K.S Gupta, J.— This Petition under section 11(6) of the arbitration & counciliation act, 1996 was filed by Pandit Munshi Ram & Associates Pvt. Ltd, interalia, alleging that it was awarded the work of construction of 288, Janta Flats for Harijans at Vasant Gaon, New Delhi and a formal agreement being No. 88.EE/S.W.D-7.D.D.A/A/89-90 executed between the parties also contained an arbitration clause No. 25. The petitioner sent a letter dated 6th December 1997 to the Engineer Member of DDA who is the persona-designata for appointment of arbitrator in terms of the said arbitration clause, to appoint an arbitrator to decide the disputes and differences which had arisen between the parties. Respondent-DDA in reply to the said letter demanded an application in requisite proforma vide their letter dated 24th February 1998. Vide its letter dated 3/6th April 1998 the petitioner sent the requisite proforma to the Engineer-Member for appointing an arbitrator. It is further alleged that the petitioner received letter CE(SWZ)/FO/18(46)98.Arbn./2209 dated 22nd September 1998 from the respondent-DDA whereby it refused to appoint an arbitrator on the ground of claims deemed to have been waived and barred under said clause 25. In reply to this letter the petitioner sent letter dated 21st October 1998 to the Executive Engineer pointing out that at no point of time any final bill had been given. Respondent-DDA neither sent any reply to this letter nor appointed an arbitrator for adjudication of the claims of the petitioner. It was prayed that an independent arbitrator be appointed by the court and the disputes be referred to him for arbitration.

Respondent-DDA has contested the petition by filing reply. Since the petition is being contested mainly on the ground of limitation, reference to that part of the averments made in the reply need be referred here. It is pleaded that the final bill and measurements were accepted by the petitioner on 2nd February 1994 and petition filed after expiry of period of three years reckoned from that date, is barred by limitation.

It was urged by Ms. Anusuya Salwan on behalf of respondent-DDA that in Kerala SEB v. I.P Kunhaliumma, (1976) 4 SCC 634 the Supreme Court held that Article 137 of the Limitation Act, 1963 would apply to a petition filed under the Arbitration Act, 1940 (for Short ‘the Act’) and this decision was followed in a later decision in Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority, (1988) 2 SCC 338. According to her, as the final bill and measurements were accepted by the petitioner on 2nd February 1994 the present petition which was filed on 30th July 1999, is hopelessly barred by time and thus deserves to be dismissed on that count. Reliance was placed on the decision in Union Of India v. Momin Construction Company, (1997) 9 SCC 97 and an unreported decision of a Division Bench of this court in FAO(OS)364/96 R.K Aneja v. Delhi Development Authority & Ors. decided on 12th October 1999. On the other hand, it was urged by Sh. D. Moitra for petitioner that the cause of action for a petition under section 11(6) of the arbitration & reconciliation act, 1996 would arise only when a claim to refer disputes to arbitration is made and it is rejected and as refusal to appoint an arbitrator was communicated by respondent-DDA by the letter dated 22nd September 1999 the petition is well within limitation, that the question whether claim is barred by limitation or not can be gone into only by the arbitrator and not the court. In support of the submission, reliance was placed on the decisions in Neginbhai C. Patel v. Union of India, 1999 (2) Arb.LR 343 (Bombay) ; B.T Patil & Sons Belgaum (Construction) Pvt. Ltd. v. Konkan Railway Corporation Ltd and Another, 1998 (Suppl) Arb.LR 189; Larsen & Toubro Limited v. Konkan Railway Corporation Limited, 1999 (2) Arb.LR 354 (Bombay); Jai Chand Bhasin v. Union of India and Another, AIR 1983 Delhi 508; Prafulla Kumar Singh Deo v. State of Orissa and Others, AIR 1989 Orissa 107 ; Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority, AIR 1988 SC 1007; Union of India and Another v. M/s. L.K Ahuja and Co., AIR 1988 SC 1172 and G. Ramachandra Reddy and Co. v. Chief Engineer, Military Engineering Service, AIR 1994 SC 2381.

Petitioner has placed on record the photostat copies of measurement book and final bill also containing endorsement regarding acceptance of the measurements and final bill in the hand of Suresh Kumar, representative of the petitioner company on 2nd February 1994. In the rejoinder filed to the reply of respondent-DDA the petitioner has not disputed that the final bill and mesurements were not accept on 2nd February 1994 by said Suresh Kumar on behalf of the petitioner as alleged.

In view of the decision in Kerala State Electricity Board (supra) it is now settled that Article 137 of the Limitation Act, 1963 applies to any petition or application filed under any Act to a Civil Court.

There is distinction between the plea that the claims raised are barred by limitation and the plea that the application for appointment of an arbitrator is barred by limitation. Adverting to the decisions, suffice it to say that three decisions referred to above rendered by Bombay High Court and the decisions in Jai Chand Bhasin and G. Ramchandra Reddy & Co. (supra) are not attracted as the point of applicability of said Article 137 in relation to filing of petitions under the Arbitration Act was not involved therein. Major (Retd) Inder Singh Rekhi's case (supra) is distinguishable as final bill had not been prepared in that case.

In M/s. L.K Ahuja's case (supra) as may be noticed from the discussion made in para 2 on page 1173 of the report, all the four awarded contracts were completed by the respondent on diverse dates and the last one was on 30th May 1971. Between 29th May 1972 to 19th June 1972 the respondent accepted the four final bills and gave no claim declaration in respect thereto. The respondent wrote a letter dated 16th April 1976 to the Additional Chief Engineer, R.E.N.R Allahabad stating that Rs. 1,91,137/- were still due on account of the work executed and requested him to refer the disputes to an arbitrator. On 4th June 1976 a reply was sent to the above letter stating that there were no disputes between the parties and hence no question of appointment of any arbitrator arose. Thereafter, on 13th December 1976 a petition under Section 20 of Arbitration Act, 1940 was filed by the respondent in the court of Civil Judge, Allahabad for appointment of an arbitrator which came to be dismissed by the order dated 10th February 1978 as being barred by limitation. On appeal this order was set aside by Allahabad High Court by the order dated 14th August 1986. It is this order which was under consideration in appeal before the Supreme Court. While dismissing the appeal in Paras 7 & 8 of the report on page 1175 which are material, it was held:—

7.”....It was contended before the learned Trial Judge that the work under all the four contracts had been fully executed by the appellant on different dates and the respondents claimed that the appellant had accepted full and final payment of the agreements which had been executed by it and no claim declaration in respect of the same had been given by the appellant. It was, therefore, submitted that since there was no dispute, the application filed under Section 20 of the Act, was misconceived. The trial court held that the court had no jurisdiction under Section of 20 of the Act. The respondent came up in appeal before the High Court. The question, therefore, was whether there was a valid claim under Section 20 of the Act to be referred in accordance with law.

8. In view of the well-settled principles we are of the view that it will be entirely wrong to mix up the two aspects, namely, whether there was any valid claim for reference under Section 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 under Section 20 of the Arbitration Act, to be barred by limitation. In order to be entitled to ask for a reference under Section 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. In this case, the claim for reference was made within three years commencing from April 16, 1976 and the application was filed on December 18, 1976. We are, therefore, of the view that the High Court was right in this case. See in this connection the observatins of this court in Major (Retd). Inder Singh Rekhi v. D.D.A AIR 1988 SC 1007.”

Another decision which has bearing on the issue hand relied on behalf of petitioner is Prafulla Kumar Singh Deo's case (supra). In this case facts as noticed in Para 4 of the report at page 107 were that the petitioner was entrusted with the work of construction of “S/R to approach road of Budhabalanga Bridge on 54th Male of S.N.K.U.B Midnapur Border Road and after completion of work amount of the final bill was paid to petitioner on 30th July 1978. The amount mentioned in the final bill having fallen short of the Petitioner's claims, the petitioner represented to the concerned authorities for paying him the balance dues. Having failed in its efforts to get the payment, the petitioner issue a notice on 29th July 1981 to the Chief Engineer (R & B), Government of Orissa for appointment of an arbitrator as contemplated under clause 23 of the agreement and that notice having received no favourable response from the authorities the petitioner filed petition under Section 8(2) of the Arbitration Act, 1940 before the Subordinate Judge, Baripada on 23rd December 1981 seeking appointment of an arbitrator. The petition was contested by the respondent on several grounds including the plea of limitation and the petition was dismissed by the trial court holding that as the final bill was paid in July 1978 the Petition filed on 23rd December 1981, was barred by limitation. Aggrieved by the order of trial court the petitioner filed revision petition which was allowed by the High Court relying on an earlier decision of that court in Ghaneshyam Behera v. Orissa State Cooperative Marketing Federation, (1984) 1 Orissa LR 581 observing as under:—

“From the observations quoted above, it is clear that the period of limitation for filing an application under Section 8(2) of the Act runs from the expiry of fifteen days from the date the aggrieved party issues notice to the authority mentioned in the arbitration clause (the Chief Engineer concerned in this case) for appointment of an arbitrator. This position is manifest from the provisions of the Act whereunder the court cannot be moved under Section 8(2) for appointment of arbitrator without exhausting the procedure laid down under Section 8 (1) of the Act......Admittedly notice for appointment of arbitrator was issued by the petitioner on 29th July 1981 while the application under Section 8(2) was filed in court on 23rd December 1981, well within the prescribed period of limitation. The impugned order is, therefore unsustainable and it is to be set aside.”

Let me now turn to aforementioned two decisions relied on behalf of respon-dent-DDA. In Momin Construction Company's case (supra) the facts as noticed in para 3 of the report on page 97 were that the appellant and respondent entered into a contract which contained an arbitration clause. The final bill in respect of the construction work was raised and the respondent gave ‘No Claim Certificate’ on 11th August 1965. Thereupon the final bill was passed. On 26 February 1971 the respondent filed a petition under Section 20 of Arbitration Act, 1940 in the City Civil Court, Ahmedabad which was contested by appellant mainly on the ground of limitation. Issue of limitation was answered against the appellant and the petition was allowed. Appeal filed against the order of allowing petition was dismissed by Gujrat High Court. Appeal taken out by Union of India against the order of Gujrat High Court was allowed by the Supreme Court holding:—

“The claim in the first appeal aforementioned arose to the respondents therein before 11th August 1965, when they issued the “No Claim Certificate” and the final bill was passed. The right to apply under Section 20 of the Arbitration Act, therefore, arose to the respondents before 11th August 1965. The application under Section 20 was made by them much after the expiry of three years therefrom The application under Section 20 was, therefore, plainly barred by time.”

Aforesaid FAO(OS) 364/96 was dismissed by the Division Bench following the decision in Momin Construction Company (supra). Under said Article 137 of the Limitation Act the period of limitation prescribed is three years commencing from the date when right to apply accrues. The core question to be considered, therefor, is when does the right to apply accrue or in other words when does limitation commence to run in respect of a petition under section 11(6) of the arbitration & conciliation act, 1996 within the meaning of the said Article. In M/s. L.K Ahuja's case (supra) starting point of limitation for filing petition under Section 20 of the Act was taken as 16th April 1976 on which the letter was written by the respondent to the Additional Chief Commissioner(RENR) requiring him to refer the disputes to an arbitrator. In Prafull Kumar Singh Deo's case (supra) starting point of limitation was reckoned from the expiry of 15 days from the date of issue of notice dated 29th July 1981 seeking appointment of an arbitrator. It is pertinent to note that in M/s. L.K Ahuja's case the respondent had accepted four final bills and gave no claim declaration in respect thereto between 29th May 1972 to 19th June 1975. Likewise in Prafulla Kumar Singh Deo's case the final bill was paid to petitioner on 30th July 1978. Thus in both these cases notice(s) seeking appointment of arbitrator(s) were issued much beyond the period of three years of the preparation of final bills. Obviously, ratio of both these decisions run contrary to the judgment of Supreme Court in Momin Construction Company's case (supra) wherein starting point of limitation for filing petition under the Act was taken as the date of preparation of final bill to which the respondent gave “No claim Certificate” on 11th August 1965 whereupon the final bill was passed. It is settled law that if two decisions of the Supreme Court on the question of law cannot be reconciled and one of them is of Larger Bench while the other is of a smaller Bench, the decision of the Larger Bench whether it is earlier or later in point of time should be followed. However, if both such Benches of the Supreme Court consist of equal number of Judges the later of the two decisions should be followed by the High Courts and other courts. Both M/s. L.K Ahuja's case (supra) and Momin Construction company's case (supra) have been decided by two Judge Benches. Momin construction Company's case having been rendered later in point of time has thus to be followed by this court. In the present case limitation for the purpose of filing petition had started running with effect from 2nd February 1994 on which date the final bill was accepted and the petition filed in July 1999 is, therefore, barred by limitation and deserves to be dismissed on that score.

Consequently, petition is dismissed being barred by limitation. No order as to costs.