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Judgment
R.L. Anand, J.—I have heard the learned counsel for the parties and with their assistance have gone through the record of the case. This revision is hereby allowed and while allowing the revision I rely upon Union of India (UOI) and Another Vs. L.K. Ahuja and Co., and AIR 1997 Bombay 284, Ravindra Anant Desh-makh v. City and Industrial Development Corpora- tion of Maharashtra Ltd. and the judgment of this Court dated 20.1.2000 passed in Civil Revision No. 2489 of 1999 and hold that the matter should be referred to the arbitrator as per the arbitration clause.
I do not accept the contention of the learned counsel for the respondent that in the judgments relied upon by the counsel for the petitioner, the final bills were prepared by the Department. It will not make a difference so long there is a controversy between the contractor and the department with regard to the correctness of the final bills. This is a dispute within the meaning and interpretation of the arbitration clause itself.
Learned counsel for the respondent relies upon clause 65-A and submits ihat once the final bill has been submitted by the Contractor, as in the present case, he is not authorised to withdraw that bill by making a separate representation. Clause 65-A runs as follows :-
"Final Bill (Applicable only to Term Contracts). The Final Bill snail be submitted by the Contractor on I.A.F.W-2262 in duplicate, accompanied by all supporting abstracts, vouchers, etc. except I.A.Fs W-2158 and 1833 prepared in the manner prescribed by the G.E. within three months of physical completion of the works to the satisfaction of the Engineer-in-Charge. In respect of Works orders arising out of unit requisitions or M.E.S. inspections for maintenance and repairs, any portion of such an order which remains uncompleted at the date of the next subsequent requisition or inspection may purely to facilitate payment for completed work and without prejudice to any otherrighi or remedy of Government in respect of any such delay, be deleted and the Works Order, as so amended forthwith, billed for final payment. No further claims shall be made by the contractor after submission of a Final Bill and these shall be deemed to have been waived and extinguished. The contractor shall be entitled to be paid the full measured value ofthe Works Order, less the value of payments made on account and of any charges properly preferred under the Conditions of Contracts for Government Stores, etc. supplied on repayment, subject to the certifiation of the final bill by the G.E.
When fractions of a rupee occur in the totals of bills, fractions less than half a rupee shall be disregarded and half a rupee and over taken as a rupee.
No charges shall be allowed to the contractor on account of the preparation of a final bill".
In the view of this Court this clause creates a clog in the right of a contractor. The contractor has a right to say as to what amount is due to him from the Department. In the present case as stated above the Contractor has withdrawn the correctness of the earlier bills submitted by him and it is for the Arbitrator to adjudicate whether any claim is still due to the contractor or not.
In this view of the matter, the present revision is allowed and it is hereby declared that still, there exists a dispute between the parties which is to be settled by the Arbitrator as per arbitration agreement. The application u/s 20 of the Arbitration Act is allowed and the nominated arbitrator in the arbitration agreement is hereby appointed as Arbitrator who shall enter upon the reference and give the award within four months from the date of entrance of reference.
Revision allowed.