M/S. S.K. Sharma vs Union Of India & Ors.
2009 Latest Caselaw 483 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

                       + Arb. Appl. No. 211/2008
          *
%11.02.2009                  Date of decision :11th February,2009

M/S. S.K. SHARMA                                        ....Petitioner

                              Through: Mr. Vivekanand, Advocate


                                  Versus

UNION OF INDIA & ORS.                             .... Respondents
                               Through: Ms. Geetanjali Mohan and Ms.
                                        Vaishnavi, Advocates


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.       Whether reporters of Local papers may
         be allowed to see the judgment?       YES

2.       To be referred to the reporter or not?   YES

3.       Whether the judgment should be reported
         in the Digest?                        YES


RAJIV SAHAI ENDLAW, J.

1. The question whether disputes/claims under an agreement

with respect whereto a receipt of full and final settlement has been

given or a settlement agreement has been signed, are arbitrable or

not has been repeatedly vexing the Courts. Two streams of

judgments/precedents exist. While one stream takes the view that a

claim for arbitration cannot be rejected merely or solely on the

ground that a settlement agreement or discharge voucher has been

executed by the claimant, if its validity is disputed by the claimant;

the other stream takes the view that upon performance/discharge,

the contract stands discharged and nothing remains neither any

right to sign performance nor any obligation to perform, resultantly

there cannot be any dispute and consequently there cannot obviously

be reference to arbitration of any dispute arising from a discharged

contract. Naturally, the two views are on distinguishable facts of

their respective cases.

2. I am, personally, of the view that a party to a contract

containing an arbitration agreement, when faced with a situation of

being required to sign a full and final discharge or a settlement

agreement, howsoever, economically coerced it may be, has two

choices. Either the party can at the cost of its economic detriment

and delay in receiving even admitted payments, to not succumb into

signing of such discharge or settlement agreement and ought to

invoke the arbitration process at that stage itself. In such a

situation, the remedy of seeking interim relief/directions from the

Court or from the Arbitral Tribunal of payment of admitted amounts

is available to such a party. Thus, though there may be delay in

receiving the admitted and/or offered amounts but it cannot be said

that the party is remediless. Alternatively, such a party can succumb

to the coercion, pressure and sign the discharge voucher and/or the

settlement agreement. It will then immediately receive the

offered/admitted amounts. Naturally when such a party makes

further claims, the other will set up a plea of the contract having

been discharged and no disputes or arbitration thereof thereunder

being possible. It is not as if the claimant party in such a situation is

remediless. The claimant party in such a situation has the option of

a civil suit available to it. In such civil suit, it will be decided

whether the discharge or settlement is legal or not. If not found to

be legal and valid, the same court would also adjudicate the

remaining claims of such party. The other party in such eventuality

would not be entitled to take the plea of the Court being not entitled

to adjudicate the claims for the reason of being covered by the

arbitration clause inasmuch as such party would have forfeited the

rights to take such a plea by contending that the contact stood

discharged.

3. In my view, once a discharged voucher or a full and final

receipt or a settlement agreement is signed, the same is novation,

rescission or alternation of the original contract between the parties

(within the meaning of Section 62 of the Contract Act) containing the

arbitration agreement. Such new contract unless itself containing an

agreement of arbitration, the claim/dispute thereunder that such

new contract is vitiated by fraud, undue influence, coercion can only

be adjudicated by a civil court and not under the arbitration

agreement under the original contract. Adjudication of such issues

of fraud, undue influence, coercion in the matter of novation,

rescission or alternation of the contract could not be within the

ambit of the arbitration agreement in the original agreement.

Section 62 of the Contract Act is clear in this regard. Where the

parties to a contract agree to submit to a new contract or to rescind

it or to alter it, the original contract need not to be performed.

Similarly, it is always open to the to the other party, if willing to

follow the dispute resolution mechanism of arbitration to always give

up the plea of the contract having been so discharged and to agree

on the arbitration. The other party in such case would be entitled to

contest the claim on the ground that the same was validly

settled/discharged and not rely merely on the written agreement of

discharge/settlement. However, if it does not choose to do so, it

cannot subsequently upon civil court finding the

discharge/settlement to be void for the reason of fraud, undue

influence or coercion, fall back on the arbitration clause and defeat

the claim on that ground.

4. The courts are inundated with applications under Section 11

(6) of the Arbitration Act which are being contested on such grounds

of full and final settlement/discharge/settlement. As per dicta in

SBP & Co. vs. Patel Engineering Ltd. 2005 (8) SCC 618, the Chief

Justice and/or his designate, when faced with such a plea has to

either a) adjudicate the said plea and i) upon finding the

discharge/settlement being under coercion or a result of undue

influence, appoint an arbitrator to go into the claims, or ii) upon

finding discharge/settlement to be not under coercion, undue

influence etc., dismiss/reject the application for appointment of

arbitrator OR b) leave the plea to be adjudicated fully and finally by

the arbitrators.

5. The adjudication under Section 11 (6) of the Act of such a plea

is likely to entail cross-examination of witness, thereby delaying the

possible arbitration proceeding. The courts thus have a tendency to

leave such questions to be decided in arbitration. The approach

suggested by me hereinabove, would obviate such delays/situations

inasmuch as the parties would have clarity that if they are signing or

insisting upon signing of such a discharge/settlement for immediate

benefits, they would subsequently not have the agreed remedy of

arbitration and will be open to the jurisdiction of the civil courts. If

such interpretation is followed, it will lead to clarity, and prevent the

parties from being subjected to arbitration after obtaining

documents of discharge/settlement. In such a situation, the law as

developed on Section 34 of the 1940 Act is applicable. It was held in

Narsingh Prasad Vs. Dhanraj Mills AIR1943 Pat 53 that where an

agreement is impeached on the grounds of fraud and as to the

factum or validity of contract, such a dispute does not fall under the

arbitration clause and should be decided by the court. So where

allegations of fraud and coercion in the matter of execution of

discharge/settlement agreement is averred, the same cannot possibly

be within the ambit of arbitration clause in the agreement which was

admittedly discharged/settled even if by fraud, misrepresentation or

coercion. Even otherwise it is settled position that the party against

whom averment of fraud/coercion is made has a right of having the

same adjudicated by court. See Abdul Kadir Vs. Madhav

Prabhakar AIR 1962 SC 406.

6. My view aforesaid is but a suggestion; otherwise, the recent

dicta of the Apex Court in National Insurance Co. Ltd. vs.

Boghara Polyfab Pvt. Ltd. MANU/SC/4056/2008 after noticing the

two streams of judgments aforesaid and after discussing most of

them, succinctly set out the law in para 19 of the judgment as

under:-

"19. We may next examine some related and incidental issues. Firstly, we may refer to the consequences of discharge of a contract. When a contract has been Page 4071 fully performed, there is a discharge of the contract by performance, and the contract comes to an end. In regard to such a discharged contract, nothing remains - neither any right to seek performance nor any obligation to perform. In short, there cannot be any dispute. Consequently, there cannot obviously be reference to arbitration of any dispute arising from a discharged contract. Whether the contract has been discharged by performance or not is a mixed question of fact and law, and if there is a dispute in regard to that question, that is arbitrable. But there is an exception. Where both 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 of the parties to the contract issues a full and final discharge voucher (or no due 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 he seek reference to arbitration in respect of any claim. When we refer to a discharge of contract by an agreement signed by both parties or by execution of a full and final discharge voucher/receipt by one of the parties, we refer to an agreement or discharge voucher which is validly and voluntarily executed. If the party who 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"

7. Having summarized the law as aforesaid, the Apex Court

noticed P.K. Ramaiah & Co. vs. Chairman & Managing Director,

NTPC 1994 Suppl (3) SCC 126, State of Maharashtra vs. Nav

Bharat Builders 1994 Suppl (3) SCC 83 and Nathani Steels Ltd.

vs. Associated Constructions 1995 Suppl. (3) SCC 324 in each of

which cases the Court held the claims to be not arbitrable. It was

found that in P.K. Ramaiah (supra) there was an unconditional

acknowledgment and acceptance and the same was sought to be

challenged and reference to arbitration sought after several years.

In Nav Bharat Builders (supra), it was found that upon claims

being raised a Committee had been constituted to examine the same

and the Committee had suggested acceptance of the claim subject to

certain terms; the contractor had agreed to accept the terms as

worked out by the Committee and thereafter accepted the monies

and agreed to withdraw the application filed under Section 20 of the

1940 Act. It was in these circumstances that a subsequent

contention that the letter was obtained by coercion was negated. In

Nathani Steels (supra), the settlement deed referred to prior

discussion between the parties and recorded the amicable settlement

in the presence of architect; in these circumstances, the contention

of the contractor that the settlement was liable to be set aside was

not accepted. It will therefore be seen that it was owing to the

aforesaid fact that the request for arbitration under the original

agreement was negated. It was further held that the observations in

Nathani Steels that "unless that settlement is set aside in proper

proceedings, it cannot lie in the mouth of one of the parties to the

settlement to spurn it on the ground that it was mistake and proceed

to invoke the arbitration clause" was in reference to the plea of

mistake and not with reference to allegations of fraud, undue

influence or coercion.

8. The Apex Court in Boghara Polyfab Pvt. Ltd (supra) also

noticed the other stream of judgments in Damodar Valley

Corporation vs. K.K. Kar MANU/SC/0026/1973, in Bharat Heavy

Electricals Ltd., Ranipur vs. Amar Nath Bhan Prakash

MANU/SC/0001/1980, in Union of India vs. L.K. Ahuja & Co.

MANU/SC/0544/1988, in Jayesh Engineering Works vs. New

India Assurance Co. Ltd. MANU/SC/1394/1999, in Chairman and

Managing Director, NTPC vs. Reshmi Constructions, Builders

& Contractors MANU/SC/0003/2004 and in Ambica Construction

vs. Union of India 2006 (13) SCC 475. In Damodar Valley

Corporation (supra) a full and final receipt was asked for but was

not submitted and thus it was held that the claims remained

arbitrable. In Bharat Heavy Electricals Ltd. (supra), the question

of full and final settlement was left for adjudication to the arbitrator.

In L.K. Ahuja & Co., the court did not find any full and final

discharge or accord or satisfaction. In Jayesh Engineering Works,

again the matter was left to be decided by the arbitrator. In Reshmi

Constructions, the contractor had on the same date as signing the

full and final settlement sent a letter to the effect that the same was

signed under threat and coercion; because of such conduct, it was

held that the arbitration under the original agreement was not

barred. Ambica Constructions merely followed Reshmi

Constructions.

9. The Apex Court thus in Boghara Polyfab Pvt. Ltd. concluded

that dependent upon the facts of each case and conduct of the

parties, it has to be determined whether the full and final settlement

discharges the arbitration agreement in the original contract or not.

The Apex Court further noticed that all the aforesaid cases were

under the 1940 Act and the perspective of the new Act was different

from the old act.

10. Under Section 16 of the new Act, the Arbitral Tribunal is

competent to rule on its own jurisdiction. The Apex Court further

noticed that in United India Insurance Co. Ltd. vs. Ajmer Singh

Cotton & General Mills MANU/SC/0463/1999, consumer

complaints were held maintainable even after signing of the

discharge voucher. The practice of obtaining undated receipts in

advance by the government departments and corporate sector was

also noticed. The Apex Court finally in para 28 set out illustrations

(though not exhaustive) as to when in spite of discharge of contract

the claims would be arbitrable and when they would be not.

11. Before proceeding to the facts of the present case, I may also

notice the recent judgment of the Division Bench of this Court in

Harivansh Chawla Vs. Prem Kumar Cooperative Group

Housing Society Ltd. ILR (2008) II Delhi 1295; in that case a plea

for arbitration was negated after full and final settlement. I may

further notice that in that case there was no case of any coercion,

undue influence, etc.

12. The petitioner in the present case was awarded works contract

on 13th September, 2002, the scheduled date of completion whereof

was 12th December, 2003. The petitioner contended that for reasons

attributable to the respondent Railways, the work could not be

completed in time and for this reason the time for competition was

extended from time to time without any penalty till 31st March, 2006

by which date the works were completed. Attention was drawn to

letter dated 28th May, 2004 of the petitioner to the respondent

Railways whereunder the respondent Railways were notified of all

the additional claims of the petitioner for the reason of delays

attributable to the respondent. It was pleaded that the defect

liability period of six months also expired satisfactorily without any

complaint, by 30th September, 2006 whereafter the petitioner

requested the respondent to release the security deposit with full

and final payments; that the respondent ultimately prepared a final

bill and called the petitioner for signing the same; however, the bills

proposed did not include all the payments to which the claimant was

entitled and even the escalation already paid was proposed to be

withheld/recovered in the final bill. It is averred that the petitioner

thus signed the proposed final bill under protest. Significantly, this

fact was admitted by the counsel for the respondent during the

hearing.

13. It is further averred that since applicant signed the final bill

under protest, the respondent wanted the applicant to sign blank

formats and bill forms as condition precedent for processing of the

release of the bank guarantees of Rs. 15 lacs and cash security

deposit as well as the payments under the proposed final bill to the

tune of about Rs. 12 lacs. The petitioner claims that he refused to do

so leading the respondents into invoking the bank guarantees even

though there were no claims of the respondents against the

petitioner and defect liability period was also over. The petitioner

has averred that faced with the threat of payments under the bank

guarantees being made, the petitioner had no option but to sign the

blank formats and bill formats. The petitioner has specifically

averred that had he at that time taken recourse to arbitration and

other proceedings, the payment under the bank guarantees would

have been made and he would have been deprived of the sum of Rs.

12 lacs also being offered by the respondents against the final bill.

The petitioner thus admits to have signed the blank cyclostyled

formats and bill formats and whereafter the respondents withdrew

the invocation of encashment of bank guarantees and released the

bank guarantees in favour of the petitioner and also made payments

of Rs. 12 lacs towards final bill in May, 2006.

14. The petitioner thereafter vide letter dated 27th June 2007

invoked the arbitration clause for its claims against the respondents.

The respondents after several reminders ultimately vide letter dated

24th December, 2007 refused appointment of arbitrator for the

reason of the petitioner having signed a supplementary agreement.

The petitioner thereafter filed the present petition.

15. The respondents file a counter affidavit to the petition,

generally denying each and every averment in the petition and

further stating that the petition did not require reply on merits. It

was pleaded that the parties had entered into a supplementary

agreement dated 7th April, 2007 which stipulated that in

consideration of the sums already paid by the respondents to the

petitioner against all outstanding dues and claims for all works done,

the principle agreement stood discharged in toto including the

arbitration clause. It was thus pleaded that the petitioner was not

entitled to invoke the arbitration clause. Reliance in this regard was

placed on judgment dated 7th December, 1984 of this Court in

Sarvesh Chopra vs. UOI.

16. The petitioner has along with the petition filed copy of letter

dated 12th April, 2007 of the respondent Railways releasing the bank

guarantees and withdrawing the earlier letters dated 19th January,

2007 and 20th March, 2007 for encashment of bank guarantees and

requesting the bank to release the bank guarantees in favour of the

petitioner. The petitioner has also filed photo copies of the cheques

dated 31st March, 2007 for Rs. 10,23,860/- and dated 11th April, 2007

of Rs. 51,122/- in favour of the petitioner.

17. The photocopy of the settlement agreement has been filed by

the respondents along with their counter affidavit. The same is in

cyclostyle form with blanks filled in hand. The date thereof has been

filled up in hand as 7th April, 2007. The petitioner does not dispute

his signatures on the same on both the pages thereof. The

signatures on both the pages bear the date 31st March, 2007

underneath. The signatures on behalf of the respondents are of 4th

April, 2007 and the witness on behalf of the respondents has signed

on 7th May, 2007. Though the names of the witnesses on behalf of the

petitioner are not decipherable but they appear to be officials of the

respondent only.

18. It is in the aforesaid state of facts, that the law as summarized

in Boghara Polyfab Pvt. Ltd. has to be applied. For the following

reasons:-

a. The signatures of the petitioner bearing the date 31st March , 2007 and the settlement agreement bearing the date 7th April, 2007 and which shows the same to be signed in advance, as pleaded by petitioner.

b. The payments under the final bill having been released to the petitioner on 31st March, 2007 vide cheques aforesaid and which falsify the statement in settlement agreement of all payments having been made prior thereto.

c. The witnesses to the settlement agreement being officials of the respondent only and which again show lack of mutuality, discussion prior to signing thereof.

d. The settlement agreement records payments having being made which admittedly were made thereafter.

e. The factum of invocation of bank guarantees and withdrawal of the said invocation after the signing of the settlement agreement by the respondents.

f. No reason having been given as to why the bank guarantees were invoked and which invocation was subsequently withdrawn and which show coercion exercised by the respondent Railways.

g. The detail pleas of the petitioner of circumstances leading him to sign the settlement agreement in blank having not been controverted;

I am prima facie of the view that the present case does not fall

in the class of cases as P.K. Ramaiah, Nav Bharat Builders,

Harivansh Chawla and Nathani Steels Ltd. and rather falls in the

class of cases as in Reshmi Constructions. The settlement

agreement appears to have been signed under coercion, meaning

that the claims shall remain arbitrable under the original agreement.

19. I, however, at this stage do not deem it appropriate to return a

positive finding on this aspect. In my view a positive binding finding

on the averments of coercion, undue influence, etc. in the face of a

written document ought not to be returned without examination of

witnesses. Though it is permissible to examine witnesses while

adjudicating an application under Section 11(6) of the Act but in my

view if the said exercise is undertaken here, the same will lead to

further delays. The parties having agreed to arbitration, it is

apposite that the said claims/disputes are also adjudicated by the

arbitrator only. Another single judge of this court recently in M/s

Hero Exports Vs. M/s Tiffins Barytes, A.A No.121/2008 decided

on 2nd September, 2008 left the questions of coercion and extortion

to be decided by arbitrator.

20. The next question to be considered is of the relief to be

granted. I have recently had occasion to consider Clause 64 of the

Railways Contract as in the present case in M/s. S.B. Construction

vs. General Manager, Northern Railway & Anr. AA 467/2007

decided on 27th January, 2009. The agreed procedure for arbitration

where claims are in excess of Rs. 10 lacs, as they are in the present

case is of the respondent Railways sending a panel of not more than

three gazetted railway officers to the petitioner and the petitioner

suggesting up to two names out of the said panel for appointment as

his nominees. The General Manager is to appoint one at least out of

them as the Contractor's nominee and to appoint the balance

number of arbitrators either from the panel or from outside the panel

and also indicating the presiding arbitrator.

21. The respondent having failed to act as required under the

procedure, has forfeited the right to do so as laid down in Datar

Switchgears Ltd. vs. Tata Finance Ltd. 2000 (8) SCC 151.

However, even though the respondent has failed to act but

considering the arbitration agreement between the parties, the

petitioner is not entitled to appointment of an independent

arbitrator. The Apex court in Northern Railway Administration,

Ministry of Railways; New Delhi vs. Patel Engineering

Company Ltd. VII 2008 SLT 432 has held that the Court as the

nominee of the Chief Justice, under Section 11 (8) of the Act is to

give due regard to any qualification required of the arbitrator by the

agreement of the parties and other considerations as are likely to

secure the appointment of an independent and impartial arbitrator.

22. The parties had agreed to a qualification of the arbitral

tribunal. It was agreed that the arbitral tribunal shall comprise of

gazetted railways officers not below JA grade and of whom at least

one shall be from the accounts department. Harmonizing the law

laid down in Datar Switchgears with Northern Railway

Administration, in my view, even upon the failure of the respondent

as aforesaid, the arbitrators having the agreed qualification only can

be appointed by this Court. The only effect of the respondent

Railways having forfeited the right to appoint two out of the three

arbitrators would be that instead of the respondent Railways being

entitled to nominate two out of the three arbitrators, it is the

petitioner who would be entitled to nominate all the three arbitrators

and to also designate one as the presiding arbitrator, however all

having the qualification agreed.

23. Accordingly, it is directed that upon the petitioner intimating

to the respondent Railways three arbitrators having the

qualifications as agreed under Clause 64, the respondent Railways

shall constitute the Arbitral Tribunal which shall go into claims and

counter claims, if any, of the parties in accordance with law.

24. With these directions, the petition is allowed leaving the

parties to bear their own costs.

RAJIV SAHAI ENDLAW (JUDGE) February 11, 2009 rb