JUDGMENT : B.S. Chauhan, C.J. - This application u/s 11 of the Arbitration and Conciliation Act, 1996 (hereinafter called the 'Act') has been filed for appointment of an Arbitrator and for referring the dispute between the parties to him for adjudication. 2. The facts and circumstances giving rise to this case in brief are that Petitioner is a special class contractor. "He entered into a contract with opposite party No. 2 the Executive Engineer, Minor Irrigation Division, Padampur, District Bargarh under Agreement No. 95-F-2 for execution of the work relating to "Construction of Earth Dam with Dyke Head Regulator Chutes Spill-Way, approachy channel and surplus channel of Malkannalla MIP under the Executive Engineer, Minor Irrigation Division, Padampur" with stipulated date of commencement of work and completion as on 4.1.2000 and 4.4.2001 respectively. For various reasons as stated in the petition, the work could not be completed within the schedule time. The time was extended for completion of the work. However, the opposite parties closed the contract before the entire work under the contract could be completed. According to the Petitioner, it was the failure and laches on the part of the opposite parties which were solely responsible for no completion of the work within time. Petitioner raised various disputes vide notice dated 16.6.2003, upon the opposite parties, and asked for appointment of an arbitrator for adjudication of the same. In spite of such a demand, the opposite parties remained silent for more than three months and thus, the Petitioner ultimately approached this Court u/s 11 of the Act for appointment of an arbitrator and for referring the dispute between the parties for adjudication. 3. Learned Addl. Standing Counsel for the State/opposite parties submitted before the Court that Clause-50 of the Agreement provided for appointment of Arbitrator by the Arbitration Tribunal which was set up under the Arbitration Act, 1940 (hereinafter called the 1940 Act'), and therefore the Chief Justice had No. competence to entertain the application. The matter was considered and vide judgment and order dated 20.5.2005 the Arbitration petition was dismissed observing that in view of the provisions of Section 85 of the Act and the clauses relating to arbitration in the agreement, No. arbitrator could be appointed for adjudication of the dispute between the parties. The only remedy for the Petitioner was to seek arbitration from the Arbitration Tribunal constituted under the provisions of the 1940 Act. The only remedy for the Petitioner was to seek arbitration from the Arbitration Tribunal constituted under the provisions of the 1940 Act. Being aggrieved the Petitioner filed Civil Appeal No. 2350 of 2008 before the Hon'ble Supreme Court against the said judgment and order dated 20.5.2005 and vide judgment and order dated 1st April, 2008, the appeal has been allowed wherein it has been held that the Arbitration Tribunal set up under the 1940 Act did not exists and therefore the matter could not be referred to a non-existing Tribunal and it was the High Court to consider the case of appointment of the arbitrator u/s 11 of the Act to resolve the disputes and differences between the parties. In view thereof the matter is being reconsidered. 4. Learned Counsel for the Petitioner Mr. K.B. Panda has submitted that there was delay in execution of the work for which opposite parties were exclusively responsible and the contractor suffered for price hike. The opposite parties made the part-payment of the bills submitted by the Petitioner and a substantial part of bill was blocked by them for indefinite period causing financial loss to the Petitioner. The payment due under the final bill had been withheld, security deposit to the tune of Rs. 13 lakhs had not been refunded, the balance of the escalation charges had not been paid, financial loss arising out of men and machineries lying idle at site had not been settled, and for this purpose, he draw the attention of the Court to the averments made in paragraph 6 and 7 of the petition. 5. On the contrary, Shri J.M. Mohanty, learned Government Advocate submitted that apprehending the non-completion of work within the scheduled time, Petitioner himself applied for extension of time with an undertaking that he would not claim any compensation on account of any delay in completion of the work. The grounds for extension were Rainy Season, Non-finalistion,of drawing design of chute spillway, non-approval of cutoff trench (river gap portion), water problem in drought situation etc. It has further been submitted that payment of final bills has been received by the Petitioner on 27.9.2003 in full without any claim. It has been received without any protest. His total security deposit has been refunded. As per the terms of contract, No. payment is permissible towards escalation cost of diesel and materials. It has further been submitted that payment of final bills has been received by the Petitioner on 27.9.2003 in full without any claim. It has been received without any protest. His total security deposit has been refunded. As per the terms of contract, No. payment is permissible towards escalation cost of diesel and materials. For that, averments made in paragraph 8 of the counter affidavit have been referred to. It is further submitted by Mr. Mohanty that, as full payment had been paid to the satisfaction of the Petitioner and he has accepted it without any protest, No. dispute subsists and the question of making reference to the arbitrator does not arise. 6. I have considered the rival submissions made by the Learned Counsel for the parties and perused the record. 7. The averments made in paragraph 8 of the counter affidavit which has been filed on 26.2.2004, to the effect that the contractor/Petitioner has received the payment in full without any claim and his security deposit has also been refunded, had been replied in the rejoinder dated 9.7.2004 by the Petitioner stating that the Petitioner had received the payment on 11.2.2004 only in relation to the measurement done by the authorities regarding the work done by him and it had nothing to do with any compensation claimed by the Petitioner. 8. It is evident from the letter dated 8.11.2002 (AnnEx. -1) written by the Executive Engineer, Minor Irrigation Division, Padampur to the Chief Engineer, Minor Irrigation, Orissa that the contractor had completed all the works except river gap portion from R.D. 480 M. to 527 M. of the earth dam, as finalisation of phase-II forest clearance was delayed. The Chief Engineer, Minor Irrigation, Orissa during the course of inspection of the site on 8.2.2002 instructed to close the contract to avoid huge claim by way of escalation, idle charges of labour and machineries and it was further suggested that the work of river gap portion will be taken up after finalisation of forest clearance and by inviting fresh tender. Similarly the letter dated 20.2.2003 by the Superintending Engineer, N.M.I. Circle, Sambalpur to the Chief engineer reflects that due to non-sanction of time and contract closure proposal, the final bill of the contractor which would be about 1.50 lakhs was held up. The contractor was pressing hard for release of the same. Similarly the letter dated 20.2.2003 by the Superintending Engineer, N.M.I. Circle, Sambalpur to the Chief engineer reflects that due to non-sanction of time and contract closure proposal, the final bill of the contractor which would be about 1.50 lakhs was held up. The contractor was pressing hard for release of the same. However, it is evident from Annexure-7 to the counter affidavit that on 27.9.2003 the bill had been received by the Petitioner without any protest. The endorsement therein runs as under. Accept the Final Bill with full and final settlement to the measurement. In the footnote of the application for extension of time made by the Petitioner, he mentioned as follows: Certified that I shall not claim any compensation on any account from the Department for delay in completion of the work for my cause without affecting the prescribed Escalation clause in respect of work "Construction of Malkennallah M.I. P. " under Agreement. (Emphasis added) 9. The original record has been produced by the opposite parties-authorities and the facts figures are not in dispute. Thus the question does arise as to whether after giving such undertaking and making the above referred endorsement, the Petitioner is entitled to raise any dispute regarding the bills. 10. In Union of India (UOI) and Another Vs. L.K. Ahuja and Co., the Supreme Court, while considering the similar case under the 1940 Act held as under: In view of the well settled principles we are of the view that it will be entirely a wrong to mix up the two aspects, namely, whether there was any valid claim for reference u/s 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 u/s 20 of the Arbitration Act, to be barred by limitation. In order to be entitled to ask for a reference u/s 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 u/s 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 weakened but the claim subsists and whether it does subsist, is a matter which is arbitrable. While deciding the said case the Court placed reliance upon its earlier judgment in Major (Retd.) Inder Singh Rekhi Vs. Delhi Development Authority, . 11. In Union of India Vs. M/s. Popular Builders, Calcutta, the Hon'ble Supreme Court considered the similar issue and after placing reliance upon its earlier judgments in P.K. Ramaiah and Company Vs. Chairman and Managing Director, National Thermal Power Corpn., ; and Nathani Steels Ltd. v. Associated Constructions held as under: ...when the existence of an arbitrable dispute is the condition precedent for exercise of power for appointment of an arbitrator under Clause 25 and since the final bill that was prepared by the appropriate authority was accepted by the Respondent without any protest as is apparent from the letter' of the claimant Contractor and the question had been raised before the arbitrator in respect of Claim Item 2 by the Union of India, we think it appropriate to hold that so far as Claim Item 2 is concerned, the same could not have been a matter of reference of an arbitrable dispute and as such,..'' 12. In Jayesh Engineering Works v. New India Assurance Co. Ltd. the Apex Court held that whether the contract has been fully worked out and whether the payments have been made in full and final settlement are questions to be considered by the arbitrator when there is a dispute regarding the same. 13. In Bharat Coking Coal Ltd. Vs. Annapurna Construction, the Apex' Court laid down the law on the issues as under: Only because the Respondent has accepted the final bill, the same would not mean that it was not entitled to raise any claim. It is not the case of the Appellant that while accepting the final bill, the Respondent had unequivocally stated that he would not raise any further claim. It is not the case of the Appellant that while accepting the final bill, the Respondent had unequivocally stated that he would not raise any further claim. In absence of such a declaration, the Respondent cannot be held to be estopped or precluded from raising any Claim... 14. In Chairman and M.D., N.T.P.C. Ltd. Vs. Reshmi Constructions, Builders and Contractors the Supreme Court considered its large number of earlier judgments and, as in the said case the full and final bill had been settled with the contractor but it raised the dispute by writing a long letter to protest that the final bill was got signed under coercion, directed to make the reference to the arbitrator. The Apex Court held that the question as to whether the contractor has waived its contractual right to receive the amount or otherwise estopped from pleading otherwise, will itself be a fact which has to be determined by the Arbitral Tribunal. 15. Arbitration Petition No. 10 of 2002, between the parties in the case in hand, this Court dismissed the application for arbitration vide order dated 10.8.2007 holding that after signing the final bill and settling the matter finally as the contractor did not raise any grievance rather accepted the same without protest, the disputes did not survive and therefore the question of making the reference to arbitrator did not arise. That petition was dismissed with a cost of Rs. 10,000. 16. In view of the above the law can be summarised that before making a reference to the Arbitrator the Court is to examine as to whether any dispute subsists for which the reference can be made. The issue is to be determined after examining the record of the case. In the instant case the Petitioner while making tile application for extension has given an undertaking that he would not claim any compensation on any account from the department for delay in completion of the work. Further, the Petitioner had sent the notice for appointment of the arbitrator on 16.6.2003 and subsequently on 27.9.2003 he received the final bills i.e. after more than three months and while accepting the bills he had not made any protest and does not make a note that the balance amount/ compensation or notice for appointment of arbitrator is pending. Further, the Petitioner had sent the notice for appointment of the arbitrator on 16.6.2003 and subsequently on 27.9.2003 he received the final bills i.e. after more than three months and while accepting the bills he had not made any protest and does not make a note that the balance amount/ compensation or notice for appointment of arbitrator is pending. I fail to understand as during the pendency of the notice sent by the Petitioner for appointment of arbitrator, why he could not mention it while receiving the bill and what was the occasion for him to accept his bill with full and final settlement without any protest. 17. In view of the above, I am of the considered opinion that the dispute does not subsist and therefore No. reference is required under the provisions of the Act. The Arbitration Petition is accordingly dismissed. No. costs. Final Result : Dismissed