- (1.) Appellant insured with the respondent the stock lying at the wire house, that got damaged during flood Surveyor surveyed the damage and submitted a report. However, the Insurance Company did not accept the claim submitted by the appellant that resulted in a dispute referred to the Arbitral Tribunal. Initially, the Insurance Company offered a sum of Rs.1890985 that the appellant did not accept. The Tribunal was constituted by three senior insurance people. They held seven meetings, considered the pleadings and ultimately awarded a sum of Rs.4160286 together with interest at the rate of 12% per annum in case of failure in making payment of the same within a stipulated period. The appellant by their advocate's letter dated January 5, 2004 asked the Insurance Company to make payment of the same. The contents of the letter are quoted below: "Pursuant to the Award passed by the Learned Joint Arbitrators on 30th December 2003 in the above arbitration proceedings awarding Rs.41,60,286/- in favour of our clients above named we on behalf of our clients request you to kindly make payment of the said amount to us as their Advocates or directly to our clients under advice to us forthwith. Needless to mention that a copy of the said award was handed over to your counsel, Mr. S. Sarkar who was present on 30th December, 2003 when the award was passed."
(2.) Insurance Company accepted the award and made payment of the same that the respondent received without any protest. However, the printed receipt in prescribed format appearing at page-258 would show the words "partial satisfaction" that were not scored out. The Insurance Company, by a letter received by the appellant on February 26, 2004, forwarded the cheque in settlement of the above claim in "full and final". The respondent received the same on the above mentioned date as we find from the page 259 of the paper book. No contemporaneous protest was made by the appellant.
(3.) In this backdrop, the appellant filed an application challenging the award on March 29, 2004 appearing at page 1-18 of the paper book (without annexures). Cursory glance to the said petition would unequivocally show suppression of material fact, the appellant in paragraph 18 admitted receipt of the amount however, claimed, it was without prejudice to the rights and contentions and in part satisfaction. Paragraph 18 being relevant herein is quoted below: " The respondent has accepted the said award and by its letter dated February 25, 2004 has made payment of the awarded sum of Rs.41,60,286/- to the petitioner which amount has been duly accepted by the petitioner without prejudice to its rights and contentions and in part satisfaction of its claim in the arbitration proceedings." Appellant purposely did not annex the documents appearing at page 257, 258 and 259 of the paper book.;