- (1.) THIS appeal under Section 37 of the Arbitration and Conciliation Act, 1996 ('the Act') has been filed against the order dated 22.12.2011 passed by the District Judge, Jaisalmer, whereby the application filed by the appellant for setting aside the arbitral award under Section 34 of the Act was dismissed.
(2.) THE brief facts of the case may be noticed that an agreement was entered into between the appellant ­ Union of India and the respondent contractor for construction of 'married accommodation at Pokran'. The work was completed on 9.6.2004 and the contractor accepted the final bill under protest, but later on the protest was withdrawn. It appears that the notice sent by the contractor under of the Act for appointment of arbitrator was turned down by the appellant inter alia on the ground that no arbitrable dispute remained.
(3.) THE contractor approached this Court under Section 11(6) of the Act and the arbitration application filed by the contractor was allowed by order dated 4.5.2007 in M/s. Maheshwari Builders v. Union of India & Anr. : S.B. Civil Misc. Arbitration Application No.98/2006. This Court, while appointing arbitrator and referring the dispute to him observed thus : "The dispute had arisen between the parties out of the said contract and clause 70 of the contract agreement provides that such dispute is referable to arbitrator. The notice under Section 11 of the Act of 1996 having been served on the respondents vide Annex.4 dated 15/6/2006, the request was refused by saying that applicant has received the full payment and thus dispute is not referable. Apparently, it cannot be stated that no dispute exists between the parties. The fact that some bills have been passed by the respondents and payment has been received by the applicant in the ordinary course of business, it does not preclude the party from raising dispute about finality of the bill. Such dispute do arise out of the contract. Accordingly, the dispute was referable to arbitrator in terms of the agreement but the respondents have failed to do so vide Annex.5 dated 13/7/2006." ;