w w w . L a w y e r S e r v i c e s . i n



MAX INFRATECH (INDIA) PVT LTD. VERSUS GUJARAT MINERAL DEVELOPMENT CORPORATION


Company & Directors' Information:- GUJARAT MINERAL DEVELOPMENT CORPORATION LIMITED [Active] CIN = L14100GJ1963SGC001206

Company & Directors' Information:- J & K MINERAL DEVELOPMENT CORPORATION LIMITED. [Active] CIN = U14107JK1989SGC001110

Company & Directors' Information:- MAX INDIA LIMITED [Active] CIN = L85100PB2015PLC039155

Company & Directors' Information:- MAX INDIA LIMITED [Active] CIN = U85100PB2015PLC039155

Company & Directors' Information:- MAX CORPORATION LIMITED [Amalgamated] CIN = U24231PB1996PLC018766

Company & Directors' Information:- K L S R INFRATECH LIMITED [Active] CIN = U45400TG2011PLC072158

Company & Directors' Information:- G R INFRATECH PRIVATE LIMITED [Active] CIN = U45201RJ2010PTC031015

Company & Directors' Information:- G R INFRATECH PRIVATE LIMITED [Amalgamated] CIN = U45201GJ2010PTC098472

Company & Directors' Information:- R T INFRATECH PRIVATE LIMITED [Active] CIN = U45400WB2011PTC160181

Company & Directors' Information:- R K MINERAL DEVELOPMENT PRIVATE LIMITED [Active] CIN = U14108CT2007PTC020295

Company & Directors' Information:- N. H. INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2013PTC057055

Company & Directors' Information:- D K S INFRATECH INDIA PRIVATE LIMITED [Active] CIN = U45400UP2015PTC070754

Company & Directors' Information:- P. N. A. INFRATECH PRIVATE LIMITED [Active] CIN = U45200UP2006PTC061782

Company & Directors' Information:- S K INFRATECH PRIVATE LIMITED [Active] CIN = U70102DL2009PTC195508

Company & Directors' Information:- C J INFRATECH PRIVATE LIMITED [Active] CIN = U45200GJ2015PTC082310

Company & Directors' Information:- B E INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2010PTC040469

Company & Directors' Information:- N. M. INFRATECH PRIVATE LIMITED [Active] CIN = U45201CT2010PTC021959

Company & Directors' Information:- MAX INDIA LTD [Amalgamated] CIN = U24232PB1982PLC004841

Company & Directors' Information:- A K INFRATECH INDIA PRIVATE LIMITED [Strike Off] CIN = U45400DL2007PTC166364

Company & Directors' Information:- G S S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45209TG2009PTC066136

Company & Directors' Information:- MINERAL DEVELOPMENT LTD [Strike Off] CIN = U10200WB1947PLC014921

Company & Directors' Information:- N P INFRATECH PRIVATE LIMITED [Active] CIN = U45400UP2010PTC041169

Company & Directors' Information:- G T B INFRATECH PRIVATE LIMITED [Active] CIN = U70102DL2013PTC262831

Company & Directors' Information:- D. L. INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2012PTC051029

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- H S INFRATECH PRIVATE LIMITED [Active] CIN = U45200DL2007PTC171389

Company & Directors' Information:- M. L. INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70102UP2012PTC049517

Company & Directors' Information:- V. S. INFRATECH (INDIA) PRIVATE LIMITED [Active] CIN = U45400UP2008PTC035313

Company & Directors' Information:- H K INFRATECH PRIVATE LIMITED [Active] CIN = U45400UP2011PTC046620

Company & Directors' Information:- K A S INFRATECH PRIVATE LIMITED [Active] CIN = U70100DL2014PTC264637

Company & Directors' Information:- S. J. INFRATECH PRIVATE LIMITED [Active] CIN = U45201GJ2008PTC055572

Company & Directors' Information:- D H INFRATECH PRIVATE LIMITED [Active] CIN = U72200WB2007PTC114579

Company & Directors' Information:- P AND S INFRATECH PRIVATE LIMITED [Active] CIN = U45201OR2008PTC010495

Company & Directors' Information:- D S INFRATECH PRIVATE LIMITED [Active] CIN = U45400HR2010PTC040726

Company & Directors' Information:- D N R INFRATECH INDIA PRIVATE LIMITED [Strike Off] CIN = U45200TG2011PTC072007

Company & Directors' Information:- A TO Z INFRATECH PRIVATE LIMITED [Amalgamated] CIN = U45400DL2008PTC173245

Company & Directors' Information:- I S A INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2012PTC050137

Company & Directors' Information:- B D INFRATECH PRIVATE LIMITED [Active] CIN = U74900UP2010PTC040295

Company & Directors' Information:- AT INFRATECH PRIVATE LIMITED [Strike Off] CIN = U17291DL1994PTC063808

Company & Directors' Information:- A R S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45201DL2012PTC233450

Company & Directors' Information:- K K MINERAL PRIVATE LIMITED [Strike Off] CIN = U14200MH2010PTC203468

Company & Directors' Information:- G N G INFRATECH PRIVATE LIMITED [Active] CIN = U45400UP2014PTC065764

Company & Directors' Information:- G. H. INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70102UP2013PTC057658

Company & Directors' Information:- P R INFRATECH PRIVATE LIMITED [Active] CIN = U45400DL2008PTC184432

Company & Directors' Information:- N N INFRATECH PRIVATE LIMITED [Active] CIN = U45200DL2012PTC233232

Company & Directors' Information:- C AND N INFRATECH INDIA PRIVATE LIMITED [Active] CIN = U45200AP2014PTC095393

Company & Directors' Information:- J. B. INFRATECH INDIA PRIVATE LIMITED [Active] CIN = U45202KA2007PTC041469

Company & Directors' Information:- L. P. INFRATECH PRIVATE LIMITED [Active] CIN = U45400UP2021PTC144864

Company & Directors' Information:- T G INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45204DL2011PTC225866

Company & Directors' Information:- K & B INFRATECH PRIVATE LIMITED [Active] CIN = U45201OR2011PTC013295

Company & Directors' Information:- S P INFRATECH PRIVATE LIMITED [Active] CIN = U28113DL2009PTC193089

Company & Directors' Information:- K & C INFRATECH PRIVATE LIMITED [Active] CIN = U70109HR2013PTC048493

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- H L INFRATECH PRIVATE LIMITED [Active] CIN = U72900DL2007PTC163051

Company & Directors' Information:- D I F INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2015PTC070328

Company & Directors' Information:- M K INFRATECH PRIVATE LIMITED [Strike Off] CIN = U74140AS2009PTC009273

Company & Directors' Information:- P M INFRATECH PRIVATE LIMITED [Under Process of Striking Off] CIN = U45209AS2012PTC011122

Company & Directors' Information:- B. P. INFRATECH PRIVATE LIMITED [Active] CIN = U74120UP2012PTC050141

Company & Directors' Information:- P G MAX PRIVATE LIMITED [Strike Off] CIN = U22219KL2012PTC031856

Company & Directors' Information:- P G INFRATECH PRIVATE LIMITED [Active] CIN = U45201OR2010PTC011981

Company & Directors' Information:- B B S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400UP2010PTC039776

Company & Directors' Information:- G S L INFRATECH INDIA PRIVATE LIMITED [Active] CIN = U70102UP2014PTC067435

Company & Directors' Information:- R S A INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200DL2007PTC159373

Company & Directors' Information:- L AND D INFRATECH PRIVATE LIMITED [Active] CIN = U45209UP2021PTC145023

Company & Directors' Information:- A G MINERAL PVT LTD [Strike Off] CIN = U51909WB1964PTC026086

Company & Directors' Information:- MAX I. LIMITED [Active] CIN = U74999PB2016PLC045450

Company & Directors' Information:- P J K INFRATECH INDIA LIMITED [Strike Off] CIN = U70109PB2013PLC037175

Company & Directors' Information:- R. P. S. INFRATECH PRIVATE LIMITED [Active] CIN = U45200JH2012PTC000289

Company & Directors' Information:- B AND H INFRATECH LIMITED [Active] CIN = U45209CH2010PLC032536

Company & Directors' Information:- T V A INFRATECH LIMITED [Strike Off] CIN = U70109DL2006PLC154309

Company & Directors' Information:- M P INFRATECH LIMITED [Strike Off] CIN = U45200MP2010PLC024751

Company & Directors' Information:- C L INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70102HR2012PTC045548

Company & Directors' Information:- B. M. INFRATECH PRIVATE LIMITED [Under Process of Striking Off] CIN = U45204DL2010PTC201732

Company & Directors' Information:- F & B INFRATECH PRIVATE LIMITED [Strike Off] CIN = U55101AS2010PTC010219

Company & Directors' Information:- S. R. INFRATECH PRIVATE LIMITED [Active] CIN = U45200MH2009PTC190243

Company & Directors' Information:- F S INFRATECH PRIVATE LIMITED [Active] CIN = U45400UP2012PTC053508

Company & Directors' Information:- C H S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200TG2013PTC085657

Company & Directors' Information:- Z S INFRATECH PRIVATE LIMITED [Under Process of Striking Off] CIN = U70102UP2013PTC055750

Company & Directors' Information:- A G H INFRATECH PRIVATE LIMITED [Active] CIN = U45202UP2013PTC060726

Company & Directors' Information:- T P INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45201DL2012PTC241787

Company & Directors' Information:- D K INFRATECH PRIVATE LIMITED [Active] CIN = U70102DL2009PTC193848

Company & Directors' Information:- U. P. INFRATECH PRIVATE LIMITED [Active] CIN = U45200DL2008PTC174142

Company & Directors' Information:- INFRATECH INDIA PVT LTD [Strike Off] CIN = U99999DL1997PTC084925

Company & Directors' Information:- A S P INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200DL2008PTC176484

Company & Directors' Information:- INFRATECH DEVELOPMENT PRIVATE LIMITED [Active] CIN = U45200JH2008PTC013166

Company & Directors' Information:- M S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2007PTC164458

Company & Directors' Information:- J & T INFRATECH PRIVATE LIMITED [Active] CIN = U45400UP2010PTC042532

Company & Directors' Information:- S F S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400UP2011PTC043142

Company & Directors' Information:- G. L. INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400UP2011PTC045841

Company & Directors' Information:- C & P INFRATECH PRIVATE LIMITED [Active] CIN = U70102TG2008PTC060819

Company & Directors' Information:- S A C INFRATECH PRIVATE LIMITED [Strike Off] CIN = U74120UP2011PTC047111

Company & Directors' Information:- L R INFRATECH PRIVATE LIMITED [Strike Off] CIN = U74120UP2013PTC055304

Company & Directors' Information:- T N K INFRATECH PRIVATE LIMITED [Strike Off] CIN = U74120UP2013PTC059510

Company & Directors' Information:- B N INFRATECH (A P) PRIVATE LIMITED [Strike Off] CIN = U45203AP2010PTC069704

Company & Directors' Information:- K A C INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45209TG2011PTC075843

Company & Directors' Information:- P M G INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70102UP2011PTC045748

Company & Directors' Information:- J J INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2011PTC046818

Company & Directors' Information:- K P S B INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2012PTC050664

Company & Directors' Information:- P L S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70102UP2013PTC057228

Company & Directors' Information:- L M INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2014PTC066101

Company & Directors' Information:- S G A INFRATECH PRIVATE LIMITED [Under Process of Striking Off] CIN = U70102UP2014PTC066190

Company & Directors' Information:- R S R INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2015PTC070859

Company & Directors' Information:- V & P INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2015PTC071618

Company & Directors' Information:- V S M INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2016PTC076825

Company & Directors' Information:- S J MINERAL PRIVATE LIMITED [Active] CIN = U13202DL2007PTC171387

Company & Directors' Information:- G M S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45204DL2010PTC208368

Company & Directors' Information:- R S G INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2007PTC171157

Company & Directors' Information:- S M INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2007PTC171217

Company & Directors' Information:- H R INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2012PTC238429

Company & Directors' Information:- P D INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2012PTC240570

Company & Directors' Information:- L N D INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2012PTC242018

Company & Directors' Information:- G D INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2013PTC256246

Company & Directors' Information:- INDIA INFRATECH PRIVATE LIMITED [Active] CIN = U45400DL2013PTC257567

Company & Directors' Information:- T V K INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2015PTC275007

Company & Directors' Information:- D J INFRATECH PRIVATE LIMITED [Strike Off] CIN = U74999DL2011PTC227252

Company & Directors' Information:- S N INFRATECH PRIVATE LIMITED [Active] CIN = U45201DL2005PTC135712

Company & Directors' Information:- M & T INFRATECH PRIVATE LIMITED [Active] CIN = U70109DL2013PTC250149

Company & Directors' Information:- S N S INFRATECH PRIVATE LIMITED [Active] CIN = U70109DL2013PTC255712

Company & Directors' Information:- K R INFRATECH PRIVATE LIMITED [Active] CIN = U70200DL2008PTC185176

Company & Directors' Information:- Y S R INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70200DL2012PTC237345

Company & Directors' Information:- A G INFRATECH PRIVATE LIMITED [Active] CIN = U70200DL2012PTC242598

Company & Directors' Information:- J S G INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70102DL2013PTC256729

Company & Directors' Information:- M R INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70109DL2006PTC156032

Company & Directors' Information:- J C INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200DL2008PTC175328

Company & Directors' Information:- V A H INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200DL2012PTC246511

Company & Directors' Information:- B R S INFRATECH PRIVATE LIMITED [Under Process of Striking Off] CIN = U45200DL2013PTC248034

Company & Directors' Information:- A S M S INFRATECH PRIVATE LIMITED [Converted to LLP and Dissolved] CIN = U70101DL2005PTC137704

Company & Directors' Information:- J H A INFRATECH PRIVATE LIMITED [Active] CIN = U70101DL2013PTC259462

Company & Directors' Information:- U & M INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400HR2010PTC040118

Company & Directors' Information:- N K INFRATECH PRIVATE LIMITED [Active] CIN = U70102HR2011PTC042235

Company & Directors' Information:- C B S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200HR2011PTC043224

Company & Directors' Information:- J R INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200GJ2012PTC069050

Company & Directors' Information:- A F INFRATECH PRIVATE LIMITED [Active] CIN = U74200KL2013PTC035381

Company & Directors' Information:- V. U. D. INFRATECH PRIVATE LIMITED [Active] CIN = U45201UP2019PTC122955

Company & Directors' Information:- I H INFRATECH PRIVATE LIMITED [Active] CIN = U45309UP2020PTC135706

Company & Directors' Information:- V I H A N INFRATECH PRIVATE LIMITED [Active] CIN = U45309PN2020PTC195881

Company & Directors' Information:- D AND D INFRATECH PRIVATE LIMITED [Active] CIN = U51909GJ2021PTC122255

Company & Directors' Information:- MINERAL INDIA PRIVATE LIMITED [Strike Off] CIN = U14107CT1981PTC001844

Company & Directors' Information:- R & F INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400TG2008PTC059851

Company & Directors' Information:- A A INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200DL2007PTC158616

Company & Directors' Information:- R A INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200DL2007PTC159385

    PETN. UNDER ARBITRATION ACT No. 62 of 2009

    Decided On, 16 July 2010

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE M.R. SHAH

    FOR THE PETITIONER: NIRAV C THAKKAR, ADVOCATE. FOR THE RESPONDENT: R1, PREMAL R JOSHI, ADVOCATE.



Judgment Text

ORAL JUDGMENT


1. Present petition has been preferred by the petitioner - MAX INFRATECH (INDIA) PVT LTD. under sec.11 of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator to adjudicate the disputes which have arisen with respect to contract agreement dtd.12/3/3003.


2. It is the case on behalf of the petitioner that the respondent invited tender for removal of the OB (Over Burden) Soil in Rajpardi Lignite Mines and after completing the necessary procedure, the petitioner was awarded contract by agreement dtd.12/3/2003. It is the case on behalf of the petitioner that at the time of issuance of tender about 43.88 lac cu.m. of OB soil was available in Rajpardi lignite mine and that the respondent Corporation had granted extension of work to the previous agency by the name of M/s.HJP Fabricators for 10.50 cu.m. of soil vide order dtd.28/2/2003 i.e. prior to issuance of the letter of intent in favour of the petitioner and therefore, the available quantity of OB soil was actually only 33.88 cu.m. It is the case on behalf of the petitioner that despite the fact that the available quantity of OB soil was less than what was advertised in the tender, there was no revision or reduction of the target quantity despite several requests and reminders by the petitioner to the respondent. It is the case on behalf of the petitioner that final bill was prepared on 8/9/2005 considering the target quantity at 40.00 cu.m. and that liquidated damages (LD) of Rs.24.60 lacs was imposed on the petitioner considering the target quantity of 40.00 cu.m. as per the contract agreement and not on the basis of available OB quantity. It is the case on behalf of the petitioner that there were many other defaults committed by the respondent qua their obligations under the contract agreement while the contract was being executed by the petitioner and as such the petitioner suffered loss of Rs.2 Crores approximately.


3. It is the case on behalf of the petitioner that contract work was, however, completed as per the schedule and there was no additional financial burden of the respondent corporation for timely completion of the work, however because of delays at the end of the respondent corporation in releasing payments to the petitioner and other defaults in complying with their obligations under the contract, the petitioner suffered huge losses in terms of the interest on the invested amount and interest on the loan amount taken by the petitioner from the market, for which also the respondent corporation is liable.


4. It is the case on behalf of the petitioner that last payment was made by the respondent corporation to the petitioner on 25/5/2006 to the tune of Rs.23.79.17=00 and the petitioner had objected to withholding of Rs.24.60 lacs towards liquidated damages by communication dtd.27/5/2006 and requested to release the withheld amount.


5. It is the case on behalf of the petitioner that in absence of any response from the respondent corporation, there was a dispute between the petitioner and the corporation and therefore the petitioner invoked arbitration clause No.17 of the contract agreement by issuing notice dtd.14/7/2006 calling upon the respondent to appoint arbitrator. It is the case on behalf of the petitioner that as there was no response, again a reminder was sent on 4/9/2007 requesting the respondent corporation to release the withheld amount or else to refer the matter to the arbitration within 30 days. It is the case on behalf of the petitioner that neither the respondent corporation released the withheld amount nor appointed arbitrator as per the terms of the agreement and therefore, the petitioner has preferred present petition under sec.11 of the Arbitration and Conciliation Act, 1996 to refer the parties to arbitration and to appoint sole arbitrator to adjudicate the disputes between the parties.


6. In response to the notice issued by this Court, Mr.Premal Joshi, learned advocate has appeared on behalf of the respondent and has submitted that as after negotiation the corporation agreed to pay the liquidated revision amounting to Rs.23,79,174=00 and on the other hand, the petitioner also agreed to withdraw its claim of Rs.24,59,575=00 against the revision of targeted quantity and the petitioner accepted amount of Rs.23,79,174=00 towards full and final settlement of its claim against the respondent, and therefore, it is not open for the petitioner now to raise the claim with respect to Rs.24,59,575=00, the claim which has been withdrawn by the petitioner and therefore, the dispute with respect to the aforesaid claim is not required to be referred to the arbitration and for that arbitrator is not required to be appointed.


7. Mr.Joshi, learned advocate appearing on behalf of the respondent Corporation has relied upon the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Boghara Polyfab Private Limited, reported in (2009) 1 SCC 267 (paragraph Nos.28 and 52).


8. In response to the above, Mr.Nirav Thakkar, learned advocate appearing on behalf of the petitioner has also relied upon the aforesaid decision of the Hon'ble Supreme Court in the case of National Insurance Company (supra). He has submitted that as observed and held by the Hon'ble Supreme Court in the aforesaid decision, whether the contract has been discharged by performance or by accord and satisfaction is a mixed question of facts and law and if there is dispute with regard to that question, such a dispute is arbitrable. It is submitted that as observed and held by the Hon'ble Supreme Court, if the party which has executed discharged agreement/voucher alleges fraud, coercion, undue influence practiced by the other party and is able to establish the same, then obviously the discharge of such contract by such agreement/voucher is rendered void and cannot be acted upon and therefore, consequently any dispute raised by the executor of the discharge agreement/voucher would be arbitrable. It is submitted that in the present case as the entire amount of the petitioner totalling to Rs.48.39 Lacs was withheld and the petitioner was suffering a lot, the petitioner was at the relevant time was compelled to agree to accept Rs.23,79,174 and issue voucher/receipt of full and final settlement, therefore, it is requested to appoint sole arbitrator and refer the parties to the arbitration.


9. In response to the above submission of Mr.Thakkar, learned advocate appearing on behalf of the petitioner, Mr.Premal Joshi, learned advocate appearing on behalf of the respondent Corporation has denied that accepting of Rs.23,79,174 was under durace or coercion and/or that there was compulsion on the part of the petitioner to accept the same as full and final settlement. It is submitted that there were series of discussions between the parties and even draft of the settlement agreement was sent to the petitioner and thereafter the petitioner signed the settlement agreement dtd.24/5/2006 voluntarily agreeing to for go Rs.24,59,575=00 and it was agreed by the respondent corporation to refund Rs.23,79,174=00 which was earlier deducted towards liquidated damages. Therefore, it is requested to dismiss the present petition.


10. Heard the learned advocates appearing on behalf of the respective parties at length.


11. It appears that while preparing final bill, liquidated damages of Rs.48,38,749=00 was proposed to be deducted, however, thereafter there were series of discussions between the parties more particularly with the D.G.M. (Mines) and the petitioner and it was agreed to refund an amount of Rs.23,79,174 deducted from the final bill dtd.8/9/2004 by way of liquidated damages and simultaneously it was agreed that the petitioner shall not claim balance withheld amount of Rs.24,59,575. It appears that after the discussions the petitioner communicated to the respondent corporation vide communication dtd.18/4/2006 that the petitioner has agreed to receive Rs.23,79,174 deducted from the final bill dtd.8/9/2004 towards the liquidated damages and not to claim the balance withheld amount of Rs.24,59,575 as proposed. It appears that thereafter by communication dtd.24/5/2006, the petitioner was sent the draft of the settlement agreement to be executed between the petitioner and the respondent corporation on a Non-judicial Indian Stamp Paper of Rs.50 and the petitioner was requested to confirm the contents of the draft agreement and/or give suggestion/modification, if any. That the petitioner accepted the said draft of settlement agreement and by communication dtd.24/5/2006, the petitioner conveyed their consent to the draft agreement and thereafter a further settlement agreement dtd.24/5/2006 came to be executed between the petitioner and the respondent by which the parties agreed as follows:-


i. The ?Corporation? will refund the amount of LD amounting to Rs.23,79,174/- levied towards target shortfall of the monsoon period to the ?Contractor?.


ii. The ?Contractor? will withdraw its claim of Rs.24,59,575=00 against the ?Corporation? with respect to the revision of targeted quantity.


iii. The ?Contractor? will provide necessary documentary evidence with a written undertaking for no further claims.


12. That thereafter, the petitioner has been released liquidated damages of Rs.23,79,174=00 as agreed and only thereafter the petitioner has raised claim with respect of Rs.24,59,575=00 which claim the petitioner has withdrawn as per the aforesaid settlement agreement which was arrived at after series of discussions.


13. In backdrop of the aforesaid facts, the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited (supra) is required to be considered. Considering the aforesaid decision of the the Hon'ble Supreme Court as a whole, more particularly para 52 and illustration No.(v), the dispute/claim in question is not an arbitrable. Illustration No.(v) in para 52 reads as under:-


?(v). A claimant makes a claim for a huge sum, by way of damages. The respondent dispute the claim. The claimant who is keen to have a settlement and avoid litigation, voluntarily reduces the claim and requests for settlement. The respondent agrees and settles the claim and obtains a full and final discharge voucher. Here even if the claimant might have agreed for settlement due to financial compulsions and commercial pressure or economic duress, the decision was his free choice. There was no threat, coercion or compulsion by the respondent. Therefore, the accord and satisfaction is binding and valid and there cannot be any subsequent claim or reference to arbitration.?


14. In the present case, as stated above, there were series of discussion between the parties and thereafter against total claim of Rs.48,38,749=00 towards liquidated damages while while preparing final bill, it was agreed that a sum of Rs.23,79,174=00 deducted towards liquidated damages, shall be refunded to the petitioner and that the petitioner shall forgo his claim and/or withdraw his claim for Rs.24,59,575=00. The petitioner confirmed the above. That thereafter, a draft settlement agreement was sent to the petiti

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oner and the petitioner was also called upon to make suggestion/modification, if any. The petitioner agreed to the said draft settlement agreement without any modification and without any objection and agreed to accept Rs.23,79,174=00 and to withdraw claim of Rs.24,59,575=00. Thus, it cannot be said that the agreement by the petitioner to accept Rs.23,79,174=00 only and to withdraw claim of Rs.24,59,575=00 was under coercion or undue influence. Under the circumstances, when the petitioner agreed to accept Rs.23,79,174=00 towards full and final settlement and agreed to withdraw/forgo claim of Rs.24,59,575=00, and issued receipt/voucher towards full and final settlement, thereafter the claim of Rs.24,59,575=00 cannot be said to be arbitrable, as observed by the Hon'ble Supreme Court in the aforesaid decision. Therefore, the present petition for appointment of arbitrator with respect to claim of Rs.24,59,575=00 is held to be not arbitrable and therefore, the same is not required to be referred to the arbitrator. 15. In view of the above and for the reasons stated above, present petition deserves to be dismissed and is accordingly dismissed. Notice is discharged. In the facts and circumstances of the case, there shall be no order as to costs.
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