JUDGMENT Kamlesh Sharma, J. - These three applications under Section 20 of the Arbitration Act are registered as Civil Suits No. 60 of 1990, 61 of 1990 and 62 of 1990. As these are between the same parties and common questions of law are involved, these suits are being disposed of by a common judgment. 2. In these three Civil suits, the claimants-plaintiffs are M/s. R. K. Kapila, Engineers, Contractors (hereinafter called 'the claimants'). The defendants are M/s. National Hydro Electric Power Corporation Ltd., A Government of India Enterprise, and its Manager, Concrete Dams Circle, Chamera Hydro Electric Project, Dalhousie, Chamba. The claimants were granted three different construction works for which they entered into three different agreements. But the terms and conditions of these agreements are identical. The works have been completed long back and final bills and security deposits have also been released. The claimants were not satisfied. They have raised certain disputes and have requested the defendants to refer them to arbitration. Having failed the claimants have now approached this Court by way of applications under Section 20 of the Arbitration Act. 3. The defendants have taken identical defence in all the three suits. They have raised two identical preliminary objections in each suit; that the claims made by the claimants are barred by limitation as provided under sub-clause 55.5 of the agreement and are not arbitrable owing to finality clause 53 of the agreement. According to the defendants in Civil Suit No. 60 of 1990, the work was completed by the claimants on 10th December, 1985 and the final payment and security money was accepted by them in the month of May, 1987 without any protest. They have brought on record a copy of Measurement Book wherein an endorsement has been made on behalf of the claimants that, "Duly accepted, Full and final payment, settlement of recoveries accepted". The defendants have further denied that the claimants had, through their various letters, one of which was dated 5th August, 1989, raised disputes or differences in respect of their claims of Rs. 21,03,492.33 P. as alleged in their application. They have not received any such letter. As per sub-clause 55.5 of the agreement, the claimants were required to serve notice of existence of the disputes and differences within thirty days of the defect liability period which was six months in this case. 21,03,492.33 P. as alleged in their application. They have not received any such letter. As per sub-clause 55.5 of the agreement, the claimants were required to serve notice of existence of the disputes and differences within thirty days of the defect liability period which was six months in this case. In their replication, the claimants have reiterated their averments made in the application and have denied the contrary stated in the reply. They have denied that fine payment was accepted without any dispute or protest. According to them, as a matter of procedure, the defendants do not pass final bills unless accepted without protest by the contractor. As per this practice, the signatures of the claimants were obtained under pressure and coercion which cannot debar them from changing the correctness of the final bills. They have placed on record a copy of the letter dated 3rd August, 1990 received by them in a different contract to show that a pressure was exerted on them at the time of preparation of final bills. The claimants have also denied that the defect liability period was six months from the date of the completion of the work. 4. Almost similar pleadings were exchanged between the parties in the other two civil suits No. 61 of 1990 and 62 of 1990. In Civil Suit No. 61 of 1990, it was alleged by the defendants that the work was completed on 7th June, 1986 and the final bill was accepted by the claimants, without any protest, in the month of February, 1987. They have admitted that notice dated 3rd July, 1987 in respect of claims of Rs. 8,36,830.80 P. was received by them on 7th July, 1987 after the expiry of defect liability period of 12 months. The claimants had further made supplementary claim of Rs. 1,28,410.25 vide their letter dated 17th August, 1987. According to the defendants, these claims were examined by them but were found inadmissible. Accordingly, they had intimated the claimants vide their letter dated 19th February, 1988. The precise stand of the defendants in respect of the claims made by the claimants, as stated in Para 2 "On Merits" of their reply is : "...... except claim at Serial Nos. 3, 9, 14, 15, 16, 17, 18 and 21 are dehors and are not admissible under the contract. The precise stand of the defendants in respect of the claims made by the claimants, as stated in Para 2 "On Merits" of their reply is : "...... except claim at Serial Nos. 3, 9, 14, 15, 16, 17, 18 and 21 are dehors and are not admissible under the contract. As clause 46 i.e. increase in cost of labour, petrol and diesel has been deleted from the contract, hence not admissible. The supplementary claims raised by the plaintiff vide his letter dated 17.8.1987 are also not admissible as per schedule 'B' of the contract which clearly states that the store issue rates do not include storage charges hence the storage charges were deducted from the plaintiff's bill, therefore, his claim at serial number 1 was not found tenable. With regard to claim at S. No. 2, it is stated that clause 47.3 of the Contract which envisages that no Central or State Sales Tax on completed work under the contract is payable at present. If such taxes become payable during the currency of contract, these will be reimbursed by the Corporation on production of proof of payment ...." The defendants have also denied that the Assistant Manager (Contract) is the competent authority under the agreement for making a reference to the Arbitrator and he has failed to perform his function. According to the defendants, in fact, there was no question to refer the disputes or differences raised by the claimants to the Arbitrator as these were time barred and not arbitrable for which the claimants were duly informed. In the replication, the claimants have reiterated the "averments made in their application and denied the contrary stated in the reply. They have explained the circumstances under which they were made to accept the final bill without protest as they have done in Civil Suit No. 60 of 1990. Their stand is that despite their accepting the final bill without protest, their right to challenge the final bills subsists. They have also denied that the claims were time barred and were not referable to arbitration. 5. In Civil Suit No. 62 of 1990, it is alleged by the defendants that the work was completed by the claimants on 20th October, 1987 and final payment was received by them on 3rd November, 1987 without any protest. They have also denied that the claims were time barred and were not referable to arbitration. 5. In Civil Suit No. 62 of 1990, it is alleged by the defendants that the work was completed by the claimants on 20th October, 1987 and final payment was received by them on 3rd November, 1987 without any protest. They have denied that any notice, as mentioned in Para 3 of the application, raising the claim of Rs. 3,16,180.74 was received by them. According to the defendants, the limitation period for raising the disputes or differences in respect of their claims in the present suit, as laid down under sub-clause 55.5 of the Agreement, had ended on the completion of defect liability period of six months which had started immediately after the completion of the work, that is, on 20th October, 1987. Since the claimants had accepted the final payment without any protest and not raised disputes or differences, within the stipulated period, their rights and claims are deemed to have been waived and forfeited and have become time barred. The defendants have also raised the plea that the claims are not arbitrable in view of the Finality Clause 53 of the agreement. In their replication, the claimants have reiterated the averments made in the application and denied the contrary stated in the reply. Their explanation for accepting the final bill without protest is the same as in Civil Suit No. 60 of 1990, and Civil Suit No. 61 of 1990. They have denied that the defect liability period was six months after the completion of the work and re-asserted that they had raised disputes or differences, as alleged by them in the application, which are referable to arbitration. 6. On the pleadings of the parties, identical issues were framed in each of the three suits : (1) Whether any dispute pursuant to the contract entered into between the parties exists which is capable of being referred to the arbitrator as per its terms as alleged ? OPP (2) Whether the claim of the applicant is time barred as alleged ? OPD (3) Relief. 7. The parties were permitted to adduce evidence by way of affidavits. The claimants have filed affidavit(s) of Sh. R. K. Kapila whereas the defendants have filed the affidavit(s) of Sh. Ravinder Raina. OPP (2) Whether the claim of the applicant is time barred as alleged ? OPD (3) Relief. 7. The parties were permitted to adduce evidence by way of affidavits. The claimants have filed affidavit(s) of Sh. R. K. Kapila whereas the defendants have filed the affidavit(s) of Sh. Ravinder Raina. Assistant Manager (C), R & C Division, Chamera Hydro Electric Project, District Chamba in Civil Suits No. 60 of 1990 and 62 of 1990 and of Sh. Om Parkash, Deputy Manager (Civil), Chamera Project, District Chamba in Civil Suit No. 61 of 1990. But in these affidavits, the allegations made in their pleadings have been reiterated. Neither any additional averment has been made nor any document has been brought on record to substantiate their respective cases. 8. I have heard the learned counsel for parties and gone through the record. The issues-wise findings of this Court are as under : Issue No. 2 9. From the reply of the defendants as well as Issue No. 2, it is clear that the objection raised by the defendants is that the claims of the claimants are time barred and is not that their applications under Section 20 of the Arbitration Act are time barred. These are two different aspects which need not be mixed up as held by the Supreme Court in Union of India and another v. M/s. L. K. Ahuja and Co. (AIR 1988 SC 1172). In para 8 of judgment, it has been held : "In view of the well-settled principles we are of the view that it will be entirely wrong to mix up the two aspects, namely, whether there was any valid claim for reference under Section 20 of the Act, and, secondly, whether the claim to be adjudicated by the arbitrator, was barred by lapse of time. The second is a matter which the arbitrator would decide unless, however, if on admitted facts a claim is found at the time of making an order under Section 20 of the Arbitration Act, to be barred by limitation. In order to be entitled to ask for a reference under Section 20 of the Act, there must be an entitlement to money and a difference or dispute in respect of the same. In order to be entitled to ask for a reference under Section 20 of the Act, there must be an entitlement to money and a difference or dispute in respect of the same. It is true that on completion of the work, right to get payment would normally arise and it is also true that on settlement of the final bill, the right to get further payment gets weekend but the claim subsists, and whether it does subsist is a matter which is arbitrable ...." In an earlier judgment in Wazir Chand Mahajan and another v. Union of India (AIR 1967 SC 900), the learned Judges of the Supreme Court have said : "... In dealing with an application for filing an arbitration agreement, the Court must satisfy 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." 10. In this judgment, on the interpretation of Section 37(1) of the Arbitration Act and Art. 181 of the old Indian Limitation Act, 1908, it was also held that Section 37(1) 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 Section 37(1) does not confer authority upon the Court to reject the application for filing of an arbitration agreement under Section 20 of the Arbitration Act because the claim is not made within three years from the date on which the right to apply arose ..." Further, in The Vulcan Insurance Co. But Section 37(1) does not confer authority upon the Court to reject the application for filing of an arbitration agreement under Section 20 of the Arbitration Act because the claim is not made within three years from the date on which the right to apply arose ..." Further, in The Vulcan Insurance Co. Ltd. v. Maharaj Singh and another (AIR 1976 SC 287), while interpreting a clause in the insurance policy which provided that the company was liable for any loss or damage after the expiration of 12 months from the happening of the loss or the damage, the learned Judges of the Supreme Court have held that such a clause was not hit by Section 28 of the Contract Act and had not prescribed a period of limitation of 12 months for filing application under Section 20 of the Arbitration Act. The limitation for application under Section 20 of the Arbitration Act is prescribed under Art. 137 of Indian Limitation Act, 1963 and is three years. Relying upon their earlier decision in Wazir Chand Mahajan and another v. The Union of India (supra), they have held that : "... if the difference which had arisen between the parties was the one to which the arbitration clause applied 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 the decision of the arbitrator ..." 11. Admittedly, in the present case, the objection raised by the defendants is that since, the claimants have not given notice of existence of disputes or differences in respect of their claims, within 30 days of the expiry of the Defect Liability Period, their claims have become time barred in terms of sub-clause 55.5 of the agreement. Sub-clause 55.5 of the agreement is : "55.5 A notice of the existence in question, dispute or difference in connection with the contract, unless served by either party within 30 days of the expiry of the Defects Liability Period, failing which all rights and claim under this contract shall be deemed to have been waived and thus forfeited and absolutely barred." Sub-clause 55.5 is part of Clause 55 of the agreement which provides for arbitration. In fact, sub-clause 55.5 applies to arbitration proceedings before the arbitrator and provides a defence to the defendants that the claims are deemed to have been waived and/or forfeited and/or have become time barred as no notice was served within thirty days of the expiry of the Defect Liability Period by the claimant party. Such a plea relates to the merit of the claim which is to be decided by the arbitrator. Further, sub-clause 55.5 does not over-ride the arbitration agreement. If despite clause 55.5 the arbitration agreement subsists, it cannot govern the proceedings under Section 20 of the Arbitration Act. For taking this view, this Court has relied upon the Division Bench judgment of Delhi High Court in Jai Chand Bhasin v. Union of India and another (AIR 1983 Delhi 508), wherein the learned Judges interpreting a similar clause in an agreement have held : "... Reference to the relevant part of clause 25 only means that if the demand for arbitration is not made within stated time, the claim of the contractor will be deemed to have been waived. This part of Clause 25 does not make the agreement between the parties void nor does it in any manner touch the agreement of the parties to refer their disputes arising out of contract to the arbitrator. This part of Clause 25 really is only one of the defences to any particular claim being raised by the applicant, and the Union may successfully resist it subject to its proving the conditions laid down in the sub-clause. But the said sub-clause does not make the existing arbitration agreement non-existent. This plea relates to the merit of the claim - whether it be on the ground of time or on the merits - all of them necessarily must be decided by the arbitrator. This particular plea cannot be invoked at the threshold as a shield against the matter being referred to the arbitrator under Section 20 of the Act. Reference to arbitration can only be avoided if the plea was that there was no arbitration agreement, but no such plea is even suggested. The provision in Clause 25 that claim will be deemed to have been waived has no relevance in these proceedings under Section 20 of the Act. Reference to arbitration can only be avoided if the plea was that there was no arbitration agreement, but no such plea is even suggested. The provision in Clause 25 that claim will be deemed to have been waived has no relevance in these proceedings under Section 20 of the Act. The question whether the claim has become time barred is for the arbitrator to decide ..." The learned Judges of Delhi High Court have relied upon a number of earlier judgments of their Court and other Courts in the judgment. 12. From the case law cited above, by now it is well settled that an application under Section 20 of the Arbitration Act is governed by Article 137 of the Limitation Act, 1963 and the period of limitation is three years. The reference under Section 20 of the Arbitration Act can be sought only when there is an arbitration agreement and a dispute or difference has arisen to which this agreement applies. A dispute or difference arises when there is a claim and a denial and repudiation of the claim. It is true that on completion of the work, a right to get payment normally arises and by acceptance of final bill, without any protest by the claimant; it can be presumed that the claims are finally settled. But in the circumstances, as shown in the present case, it cannot be held that after the payment of final bills the claims were finally settled and the claimants have no right to agitate them and ask for their reference to the arbitrator. The facts and circumstances on record do suggest that the claims might have subsisted and the claimants might have a right to get further payments. In fact, this is also arbitrable whether the claims have subsisted in the present case or not. Please see : Union of India and another v. L. K. Ahuja and Co. (supra). 13. In view of the above discussion, it will all depend upon the facts and circumstances of each case when the period of limitation of three years for filing an application under Section 20 of the Arbitration Act has started and ended. Please see : Union of India and another v. L. K. Ahuja and Co. (supra). 13. In view of the above discussion, it will all depend upon the facts and circumstances of each case when the period of limitation of three years for filing an application under Section 20 of the Arbitration Act has started and ended. In Civil Suit No. 60 of 1990, the claimants have stated that the cause of action had arisen to them, firstly, when the final bill was paid to them and their claims, which they had already agitated, were not settled and, secondly, on 5th August, 1989 when they lastly sent a letter to defendants to refer their claims to the arbitrator. The defendants have denied that the claimants had earlier raised any dispute in respect of their claims and they had received letter dated 5th August, 1989. The claimants have not proved these allegations by placing any document on record. However, they could file their claim within three years from the date of receipt of payment of final bill, that is, in May, 1987 (no specific date given) and the suit was filed on 24th May, 1990, which is within time. 14. So far Civil Suit No. 61 of 1990 is concerned, the final bill was paid in the month of February, 1987 and notice dated 3rd July, 1987 of the claimants was received by the defendants on 7th July, 1987. However, notice for supplementary claims was also issued on 17th August, 1987. Both these notices were considered and rejected by the defendants vide their letter dated 19th February, 1988 whereas the suit was filed on 24th May, 1990. As such, it is within the period of limitation of three years from the date when the claims of the claimants were rejected on 19th February, 1988. Similarly, in Civil Suit No. 62 of 1990, the final bill was paid on 3rd November, 1987 and the suit has been filed on 24th May, 1990 within the period of limitation of three years. Like in Civil Suit No. 60 of 1990, in this case also, the defendants have not admitted having received any communication including the notice dated 5th August, 1989 from the claimants wherein the claimants had raised their claims made in this suit. The claimants have also not placed any such letter on record. Like in Civil Suit No. 60 of 1990, in this case also, the defendants have not admitted having received any communication including the notice dated 5th August, 1989 from the claimants wherein the claimants had raised their claims made in this suit. The claimants have also not placed any such letter on record. However, it will also be decided by the Arbitrator that after the payment of the final bills, any of the claims of the claimants in respect of which they have raised disputes or difference still subsists which can be decided by him. In the result, Issue No. 2 is decided against the defendants and in favour of the claimants. Issue No. 1 15. In order to substantiate their respective stands that the disputes raised by the claimants are arbitrable or not, the parties have not made necessary pleadings and placed on record any document. Only in Civil Suit No. 62 of 1990, the claimants in Para 2 of their application have mentioned the items in respect of which they have made a claim of Rs. 3,16,180.74 P. The defendants have only relied upon the Finality Clause 53 of the agreement to state that all the claims made by the claimants are covered under it and are not referrable to arbitration. Clause 53 of the agreement is as under : "Clause 53 : Finality Clause It shall be accepted as an inseparable part of the contract that in matters regarding materials, workmanship, removal of improper work, interpretation of the contract drawings and contract specifications, mode of procedure and the carrying out of the work as stipulated in the clause Nos. 7, 8, 10, 13, 17, 18, 21, 23, 24, 29, 32, 34, 37, 38, 40, 41 and 44, the decision of the Engineer-in-charge, which shall be given in writing shall be final and binding on the contractor." 16. It is correct that all those matters which are referred to in clause 53 of the agreement are required to be decided by the Engineer-in-charge whose decision, which shall be in writing, is final and binding on the contractor. It is also correct that for all those matters which are covered under clause 53, there is no arbitration provided under clause 55.1 of the agreement. Clause 55.1 is : "55.1. It is also correct that for all those matters which are covered under clause 53, there is no arbitration provided under clause 55.1 of the agreement. Clause 55.1 is : "55.1. Except as otherwise provided in clause 53 herein before, all questions, disputes or differences in respect of which the decision has not been final and conclusive, arising between the contractor and the Corporation, in relation to or in connection with the contract shall be referred for arbitration in the manner provided as under and to the sole arbitrator appointed as follows : (i) Either of the parties may give to other notice in writing of the existence of such question, dispute or difference; (ii) Within thirty (30) days of receipt of such notice from either party the Chief Engineer-in-charge of work at the time of such dispute shall send to the contractor a panel of three persons and thereafter after the contractor within fifteen (15) days of receipt of such panel communicate to the Chief Engineer the name of one of the persons from such panel and such a person shall then be appointed sole arbitrator by the Chief Engineer. (iii) Provided that if the contractor fails to communicate the selection of a name out of the panel so forwarded to him by the Chief Engineer then after the expiry of the aforesaid stipulated period the Chief Engineer shall without delay select on person from the aforesaid panel and appoint him as the sole arbitrator." Relying upon Vishwanath Sood v. Union of India and another (AIR 1989 SC 952) and Prabartak Commercial Corporation Ltd. v. Chief Administration Dandakaranya Project and another ((1991) 1 SCC 498), the defendants have urged that the disputes raised by the claimants are covered under Finality Clause 53 of the agreement is only the Engineer-in-Charge has the jurisdiction to decide them and not the Arbitrator. Admittedly, no such decision has been taken by the Engineer-in-charge in respect of the claims made by the claimants. During the course of arguments, this Court directed the claimants to place on record, in all the three suits, their claims in respect of which they have raised disputes or differences and also heard the learned counsel for the parties, whether these are referrable to arbitrator or not. During the course of arguments, this Court directed the claimants to place on record, in all the three suits, their claims in respect of which they have raised disputes or differences and also heard the learned counsel for the parties, whether these are referrable to arbitrator or not. But in the absence of pleadings and the evidence on record, it is not possible to decide, which of the claims of the claimants is covered by the Finality Clause 53 of the agreement and which is referrable to arbitration. So far legal position is concerned, it is settled in the cases of Vishwanath Sood and Prabartak Commercial Corporation Ltd. (Supra) that in those matters in which the decision of the Engineer-in-charge is made final under a clause of the agreement, the arbitrator will have no jurisdiction if those matters are excluded from arbitration. In the circumstances, this court has two alternatives either to dismiss these suits or to leave it to the arbitrator, before whom the parties will lead evidence, to decide only those disputes or differences which are not covered by the Finality Clause 53 of the agreement. There might be some claims of the claimants in respect of which the disputes might be within the jurisdiction of the arbitrator, therefore, it will be in the interest of justice and fair play to adopt second alternative and make a reference of those disputes which are referrable under clause 55(1) and which do not fall under clause 53 of the agreement. Before considering the claims and giving award, the arbitrator(s) will first decide whether these fall within his jurisdiction or not. Issue No. 1 is decided accordingly. Issue No. 3 (Relief) 17. In view of the decision on issues No. 1 and 2, only those of the disputes raised by the claimants are referred to arbitration which are not covered by the Finality Clause 53 of the agreement. The Chief Engineer-in-charge of the work will appoint arbitrator(s) within a period of 30 days from the date of receipt of certified copy of this judgment as laid down under clause 55.1 of the judgment. All the three suits are accordingly decided. No costs. Ordered accordingly.