstances of the case, preparing the final bill even did not arise. 7. Clauses 96 and 97 of the said General Conditions of Contract which are relevant read as follows : "96. Any dispute or difference to be referred to Commissioner. If any doubt, dispute or difference arises or happens between the Engineer or any other officer on the one hand and the Contractor on the other hand, touching or concerning the said works or any of them, or relating to the quantities, qualities description or manner of work done and executed by the Contractor, or to the quantity or quality of the materials to be employed therein, or in respect of any additions, deductions, alterations, or deviations made into or from the said works or any part of them, or touching or concerning the meaning or intention of this contract or of any part thereof or of any plans, drawings, instructions or directions referred to therein or which may be furnished, or given during the progress of the works, or touching or concerning any certificate, order, or reward which have been made or in any way whatsoever relating to the interests of the Municipal Corporation or of the Contractor in the premises, every such doubt, dispute and difference shall from time to time be referred to the Commissioner who shall give his decision within a period of 90 days and if the contractor is not satisfied with the decision of the Commissioner or the Commissioner fails to give the decision within the period of 90 days, such dispute may be referred to arbitration as per condition No. 97. 97. Arbitration. 97. Arbitration. All disputes or differences whatsoever which shall at any time arise between the parties hereto touching or concerning the works or the execution or maintenance thereof or this contract or the construction, execution, or maintenance thereof or this contract or the construction meaning operation or effect thereof or, to the rights or liabilities of the parties or arising out of or in relation thereto whether during or after completion of the contract or whether before or after determination, foreclosure or breach of the contract (other than those in respect of which, the decision of any person is by the contract expressed to be final and binding) shall after written notice by either party to the contract to the other of them specify the nature of such dispute or difference and call for the point or points at issue to be referred to the arbitration. Arbitration shall be effected -- i) by an Arbitrator agreed upon by the parties or failing agreement upon such an Arbitrator, ii) by an Arbitrator appointed by the President for the time being of the Institute of Engineers (India) or by the President of the Bombay Centre of the Institute of Engineers (India), or failing such appointment, iii) by an Arbitrator appointed by the Chief Engineer, Buildings and Communication Department, Government of Maharashtra, or failing such appointment, iv) by an Arbitrator appointed in accordance with the provisions of the Indian Arbitration Act which law governs the contract. The Arbitrator so appointed shall be a person presently unconnected with the organisation for which and by which the work is executed. Submission to arbitration shall be deemed to be a submission to arbitration within the meaning of the Indian Arbitration Act, which law governs the Contract. If the Arbitrator so appointed is unable or unwilling to act or risings his appointment or vacates his office due to any reason whatsoever another sole Arbitrator shall be appointed as aforesaid. The work under the Contract shall, if reasonably be possible, continue during the Arbitration proceedings and no payment due or payable to the contractor shall be withheld on account of such proceedings. The Arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties fixing the date of the first hearing. The work under the Contract shall, if reasonably be possible, continue during the Arbitration proceedings and no payment due or payable to the contractor shall be withheld on account of such proceedings. The Arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties fixing the date of the first hearing. The Arbitrator may, from time to time with the consent of the parties, enlarge the time for making and publishing the award. The Arbitrator shall give a separate award in respect of each dispute or difference referred to him. The venue of Arbitration shall be within the limits of Greater Bombay. The fees, if any, of the Arbitrator shall, if required to be paid before the award is made and published, be paid half and half by each of the parties. The cost of the reference and of the award (including the fees, if any, of the Arbitrator) shall be in the discretion of the Arbitrator who may direct to and by whom and in what manner, such costs or any part thereof be paid and may fix or settle the amount of cost to be paid." 8. Under Clause 96 of the said General Conditions of Contract, disputes touching or concerning the said work were to be referred to the 2nd defendant who was to give his decision within 30 days of the reference. Since he failed to give his decision within the stipulated time, such disputes could be referred to arbitration as per said Clause 97. The arbitration agreement incorporated in the said Clause 97 is wide and has within its scope and ambit all disputes or differences whatsoever arising between the plaintiff and 1st defendant touching or concerning the said work and as such, the plaintiff's claim against the 1st defendant is covered by the said arbitration agreement. Section 20 of the said Act reads as under : "20. Section 20 of the said Act reads as under : "20. Application to file in Court arbitration agreement.--- (1) Where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject-matter of the agreement or any part of it, and where a difference has arisen to which the agreement applies, they or any of them, instead of proceeding under Chapter II, may apply to a Court having jurisdiction in the matter to which the agreement relates, that the agreement be filed in Court. (2) The application shall be in writing and shall be numbered and registered as a suit between one or more of the parties interested or claiming to be interested as plaintiff or plaints and the remainder as defendant or defendants, if the application has been presented by all the parties, or, if otherwise, between the applicant as plaintiff and the other parties as defendants. (3) On such application being made, the Court shall direct notice thereof to be given to all parties to the agreement other than the applicants, requiring then to show cause within the time specified in the notice why the agreement should not be filed. (4) Where no sufficient cause is shown, the Court shall order the agreement to be filed, and shall make an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or, where the parties cannot agree upon an arbitrator, to an arbitrator appointed by the Court. (5) Thereafter, the arbitration shall proceed in accordance with, and shall be governed by, the other provisions of this Act, so far as they can be made applicable." 9. Accordingly, all or any of the parties to an arbitration agreement may apply under this section to have it filed in Court and a reference made to arbitration. There are four essential conditions necessary to make the section applicable. They are -- i) the parties must have entered into an arbitration agreement; ii) the agreement must have been entered into before a suit with respect to its subject matter is filed in Court; iii) a dispute or difference, contemplated in the agreement, must have arisen; and iv) the Court has jurisdiction in the matter. They are -- i) the parties must have entered into an arbitration agreement; ii) the agreement must have been entered into before a suit with respect to its subject matter is filed in Court; iii) a dispute or difference, contemplated in the agreement, must have arisen; and iv) the Court has jurisdiction in the matter. Sub-section (2) to (4) lay down the procedure to be followed by the Court, when an application is filed under section 20 of the said Act, and sub-section (5) makes the provisions of the remaining sections of the said Act applicable to the proceedings under section 20 thereof. The scope of enquiry under this section is very much limited. On an application being moved under this section, all what the Court has to see is -- i) Whether there is an arbitration agreement as between the parties; and ii) Whether the dispute disclosed by the parties is covered by such arbitration agreement. As held by the Calcutta High Court in the case of (Dalmiya Engg. (Pvt) Ltd. v. Union of India)1, reported in A.I.R. 1975 Calcutta 77, if the answer to both these questions is in the affirmative, the Court is to make a reference under this section. The Court is not to look into the merits of the disputed claim and refuse to make a reference if in its opinion the claim is not justified. That would be a decision on merits, within the exclusive jurisdiction of the arbitrator. The question -- whether any claim is maintainable or barred by limitation is a matter for the consideration of the arbitrator. However, unless there was denial of the claim or a dispute raised in that behalf, it can not be said that any difference has arisen between the parties. Existence of dispute or difference is essential condition for arbitrator's jurisdiction. Failure to pay the amount is not necessarily a difference or dispute and mere fact that a party could not or did not pay does not in itself amount to a dispute unless party who chooses not to pay raises a point of controversy in that behalf. 10. Article 137 in Third Division of the Schedule to the Limitation Act, 1963 reads as follows : Description of suit Period of Time from which Limitation period begins to run 137. 10. Article 137 in Third Division of the Schedule to the Limitation Act, 1963 reads as follows : Description of suit Period of Time from which Limitation period begins to run 137. Any other application Three Years When the right to apply for which no period of limi- accrues tation is provided elsewhere in this Division. Third Division of the Schedule to the Limitation Act, 1963 deals with 'Applications' and section 2(b) of The Limitation Act, 1963 defines 'application' as under : "(b) 'Application' includes a petition" In view of the said new definition of the word 'application', the scope of The Limitation Act, 1963 has been enlarged by making it applicable to the applications as well as to the petitions under the Special Enactment. Under Rule 773(a) of the Rules of this Court as applicable on its Original Side, save as therein otherwise provided, all applications under the said Act are to be made by petition. Therefore, application under section 20 of the said Act to file in Court arbitration agreement is also required to be made by petition though under sub-section (2) thereof, it is to be number as suit. Article 137, which is a residue Article, will apply to an application under section 20 of the said Act, and, therefore, period of limitation for filing such application will be three years from the time the right to apply accrues. In (The Kerala State Electricity Board, Trivandrum v. T.P. Kunhalimma)2, reported in A.I.R. 1977 S.C. 282, the Apex Court while differing from the view taken by the two Judge Bench of that Court in (Aihani Municipal Council)3, case reported in A.I.R. 1969 S.C. 1335, has held : "The alteration of the division as well as the change in the collocation of words in Article 137 of The Limitation Act, 1963 compared with Article 181 of the 1908 Limitation Act shows that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure." The Supreme Court has further held that these petitions and applications can be under any Special Act as in the present case. 11. On the question as to when a right to apply to Court under section 20 of the said Act accrues, different views have been taken by some of the High Courts. 11. On the question as to when a right to apply to Court under section 20 of the said Act accrues, different views have been taken by some of the High Courts. In the case of (Jiwnani Engineering Works Pvt. Ltd. v. Union of India)4, reported in A.I.R. 1978 Calcutta 228, Sabyasachi Mukherji, J., (as he then was) upheld the contention of the petitioner that the right to apply to Calcutta High Court arose on the failure of the General Manager to comply with the request made by the contractor for making reference to arbitration. In the case of (V.G. Ghawda Pvt. Ltd. v. Union of India)5, reported in A.I.R. 1978 Calcutta 271, the Calcutta High Court has held that a right to apply under section 20 of the said Act can be said to accrue only after a demand is made to refer the disputes to arbitration under the arbitration agreement. However, Delhi High Court, in the case of (Union of India and another v. M/s. Vijay Construction Co.)6, reported in A.I.R. 1981 Delhi 193, has held that the right to apply under section 20 of the said Act accrues to a party to the contract containing arbitration clause on the date when the contract was rescinded by the other party thereto and the limitation of three years has to be counted from that date and not from the date of notice when that party to arbitration agreement serves a notice on the other party thereto requiring the appointment of an arbitrator. In the case of (M/s. Oriental Building and Furnishing Co. Ltd. v. Union of India)7, reported in A.I.R. 1981 Delhi 293, Delhi High Court has held that the starting point of limitation for filing an application under section 20 of the said Act is the date on which a difference arises to which the arbitration agreement applies. The Gujarat High Court in the case of (Gujarat State Fertilizers Co. Ltd. v. Deepak Nitrite Ltd.)8, reported in A.I.R. 1979 Gujarat 83 has held that the words "when the right to apply accrues" mean when the right to apply first accrues. In the case of (Shah Construction Co. The Gujarat High Court in the case of (Gujarat State Fertilizers Co. Ltd. v. Deepak Nitrite Ltd.)8, reported in A.I.R. 1979 Gujarat 83 has held that the words "when the right to apply accrues" mean when the right to apply first accrues. In the case of (Shah Construction Co. Ltd. v. Municipal Corporation of Delhi)9, reported in A.I.R. 1985 Delhi 358, the Delhi High Court has held : "Article 137 applies to an application under section 20 to file in Court an arbitration agreement and for reference to arbitrator, and the limitation of three years, under Article 137 runs from date when the right to apply accrues. The right to apply would accrue when the cause of action accrues. To constitute a cause of action first a right must come into existence and secondly there must be its infringement or threat to infringe it. Cause of action denotes and determines the starting point of limitation. The nature of dispute or difference will have to be seen in each case and with reference to that it will have to be examined as to when the cause of action arose. A claim is not necessarily a difference between the parties unless that claim is disputed. Cause of action would therefore, arise when claim of one when it arises is denied or there is a threat to deny." 12. However, relying upon case of Jiwnani Engineering Works Pvt. Ltd. and V.G. Ghawda Pvt. Ltd. (supra) and dissenting from the case of Union of India and another v. M/s. Vijay Construction Co. (supra), the Calcutta High Court in the case of (Shankar Construction Co. Pvt. Ltd. v. Union of India)10, reported in A.I.R. 1984 Calcutta, 317 has held : "It appears clearly that the Calcutta High Court has held a completely different view regarding the time of accrual of the right to apply under section 20, Arbitration Act for the purpose of limitation and has repeatedly held that this right will accrue only upon demand being made for referring the dispute to arbitration, whereas, the Delhi and Allahabad High Court have held that the right to apply under section 20 will arise when the petitioner for the first time becomes entitled to claim the relief. Section 20, Arbitration Act, sub-section (1) clearly lays down that right to apply will arise where a difference has arisen to which the agreement applies. Section 20, Arbitration Act, sub-section (1) clearly lays down that right to apply will arise where a difference has arisen to which the agreement applies. Unless there is a "difference" no right to apply arises. In my view, the accrual of the right to have the relief will not entitle a petitioner to apply under section 20 unless the right to have the relief is disputed or denied. Hence the right to claim the relief and to apply under section 20, in most of the cases cannot arise, simultaneously as held by the Delhi and Allahabad Courts and I respectfully differ from the view they have taken. When a claim to have a relief arises against the respondent and the respondent does not dispute that right, there will be no occasion for applying under section 20 of the Act. Unless there is a dispute an agreement cannot be enforced." Srikrishna, J., of our Court has in the case of (Hiralal T. Shah v. The Muncipal Corporation of Greater Bombay)11, (in Arbitration Suit No. 1188 of 1992 decided on 28th July, 1992) has accepted the principle that Article 137 applies and application to file an arbitration agreement in Court has to be filed within three years of accrual of right to apply to Court under section 20 of the said Act. However, on the facts of the case before him, he held that the claim of the petitioner before him to apply for filing the arbitration agreement in Court was barred by limitation. As observed by Earl of Halsbury L.C. in the case of (Quinn v. Leathem)12, reported in (1901) A.C. 495, every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found and that a case is only an authority for what it actually decides. 13. Dharmadhikari, J., in the case of (M/s. Rupam Pictures and another v. Dr. Brijmohan and others)13, reported in A.I.R. 1977 Bom. 13. Dharmadhikari, J., in the case of (M/s. Rupam Pictures and another v. Dr. Brijmohan and others)13, reported in A.I.R. 1977 Bom. 425 has held that the question as to whether the provisions of Article 137 of the Limitation Act, 1963 will apply to an application under section 20 of the said Act or not is a pure question of law, the question as to when the right to apply accrued is a question of fact, or in any case is a mixed question of law and fact. As aforesaid under Clause 96 of the said General Conditions of Contract any doubt, dispute or difference between the 1st defendant and the plaintiff touching or concerning the said work or in anyway relating to the interest of the 1st defendant or the plaintiff was required to be referred to the 2nd defendant who was required to give his decision within 90 days of such reference. Since no decision was given by the 2nd defendant, such dispute could be referred by the plaintiff to arbitration as per Clause 97 of the said General Conditions of Contract as the right to invoke the said Clause 97 arose of failure on the part of the 2nd defendant to give his decision. The plaintiff had invoked the said Clause 97 containing the arbitration agreement vide her advocates' letter dated 30th July, 1991 and had called upon the 1st defendant through the 2nd defendant to refer the disputes that has arisen to arbitration in accordance with the said agreement. Since the defendants did not comply with the requisitions contained in the said letter, the right to apply to Court under section 20 of the said Act accrued in favour of the plaintiff on that day and the petition having been filed within three years thereform is in time and not barred by limitation. There is a distinction between the claim being barred under the Limitation Act, and right to apply under section 20 of the said Act, which is only a machinery section for referring the disputes to arbitration by an Order of Court. In the case of (Md. There is a distinction between the claim being barred under the Limitation Act, and right to apply under section 20 of the said Act, which is only a machinery section for referring the disputes to arbitration by an Order of Court. In the case of (Md. Osman v. Union of India)14, reported in A.I.R. 1969 S.C. 474 which has followed a previous Supreme Court decision in (Wazir Chand Mahajan v. Union of India)15, reported in A.I.R. 1967 S.C. 990, Supreme Court has held that whether the claim to be made in the reference to arbitration is barred or not is a question to be decided by the arbitrators and not by the Court in an application under section 20 of the said Act. The disputes or differences which have arisen between the plaintiff and the defendants being such to which the arbitration clause in question applies, the application under section 20 of the said Act cannot be dismissed on the ground that the claim will not ultimately succeed either on facts or in law. 14. I have heard both the learned Counsel on the footing of final hearing of the petition. The petition is made absolute in terms of prayer (a). The parties are directed to appoint arbitrator in accordance with arbitration agreement on or before 22nd September, 1992. In the event of arbitrator being not appointed on or before 22nd September, 1992, the plaintiff be at liberty to apply to this Court for further directions regarding appointment of arbitrator without filing fresh petition and merely on precipe. No order as to costs of the petition. Order accordingly. -----