9911796707
TMI Blog2020 (6) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... e and coercion is pleaded, at least some factual foundation must be laid in the pleadings, which is lacking - In the present application, by way of passing reference made allegations of undue influence and coercion, as such, this application is liable to be dismissed on that ground alone. When once there is full and final satisfaction, there exists no arbitral dispute, as rightly contended by the learned counsel for the respondents. Since invocation of arbitration is prior to Amendment Act, 2015, the provisions of said Act, 2015 are not applicable to such arbitral proceedings which have commenced in terms of the provisions of Section 21 of the Principal Act, unless otherwise agreed by the parties - When once one of the parties adopts a path of full understanding and executes a document in furtherance of the same, it is not open to him to take recourse of arbitration thereafter. In the decision relied upon by the learned counsel for the respondents in PK. RAMAIAH VERSUS C MD NATIONAL THERMAL POWER CORPORATION NTPC [ 1993 (10) TMI 346 - SUPREME COURT] , the Hon ble Apex Court held that if accord and satisfaction is established, no arbitral dispute exists for referring the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are no specific claims and no further claim certificate and further stated that as per condition No.65 of IAFW-2249, no further claim certificate shall be made by the contractor after submission of final bill. The applicant got issued legal notice, dated 20.12.2013, to the 1st respondent and the 1st respondent issued reply vide letter, dated 08.02.2014 stating that the final bill against contract quoted was signed by the applicant agreeing that there are no specific claims and no further claim certificate; that as per condition 65 IAFW-2249, no further claims shall be made by the contractor after submission of final bill. That as per the terms of the agreement between the parties, the applicant has to fulfill its obligation by completing the entrusted construction and modification work, for which the respondents ought to make payments as per the agreed terms. Unfortunately they are not making the payments and further they are seeking to deny the same. The respondents have committed breach of the agreement by not making the payment and that the applicant has no other alternative, except for filing the present application for appointment of an Arbitrator for adjudication of above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his contention, he placed reliance on a Judgment of the Apex Court in M/s P.K Ramaiah Co v. Chairman and Managing Director, NTPC (1994 Suppl 31 Supreme Court Cases 126. 7. In view of rival contentions of both the parties, the points that arise for consideration in this application are: 1) Whether there is accord and final satisfaction as pleaded by the respondents through the Final Bill, as pleaded by the respondents in terms of Condition No.65 of IAFW 2249 (GCC), can be valid ground to dismiss the application? 2) Whether the applicant prima facie established coercion and undue influence in signing the Final Bill? 8. POINTS 1 2: Admittedly, the applicant entered into contract agreement for construction of ADM-CUM-Tech Accn (13 Rooms) at Hakimpet, Hyderabad and that the said work had been completed by the applicant as per the terms and conditions of the Contract Agreement and Final Bill presented by the applicant was paid by the respondents and no further claim certificate was also signed by the applicant. During the course of execution of said work, on the request made by the respondents, the applicant states that he had attended extra work, but same is disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent correspondence by the applicant in letter dated 06.05.2013, there is no whisper about the alleged coercion and undue influence. The applicant raised such plea only in the affidavit filed in support of this application. It is also pertinent to note here that there is no correspondence by the applicant with the respondents with regard to alleged coercion and undue influence. Except making bald statement in the affidavit, no factual foundation is laid by the applicant either in the pleadings or in the correspondence with the respondents. 9. It is pertinent to note that the applicant failed to offer any plausible explanation for not raising the issue of coercion and undue influence immediately after payment under Final Bill. As already observed supra, the applicant, after receiving the payments under Final Bill, had signed no further claim certificate. Since the full and final payment is made in the Final Bill and the applicant signed no further claim certificate, as the arbitration application is liable to be dismissed on that ground alone, since the applicant signed the same without any protest/objection. A party who comes to the court, must come with clean hands. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal under Section 11, the duty of the Chief Justice or his designate is defined in SBP Co. This Court identified and segregated the preliminary issues that may arise for consideration in an application under Section 11 of the Act into three categories, that is (i) issues which the Chief Justice or his Designate is bound to decide; (ii) issues which he can also decide, that is issues which he may choose to decide; and (iii) issues which should be left to the Arbitral Tribunal to decide. 17.1 The issues (first category) which Chief Justice/his designate will have to decide are: (a) Whether the party making the application has approached the appropriate High Court. (b) Whether there is an arbitration agreement and whether the party who has applied under Section 11 of the Act, is a party to such an agreement. 17.2 The issues (second category) which 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 rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
