S.K. Mahajan, J. - (1.) After the disputes had arisen between the parties under Agreement No.CEDZ/19 of 80-81 relating to the provision of married accommodation for 55 officers at Delhi Cantt, the matter was referred to the arbitration of Shri P.Anatharam, Chief Engineer. The Arbitrator after hearing the parties and examining and considering the material before him made and published his award on 16th August,1986. The award was filed in court and after notice of filing of the award was served upon the parties the respondent - Union of India filed its objections under Sections 30 and 33 of the Arbitration Act against the award. The objections can be summarised under the following heads: 1. That after the signing and acceptance of the final bill by the contractor and the payment having been made to the contractor in full satisfaction of its claim there did not arise any dispute between the parties which could be referred to the arbitrator and consequently the award was without jurisdiction. 2. That there was no evidence before the arbitrator to substantiate the claims of the contractor regarding reimbursement of escalation in wages of labour and increase in the cost of building material and consequently the decision of the arbitrator was entirely beyond the scope of the terms of the contract;and 3. Since there was no provision in the contract for payment of interest the arbitrator could not award interest.
(2.) Ms. Jyoti Singh learned counsel appearing on behalf of the respondent arguing on the first point contended that the contractor having signed the final bill and having received payment in full satisfaction of its claim could not later on raise a dispute. She has placed reliance upon the judgments reported as Nathani Steels Limited Vs. Associated Constructions, 1995 Supp(3) SCC 324, M/s P.K.Ramaiah & Co. Vs. Chairman & Managing Director, National Thermal Power Corporation, 1994 (1) SCALE 1, State of Maharashtra Vs. Navbharat and State of Maharashtra Vs.Nav Bharat Builders, 1994 Supp (3) 83 in support of her contention that once there was a full and final settlement in respect of any particular dispute or difference in relation to a matter covered under the arbitration clause in the contract and that dispute or difference is finally settled by and between the parties, such a dispute or difference does not remain to be dispute and the arbitration clause could not be invoked even though for certain other matters the contract may be in subsistence. Once the parties had arrived at a settlement in respect of any dispute or difference arising under a contract and that dispute or difference is amicably settled by way of a final settlement for and between the parties, unless that settlement was set aside in proper proceedings it could not lie in the mouth of one of the parties to the settlement to spurn it on the ground that it was a mistake and to proceed to invoke the arbitration clause. If this was permitted the sanctity of the contract, the settlement also being a contract, would be wholly lost and it would be open to one party to take the benefit under the settlement and then question the same on the ground of mistake without having the settlement set aside.
(3.) In all the judgments referred to by the learned counsel for the respondent the court was concerned with the question as to whether a dispute which has already been settled between the parties could at all be referred to an arbitrator and whether the contractor was justified in invoking the arbitration clause. In my view, none of these judgments are applicable to the facts and circumstances of the present case inasmuch as the contractor had signed the final bill which was prepared by the Union of India and had received payment only thereunder. It is nowhere mentioned that on the payment of this final bill there did not remain any dispute between the parties or all their disputes which had existed between the parties had been amicably settled. Moreover, it is stated in the reply that not only that the petitioner had signed the final bill under duress and coercion as the respondent was not making payment unless the petitioner had signed the same but the matter having already been referred to the arbitrator, the respondent cannot now make a grievance about the same. The respondent participated and submitted to the jurisdiction of the arbitrator without any demur and did not raise any objection to the matter having been referred to the arbitrator. No objection at any time was raised by the respondent before the arbitrator that the matter having already been settled, the arbitrator did not have the jurisdiction to enter upon the reference. The award having gone against the respondent, in my view, it is too late a stage to agitate this question that the matter had been amicably settled between the parties. In Prasun Roy V.Calcutta Metropolitan Development Authority & Another, AIR 1988 SC 205 it was held by the Supreme Court that: "Where though a party is aware from the beginning that by reason of some disability the matter is legally incapable of being submitted to arbitration, participates in arbitration proceedings without protest and fully avails of the entire arbitration proceedings and then when he sees that the award has gone against him comes forward to challenge the whole of the arbitration proceedings as without jurisdiction on the ground of a known disability, the same cannot be allowed. This principle applies both before and after making of the award. The principle is that a party shall not be allowed to blow hot and cold simultaneously. Long participation and acquiescence in the proceedings preclude such a party from contending that the proceedings were without jurisdiction. (1987) 1 Cal LJ 207, Reversed. AIR 1956 Cal 470, Approved. (1876) 3 Ind App 209 and AIR 1975 SC 230, Rel. on. In the instant case, both parties got extension of arbitration proceedings at least 14 times, the Arbitrator held 74 sitting which were attended by both parties and their counsel and a large amount of time and money was spent at the cost of public. Held, that in view of the acquiescence of the parties, one of them could not be allowed to challenge the arbitration proceedings on ground that because of some disability the matter could not have been referred to arbitration.";