9911796707
Advanced Search 
TMI Blog2014 (12) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... 64 UM of the Insurance Act, 1938 to assess the damage. In the assessment of the respondent and as per the claim lodged by it, the loss caused to its plant and machinery, buildings fixtures and furnitures and stocks was to the tune of Rs. 28.79 crores. It appears that the Surveyor submitted his final report on 27.07.2010 and assessed the loss at Rs. 6,09,77,406/-. It is contended by the appellant but denied by the respondent that the final survey report was duly communicated to the respondent on 01.11.2010. 3. On 11.03.2011 the respondent signed a detailed letter of subrogation which was on a stamp paper, accepting Rs. 5,96,08,179/- in full and final settlement of its claim under the policy and the relevant portion of said letter dated 11.03.2011 was to the following effect: To, New India Assurance Co. Ltd. Regional Office Nehru Place, Tonk Road, Jaipur Dear Sir, That in consideration of claim amount of Rs. 5,96,08,179 (Rupees Five Crores Nintey Six Lakhs Eight Thousand One Hundred Seventy Nine only) (herein after referred as "Claim amount") as full and final settlement amount of our claim No.330203/11/10/01/00100001 arising under policy No.330203/11/09/11/00000018 (here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge voucher was signed under extreme duress, coercion and undue influence exercised by the appellant who took undue advantage of the extreme financial difficulties of the respondent. The respondent further sought to appoint its nominee arbitrator. On 21.04.2011 the appellant replied that there was no arbitrable dispute which existed between the parties inasmuch as the respondent had voluntary signed the letter of subrogation and had accepted payment in full and final settlement of its claim. In the meantime on 05.04.2011 the respondent had filed a petition under section 11 of the Arbitration and Conciliation Act, 1996 (The 'Act' for short) before the High Court of Delhi alleging that it had accepted the payment as stated above because of extreme financial difficulty, duress and coercion. On 10.05.2013 the High Court after recording rival submissions of the parties adjourned the matter which was then taken up on 30.05.2013 when the High Court observed; "Vide order dated 10th May, 2013, this Court has already observed that there is a valid arbitration agreement between the parties and there are disputes which are covered under the arbitration agreement. The learned counsel for the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s validly and voluntarily executed. If the party which has executed the discharge agreement or discharge voucher, alleges that the execution of such discharge agreement or voucher was on account of 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. 51. The Chief Justice/his designate exercising jurisdiction under Section 11 of the Act will consider whether there was really accord and satisfaction or discharge of contract by performance. If the answer is in the affirmative, he will refuse to refer the dispute to arbitration. On the other hand, if the Chief Justice/his designate comes to the conclusion that the full and final settlement receipt or discharge voucher was the result of any fraud/coercion/undue influence, he will have to hold that there was no discharge of the contract and consequently, refer the dispute to arbitration. Alternatively, where the Chief Justice/his designate is satisfied prima facie that the discharge voucher was not issued voluntari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity concerned, thereafter, released the bank guarantee in the sum of Rs. 21,00,000 on 12-7-2000. It was then that on that day itself, the contractor lodged further claims." 8. It is therefore clear that a bald plea of fraud, coercion, duress or undue influence is not enough and the party who sets up a plea, must prime facie establish the same by placing material before the Chief Justice/his designate. Viewed thus, the relevant averments in the petition filed by the respondent need to be considered, which were to the following effect:- "(g) That the said surveyor, in connivance with the Respondent Company, in order to make the Respondent Company escape its full liability of compensating the Petitioner of such huge loss, acted in a biased manner, adopted coercion undue influence and duress methods of assessing the loss and forced the Petitioner to sign certain documents including the Claim Form. The Respondent Company also denied the just claim of the Petitioner by their acts of omission and commission and by exercising coercion and undue influence and made the Petitioner Company sign certain documents, including a preprepared discharge voucher for the said amount in advance, which ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
