9911796707
TMI Blog2013 (4) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... icant that details in nutshell of the afore mentioned work are as follows;- a. Date of Agreement : 09/07/2007. b. Agreement No. 5/Sr.DEN/Co-Ord/NED dated 09/05/07. c. Date of completion without extension : 02/10/2007. d. Extension granted : I. 03/10/2007 to 28/02/2008 II. 29/02/2008 to 31/05/2008 III. 31/05/2008 to 31/08/2008 IV. 01/09/2008 to 13/12/2008 V. 01/01/2009 to 15/02/2009 VI. 16/02/2009 to 15/04/2009 e. Date of completion of the work : 15/04/2009 It is further case of the applicant that the work could not be completed within stipulated time, for the reasons solely attributable to respondent. The work was hampered due to various reasons, such as the extensions granted to the F.O.B. work, other obstructions of existing welding room and store room of Mechanical Department for carrying out a drainage work near the pit line, non handing over the site, obstruction of the existing staircase of Foot Over Bridge, no access for executing 55 Mtr. Length of Addl. Pit line, variations during course of execution of work of substantial nature, delayed payments in gross contravention with the contractual covenants. It is further case of the applicant that withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be withheld if he does not sign on the blank paper provided by respondent. Therefore, according to the applicant, his signature has been obtained under financial duress, with the knowledge that the applicant was in financial crises due to withholding of the payments by respondent. It is further case of the applicant that more than quite often applicant was threatened that a penal action under the contract would be initiated against him, if he does not sign on the no claim certificate. According to the applicant, with such unfair practices applicant was required to sign on blank paper as such. According to the applicant, without prejudice to the contention raised herein above, even if the alleged no claim certificate relied upon by the respondent is perused, it appears that it has been supplied to the applicant as per his demand after the respondent's letter dated 6.7.2010. The said certificate would reveal that it does not provide for restriction for claiming any legitimate claims of the applicant. It does not provide that it is towards full and final satisfaction with complete accord. According to the applicant, said no claim certificate is null, void ab initio and without any le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Arbitration and Conciliation Act 1996. However, there is no response from the respondent. In the premises, counsel appearing for the applicant submits that the applicant has proposed the names of two retired High Court Judges, as mentioned in para 10 of the application for appointment as impartial Arbitrator. (c) It is submitted that inspite of repeated requests to the respondent to satisfy the claim raised by the respondent, or in case the respondents have any dispute about the said claim, the matter may be referred to the Arbitral Tribunal, the respondents have not taken steps even after expiry of the period of notice given to them. It is submitted that as stated earlier, no dues certificate would not preclude the applicant from seeking appointment of Arbitrator. Learned counsel appearing for the applicant pressed into service exposition of the Supreme Court in the case of Bharat Rasiklal Ashra vs. Gautam Rasiklal Ashra and Anr, reported in (2012) 2 SCC 144 and submitted that the Supreme Court in the said judgment has considered the provisions of Section 11 subsection (6), 7 and 8 and 2(1) (b) of the said Act and held that existence of valid arbitration agreement in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion, that such certificate is obtained by the respondent under duress from the applicant, can refer the matter to the Arbitral Tribunal, leaving the question open to the arbitrator to decide whether the obligation under the contract are fully performed and discharged of the contract by performance is acknowledged by the full and final discharge voucher/receipt. (h) It is submitted that in view of the judgment of the Supreme Court in the case of Bharat Ashra (supra) this court can refer the issue to the Arbitrator that whether the parties have concluded the contract/transaction by recording satisfaction of their mutual rights or obligation or by receiving final payment without prejudice. It is submitted that in view of the aforesaid judgment, the issue which can be called as (second category) as per the said judgment, the Chief Justice/his designate may choose to decide (or leave them to the decision of the Arbitral Tribunal) are; a) whether the claim is a dead (long barred) claim or a live claim, (b) whether the parties have concluded the contract/transaction by recording satisfaction of their mutual rights and obligation or by receiving the final payment without objection. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r referring the dispute to be settled through arbitration. It is submitted that the special condition was prevailed over existing clauses 63 and 64 of general conditions of contract. It is submitted that the date of completion of work was 2.10.2007, which was extended by spells upto 15.4.2009 without imposing any penalty as per the clause 17A of General conditions of contract. The progress of the work was slow because of site condition, prevailing around the awarded work to the applicant even before bidding for the tender. It is submitted that in view of the ratio laid down by the Supreme Court in the case of Northern Railway, the applicant cannot set out the claim beyond ambit and scope of the contract. (c) It is submitted that in the opinion of the Engineer, the progress of the work has any time been delayed by the other contractor employed by the Railways under Sub clause (4) of clause -20 of G.C.C. the extension of time shall be considered and shall be granted having regard to the nature of period of delay and the type and the quantum of work attended thereby. It is also stipulated that in the event of such grant of extension, no compensation shall be payable for the works so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bika Constructions vs. Union of India is unfounded, in the present context having distinct fact. It is submitted that ratio laid down in the said judgment cannot be made applicable in the present case. According to learned counsel for the respondent, distinction between the present case and in the case of Ambika Constructions is that, the applicant has furnished an unconditional no claim certificate after the work was fully completed and works finally measured up without any protest and without any threat from the respondent. (g) Learned counsel further submitted that Arbitrator does not get jurisdiction to adjudicate the issue once no claim certificate as per clause 43 sub clause (2) of G.C.C. is invoked and if the matter is covered by excepted in terms of clause 63. Learned counsel invited my attention to clause 63 of G.C.C. It is submitted that the applicant has signed and submitted no claim certificate with eyes wide opened and without any compulsion. Therefore, the applicant is precluded from raising any dispute, claims to be referred to the arbitration. It is submitted that the application of the applicant that no claim certificate is obtained by Railway under pressure is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the arbitral tribunal) are: (a) Whether the claim is a dead (long barred) claim or a live claim. (b) Whether the parties have concluded the contract/ transaction by recording satisfaction of their mutual rights and obligation or by receiving the final payment without objection. 22.3) The issues (third category) which the Chief Justice/his designate should leave exclusively to the arbitral tribunal are : (i) Whether a claim made falls within the arbitration clause (as for example, a matter which is reserved for final decision of a departmental authority and excepted or excluded from arbitration). (ii) Merits or any claim involved in the arbitration. 6. Upon careful perusal of para 22.1, reproduced herein above from the judgment of the Supreme Court in the case of National Insurance Company Ltd., the Chief Justice or his designate will have to decide whether the party making an application has approached the appropriate High Court. In the present case, the applicant is ordinary resident of Nanded city, which is within the jurisdiction of this Court. Therefore, the applicant has approached the appropriate High Court. There is arbitration agreement between the applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver the existing Clauses 63 & 64 of General Conditions of Contract." 8. In the light of the modification to above referred clause 63 and 64 of the G.C.C. the applicant herein has restricted his claim for value less than or equal to 20% of the original value of the contract or 20% of the value of the work done as stated in the modification of clause 63 and 64 of G.C.C. There are averments in the application to that effect in para 8 and also the notices issued to the applicant by the respondent clearly mention that the applicant has restricted his claim to the extent of 20% reserving his right to seek appropriate remedy before the appropriate forum for the rest of the claim. The contention of the respondent is that in view of clause 2 of clause 43 of G.C.C., the applicant/contractor shall not be entitled to make any claim whatsoever against the Railway under or by virtue of or arising of the contract since he has signed a no claim certificate. The contention of the respondent is that in view of the provisions of clause 63 of G.C.C. also the applicant is barred from praying for referring the matter to the Arbitrator since the case falls under excepted category. In this respect, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless the claimant gives a full and final voucher for a specified amount (far lesser than the amount claimed by the insured), the entire claim will be rejected. Being in financial difficulties, the claimant agrees to the demand and issues an undated discharge voucher in full and final settlement. Only a few days thereafter, the admitted amount mentioned in the voucher is paid. The accord and satisfaction in such a case is not voluntary but under duress, compulsion and coercion. The coercion is subtle, but very much real. The `accord' is not by free consent. The arbitration agreement can thus be invoked to refer the disputes to arbitration. (v) A claimant makes a claim for a huge sum, by way of damages. The respondent disputes the claim. The claimant who is keen to have a settlement and avoid litigation, voluntarily reduces the claim and requests for settlement. The respondent agrees and settles the claim and obtains a full and final discharge voucher. Here even if the claimant might have agreed for settlement due to financial compulsions and commercial pressure or economic duress, the decision was his free choice. There was no threat, coercion or compulsion by the respondent. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of their mutual rights and obligation or by receiving the final payment without objection. The issues (second category) which the Chief Justice/his designate may choose to decide (or leave them to the decision of the arbitral tribunal). Since I have expressed prima facie opinion herein above, that no claim certificate issued by the applicant appears to be under financial duress and therefore, the said issue that is stated in clause B of para 22.2 can be left open for the final decision of the Arbitral Tribunal. 11. Upon careful perusal of para 52 of the judgment of the Supreme Court in the case of National Insurance Company Ltd. (supra), the case in hand will fall under clause III of the said paragraphs. Therefore, the contention of the counsel appearing for the respondents that the case of the applicant would fall in clause II of para 52 from the said judgment, cannot be accepted. Upon careful reading of the averments in the application and contents of the notice/letter/correspondence by the applicant with the respondent, it prima facie appears that said no claim certificate is under financial duress on account of condition of the employer that unless such certificate is issued ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
