JUDGMENT 1. - This is a revision against the order of learned District Judge, Banswara dated 3.5.97 by which he came to the conclusion that the whole claim had been decided and there was no necessity to refer the six matters to the Arbitration as per clause 7-A of the agreement. 2. I have heard learned counsel for both the parties at length. 3. Relevant facts may be stated as follows : Some tenders were invited by the Executive Engineer, Distribution Division-1 (LMC), Mahi Bajaj Sagar Project, Gadhi, District Banswara on behalf of the State of Rajasthan for execution of the work of Lining of Gopinath Ka Gadha minor km. 9 to 10. The appellant also submitted his tender and the same being lowest was accepted on behalf of the Governor of the State of Rajasthan. An agreement was executed between the parties being agreement No. 171/1988- 89. It contains the following clause - "Clause 7-A. - The final bill shall be paid within 3 months for contracts costing upto Rs. 3 lacs and within 6 months for contracts costing more than Rs. 3 lacs on presentation by the contractor. If there shall be any dispute about any item(s) of the work, then the undisputed item(s) only shall be paid within the said period of 3 months or 6 months as the case may be. The contractor shall submit a memorandum of the disputed items alongwith justification in support within 30 days from the disallowance thereof and if he fails to do this his claim shall be deemed to have been fully waived and absolutely extinguished." 4. It also contains clause 23, which reads thus- "If any question, difference or objection whatsoever shall, arise in any way in connection with or arising out of this instrument or the meaning of operation of any part thereof or the rights duties or libilities of either party, then save in so far as the decision of any such matter as herein before provided for and has been so decided, every such matter constituting a total claim of Rs. 5000/- or above whether its decision has been otherwise provided for and whether it has been finally decided accordingly, or whether the contract should be terminated or has been rightly terminated and as regards the right or obligations of the parties as the result of such termination shall be referred for adjudication to a sole arbitrator to be appointed as here in after provided. For the purpose of appointing the sole arbitrator referred to above, the Chief Engineer will on receipt of notice and prescribed fee from the contractors send a panel of 3 names not below the rank of Superintending Engineer of the Rajasthan Government and who shall all be presently unconnected with the contract. The contractor shall on receipt of the names as aforesaid select any one of the persons named, to be appointed as a sole arbitrator and communicate his name to the Chief Engineer. The Chief Engineer shall thereupon appoint the said person as the sole arbitrator without delay. The arbitrator shall give reasons for award. Subject as aforesaid the provisions of the Arbitration Act, 1940, or any statutory modification or reenactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceedings under this clause". 5. The appellant submitted an application under Section 20 of the Arbitration Act for appointment of an arbitrator and also submitted that the following points are to be decided by the arbitrator- " 1- izfroknhx.k ds }kjk mRrjnkf;Ro dh ikyuk ugha fd;s tkus ls vf/kd le; rd oknh dks dk;Z pykuk iM+kA ftlls etnwjh ds jsV c<+ x;sA ftlls oknh dks 1]50]000@& :i;k vf/kd [kpZ djuk iM+kA 2- foHkkx }kjk vuqcU/k dh ikyuk ugha djus ds dkj.k pkj lky dk le; yxkA ftlls eVsjh;y iRFkj] jsrh] feV~Vh] fMty vkfn ds ewY; esa Hkkjh o`f) gks xbZ o blesa oknh dks 1]50]000@& :i;k vf/kd O;; djuk iM+kA 3- etnwj o e'khujh lqLr cSBs jgsA blds dkj.k oknh dks 60]000@& :i;s dk uqdlku gqvkA 4- vksoj gsM pktsZt esa oknh dks 2]75]000@& vf/kd O;; djuk iM+kA 5- vuqcfU/kr dk;Z yEcs le; rd pyus ls oknh u;s Bsds ugha ys ldk vkSj Bsdsnkj dks 2]75]000@& ds ykHk dk uqdlku gqvkA 6- oknh dks ekufld o 'kkjhfjd ijs'kkfu;ksa dk lkeuk djuk iM+k o bl en ij 50]000@& :i;s oknh izfroknhx.k ls izkIr djus dk vf/kdkjh gSA " 6. In reply, the respondents denied the allegations and submitted that the appellant did not fulfil his duties with the result that the work could not be completed during the specified period and, therefore, he was not entitled for any amount as claimed by him. Learned District Judge was of the opinion that there did not remain any dispute pending between the parties and as such there was no necessity to appoint an arbitrator to go in the questions. One of the reasons relied by the learned District Judge was that the final bill was paid to the appellant and he did not raise any objection at the time of accepting the payment. Even security deposit was withdrawn by the appellant without any objection. Learned counsel for the respondents submitted that as per clause 7-A when the objection was raised, it meant that the claim shall be deemed to have been fully waived and absolutely extinguished. This is what the learned District Judge has also concluded after having gone through clause 7-A of the agreement. Learned District Judge relying on M/s Bansal Construction Co. v. I.O.C. Ltd., AIR 1993 Delhi page 76 , came to the conclusion that the arbitration clause in contract stands discharged and could not be invoked. 7. Learned counsel for the appellant cited Union of India & Anr. v. M/s. L.K. Ahuja & Co., AIR 1988 SC 1172 , in which it has been observed that when the contractor had accepted the payment and giving no claim declaration, he subsequently claims certain amount as due on contracts and claiming reference to arbitrator. This reference was denied. But the Hon'ble Apex Court held that the application was maintainable and it is for the arbitrator to decide whether the claim subsists or not. In this citation it has been clearly observed that 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 weakened but the claim subsists and whether it does subsist, is a matter which is arbitrable. In view of this observation of the Hon'ble Supreme Court the learned District Judge was not right in holding that the claim does not subsist. In view of this observation of the Hon'ble Supreme Court the learned District Judge was not right in holding that the claim does not subsist. He had no jurisdiction to decide whether the claim subsists as it is only the arbitrator who is to decide about it. 8. This Court in M/s Allied Agencies & Company v. Union of India through G.M. Western Railway, 1992(2) WLC (Raj.) page 325 , which is relied upon by the learned counsel for the appellant, has observed that even in cases where the claim is barred by limitation, question is to be decided by the arbitrator himself whether the claim was barred on nor. In the case in hand, clause 23, as quoted above, is a part of the agreement. Keeping in view this clause and the law as laid down by the Hon'ble Supreme Court in Union of India v. M/s L.K. Ahuja & Co. (supra) the appeal deserves to be allowed. 9. Consequently, the appeal is allowed and the order of District Judge, Banswara dated 3.5.97 is set-aside. He is directed to proceed with the matter of appointment of arbitrator according to law under Arbitration Act. Parties are directed to appear before him on 21.12.1998.Appeal Allowed. *******