Civil Appeal No 1178 of 1988
From the Judgment and Order dated 5111986 of the Delhi High Court in FAO OS No 231 of 1986
Hardev Singh and Miss Madhu Moolchandani for the Appellant
SB Saharya VB Saharya and Ratna Nair for the Respondent
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
Special Leave granted
353 The Delhi Development Authority vide its letter dated 5th October 1976 accepted the tender of the appellant for construction of 240 Janta Houses at the estimated cost of Rs2449262
The work was to commence on 15th October 1976 and was required to be completed by 14th July 1977
By a subsequent extension of time the work was finally completed on 2nd April 1980 and the houses so constructed have been allotted to several people
Between February 1983 to December 1985 the appellant sent several letters to the respondent requesting them to finalise the bills
It appears however that the first of such letters was written on 28th February 1983
Thereafter the appellant wrote several letters and finally on 4th September 1985 to the respondent to finalise the bills and ultimately served the notice through his counsel requesting it to release the security of Rs1 lakh and refer the dispute to arbitration
The respondent failed to do so
In January 1986 the appellant filed an application under section 20 of the hereinafter called the Act  seeking a direction from the Court that the respondent be directed to file the arbitration agreement in the Court and the dispute be referred to the arbitration
The learned Single Judge of the High Court of Delhi dismissed the application as barred by time
There was an appeal to the Division Bench of the High Court of Delhi
The Division Bench upheld the decision of the learned Single Judge
Hence this appeal to this Court
The question is whether the High Court was right in upholding that the application under section 20 of the Act was barred by limitation
In view of the decision of this Court in Kerala State Electricity Board Trivandrum vs TPKK Amsom and Bensom Kerala   it is now well settled that Article 137 of the would apply to any petition or application filed in a Civil Court
Sub section 1 of section 20 of the Act provides as follows Application to file in Court arbitration agreement Where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject matter of the agreement or any part of it and where a difference has arisen to which the agreement applies they or any of them instead of proceeding under Chapter II may apply to a court having jurisdiction in the matter to which the agreement relates that the agreement be filed in Court
 Therefore in order to be entitled to order of reference under 354 section 20 it is necessary that there should be an arbitration agreement and secondly difference must arise to which this agreement applied
In this casethere is no dispute that there was an arbitration agreement
There has been an assertion of claim by the appellant and silence as well as refusal in respect of the same by respondent
Therefore a dispute has arisen regarding non payment of the alleged dues of the appellant
The question is for the present case when did such dispute arise
The High Court proceeded on the basis that the work was completed in 1980 and therefore the appellant became entitled to the payment from that date and the cause of action under article 137 arose from that date
But in order to be entitled to ask for a reference under section 20 of the Act there must not only be an entitlement to money but there must be a difference or dispute must arise
It is true that on completion of the work a right to get payment would normally arise but where the final bills as in this case have not been prepared as appears from the record and when the assertion of the claim was made on 28th February 1983 and there was non payment the cause of action arose from that date that is to say 28th of February 1983
It is also true that a party cannot postpone the accrual of cause of action by writing reminders or sending reminders but where the bill had not been finally prepared the claim made by a claimant is the accrual of the cause of action
A dispute arises where there is a claim and a denial and repudiation of the claim
The existence of dispute is essential for appointment of an arbitrator under section 8 or a reference under section 20 of the Act
See Law of Arbitration by RS Bachawat 1st Edition page 354
There should be dispute and there can only be a dispute when a claim is asserted by one party and denied by the other on whatever grounds
Mere failure or inaction to pay does not lead to the inference of the existence of dispute
Dispute entails a positive element and assertion in denying not merely inaction to accede to a claim or a request
Whether in a particular case a dispute has arisen or not has to be found out from the facts and circumstances of the case
The application under section 20 of the Act was filed in Court in January 1986 that is to say within the period of three years therefore the application was within time
The High Court was in error in dismissing the application on the ground of limitation
The judgment and order of the High Court are therefore set aside
The High Court is directed to make an order under section 20 of the Act and give consequential directions in respect of the same
The costs of this appeal would be costs in the arbitration proceeding
The appeal is thus allowed and disposed of as aforesaid
NPV Appeal allowed


Summary:
The complainant filed in this Court a petition for contempt against the accused for their failure to comply with the orders of this Court
In paragraph 2 of the affidavit in support of the petition the complainant stated that the statements contained in the petition were true to the best of her knowledge belief and information
In paragraph 3 she further stated that the affidavit had been read over translated and explained to her and she understood the contents thereof and that the same were true to her knowledge and belief
Similarly in the affidavit on behalf of the accused which has been filed by a clerk of the Advocatethe deponent verified the affidavit by stating that the statements of the accused were true and correct which were based on the records maintained in the Advocate s office and on instructions received from the clients
Rejecting the affidavits as not being in accordance with the Supreme Court Rules or Order 19 Rule of the Code of Civil Procedure this Court HELD 11 Affidavit is a mode of placing evidence before the Court
A party may prove a fact or facts by means of affidavit before this Court but such affidavit should be ia accordance with Order XI Rules 5 and 13 of the Supreme Court Rules
564A 12 The party stating facts must disclose as to what facts are true to his personal knowledge information or belief
If the statement of fact is based on information the source of information must be disclosed in the affidavit
An affidavit which does not comply with the provisions of Order PG NO 561 PG NO 562 XI of the Supreme Court Rules has no probative value and it is liable to be rejected
564D 13 In a matter where allegations of mala fides or disobedience of the Court s order are made against a person or party it is an the more necessary that the person Filing affidavit in this regard must take care to verify the facts stated in the affidavit strictly in accordance with the Rules 5 and 13
564E 14 Of late affidavits are being Filed in this Court in a slipshod manner without having any regard to the Rules
Affidavits are being filed by persons who could have no personal knowledge about the facts stated in the affidavit
Deponents of Affidavits pay no attention to verification
564F State of Bombay vs Purushottam Jog Naik   referred to 15 The practice of clerks of advocates filing affidavits without a proper verification is deprecated
As matters before the apex court are determined on the basis of the statements contained in affidavits it is the duty of the litigants and the lawyers to file affidavits in accordance with the rules to assist the Court in administering justice
565E F In the instant case the affidavit filed by the complainant is clearly vague general and defective and does not indicate as to what facts were true to her knowledge information and belief
It does not comply with the requirement of a valid affidavit as laid down in the Rules 5 and 13 of the Supreme Court Rules
Similarly the affidavit in reply filed on behalf of the accused by office clerk of the Advocate is wholly improper and inadmissible in evidence and liable to be rejected
563E F 565D Since both the affidavits do not comply with the Rules no reliance can be placed on them
They are accordingly rejected
Consequently the contempt petition is also liable to be rejected but parties are given a chance to file proper affidavits
565G