Dayanand Masur S/O Shri Basavaraj ... vs The General Manager
2021 Latest Caselaw 7097 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

        DATED THIS THE 23RDDAY OF DECEMBER 2021

                           BEFORE

        THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

                     C.M.P.100019/2019

BETWEEN:

DAYANAND MASUR S/O SHRI BASAVARAJ MASUR,
AGE: 48 YEARS,
OCC: ENGINEER AND PWD CLASS-I CONTRACTOR,
C.B. GUTTAL COMPLEX, UB HILLS,
DHARWAD TALUK,DIST: DHARWAD,
DHARWAD-580007.
                                                ...PETITIONER
(BY SRI NARAYAN G.RASALKAR, ADVOCATE)

AND :

1.      THE GENERAL MANAGER
        SOUTH WESTERN RAILWAYS,
        RAIL SOUDHA,GADAG ROAD,
        HUBBALLI-580020,
        HUBBALLI TALUK,DIST: DHARWAD.

2.      THE CHIEF ADMINISTRATIVE OFFICER
        CONSTRUCTION,18, MILLERS ROAD,
        BENGALURU-560046,
        BENGALURU URBAN DISTRICT.

3.      THE CHIEF ENGINEER(CONSTRUCTIONS II),
        SOUTH WESTERN RAILWAY,
        RAIL SOUDHA,GADAG ROA,
        HUBBALLI-580020,HUBBALLI TALUK,
        DIST: DHARWAD.
                               :2:



4.   THE DEPUTY CHIEF ENGINEER,
     CONSTRUCTION- III,
     SOUTH WESTERN RAILWAY,
     RAIL SOUDHA,GADAG ROAD,
     KESHWAPUR, HUBBALLI-580020,
     HUBBALLI TALUKA,DIST: DHARWAD.

5.   THE DEPUTY CHIEF ENGINEER
     CONSTRUCTION/II,
     SOUTH WESTERN RAILWAY,
     RAIL SOUDHA,GADAG ROAD,
     KESHWAPUR, HUBBALLI-580020,
     HUBBALLI TALUK,DIST: DHARWAD.
                                               ..RESPONDENTS
     (BY SRI AJAY U.PATIL, ADVOCATE)



     THIS CMP    IS    FILED UNDER SECTION 11(6)       OF THE

ARBITRATION   AND     CONCILIATION   ACT,   1996   PRAYING    TO

APPOINT SRI. S.H.MITTALKOD, RETIRED DISTRICT JUDGE AS THE

SOLE ARBITRATOR APPOINT TO RESOLVE THE DISPUTES RAISED

BY THE PETITIONER IN HIS REQUISITION DATED 12.09.2018 AS

PER DOCUMENT 27 AND AS PER CONDITIONS MENTIONED IN THE

AGREEMENT OF WORK DATED 19.02.2014 VIDE DOCUMENT

NOS.2 AND 3 AND RESPONDENTS IN ACCORDANCE WITH LAW, IN

THE INTEREST OF JUSTICE.


     THIS   PETITION    WAS    HEARD   ON    01.12.2021      AND

REASERVED FOR ORDERS, THIS DAY THE COURT PRONOUNCED

THE FOLLOWING:
                                 :3:



                           ORDER

In this petition a request is made to appoint Sri

S.H.Mittalkod, Retired District Judge, as sole arbitrator to

resolve a dispute said to have arisen from the execution of

the work executed under the contract dated 12.08.2014.

2. It is the case of the petitioner that he had entered

into contract with the Railways on 19.02.2014 and under the

terms of the contract, the work was to be completed

by 18.02.2015 and the value of the work was

Rs.19,90,30,639/-. It is the case of the petitioner that he

completed the work on 04.09.2017 and this was also

acknowledged by the Deputy General Engineer. It is his

further case that he had raised certain disputes by notice

dated 12.09.2018 and sought the intervention of the General

Manager in settling the 13 claims.

3. The petitioner has stated that as the claim sought by

him was not settled by the General Manager, he sought for

the reference of the disputes to should an arbitral tribunal

and made a demand for arbitration. In the said demand, it

was clearly stated by the petitioner that he was not waiving

the applicability of Section 12(5) of the Arbitration and

Conciliation Act.

4. This demand for arbitration was followed by

reminders dated 10.12.2018 and 04.03.2019, once again

calling upon the Railways to General Manager to appoint the

arbitral tribunal. The Railways, according to the petitioner,

responded by letter dated 29.04.2019 stating that as per

Clause-63 of the General Conditions of the contract which had

been issued in November-2018, the settlement of disputes

and differences was required to be reconciled and should be

referred to by the contractor to the Chief Engineer or

Divisional Railway Manager through a notice of dispute and

thereafter if the conciliation proceedings were not successful,

the matter would be processed for arbitration.

5. This was responded to by the petitioner saying that

the amendment made to Clause-63 in November-2018 was

not applicable since the contract was much prior to

November-2018, the petitioner therefore once again called

upon the Railways to refer the matter for arbitration.

6. It is also stated that the petitioner had approached

Sri S.H.Mittalkod and sought his consent for being appointed

as an Arbitrator and Sri S.H.Mittalkod had indicated his

willingness to appoint the Sole Arbitrator.

7. In this context, the present petition has been filed

seeking for appointment of Sri S.H.Mittalkod as the

Arbitrator.

8. On notices of the petition being served, the Railways

entered appearance and contended that a no claim certificate

had been signed by the petitioner and therefore the petitioner

was the barred from demanding arbitration. It was also

stated that since a no claim certificate had been given, the

claims raised by the petitioner fell within the purview of

accepted matter and was not referable to arbitration.

9. The contention advanced by the petitioner in this

petition is that the General Manager by virtue of being the

employee of the Railways was himself ineligible to be an

arbitrator and therefore he could not inturn appoint another

person as the Arbitrator. The case of the petitioner is that

despite an agreement which enabled an employee to appoint

an arbitrator, the General Manager did not possess the power

of appoint the Arbitrator since it amounted to an unilateral

act on the part of the one of the contracting parties.

10. He relied upon the decision rendered by the three

Judges Bench of the Hon'ble Supreme Court in the case ofTRF

Ltd. v. Energo Engineering Projects Limited, reported in(2017) 8

SCC 377, which has been followed by the Hon'ble Supreme

Court in the case of Perkins Eastman Architects DPC and

Another vs. HSCC (India) Ltd., reported in 2019 SCC OnLine SC

1517 and also in Bharat Broadband Network Limited v. United

Telecoms Limited, reported in (2019) 5 SCC 755 and in Haryana

Space Application Centre (HARS AC) and Another v. PAN India

Consultants Private Limited, reported in (2021) 3 SCC 103.

11. Sri Ajay U.Patil, learned counsel for the Railways, on

the other hand contended that the petitioner having entered

into an agreement in which power of appointment of an

Arbitrator was conferred on the General Manager could not

thereafter resile from the contractual terms. He contended

that the Courts are required to give effect to the contractual

clause and they could not rewrite the contract. He submitted

that the decisions relied upon by the learned counsel were

inapplicable and were clearly distinguished by a decision of

three Judges Bench of the Hon'ble Supreme Court in the case

of Central Organization for Railway Electrification vs. ECI-SPIC-

SMO-MCML (JC) A Joint Ventur Company, reported in2019 SCC

OnLine SC 1835.

12. He submitted that while considering Clause-64 of

the GCC, the Hon'ble Supreme Court had stated that the

petitioner was bound to abide by the contractual term in the

manner of appointment of an arbitrator, the appointment

could be made only in accordance with Clause-64 and the

prayer for appointment of independent Arbitrator could not be

granted.

13. It is not in dispute that the General conditions of the

contract govern the rights and obligations of the parties in

respect of Railway Contracts. In respect of settlement of

disputes, the GCC contemplates that the matters should be

first considered in the following manner.

"Clause No.63 of GCC : Matters finally determined by the Railway.

All disputes and differences of any kind whatsoever arising out of or in connection with the contract, whether during the progress of the work or after its completion and whether before or after the determination of the contract, shall be referred by contractor to the General Manager and the General Manager shall within 120 days after receipt of the Contractor's representation make and notify decisions on all matters referred to by the Contractor in writing provided that matters for which provision has been made in Clauses 8, 18, 22(5), 39, 43(2), 45(a), 55, 55-A(5), 57, 57-A, 61(1), 61(2) and 62(1) to (xiii)B of the General Conditions of Contract or in any clause of the special conditions of contract shall be deemed as 'excepted matters' (matters not arbitrable) and decisions of the Railway authority, thereon shall be final and binding on the Contractor provided further that "excepted matters" shall stand specifically excluded from the purview of the arbitration clause."

14. In respect of demand for arbitration, the clause

reads as under :

"(Clause 64(1) of GCC) Demand for Arbitration:

In the event of any dispute or different between the parties hereto as to the construction or operation of this contract, or the respective rights and liabilities of the parties on any matter in question, dispute ; or difference on any account, or

as to the withholding by the Railway of any certificate to which the Contractor may claim to be entitled to, or if the Railway fails to make a decision within 120 days, then and in any such case, but except in any of the "excepted matters" referred to in Clause 63 of these conditions, the Contractor, after 120 days but within 10 days of his presenting his final claim on disputed matters, shall demand in writing that the dispute or difference be referred to arbitration."

15. Clause 64(3) of GCC provides for appointment of an

Arbitrator and this reads as follows :

"(i) In cases where the total value of all claims in question added together does not exceed Rs.10,00,000/- (rupees Ten lakh only), the Arbitral Tribunal shall consist of a sole arbitrator who shall be a gazetted officer of Railway not below JA grade nominated by the General Manager in that behalf. The sole arbitrator shall be appointed within 60 days from the day when a written and valid demand for arbitration is received by the General Manager.

(ii) In case not covered by Clause 63(3)(a)(i), the Arbitral Tribunal shall consist of panel of three Gazetted Railway Officers not below, JA grade or two Railway gazetted officers not below JA grade and a retired Railway Officer, retired not below the rank of SAG

Officer, as the arbitrators. For this purpose, the Railway will send a penal of more than 3 names of Gazetted Railway officers of one or more departments, of the railway, which may also include the name(s) of retired Railway Officer (s) empanelled to work as Railway Arbitrator to the Contractor within 60 days from the day when a written and valid demand for arbitration is received by the General Manager. Contractor will be asked to suggest to the General manager at least 2 names out of the panel for appointment as the Contractor's nominee within 30 days from the date of dispatch of the request by Railway. The General Manager shall appoint atleast one out of them as the Contractor's nominee and will, also simultaneously appoint the balance number of arbitrators either from the panel or from outside the panel, duly indicating the "Presiding Arbitrator" from amongst the 3 Arbitrators so appointed. General Manager shall complete the exercise of appointing the Arbitral Tribunal within 30 days from the receipt of the names of contractor's nominees. While nominating the arbitrators it will be necessary to ensure that one of them is from Accounts Department. An Officer of Selection Grade of the accounts department shall be considered of equal status to the officers in SA grade of other Departments of the railways for the purpose of appointment of arbitrators."

16. It is thus clear that the parties have agreed on

procedure for appointing the Arbitrator and the Railways have

admittedly not acted in terms of the agreed procedure and

appointed an Arbitral Tribunal.

17. It is the specific case of the petitioner that by virtue

of Section 12(5) of the Arbitration and Conciliation Act, the

General Manager being ineligible to be Arbitrator would not

possess the power to appoint another person or persons as

Arbitrators. In this regard he strongly relies on the decision

rendered by the Apex Court in TRF Ltd.,'s case and more

specifically on paragraph No.54, which reads as follows :

"54. In such a context, the fulcrum of the controversy would be, can an ineligible arbitrator, like the Managing Director, nominate an arbitrator, who may be otherwise eligible and a respectable person. As stated earlier, we are neither concerned with the objectivity nor the individual respectability. We are only concerned with the authority or the power of the Managing Director. By our analysis, we are obligated to arrive at the conclusion that once the arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator. The arbitrator becomes ineligible as per prescription contained in Section 12(5) of the Act. It is inconceivable in law

that person who is statutorily ineligible can nominate a person. Needless to say, once the infrastructure collapses, the superstructure is bound to collapse. One cannot have a building without the plinth. Or to put it differently, once the identity of the Managing Director as the sole arbitrator is lost, the power to nominate someone else as an arbitrator is obliterated. Therefore, the view expressed by the High Court is not sustainable and we say so."

18. In order to reinforce his argument, he also relied

upon the Judgment of the Hon'ble Supreme Court rendered in

the Perkins's case, which reads as under :

"20.We thus have two categories of cases. The first, similar to the one dealt with in TRF Limited where the Managing Director himself is named as an arbitrator with an additional power to appoint any other person as an arbitrator. In the second category, the Managing Director is not to act as an arbitrator himself but is empowered or authorised to appoint any other person of his choice or discretion as an arbitrator. If, in the first category of cases, the Managing Director was found incompetent, it was because of the interest that he would be said to be having in the outcome or result of the dispute. The element of invalidity would thus be directly relatable to and arise from the interest that he would be having in such outcome or decision. If that be the test, similar invalidity would always arise and spring

even in the second category of cases. If the interest that he has in the outcome of the dispute, is taken to be the basis for the possibility of bias, it will always be present irrespective of whether the matter stands under the first or second category of cases. We are conscious that if such deduction is drawn from the decision of this Court in TRF Limited, all cases having clauses similar to that with which we are presently concerned,a party to the agreement would be disentitled to make any appointment of an Arbitrator on its own and it would always be available to argue that a party or an official or an authority having interest in the dispute would be disentitled to make appointment of an Arbitrator."

19. A reading of the said paragraph would makes it clear

that even, if, the General Manager was not the Arbitrator

himself, by virtue of being an employee of the Railways he

would become ineligible to appoint another Arbitrator also.

20. However, the Hon'ble Supreme Court in a

subsequent decision which is also rendered by the three

Judges Bench in the case of Central Organisation For Railway

Electrification v. ECI-SPIC-SMO-MCML (JC) A Joint Venture

Company, reported in(2020) 14 SCC 712, has considered both

TRF Ltd.,'s case and Perkins's case and has held as follows :

34. Considering the decision in TRF Limited, in Perkins Eastman Architects DPC and another v. HSCC (India) Limited, the Supreme Court observed that there are two categories of cases. The first, similar to the one dealt with in TRF Limited where the Managing Director himself is named as an arbitrator with an additional power to appoint any other person as an arbitrator. In the second category, the Managing Director is not to act as an arbitrator himself; but is authorized to appoint any other person of his choice or discretion as an arbitrator. Observing that if in the first category, the Managing Director was found incompetent similar invalidity will always arise even in the second category of cases, in para 20 in Perkins Eastman, the Supreme Court held as under:-

"20. ....If, in the first category of cases, the Managing Director was found incompetent, it was because of the interest that he would be said to be having in the outcome or result of the dispute. The element of invalidity would thus be directly relatable to and arise from the interest that he would be having in such outcome or decision. If that be the test, similar invalidity would always arise and spring even in the second category of cases. If the interest that he has in the outcome of the dispute, is taken to be the basis for the possibility of bias, it will always be present irrespective of whether the matter stands under the first or second category of cases. We are conscious that if such deduction is drawn from the decision of this Court in TRF Limited, all cases having clauses similar to that with which we are presently concerned, a party to the agreement would be disentitled to make

any appointment of an Arbitrator on its own and it would always be available to argue that a party or an official or an authority having interest in the dispute would be disentitled to make appointment of an Arbitrator."

35. After referring to para 50 of the decision in TRF Limited, in Perkins Eastman, the Supreme Court referred to a different situation where both parties have the advantage of nominating an arbitrator of their choice and observed that the advantage of one party in appointing an arbitrator would get counter-balanced by equal power with the other party. In para 21, it was held as under:-

"21. ....The next sentences in the paragraph, further show that cases where both the parties could nominate respective arbitrators of their choice were found to be completely a different situation. The reason is clear that whatever advantage a party may derive by nominating an arbitrator of its choice would get counter balanced by equal power with the other party"

36. As discussed earlier, after Arbitration and Conciliation (Amendment) Act, 2015, the Railway Board vide notification dated 16.11.2016 has amended and notified Clause 64 of the General Conditions of Contract. As per Clause 64(3)(a)(ii) [where applicability of Section 12(5) of the Act has been waived off], in a case not covered by Clause 64(3)(a)(i), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers not below the rank of Junior Administrative Grade or two Railway Gazetted Officers not below the rank of Junior Administrative Grade and a

retired Railway Officer retired not below the rank of Senior Administrative Grade Officer, as the arbitrators. For this purpose, the General Manager, Railway will send a panel of at least four names of Gazetted Railway Officers of one or more departments of the Railway within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest to General Manager at least two names out of the panel for appointment as contractor's nominees within thirty days from the date of dispatch of the request from the Railway. The General Manager shall appoint at least one out of them as the contractor's nominee and will also simultaneously appoint balance number of arbitrators from the panel or from outside the panel duly indicating the "Presiding Officer" from amongst the three arbitrators so appointed. The General Manager shall complete the exercise of appointing the Arbitral Tribunal within thirty days from the date of the receipt of the names of contractor's nominees.

37. Clause 64(3)(b) of GCC deals with appointment of arbitrator where applicability of Section 12(5) of the Act has not been waived off. In terms of Clause 64(3)(b) of GCC, the Arbitral Tribunal shall consist of a panel of three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers as the arbitrators. For this purpose, the Railway will send a panel of at least four names of

retired Railway Officers empanelled to work as arbitrators indicating their retirement date to the contractor within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest the General Manger at least two names out of the panel for appointment of contractor's nominees within thirty days from the date of dispatch of the request of the Railway. The General Manager shall appoint at least one out of them as the contractor's nominee and will simultaneously appoint the remaining arbitrators from the panel or from outside the panel, duly indicating the "Presiding Officer" from amongst the three arbitrators. The exercise of appointing Arbitral Tribunal shall be completed within thirty days from the receipt of names of contractor's nominees. Thus, the right of the General Manager in formation of Arbitral Tribunal is counter- balanced by respondent's power to choose any two from out of the four names and the General Manager shall appoint at least one out of them as the contractor's nominee.

38. In the present matter, after the respondent had sent the letter dated 27.07.2018 calling upon the appellant to constitute Arbitral Tribunal, the appellant sent the communication dated 24.09.2018 nominating the panel of serving officers of Junior Administrative Grade to act as arbitrators and asked the respondent to select any two from the list and communicate to the

office of the General Manager. By the letter dated 26.09.2018, the respondent conveyed their disagreement in waiving the applicability of Section 12(5) of the Amendment Act, 2015. In response to the respondent's letter dated 26.09.2018, the appellant has sent a panel of four retired Railway Officers to act as arbitrators giving the details of those retired officers and requesting the respondent to select any two from the list and communicate to the office of the General Manager. Since the respondent has been given the power to select two names from out of the four names of the panel, the power of the appellant nominating its arbitrator gets counter-balanced by the power of choice given to the respondent. Thus, the power of the General Manager to nominate the arbitrator is counter-balanced by the power of the respondent to select any of the two nominees from out of the four names suggested from the panel of the retired officers.In view of the modified Clauses 64(3)(a)(ii) and 64(3)(b) of GCC, it cannot therefore be said that the General Manager has become ineligible to act as the arbitrator. We do not find any merit in the contrary contention of the respondent. The decision in TRF Limited is not applicable to the present case.

39. There is an express provision in the modified clauses of General Conditions of Contract, as per Clauses 64(3)(a)(ii) and 64(3)(b), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway

Officers [Clause 64(3)(a)(ii)] and three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers [Clause 64(3)(b)]. When the agreement specifically provides for appointment of Arbitral Tribunal consisting of three arbitrators from out of the panel serving or retired Railway Officers, the appointment of the arbitrators should be in terms of the agreement as agreed by the parties. That being the conditions in the agreement between the parties and the General Conditions of the Contract, the High Court was not justified in appointing an independent sole arbitrator ignoring Clauses 64(3)(a)(ii) and 64(3)(b) of the General Conditions of Contract and the impugned orders cannot be sustained."

21. As noticed by the Hon'ble Supreme Court in the

above case, the General conditions of contract of the Railways

was amended by the Railway Board on 16.11.2016 and the

amended Clause 64 provided for a situation where a party

could waive the applicability of Section 12(5) of the Arbitration

and Conciliation Act, in which the case serving Officer could be

appointed and at the same time the amended Clause also

provided for a situation where the applicability of Section

12(5) of the Arbitration and Conciliation Act had not been

waved off by the contractor.

22. The Hon'ble Supreme Court has noticed that in cases

where the applicability of Section 12(5) of the Arbitration and

Conciliation Act was not waived the arbitral Tribunal would

consist of a panel of three retired Railway Officers not below

the rank of Senior Administrator Grade Officers as the

Arbitrator. The Apex Court has noticed that for this purpose

the Railway would send a panel of at least four names of

retired Railway Officers empanelled to work as arbitrators

indicating their retirement dates to the contractor and the

contractor would be asked to suggest to the General Manager

at least two names out of the panel for appointment of

arbitrators as contractors nominee and the General Manager

was thereafter required to appoint atleast one of them as the

contractors nominee and simultaneously appoint remaining

arbitrators from the panel, duly indicating the Presiding Officer

amongst the three arbitrators. The Apex Court has concluded

that the right of the General Manager in formation of the

Arbitral Tribunal stood counter balanced by the contractors

power to chose any two from out of the four names and the

General Manager was required to appoint at least one out of

them as such Contractor nominee.

23. The Hon'ble Supreme Court has held that in view of

the modified Clause-64.3 of the GCC it could not be said that

the General Manager had become ineligible to act as the

Arbitrator and the decision in TRF Ltd.,'s case and Perkins

case was not applicable to a case concerning Clause 63 (3) of

the GCC pertaining to the Railways.

24. In the instant case, admittedly, the parties are

governed by the General conditions of contract and thus in the

light of the Judgment rendered by the Hon'ble Supreme Court

in COFRE's case, wherein judgment rendered in TRF Ltd.,'s

case and Perkins's case has been distinguished, the agreed

procedure under Clause 64 (3) of the GCC would have to be

adhered to.

25. It cannot be in dispute that the amended Clause 64

(3) would also apply to all contracts governing Railways from

16.11.2016 and thus the ratio laid down in COFRE's case will

hold the field when it comes to Railway Contracts.

26. Since in this case, the General Manager has not

acted upon the request of the petitioner, it would be necessary

to direct the General Manager to act in accordance with the

amended clause of GCC and send a panel of retired Officers in

terms of Clause 64.3(B) of the GCC within a period of 30 days

from the date of receipt of a copy of this order.

27. The contractor shall thereafter select two names

from the four suggested nominees and communicate the same

to the General Manager within 30 days from the date of

receipt of the nominees from the General Manager. There

upon the General Manager shall constitute a Arbitral Tribunal

in terms of the clause 64.3B of the GCC within a period of 30

days.

28. As regards the contention of the Railways that the

disputes have become non-arbitrable by reason of the fact

that the petitioner has given a No claim certificate is

concerned, the ratio laid down by the Apex Court in the case

of Union of India vs Parmar Constructions Company, reported

in (2019) 15 SCC 682, would apply. In para 36 it has been

stated as follows:

"36. The respondents are the contractors and attached with the railway establishment in the instant batch of appeals are claiming either refund of security deposits/bank guarantee, which has been forfeited or the escalation cost has been reduced from final invoices unilaterally without tendering any justification. It is manifest from the pleadings on record that the respondent contractors who entered into contract for construction works with the railway establishment cannot afford to take any displeasure from the employer, the amount under the bills for various reasons which may include discharge of his liability towards the bank, financial institutions and other persons, indeed the railway establishment has a upper hand. A rebutable presumption could be drawn that when a no claim has been furnished in the prescribed format at the time of final bills being raised with unilateral deductions made even that acceptable amount will not be released, unless no claim certificate is being attached to the final bills. On the stated facts, para 52(iii) referred to by this Court in National Insurance Company Limited Vs. Boghara Polyfab Private Limited (supra) indeed covers the cases of the present contractors with whom no option has been left and being in financial duress to accept the amount tendered in reference to the final bills furnished and from the discharge voucher which has been taken to be a defence by the appellants prima

facie cannot be said to be voluntary and has resulted in the discharge of the contract by accord and satisfaction as claimed by the appellants. In our considered view, the arbitral dispute subsists and the contract has not been discharged as being claimed by the appellants employer(s) and all the contentions in this regard are open to be examined in the arbitral proceedings."

29. In the light of this decision and also the decision of

the three Judges Bench in the case of Vidya Drolia and Others

v. Durga Trading Corporation, reported in (2021) 2 SCC, the

question of the contract being discharged will have to be

examined by the Arbitral Tribunal.

The petition is accordingly disposed off.

Sd/-

JUDGE CKK