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TMI Blog2014 (1) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... in credibility”, the appropriate course would be to permit the parties to raise this as one of the first issues to be decided in the arbitral proceedings - Arbitrator to be appointed by the Court will first determine whether there was a full and final settlement of the Petitioner’s claims as contended by the Respondent, or whether the settlement deed, indemnity bond and the affidavit were executed under duress and coercion as contended by the Petitioner. Depending upon the answer to the said issue, the learned Arbitrator will proceed further to consider the claims of the Petitioner - Decided in favour of Petition. - ARB.P. 353 of 2011 - - - Dated:- 28-9-2012 - MR. S.MURALIDHAR, J. For the Appellant : Mr. Raghavendra M. Bajaj, Advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent did not release payments and the final instalment of the payment in terms of the reduced final bill was made only in April 2011. 3. In para 18 of the petition, it is stated by the Petitioner as under: 18. Thereafter, the Respondent forced the Petitioner to enter into a Settlement Deed whereby the Respondent undertook to pay an amount of Rs.3,07,491/- (Rupees Three Lakhs Seven Thousand Four Hundred and Ninety One Only) to the Petitioner as full and final settlement of all its Bills and also the Petitioner was precluded from raising any further dispute with regard to the Works Contract between the Petitioner and the Respondent. The Petitioner was also forced to execute an Indemnity Bond in favour of the Respondent undert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Polyfab Private Limited (2009) 1 SCC 267. It is further stated that in its letter dated 23rd April 2011 the Respondent refuted the allegation that the Petitioner was put under duress and coercion to sign the indemnity bond and affidavit. 6. On 28th August 2012 after hearing arguments for some time, the Court passed the following order: 1. Learned counsel for the Petitioner states that he will file an affidavit within two weeks indicating the bills/final bill raised by the Petitioner during the period when the work was in progress and the total payments received from the Respondent till date, mentioning the dates of receipt of such payment. The Respondent is also be permitted to file an affidavit on similar lines within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and nontower area and the letter dated 17th July 2010 which reflected the negotiations between the parties. 9. In Union of India v. Master Construction Company (2011) 12 SCC 349, the Supreme Court discussed its earlier judgment in Boghara Polyfab and in paras 18 and 19 observed as under: 18. In our opinion, there is no rule of the absolute kind. In a case where the claimant contends that a discharge voucher or no-claim certificate has been obtained by fraud, coercion, duress or undue influence and the other side contests the correctness thereof, the Chief Justice/his designate must look into this aspect to find out at least, prima facie, whether or not the dispute is bona fide and genuine. Where the dispute raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties, it appears to the Court that the answer to that question will necessarily involve examination of witnesses as well as the documents in light of their depositions. Since it is not possible for the Court to conclusively hold at this stage that the Petitioner s plea is an afterthought, make-believe or lacking in credibility , the appropriate course would be to permit the parties to raise this as one of the first issues to be decided in the arbitral proceedings. In other words, the learned Arbitrator to be appointed by the Court will first determine whether there was a full and final settlement of the Petitioner s claims as contended by the Respondent, or whether the settlement deed, indemnity bond and the affidavit were executed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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