* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ IA No.9364/1991, I.A 9046/2010 & CS(OS) No.3768A/1991
% Date of Decision: 23.12.2011
M/s.Gursharan Singh .... Petitioner
Through Mr.B.K.Dewan and Mr. Bhavesh Kumar
Sharma, Advocates.
Versus
M/s.Bharat Petroleum Corpn. Ltd & ors. .... Respondents
Through Mr.Manoj Singh, Advocate, Mr. Anil K.
Batra and Mr. Prince Kumar, Advocates
for Respondent no.1/Objector
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
ANIL KUMAR, J.
*
1. The petitioner was awarded work for construction of road at LPG plant at Lucknow and an agreement dated 12th January, 1988 was executed between the parties. The work was to be completed within four months and the stipulated date of completion was 14th June, 1988, however, the work was completed on 21st June, 1988. The value of the work awarded to the petitioner was Rs.13,64,400/-, however, the scope of work was increased and work could be completed by the petitioner by 25th November, 1988.
2. In respect of work, construction of road at LPG plant at Lucknow disputes arose and the petitioner invoked clause 19 of the agreement which has an arbitration Agreement which is as under:-
CS(OS) 3768 A of 1991 Page 1 of 21
"19. Arbitration:- In the event of any dispute or difference at any time arising between the parties here to touching the construction, meaning or effect of these presents or the rights or liabilities of the parties hereunder or any matter arising out of the same or connected therewith, the same shall except where otherwise specifically agreed, be referred, for arbitration in India to a single arbitrator if the parties agree, upon one or otherwise to two arbitrators, one to be named by each party and in the event of the arbitrators differing, to an umpire to be appointed by the arbitrators in writing before entering on the reference. Any such reference shall be deemed to be a reference to arbitration within the meaning of the Arbitration Act, 1940 and the rules made thereunder and to any statutory modification or re-enactment thereof for the time being in force. The decision of the arbitrator(s) and tailing an agreed decision by him/them, the decision by the umpire, shall be final and conclusive and binding on both parties. Any proceedings under the reference to the Arbitrator(s) or umpire shall be held only at ........"
3. The arbitration agreement contemplated two arbitrators one to be named by each party and, therefore, petitioner appointed Sh.P.L.Saluja, B.Tech, Civil Engineer as an arbitrator whereas the Respondent no.1 Bharat Petroleum Corpn. Ltd appointed Sh.P.P.Darundkar, Technical Ex-Chairman and Managing Director, National Building Construction Corporation as another arbitrator.
4. Before the arbitrators the parties filed their claims, evidence on affidavit in support of their claims. A number of hearings took place before the arbitrators. The parties also submitted written submissions. Arbitrators, Respondent nos. 2 & 3 also visited the site at Lucknow and examined the disputes with reference to site, relevant drawings and other documents. CS(OS) 3768 A of 1991 Page 2 of 21 After the hearing the parties were directed to submit the requisite stamp papers for making and publishing the award and thereafter, the award dated 25th November, 1991 was given by the arbitrators. The arbitrators awarded Rs.1,07,301.50/- towards final bill recovered; Rs.60,000/- for laying of stone soling of 230 mm; Rs.36,000/- for laying of stone soling 100 mm, Rs.2,65,380/- for additional work; Rs.23,300/- on account of excess expenditure due to abnormal variation. The arbitrators, however, declined to award interest with effect from 25th November, 1988 and cost of arbitration proceedings. The Respondent no.1 had also claimed Rs.10,16,030/- towards the estimated cost of repairs, however, the arbitrators declined the claim of the Respondent no.1.
5. After the award was given the petitioner filed petition under Section 14 of Arbitration Act, 1940 seeking direction to the arbitrators, Respondent Nos.2 & 3 to file the award along the depositions made by the parties. On service of notice of filing of award the Respondent no.1 filed objections under Section 33 read with 16 & 33 of Arbitration Act being IA No.9364/1991 contending inter-alia that under the agreement, additional work beyond the scope and sweep of the agreement was not arbitrable. It is contended that the work had been completed on 21st June, 1988 and a final bill was prepared.
CS(OS) 3768 A of 1991 Page 3 of 21
6. According to the objector/Respondent no.1 on 28th April, 1989 a meeting was held between the parties after the completion of work by the petitioner and record notes were prepared. Relying on the record notes it is contended that instead of removing the defects in workmanship, the petitioner had agreed for deduction of Rs.1,07,301.50/- and accordingly a full and final settlement of all the claims of the petitioner was arrived at and Rs.2,05,724.01/- was received by the petitioner which was accepted by the petitioner by letter dated 10th July, 1989. The objector/Respondent no.1 contended that in the said letter dated 10th July, 1989 the petitioner categorically and specifically stated as under:-
"I do not have any further claim."
7. The objector/respondent no.1 has asserted that after receipt of amount in full and final settlement, the petitioner had raised frivolous claims which are arbitrated by two arbitrators who passed their non speaking award dated 25th November,1991. According to the Respondent no.1/objector seven claims were raised by the petitioner and the Respondent no.1 also raised the counter claims, however, the amounts as indicated hereinabove were awarded to the petitioner and the claims of the Respondent no.1 were dismissed. The objector/Respondent no.1 has contended that the arbitrators have passed an award on matters which were not arbitrable being accepted matters or beyond the scope of the contract. It is also asserted that the award is based on no evidence and it is for those CS(OS) 3768 A of 1991 Page 4 of 21 disputes which had been fully and finally settled by the parties. The further plea of the Respondent no.1/objector is that after the full and final settlement of disputes, the matter could not be referred to the arbitrators nor the arbitrators could award any amount. The Respondent no.1/objector relied on Associated Engineering v. Government of Andhra Pradesh (1994) 4 SCC 1993; New India Civil Erections Pvt Ltd v. ONGC, (1997) 11 SCC 75; West Bengal Industrial Infrastructure Development Corporation v. Star Engineering, AIR 1987 Col.126 and State of Jammu and Kashmir and Anr v. Dev Dutt Pandit, AIR 1999 SC 3196 and 159(2009) DLT 534, Polytron & Fragrance Industries (P) Ltd v. National Insurance Co.Ltd. in support of its contention.
8. The objector/Respondent no.1 also contended that even in a non speaking award the Court can look into the contract between the parties if the arbitrators have fallen into jurisdictional error and relied on T.N.Electricity Board v. Bridge and Tunnel Constructions and Ors, (1997) 4 SCC 121. The objector/respondent no.1 also contended that the issue of lack of jurisdiction of the arbitrators in respect of additional work beyond the contract can be raised for the first time in a petition under Section 33 of the Arbitration Act, 1940 as the challenge to the arbitrators jurisdiction goes to the root of the matter, even if not taken during the arbitration proceedings and does not bar the objector/respondent no.1 from taking the same for the first time in the Court. The Respondent no.1 relied on CS(OS) 3768 A of 1991 Page 5 of 21 Jagannath Kapoor and Anr v. Premia Credit and Settlement Corporation Pvt Ltd, AIR 1973 Allahabad 49; Khardah Company Ltd v. Raymond and Company, AIR 1962 SC 1810.
9. The learned counsel for the parties have been heard in detail on various dates and the record of the Arbitration perused. The learned counsel for the Respondent no.1 has contended that the Arbitrators could not award any amount in respect of which the parties had arrived at full and final settlement. It is contended by the learned counsel that the plea of the petitioner is not that the full and settlement was arrived under pressure or petitioner agreed for full and final settlement on account of any coercion of any fraud played upon the petitioner.
10. Whether there had been a full and final settlement between the parties pursuant to which the amount which was due to the petitioner was paid and consequently no dispute survived and the arbitrators could not award any amount to the petitioner? The Respondent no.1/objector has also relied on 159 (2009) DLT 534, Polytron & Fragrance Industries (P) Ltd v. National Insurance Co.Ltd; 2008 VI AD (Delhi) 572, R.K.Silk Mills (India) Ltd v. National Insurance Company Ltd; 1995 Supp (3) SCC 324, Nathani Steels Ltd v. Associated Constructions and 1994 Supp (3) SCC 126, P.K.Ramaiah and Company v. Chairman and Managing Director, National Thermal Power Corpn. in support of his contention.
CS(OS) 3768 A of 1991 Page 6 of 21
11. The learned counsel contends that the settlement was arrived at between the petitioner and the Respondent no.1/objector on 28th April, 1989 and the terms of the settlement including the deduction for which the petitioner contractor had agreed and the amount payable to the petitioner was specifically stipulated in the settlement dated 28th April, 1989. The record note of 28th April, 1989 is as under:-
1. The above job was awarded to M/s.Gursharan Singh as per Agreement No.AEM/87/102 dated 12.01.88.
2. The job was started on 15.02.88 and was completed on 25.11.88. Bill No.1126 dated 12.01.89 for Rs.18,33,954.60 was submitted, which included drains, roads, earthfilling etc. out of which black carpet was of Rs.4,03,261.44 (@ 48/m2 for an area 8401=28 m2) and quality complaint was found in this item only. On measurement at site, an average thickness of the black carpet was found varying 40mm downwards.
3. The contractor has been asked to correct the thickness to which he expressed inability and has proposed for a prorate deductions of the carpet thickness as below:-
4.
(i). For average 40 mm thick carpet for an area of 6082.80m,
for 12mm thick carpet which comes to
Rs.67,378.70(48/52x12x6082.80)
(ii). For average 26 mm thick carpet for an area of 166.3.45
m2, a deduction for balance 26 mm thick carpet which
comes to Rs.39,922.80x(48/52x26x1663.45)
(iii). Thus, total deduction is of Rs.1,07,301.50.
(iv). The balance area of 655.03 m2 is having correct carpet
thickness of 52 mm.
(v). The contractor had proposed a deduction of
Rs.1,07,301.50 against above bill and to treat it as the CS(OS) 3768 A of 1991 Page 7 of 21 final bill and confirms that he has no further claims beyond the quantities mentioned in the bill.
(vi). The contractor proposed to release the balance payable amount of Rs.1,37,911.10 with details as below:-
Total amount of bill: Rs.18,33,954.63
Say Rs.18,33,954.60
Less already paid : Rs.15,12,000.00
Balance Rs. 3,21,954.60
Less Retention Money
(as per Agreement
Clause) Rs. 63,349.00
Less 2% Income Tax Rs. 6,439.00
Less 8% S/C on I.Tax Rs. 515.00
Less 2% U.P.S.Tax Rs. 6,439.00
Payable Rs. 2,45,212.60
DEDUCTIONS Rs.1,07,301.50
Net Payable after
Deductions Rs.1,37,911.10
6. The contractor has confirmed that there will be no further claims against the aforesaid contract for which net payable is Rs.1,37,911.50.
H.P.GUPTA BRIJ MOHAN For BHARAT PETROLEUM .FOR M/S GURSHARAN SINGH CORPN.LTD
12. According to the learned counsel for the Respondent no.1/objector, the petitioner had confirmed that he would have no further claim against the aforesaid contract which was as per agreement No.AEM/87/102 dated 12th January, 1988 after payment of an amount of Rs.1,37,911.50/-. The CS(OS) 3768 A of 1991 Page 8 of 21 learned counsel has also relied on the letter dated 10th July, 1989 sent on behalf of Respondent no.1/objector to the petitioner forwarding a cheque No.052086 dated 7th July, 1989 for an amount of Rs.2,05,724.13/- in full and final settlement of the amount payable to the petitioner for the works pertaining to road/drain at LPG plant, Lucknow against agreement No.AEM/87/102 dated 12th January, 1988. The said letter also has an endorsement regarding the receipt of cheque pursuant to the settlement arrived at between the parties. The learned counsel, Mr.Manoj Singh has also referred to letter dated 20th July, 1989 by the Respondent no.1 to the petitioner categorically refuting the allegations made by the petitioner in its letter dated 10th July, 1989 demanding interest at 18% per annum and also claiming an amount of Rs.5,19,774.47/- even after receiving an amount of Rs.2,05,724.13/-. According to the learned counsel by letter dated 20th July, 1989 it was communicated to the petitioner that after receiving an amount of Rs.2,05,724.13/- nothing is due from Respondent no.1 to the petitioner in terms of joint memorandum which was signed on 28th April, 1989. The learned counsel also contends that after the settlement there could not be further claims as has been allegedly raised by the petitioner on 19th May, 1989 which was rejected by letter dated 19th June, 1989 by the Respondent no.1 and consequent thereto the amount was accepted on 10th July, 1989.
13. The learned counsel for the petitioner has refuted the plea of the Respondent no.1 that the dispute were settled between the parties and the amounts were paid in full and final settlement as this plea was not raised by CS(OS) 3768 A of 1991 Page 9 of 21 the Respondent no.1 before the arbitrators during the arbitration proceedings. The learned counsel for the Respondent no.1 has, however, relied on the reply filed on behalf of Respondent no.1/objector dated 25th March, 1990 categorically stipulating that the claim of the petitioner are false, fabricated and vexatious as in terms of record notes dated 28th April, 1989 after deducting an amount of Rs.1,35,911.10 which was admitted by the petitioner, the balance amount with the other amounts which were due to the petitioner were paid on 10th July, 1989 which amount was accepted by the petitioner by making an endorsement on the letter dated 10th July, 1989 and consequently the amount has been paid in full and final settlement and despite the plea specifically taken by the Respondent no.1/objector, the learned arbitrators have awarded an amount of Rs.1,07,301.50/- towards final bill recovery; Rs.60,000/- towards laying of stone soling 230 mm; Rs.36,000/- for laying of stone soling 100 mm; Rs.2,05,380/- towards additional work and an amount of Rs.23,318/- towards excess expenditure due to abnormal variations besides simple interest @ 13% per annum to the petitioner on account of non-payment of the amounts awarded within one month from the date of the award dated 25th November, 1991.
14. In Nathani Steels Ltd (Supra) it was held by the Supreme Court that once the disputes by and between the parties under a contract are amicably settled by way of final settlement, one of the party to the settlement then cannot spurn it on the ground that it was on account of mistake and cannot CS(OS) 3768 A of 1991 Page 10 of 21 proceed to invoke arbitration clause. The Supreme Court had held that the sanctity of the contract and the settlement would be wholly lost and one party cannot be allowed to take benefit under the settlement and then spurn it. In the circumstances, the Supreme Court had allowed the appeal and had set aside the order of High Court holding that a party could invoke the arbitration clause despite arriving at a final settlement.
15. Similarly, in P.K.Ramaiah and Company (Supra) it was held by the Apex Court that once a party acknowledges settlement and also accepts measurement and receives the amount in full and final settlement of its claims, then there would be accord and satisfaction and no arbitrable disputes will exist for reference to arbitration. In R.K.Silk Mills (India) Ltd (Supra) the Court had declined to appoint an arbitrator in a petition under Section 11(6) of the Arbitration & Conciliation Act, 1996 as the difference between the parties with regard to liability as well as to the quantum of loss were crystallized and consequently no further disputes remained with regard to that. It was held that the dispute which could be referred to arbitration could be only one which pertained to the quantum to be paid under the policy and since the quantum had been crystallized there did not remain any dispute or difference between the parties and, therefore, the petition under Section 11(6) of the Arbitration & Conciliation Act was dismissed. The learned Single Judge in R.K.Silk Mills (India) Ltd (Supra) had relied on M/s.P.K.Ramaiah and Company and M/s.Nathani Steels Ltd. CS(OS) 3768 A of 1991 Page 11 of 21
16. In Polytron & Fragrance Industries (P) Ltd (Supra) it was held that acceptance of amount towards full and final settlement of the claim, even if it was under any duress or coercion, will not leave any dispute for arbitration. The Court had held that even if it is contended by one of the parties that full and final settlement of claim was under duress or coercion, this will not be a dispute arbitrable under the arbitration clause as the arbitral Tribunal is not the forum to adjudicate such a dispute and the only remedy with such a party who could challenge the settlement of claims on account of duress and coercion was to raise it in some other proceedings and not before the arbitrators. It was held that if such a plea is allowed to be taken after acceptance of amount in full and final settlement, the sanctity of settlement would be wholly lost.
17. The petition under Section 14 of the Arbitration Act was filed on 13th July, 1994 seeking a direction to the Respondent no.1 Nos.2 & 3 Sh.P.P.Dharwadker and Sh.P.L.Saluja arbitrators to file the award along with the depositions made by the parties. The objections to the award dated 25th November, 1991 were filed as IA No.9364/1991. The award filed by the arbitrators Respondent no.1 Nos.2 & 3 was taken on record on 15th January, 1992 and since then the objections have been pending.
18. The objections were initially filed as IA No.9364/1991, however, that application was not available on records and as per the directions of this Court, fresh objections were filed being IA No.9365/1992. However, by CS(OS) 3768 A of 1991 Page 12 of 21 order dated 11th April, 1994 it was held that since IA No.9364/1991 is on record, therefore, IA No.9365/1992 requires no order and the issues were framed on 11th April, 1994.
19. Thereafter, by order dated 15th March, 1999 the objections were dismissed in default and the award was made rule of the Court. An application IA No.3873/1999 was filed for setting aside the decree passed, on dismissal of the objections which was allowed by order dated 16th November, 2000 and order dated 15th March, 1999 was recalled and the objections were restored to its original number.
20. On 20th February, 2004 the Joint Registrar passed the order to place the petition before the Court as the value of the matter for the purpose of pecuniary jurisdiction was noticed to be less than Rs.20 lakhs. Thereafter, though the matter was placed before the Court, however, none of the parties pointed out that the jurisdiction value as noticed by the Joint Registrar was less than Rs. 20 lakhs. Rather the question of jurisdiction was not considered and on the contrary the arguments were advanced on different dates and the matter has been adjourned from time to time in detail.
21. After considerable arguments on various dates, the petitioner apprehended that the objections may be allowed and award may be set aside, he filed and IA 9046 of 2010 contending that the valuation of the suit is hardly Rs.4.6 lakhs and on account of enhancement of pecuniary CS(OS) 3768 A of 1991 Page 13 of 21 jurisdiction of the suits of the value of Rs.20 lakhs or less being transferred to the respective District Courts which had escaped the notice of the Registry and therefore, the suit be transferred to the District Court and/or alternatively the matter be assigned to the original jurisdiction of this Court.
22. The application has been contested by the respondent no.1 contending that the suit is within the pecuniary jurisdiction of this Court and the application is nothing but an attempt on the part of the petitioner to delay the disposal of the suit. It was also contended that the total amount involved in the present suit is above Rs.20 lakhs. In order to substantiate its plea that the amount involved in the suit is above 20 lakhs, the respondent no.1 contended that the award of the arbitrator in favour of plaintiff is for Rs. 4,31,999.50/-. The counter claims of the respondent no.1 are for Rs.10,16,030/- besides interest at the rate of 13% per annum with effect from 25th December, 1991 over the principal amount of Rs.4,31,999.50/- amounting to Rs.10,67,037.53/- and, therefore, the total amount involved is Rs.25,15,067/-. Therefore, it was prayed that the application for transfer of the suit to the district Court be dismissed.
23. Yet another application being IA No.11259/2010 was filed on behalf of plaintiff under Section 24 of the Code of Civil Procedure for transfer of case to District Court on account of pecuniary jurisdiction being Rs.16 lakhs. The petitioner/applicant contended that the valuation of the present suit is Rs.16 lakhs. Since the jurisdiction value of the High Court has been CS(OS) 3768 A of 1991 Page 14 of 21 enhanced on account of Delhi High Court (Amendment) Act, 2003 therefore the petition should not be tried by the Hon'ble High Court.
24. The I.A. No. 11259 of 2010 was later on withdrawn by the petitioner in view of pendency of I.A 9046/2010 seeking same relief i.e the petition be transferred to District Court as the jurisdiction of the matter is less than Rs.20 lakhs. The application being I.A no. 11259 of 2010 was dismissed as withdrawn by order dated 27th August, 2010.
25. The learned counsel for the plaintiff in support of his plea for transfer of the present petition has also relied on the decision dated 5th September, 1984 in Suit No.491A/1980 titled as Somnath Verma v. Union of India & Ors to contend that since the value of the petition is less than Rs.20 lakhs, therefore, the suit should be transferred to the District Court.
26. The learned counsel for the respondent no.1 has opposed the plea of transfer at this stage as the objections are pending for almost two decades and has relied on 127 (2006A) DLT 300, Aviat Chemicals Pvt Ltd & Anr v. Magna Laboratories (Gujarat); 2009(157) DLT 41, Sunil Dutt & Anr v. Bhag Singh and 2006(33) PTC 387, Hawkins Cookers Ltd v. Citizen Metal Industries (India). The learned counsel also contended that since the arguments on objections have already been almost concluded at which stage the application has been filed merely with a view to further delay the CS(OS) 3768 A of 1991 Page 15 of 21 disposal of the case. It is further contended that it is a fit case where the Court should exercise its power under section 24 of the Code of Civil Procedure to transfer the suit to the High Court, even if it comes to the conclusion that the petition is liable to be transferred to District Court on account of valuation of the matter being less than Rs.20 lakhs.
27. This Court has heard the learned counsel for the parties in detail on this aspect also. In Sunil Dutt (Supra) this Court had held that the High Court under Section 24 of CPC has powers to call any suit from the lower Court to itself. In exercising powers under Section 24 of the Code of Civil Procedure, the High Court withdraws the suit from the civil Court and entertains the same and in such a case, it will not be a case of return of plaint where the power is exercised under Section 24 of the Code of Civil Procedure. In the instant case relied on by the respondent no.1 after the trial was over and the case was at the stage of arguments, relying on the statement of one witness deposing that the suit property was Rs.30 lakhs and because Civil Judge could try the suits only up to pecuniary jurisdiction of Rs.3 lakhs, therefore, the District Judge had forwarded the same to the High Court on the original side. After the case was received on the original side, a plea was taken on behalf of the defendant that the plaint has been returned under Order 7 Rule 10 of the Code of Civil Procedure, therefore, de- novo trial was claimed by the defendant. This plea was repelled by the Court holding that when the power is exercised under Section 24 of Code of Civil Procedure then it is not a case of return of plaint and the defendant could CS(OS) 3768 A of 1991 Page 16 of 21 not ask for de-novo trial. It was also held that a judgment or an order can be set aside on the ground of lack of pecuniary jurisdiction only if it has resulted into a failure or miscarriage of justice. Since the case was at the stage of final arguments and evidence of both the parties had already been recorded it was held that no prejudice would be caused to the defendant, if the suit is continued at the level it was received and, therefore, the case continued from the stage at which it was received in the High Court.
28. In Hawkins Cookers Ltd (Supra) the suit was instituted in the High Court and after several proceedings, on account of increase in pecuniary jurisdiction the case was transferred from the High Court to the District Civil Court. Pursuant to an application for amendment, the value of the suit was enhanced for the purpose of pecuniary jurisdiction to Rs.21 lakhs and the file was sent by the District Judge to the High Court. After the suit was sent on account of increase of jurisdictional value of the suit by District Judge to the High Court, the plea was taken that it amounted to return of the plaint. This Court, however, had held that return of the plaint for want of jurisdiction whether pecuniary or territorial cannot be equated to the transfer of the suit or proceedings either by virtue of Section 24 of CPC or owing to any other statutory change. The Court had also observed that in civil cases where suits had been transferred from the High Curt to the District Court and the valuation of the suit was revised and the plaintiff approached the Court under Section 24 of the CPC and the order of the District Judge to send the file or transmit to the High Court, was CS(OS) 3768 A of 1991 Page 17 of 21 assumption and exercise of jurisdiction under Section 24 of CPC of the High Court to transfer the suit to itself. Therefore, the plea that this tantamount to return of the plaint was repelled and the suit was restored to the original number.
29. In Aviat Chemicals Pvt Ltd & Anr (Supra) the suit was transferred on account of increase in pecuniary jurisdiction of the Court and the amendment of the plaint was sought to claim higher amount of damages and to increase the value of suit for purpose of Court fees and jurisdiction. The Single Judge of this Court had held that provisions of Section 24(5) of CPC and Order 7 Rule 11 of the CPC are to be constructed harmoniously. It was further held merely because Court lacks pecuniary jurisdiction and proceeding under Order 7 Rule 10 or 10A pending before the Court per se would not oust jurisdiction of Court to pass order under Section 24 of CPC and it will be a travesty of justice to commence de-novo proceedings from the stage of filing of written statement. It was further held that no prejudice would be caused to Respondent no.1s if suit is permitted to be transferred by itself, which will be a sufficient ground for ordering transfer and sufficient ingredients of Section 24 of CPC would be made out.
30. From 29th April, 2004 when the petition was listed before the Court pursuant to the order dated 20th February, 2004 to transfer the case to District Court, neither the petitioner nor the respondent no.1 sought transfer of the petition to the District Court rather the petitioner was argued CS(OS) 3768 A of 1991 Page 18 of 21 exhaustively on various dates. After the petitioner concluded his submission for making the award rule of the Court and the respondent no.1 resisted the claim on the ground that the disputes had been settled between the parties and the amounts were paid in full and final settlement and were also received by the petitioner, the plea was first contested on the ground that the said plea was not taken earlier. The counsel for the respondent no.1 relied on the reply filed on behalf of Respondent no.1/objector dated 25th March, 1990 categorically stipulating that the claim of the petitioner are false, fabricated and vexatious as in terms of record notes dated 28th April, 1989 after deducting an amount of Rs.1,35,911.10 which was admitted by the petitioner, the balance amount with the other amounts which were due to the petitioner were paid on 10th July, 1989 which amount was accepted by the petitioner by making an endorsement on the letter dated 10th July, 1989 and consequently the amount has been paid in full and final settlement and despite the plea specifically taken by the Respondent no.1/objector, the learned arbitrators have awarded an amount of Rs.1,07,301.50/- towards final bill recovery; Rs.60,000/- towards laying of stone soling 230 mm; Rs.36,000/- for laying of stone soling 100 mm; Rs.2,05,380/- towards additional work and an amount of Rs.23,318/- towards excess expenditure due to abnormal variations besides simple interest @ 13% per annum to the petitioner on account of non-payment of the amounts awarded within one month from the date of the award dated 25th November, 1991. When left with no answer to this plea that the CS(OS) 3768 A of 1991 Page 19 of 21 petitioner filed an application being I.A no. 9046 of 2010 dated 10.5.2010 praying as under:
"It is therefore, prayed that this Hon'ble court be pleased to transfer the present case to the Hon'ble district Court or/and alternatively the matter be assigned to the Original jurisdiction of this Hon'ble court. Any other order to this Hon'ble court deems fit."
31. The petitioner has not aver that the petitioner shall be prejudiced in case the petition which has been almost argued conclusively, is not transferred to the District Court. From the reason stated herein before it is apparent that the disputes which had arisen between the parties had been settled and the amounts were paid in full and final settlement. The amount paid was also accepted by the petitioner. If that be so, the disputes could not be referred to be adjudicated by the arbitrators as no disputes had survived after the settlement and acceptance of amount nor the arbitrator could given an award in favor of petitioner in the facts and circumstances of this case.
32. If this matter is transferred to the District Court, the parties shall argue the same points de novo. This cannot be disputed that the High Court under section 24 of Code of Civil Procedure has power to call any suit from the lower Court to itself. For the reasons stated herein above and the precedent relied on, it is a fit case to exercise the power under section 24 of the Code of Civil Procedure to call back this matter, in case it is to be sent to the District Court on account of increase of jurisdiction of High Court. CS(OS) 3768 A of 1991 Page 20 of 21 Taking it from any angle it will be just an appropriate to decide the matter on merit after hearing the arguments for such a long period in the facts and circumstances of this case and to dismiss the application of the petitioner being I.A no.9046 of 2010 to transfer the case to the District Court. Therefore, the said application is dismissed.
33. For the foregoing reasons it is also held that there had been a concluded settlement between the parties pursuant to which amount was paid to the petitioner by Respondent No. 1 in full and final settlement, therefore, there were no disputes which could be referred to the arbitrators by the parties in the facts and circumstances of this case. The other disputes regarding validity of the award raised by the parties do not survive in the facts and circumstances. Therefore, the objections of the respondent no.1 being I.A no. 9364 of 1991 are allowed and the award dated 25.11.1991 given by Respondent No. 2 and Respondent No. 3 pursuant to agreement no. AEM/97/102 dated 12th January, 1988 is set aside. Considering the facts and circumstances the parties are, however, left to bear their own costs.
December 23rd , 2011 ANIL KUMAR, J.
„k‟
CS(OS) 3768 A of 1991 Page 21 of 21