9911796707
TMI Blog2014 (12) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... fraud/coercion/undue influence practiced by the other party and is able to establish the same, then obviously the discharge of the contract by such agreement/voucher is rendered void and cannot be acted upon - Consequently, any dispute raised by such party would be arbitrable. The plea raised by the respondent is bereft of any details and particulars, and cannot be anything but a bald assertion - there was no protest or demur raised around the time or soon after the letter of subrogation was signed, that the notice dated 31.03.2011 itself was nearly after three weeks and that the financial condition of the respondent was not so precarious that it was left with no alternative but to accept the terms as suggested, the discharge and signing of letter of subrogation were not because of exercise of any undue influence - such discharge and signing of letter of subrogation was voluntary and free from any coercion or undue influence - upon execution of the letter of subrogation, there was full and final settlement of the claim – thus, no arbitrable dispute existed so as to exercise power u/s 11 of the Act - The High Court was not therefore justified in exercising power u/s 11 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur (herein after referred as Factory Premises ) due to fire that took place in IOC Terminal on 29-10-2009, we hereby subrogate our rights on behalf of M/S Genus Power Infrastructures Limited Jaipur (herein after referred as Insured ) in favour of New India Assurance Co. Ltd. (herein after referred as Insurer ) as under:- 1) That we the Insured hereby subrogate all the rights and remedies (to the extent provided by aforesaid contract of Insurance and under the General law and further any other Law enforceable consequence to the above loss) against the RIICO, Indian Oil Corporation, Govt. of Rajasthan, other insurance company or any other agency/authority of Govt. of Rajasthan, semi Govt. etc. whom so ever is liable in respect whereof in favour of the Insurer regarding Fire accident taken place on 29-10-2009 in IOC terminal in Sitapura Industrial Area, Jaipur and claim arises under Policy covering fire loss of Insured factory in Factory Premises in favour of the Insurer . 2) That we the Insured further assign and transfer all rights to Insurer to recover the claim amount or any part thereof from RIICO, Indian Oil Corporation, Govt. of Rajasthan, other insurance company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itrator to adjudicate the disputes between the parties. 5. The aforesaid order dated 30.05.2013 is the subject matter of challenge in the present appeal. Appearing for the appellant Mr. Gaurab Banerji, learned Senior Advocate submitted that the letter of subrogation was a detailed agreement which was finalized and signed after negotiations between the parties and in the presence of two witnesses. The amount agreed to was the amount recommended by the surveyor, reduced by the mandatory reinstatement premium payable under clause 15 of the policy and as such the settlement took place at the amount recommended by the surveyor. Placing reliance on the financial status of the respondent, it was submitted that its annual turnover is more than ₹ 500 crores for last few years and it was quite improbable that such a company would feel financially constrained and stand coerced as alleged, in giving discharge on receipt of ₹ 5.98 crores. Mr. Krishnan Venugopal, learned Senior Advocate appearing for the respondent submitted that knowing that the respondent was under tremendous pressure owing to the complete destruction of its manufacturing unit and not being in a position to nego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rbitral Tribunal with a specific direction that the said question should be decided in the first instance. 7. In the decision rendered in Union of India vs. Master Construction Co. (2011) 12 SCC 349 this court 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 the claimant with regard to validity of the discharge voucher or no-claim certificate or settlement agreement, prima facie, appears to be lacking in credibility, there may not be a necessity to refer the dispute for arbitration at all. 19. It cannot be overlooked that the cost of arbitration is quite huge most of the time, it runs into six and seven figures. It may not be proper to burden a party, who contends that the dispute is not arbitrable on account of discharge of contract, with huge cost of arbitration merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company was forced to sign several documents including a letter accepting the loss amounting to ₹ 6,09,55,406/- and settle the claim of ₹ 5,96,08,179/- as against the actual loss amount of ₹ 28,79,08,116/- against the interest of the petitioner company. The said letter and the aforesaid pre-prepared discharge voucher stated that the petitioner had accepted the claim amount in full and final settlement and thus, forced the petitioner company to unilateral acceptance the same. The petitioner company was forced to sign the said document under duress and coercion by the Respondent Company. The Respondent Company further threatened the petitioner Company to accept the said amount in full and final or the Respondent Company will not pay any amount toward the fire policy. It was under such compelling circumstances that the petitioner company was forced and under duress was made to sign the acceptance letter. 9. In our considered view, the plea raised by the respondent is bereft of any details and particulars, and cannot be anything but a bald assertion. Given the fact that there was no protest or demur raised around the time or soon after the letter of subrogation wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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