M/S Raj Builders vs New Delhi Municipal Council & Ors.
2018 Latest Caselaw 5718 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      Date of decision: 20th September, 2018
+                                 ARB.P. 478/2013
      M/S RAJ BUILDERS                                ..... Petitioner
                    Through:           Mr. Suresh Tripathi, Advocate.
                                       (M:9810269115)
                         versus

      NEW DELHI MUNICIPAL COUNCIL & ORS. ..... Respondents
                   Through: Ms. Kanika Agnihotri, standing
                             counsel, NDMC. (M:9810980027)
      CORAM:
      JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)

I.A. 6039/2017 in ARB.P. 478/2013

1. This is an application by which direction is sought for referring all the claims, detailed in paragraph 7 (xxvii) to the arbitrator, appointed by this Court vide order dated 20th October 2016. The submission of Mr. Tripathi is that the order of this Court dated 20th October, 2016 did not refer all the claims mentioned in the paragraph 7(xxvii) to arbitration, but only referred some claims forming part of the outstanding amount in respect of the EOT vouchers.

2. The brief background is that the Petitioner filed two petitions before this Court seeking appointment of an Arbitrator.

Petition No.1 - ARB. P.467/2013

3. In this petition, vide order dated 4th March 2015, the learned Single Judge of this Court passed the following order.

"...........

8. The Court, accordingly appoints Mr. B.B. Choudhary, a retired Additional District Judge, residing at House No.233, Pocket-L, Sarita Vihar, New Delhi-110076 (Mobile No.9910584611) as sole Arbitrator to adjudicate the above dispute, including the claim and counter-claim, concerning the withheld amount relatable to the extension of time. The arbitration shall take place under the aegis of the Delhi International Arbitration Centre ('DAC'). The fees of the learned Arbitrator will be in terms of the Delhi International Arbitration Centre Arbitration Proceedings (Arbitrators' Fees) Rules.

........"

4. The Petitioner was aggrieved by the said order as the Court had not referred all the claims to arbitration. The order was carried by the Petitioner by way of SLP, and vide order dated 3rd February, 2017, the Supreme Court passed the following order.

"1. Leave granted.

2. Having heard learned counsel for the rival parties, we are of the view, that the dispute referred to arbitration, in paragraph 7 of the impugned order, does not indeed take into consideration, the entire dispute raised by the appellant. In fact, the appellant had raised the following claims for adjudication: "(a) Final bill/release of withheld amount Rs.3,45,000/-

(b) Escalation due to increased rates beyond stipulated period Rs.3,00,000/-

(c) Staff and overhead expenses for prolonged period due to non availability for workable site and cement Rs.5,70,000/-

(d) Loss of profit on balance unexecuted value of the work Rs.2,10,000/-

(e) Interest on above payments from 22.11.2012 till the date of payment @ 18% p.a.

(f) Costs of arbitration proceedings as per actuals." While passing the impugned order, all the aforesaid issues needed to have been referred to arbitration.

3. In view of the above, we hereby modify paragraph 7 of the impugned order, by requiring the Arbitrator, to adjudicate the disputes, depicted in paragraph 7 of the impugned order. The instant appeal is allowed in the above terms. All issues raised by the rival parties shall remain open.

SLP(C)No.16640 of 2015

4. Learned counsel for the respondents seeks an adjournment, so as to enable him to obtain instructions in the matter.

Post for hearing on 10.02.2017 ."

Thus, the Supreme Court referred all the claims of the Petitioner to arbitration.

Petition No.2 - ARB. P.478/2013

5. In this petition, the learned single Judge of this Court noticed that the contractor had entered into a full and final settlement and hence the claims were not referred to arbitration. Hence, the petition seeking reference to arbitration was dismissed. Paragraphs 5, 6 & 7 of the said order read as under:

"5. The Court finds that the certificate appended to the above document signed by Mr. Sandeep Tyagi, partner of the Petitioner firm, categorically reads as under:

"I/We M/s Raj Builders do hereby acknowledge to have received payment in full and final settlement

of my/our demand for all articles supplied and services rendered by me/us in connection with--- and certify that I/we have no further claims what so ever against N.D.MC in connection with or arising out of the said contract/order which remains unadjusted."

6. The certificate is unambiguous. It clearly states that the Petitioner received full and final payments of all its dues. In terms of the settled law explained in the aforementioned decisions, the Court must at least be prima facie satisfied that the Petitioner gave the above certificate under some duress or coercion. The reply of the Respondent with which the aforementioned document is enclosed was filed way back in August 2014. There was sufficient time for the Petitioner to have filed a rejoinder and in particular to have brought on record the documents that would show that the Petitioner was under some compulsion, duress or coercion to sign the above certificate. In the absence of any such material, the Court is not satisfied that the Petitioner did not voluntarily give the above certificate.

7. Consequently, the Court is not satisfied that any arbitral dispute survives for reference."

6. This order was also carried by way of SLP to the Supreme Court in SLP 16640/2015, which was dismissed on 17th February, 2017.

7. In the meantime, the Petitioner herein filed a Review Petition No. 208/2015 in which it was pointed out that subsequent to the Arb. P. 478/2015 being dismissed on 4th March, 2015, a voucher for outstanding amounts was raised by the Petitioner on 23rd November, 2015. As against the total amount of the voucher being Rs.13,13,129/-, a sum of Rs.8,92,928/- was released. Thus, there was a balance amount of Rs.4,20,201/-. This was a

subsequent event, which took place after dismissal of ARB. P. 478/2013, though covered in the original contract. The review petition came to be heard on 20th October, 2016, and the learned Single Judge appointed an Arbitrator to adjudicate the disputes in respect of the outstanding amount of Rs.4,20,201/-.

8. The Petitioner did not bring this order dated 20 th October, 2016 to the Supreme Court, when the SLP against the original order dated 4 th March, 2015 was dismissed on 17th February, 2017.

9. By way of the present application, the Petitioner seeks a prayer that all the original claims, which were part of the claim petition para 7(xxvii) be referred to the Arbitrator in view of the order passed by the Supreme Court on 3rd February, 2017 arising out of ARB. P. 467/2013.

10. Such a course of action would be, in effect, contrary to the order of the Supreme Court, inasmuch as the rejection of the very same prayer, on 4 th March, 2015, in Arb. P.478/2013 was not interfered with by the Supreme Court on 17th February, 2017. The order of subsequent reference in the review petition, as per order dated 20th October, 2016, has neither been challenged by the Petitioner nor has any reason been given to expand scope of the said reference.

11. The two orders dated 4th March, 2015 were passed in two different arbitration petitions having different sets of facts. In the arbitration petition 478/2013, there was a full and final settlement, which was entered into by the Petitioner. The Petitioner was unable to demonstrate that there was any coercion or duress in the signing of the said settlement. Thus, the reference was not allowed. This order declining reference has come to be upheld by the Supreme Court on 17th February, 2017. Review order dated 20th

October, 2016 was in respect of a subsequent event i.e. the voucher raised in November, 2015. There cannot be any parity between the said two cases i.e., Arb.P. 467/2013 and Arb.P. 478/2013, and hence the present application is dismissed.

PRATHIBA M. SINGH JUDGE SEPTEMBER 20, 2018/dk