V. B. Bansal ( 1 ) [ed. facts : Plaintiff contracted to build flats for Respdt. Society and it was agreed that payments would be made to him within 30 days after certification of his bills by the Architect. His final bill was duly certified but payment was deferred on the ground of Shortage of funds with the Society. Plaintiff filed a suit for recovery of amount alongwith interest. Deft. made an application u/s. 34, Arbitration Act for stay which was allowed. Plaintiff filed F. A. O. against this]. After detailing above, judgment is : ( 2 ) LEARNED counsel for the appellant has submitted that the work of construction of flats was awarded to the appellant by the deft. regarding which an Agreement dated 29. 1. 1983 was executed and the conditions of contract were made part of this Agreement. it has further been submitted that Clause 37 related to the settlement of disputes and arbitration. It has further been submitted that it was a condition of the Agreement that the appellant would submit bills and the respondent would make the payment within 30 days of the issuance of a Certificate by the architects, M/s. Kothari and Associates. It has further been submitted that final bill was submitted by the appellant to the architects, who had issued a certificate dated 1. 11. 1985, which was presented to the Secretary of the respondent, who had made an endorsement dated8. 11. 1985 that the payment would be made when funds would be available. It has further been submitted that on account of the Certificate having been issued by the Architects in compliance of the terms of the Agreement, there was no dispute between the parties about the payment being due and, thus, the plaintiff had filed a suit for recovery. It has, thus, been submitted that there was no question of the matter being referred to Arbitrator and the Trial Court has gravely erred in allowing the application and staying the proceedings so that the parties may get the matter adjudicated by the Arbitrator. ( 3 ) LEARNED counsel for the defendant has, on the other hand, submitted that the plaintiff had not completed any work, as claimed, and that the plaintiff colluded with the Secretary of the Society and obtained an endorsement subsequently. ( 3 ) LEARNED counsel for the defendant has, on the other hand, submitted that the plaintiff had not completed any work, as claimed, and that the plaintiff colluded with the Secretary of the Society and obtained an endorsement subsequently. He has fuither submitted that the Society, in fact, had never been short of funds and the dispute having not been properly settled, the learned Trial Court has correctly stayed the proceedings so that the matter is adjudicated upon by the Arbitrator. He has also submitted that the respondent has always been ready and willing to refer the dispute to the named Arbitrator. He has, thus, submitted that there is no force in this appeal and that the same should be dismissed. ( 4 ) IT is the admitted case of the parties that Shri Balkar Singh was the Secretary of the respondent Society on 8. 11. 1985. Learned counsel for the defendant has not disputed the writing on the margin of the letter of M/s. Kothari and Associates in the hand of the aforesaid Shri Balkar Singh. The only plea raised by the respondent has been that this endorsement was obtained at a later stage and this document ought to have been in the custody of the respondent society. I do not find any force in this contention so as to hold that the proceedings before the Trial Court ought to have been stayed. ( 5 ) LEARNED counsel for the appellant has submitted that since this was a document on the basis of which the payment was to be claimed by the plaintiff, it was kept by the plaintiff so that the payment could be again asked for by showing this document. Apparently, the document shows that the accounts had already been settled and if that be the position, the only remedy available to the appellant was to file a suit for recovery. It would be open to the respondent Society to contest the suit and take the plea that no amount was due to the plaintiff or that the work which is claimed to have been carried out by the appellant was actually not carried out. I find support for this view from National Research Dev. Corp. vs. Bhupal Mining Works, 1973 P. L. R. 27. ( 6 ) ADMITTEDLY, the plaintiff had filed a suit for recovery under 0. 37, Civil Procedure Code. I find support for this view from National Research Dev. Corp. vs. Bhupal Mining Works, 1973 P. L. R. 27. ( 6 ) ADMITTEDLY, the plaintiff had filed a suit for recovery under 0. 37, Civil Procedure Code. However, the summons issued to the defendant were for settlement of issues. It is also apparent that as against the provision in the Agreement that the plaintiff could claim interest at the rate of 12% per annum for delayed payments, the interest claimed in the present case is 18%. Considering all these facts, I am clearly of the view that the case has to be tried as an Ordinary suit and not a suit under 0. 37. ( 7 ) IN view of my aforesaid discussion, the appeal is allowed and the order dated 19. 8. 89 is set aside. The Trial Court would take further proceedings in the matter in accordance with law.