Full Text
0/^ JudgmentReservedon:2" March.2016
JudgmentPronouncedon:8^^ March 2016
+ ARB.P.No.368/2015
S.K.CONTRACTOR Petitioner
Through Mr.S.W.Haider,Adv.
' •4Mi8rf»F ■>"
B.S.SAN@%# .i|«i . '5^ -i- i Haider,Adv. |
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I ?43|
1 •
% F TAlK^cnc^.-AHv
MANMOHAN SINGH, J.
JUDGMENT
1. By way of this order,Ipropose to decide the abovementioned two petitions filed by the petitioners under Section 11 of the Arbitration and Conciliation Act, 1996 read with Section 151 CPC for appointment of the independent Arbitrator. Arb.P.Nos.368/2015 & 369/2015 Page1of[9] 2016:DHC:8298 f
2. The brieffacts are that the petitioners are engaged in the business of construction and railway contracts.
3. In arbitration petition No.369/2015,the work pertaining to Linking of New Track(BG),laying ofturn outs with PSC layout,traps, SEJs, Glued joints,leading to P Way material, handling,leading,lifting and putting of stone ballast and other connected works related to PNI& NI period between Sanehwal (including) and Ludhiana (excluding) on Ambala-Ludhiana section in connection with 3*^*^.^Une^fcopi Sanehwal to.Ludhiana on Chandigarh-Ludhiana h^\!^*B,,G^|R££|^I|riki^^^ to the petitionerfirm vide Agreem9H^^o!=i9-W/Dy*jpEyG-II/CD^d^ei^^ July, 2008 amounting to 45 Ablated dte bfcompletion of # i.. j ^ 1.,rd work was 11 mo^iths^ffom the dagMm%e ofacceptanceletter dated[3] January,2008i.l.,the workawarftlfAyafMexpireon3'"'^December,2008. I Milil-. ■■ I
4. In ArbiMon petition the work pertaining to constraction ofdfeous of24Coach train at Chandigarh (iM^M^waShkhle apronp%d^Stpra|e room etc.) & balance earthwork & olher^b|k|4^c/w^to Terminal was awarded to the petitioner vMe^^^^ff^£jf6?H0-W/C/CDG dated 12^^ February,2013 for Rs.5,23,54,020.14/- and the stipulated date ofcompletion ofwork was[9] months fi-om the date ofissuance ofacceptance letter on 19* November,2012,i.e.,the work awarded wasto expire on 18*August,2013.
5. It is contended by the petitioners that the petitioners had made all the arrangements for execution ofthe work in right earnest, but work could not be completed dueto failings on the partofthe respondent and consequently the work was twicp-extended in both the matters. During the course.ofthe Arb.P.Nos.368/2015&369/2015 Page2of[9] j© exe.cution ofthe aforesaid work, various claims, clarifications and disputes arose between the parties which the petitioners brought to the notice ofthe concerned authority and upon which the petitioners were advised to provide full attention on the progress ofthe work instead ofmaking correspondence and were assured that the dues ofthe petitioners would be paid along with the final bills.
6. However, on account of some technical difficulty faced by the respondent,the aforesaid work awarded^to-the petitioner M/s S.K.Contractor was closed on administratifi'grouridiSltjis t|re|case%fihe said petitioner that ■rf-''' « -Ik B il tj CI ^ for execution of complete work, theii[3].etitioner had.Mobilized all resources, deployed machiheiy,#bputed tb&ftilffe^ttarramged labbummaterial etc. at site for construchbp,^ iM&ysh-»^rm a The petitioners kept onfi ifplld'vyihg the respondent about the preparation/payment of the finalJbffibutIt^kept on evading onipne pretext or the other. Finally, the petiti©neiliippn%htp%hiwj^ toldthat unless they sign the final bill S^v^^^up^lftfen^ Agie^j^lnFinyadvance without protest, they would\^t;^|eCtemfig|C^m^ the aforesaid Circumstances as well as urfdersjm^^^^gerdion/pressure, the petitioners signedthe finalbills and Supplementary Agreements underprotest. The element of coercion/ duress as sufferedby the petitioners were,in fact, placed on record vide their letters dated 17^^ March, 2014 and 15^ October, 2014 respectively, issuedto the respondent, wherein theyhad duly intimated the respondent about its grievances and the possibility ofraising further claims. Arb.P.Nos.368/2015& 369/2015 d, Page 3 of[9]
7. The petitioner M/s S.K.Contractorin Arb.P.No.368/2015 submitsthat as anticipated by the said petitioner,the final bill prepared bythe concerned department of the respondent did not include many of its claims against various items executed by the petitioner. Upon this,the petitioner having no option left butto invoke the arbitration clause as contained under clause 64 ofthe General Conditions ofthe Contract as applicable to the parties,calling upon the respondent to make the payment of the claims of the petitioner. However, now, after a considerable lapse oftime,the respondent issued a reply dated June, 2Ol[5].#me,r^by5t0|?thej|fter^shock and surprise ofthe petitioner, the respondent@jfec'te1d ft^o genuihe a^^ of the petitioner taking ithe^^Mand |haW;s4nc6®M petitioner ftad signed the Supplementary^^^re^mentdated|3it^CM^g^^6l[4],the dl^astassuch cannot f.x ^ tkmM be referred to aiftjitration. i if.. I« M tWi i 'tf. i -. ffilipiitf - y
8. Similarlylthe petitioner M/sB;.,i.l^^wan in Arb.P.No.l69/2015 also vide its letter dated 12^^..Marc|fvJl)#5wn^ked.4he arbitration clause as contained under ^&haitipis^J)f the Contract. However,.therespondfenTj^M thl*datecO/«Ti-lmftthe%etitidh,failedto respond totheaforesaidinvocation'fro^^tof=|l^p@Mti^ ^ 9. In the replies filed in both the matters, it is submitted that the arbitration petitions are liable to be hit by the doctrine of promissory estoppel(s) since the petitioners have been paid all their legitimate dues payable under the contractincluding payment offinal bills and signed the Supplementary Agreements under clear signatures and without any protest. The Supplementary Agreement dated 3U'March,2014 would show that it categorically stipulates that:- Arb.P.Nos.368/2015&369/2015 „ ^ Page4of[9] " It is further agreed by and between the parties that the party hereto of the second part(Contractor) has accepted the said sums mentioned above in full and final satisfaction of all its dues and claims under the said Principal Agreement. It is further agreed and understood by and between the parties that the arbitration clause contained in the said principal agreement shall cease to have any effect and /or shall be deemed to be non-existentfor all purposes."
10. Lastly, it is submitted by the respondent that in view of the final settlement and signing of the<*>Supplemerifaiy^.Agreements between the. a & tiftT - parties,the question ofinvokilglthllfbhration|llhuse ofthe agreementdoes " ■ gpiia,. - -'.. j,[1] notarise at all.The,petitioners hav0||y|hps|;niisconceived petitions onthe ground thatinspite of:having§5®|gijp^ents,theJMnotbound by the terms of th^f agreements ent^rp^^i^^jiJfey them. The petitioners cannot resilefromthislositionuntilthes^^ttMaryagreementsexist. i '/I I fifi II I j -t||4 |ll|«,. s-
11. Learned dounsel for the.fesbonShf has referred a decision of the Supreme Court ifrthe cdM^^ihUnionhd^India &'Ors. v. HartSingh,(2010) 15 see 201. RelevantParas,^H4qfthe sajpe read.as under;- "9. This Court in Nathani Steels Ltd. v.Associated. Constructions[1995 Supp(3)SCC 324]also had an occasion to V examine a similar case. The Court observed that after settling the entire matter and receiving the payment,it was not open to the respondent to treat the settlement as non est and proceed to invoke the arbitration clause.
10. This Court in a relatively recent case has examined the legal position once again in National Insurance Co. Ltd. V.Boghara Polyfab (P)Ltd.[(2009) 1 SCC 267:(2009) 1 SCC (Civ) 117] In para 25 of the said judgment, the Court observed as under:(SCC p.284) Arb.P.Nos.368/2015& 369/2015 Page5of[9] ( ^ "25., Wheire both the parties to a contract confirm in writing that the contract has been fully and finally discharged by performance of all obligations and there are no outstanding claims or disputes, courts will not refer any subsequent claim or dispute to arbitration. Similarly, where one rof the parties to the contract issues a full and final discharge voucher (or no-dues certificate, as the case may be)confirming that he has received the payment in full and final satisfaction of all claims, and he has no outstanding claim, that amounts to discharge of the contract by acceptance of performance and the party issuing the discharge voucher/certificate cannot thereafter make any fresh claim or revive any settled claim nor can it seek reference to arbitration in respect ofany claim.' JW i €
11. The Courtfurther observed in para 29 as under:{Boghara Polyfab case [(2009) 1 SCC 267:(2009) 1 SCC (Civ) 117], see pp.285-86) 'T, t.; •.,"2P. It is thus clear that the arbitration agreement contained in a contract cannot be invoked to seek reference of any. dispute to arbitration,in the following circumstances, when the contract is discharged on account of performance, or^ accord and satisfaction, or mutual agreement, and the same is reduced to writing(and signed by both the parties or by the party seeking arbitration): " >, •\ {a) where the obligations under a c6ntract 'are fully performed and discharge ofthe contract;By pbrform&ce is acknowledged by afull and final discharge vqubher/receipt, nothingsurvivesinregardtosuch discharged contract; {b)where the parties to the con,tract,;fiy mutuhl^agreement accept performance of altered^;.mMif||;,q^^ obligations and confirm in writing the discharge'ofcontract by performance of the altered^mbdi&d tor-,substituted obligations; - ' f Arb.P.Nos.368/2015&369/2015 |age6of[9] rr u
(c) where the parties to a contract, by mutual agreement, absolve each other from performance of their respective obligations (either on account of frustration or otherwise) and consequently cancel the agreement and confirm that there are no outstanding claims or disputes." In this case the Court relied on earlier judgments of this Court and reiterated the legal position which has been crystallised by a series ofjudgments where both the parties to a contract confirmed in writing that the contract has been fully and finally discharged by the parties and there was no ^ outstanding claim or dispute and thereafter the matter could not have been referred to arbitration.
12. In a celebrated book,Russellon Arbitration, 19th Edn.,p. 396,it is stated that"an accord and satisfaction may be pleaded in an action on award and will constitute a good defence". r-
13. In our considered view, on the basis ofthe above settled legal position that when the parties by a supplementary agreement obtained a full and final discharge after paying the entire amount, which was due and payable to the contractor, thereafter the contractor would not be justified in invoking arbitration because there was no arbitral dispute for reference to arbitration."
12. However,it is pertinent to mention here that as per pleadings ofthe respondent in both the matters, it was admitted that the documents were signed under protest and thereafter supplementary agreements were executed. Record would also show that in one of the matters, as the petitioner apprehended to stop the payment,sentthe letter in advance to the respondentto putthe pressure forthe purpose ofreceivingthe payment.The said facts have not been denied by the counsel for the respondent. Hence, Arb.P.Nos.368/2015&369/2015. p^gg[7] 9 W) there is aforce in the submission ofthe learned counselforthe petitionerthat the earlier agreement which contained the arbitration clause would continue at this stage and the objections now raised by the respondent can be considered by the Arbitral Tribunal as per merits.
13. The other important factor in these cases is that under similar circumstances, in Arb. P,168/2015 between Pradeep Vinod Construction Co. V. Union ofIndia,Mr.Justice S.Muralidhar on 15^*^ May,2015 has,inter alia, passed the following orders: \ ' V "1- One of learned counsel for thelJlesiibpaent, is4hat the PetitioneBhas accepted the full and^fiij:al pa^enMa^>|ias aim, signed the supplementary\agreement|feSbGQfnil^5he submits \that the r terms oft 'i.'lAJSi-;- "Pf ie agreementbet^eeWlH^pPties. a Respondeijt|iould be pe^^®^pomt an°^^bi|ator in I 11 II /? F ft!
2. CounselforthePetiti|)|fe|l^fptsthe above subrriission. Hepoints|putthataspecijfe^||l|^^entaken inthejpetition that the supplimentaiy agreementunder^urfes^antes^Efidttit*' J-
3. The Courts-is whether the discharge certi!fea||^arid|^^pp^ml^^ were signed bythe Petitioner undMures'sfWould require evidenceto be led and is therefore required to be examined by the learned Arbitrator. As far as the appointment of an Arbitrator is concerned, it is seen that the Respondent forfeited its right under the arbitration clause since it failed to appoint an Arbitrator despite invocation ofthe arbitration clause bythe Arb.P.Nos.368/2015&369/2015 Page8of[9] Petitioner on 5^^ May2014,followed by another letter dated 12'*" January 2015."
14. The findings arrived in the above referred order are binding in nature as the facts are identical. Therefore,the prayers in these petitions are liable to be allowed.
15. Thus,Justice S.K.Aggarwal,Retd.Judge ofthis Courtis appointed as sole Arbitratorto adjudicate the disputes between the parties as mentioned in the present petitions, including„Jheir-,^claims and counter-claims. The Arbitrator shall ensure tiie>%bmpMan^'^ftjre^pr^frsipns of Arbitration and ff^ ti' ' "" A Conciliation (Amendfnent)^>Act, 20jl;5TKbefore confmencing the arbitration. The arbitration shtlliakb plac^^uhdefcitheM^is of th€ Delhi International ft \\ Arbitration Centre^fDAC). ThiM6e'stoffith^ learned Arbitrator will be in If ^ ' I terms ofthe Delhi International Arbltfatioh^Centre Arbitration Proceedings 1| liIPP (Arbitrators'Fees)Rules. ^'A Mi0.
16. Both petitions are^•^©rdiL^]}fMi%p^sdd|)f./i^ % f Copies 01 this. ordeCbe^given dash tQ^sftheSdarned counsel for the 4lS ^1' j#' r;^ parties and a copy thereo^f;-be•delivered tpatKerlearned Arbitrator as well as Additional Coordinator,DAC foPthwith^ji (MANMOHAf^MGH^ JUDGE MARCH 08,2016 Arb.P.Nos.368/2015&369/2015 Page9of[9]