Mohammad Rafiq, J. - (1.) This is an application filed by M/s Sharma Construction and Engineering under Section 11(4) read with Section 11(6) of the Arbitration and Conciliation Act, 1996, for appointment of sole arbitrator for adjudicating its claim arising out of work order dated 07.11.2009 awarded by respondent for construction of boundary wall. The work order was granted to applicant on certain terms and conditions, which were reduced in writing. Such terms and conditions were accepted by applicant, who put his signature thereon on 07.11.2009, according to which, appellant was to construct boundary wall for cement plant of respondent near Nimbahera within three months from the date of issue of work order. Applicant claims that he has completed the work within stipulated time but respondent did not make entire payment and that a sum of rupi foradian"RS.40,00,000/- was still due. Clause 14 of the work order stipulated that all disputes arising out of or in relation to contract or any breach thereof, shall be first referred to arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996 at Rajasthan, and in case, the dispute is not resolved by arbitration the matter shall be referred to the Court of Udaipur. Applicant first submitted application to respondent on 29.01.2013 requesting therein to refer the dispute to sole arbitrator as per Clause 14, supra. When no action was taken, applicant served a legal notice through his counsel on 12.03.2013. It is also argued that in compliance of order of this court dated 04.09.2015 passed in this application, applicant has filed an additional affidavit in support of the contention that he sent reminders for outstanding dues between the period from 2010 and 2013, thus there was no delay in filing this application. Learned counsel for applicant, in support of his case, has relied on judgment of the Supreme Court in Swastik Gases (P)Ltd. v. Indian Oil Corpn. Ltd. - (2013) 9 SCC 32.
(2.) Respondent, in reply to application, contended that work was completed way back. Applicant was required to complete the work within three months from the date of execution of contract, thus latest by February, 2010, but the work was completed somewhere in the month of July, 2010, i.e. with delay of five months. Applicant raised bill of rupi foradianRs.55,31,853/-. Respondent, after verification of quantity of work done as per agreed rates and deducting TDS amounting to rupi foradianRs.26,848/-, as also Works Contract Tax of rupi foradianRs.60,771/-, released amount of rupi foradianRs.48,24,230/-. Applicant then raised another bill dated 28.09.2010, wherein a further amount of rupi foradianRs.2,23,508/- was claimed, which was also paid by respondent. Respondent made payment of the amount of that bill, and applicant, after receiving payment, has clearly mentioned on the invoice that the payment is accepted in full and final for the work done. Applicant issued the receipt dated 28.09.2010 specially stating that 'quantity and amount full & final accepted'. Applicant therefore cannot maintain the application. Even otherwise the applicant has filed present application with delay at highly belatedly stage, more than two years after completion of work. It is also argued that applicant in para 3 of rejoinder has categorically accepted the fact of issuing receipt with remark that quantity and amount has been accepted in full and final. Learned counsel for respondent, in support of the case, has relied on judgments of the Supreme Court in Union of India v. Master Construction Company - (2011) 12 SCC 349 and New India Assurance Company Limited v. Genus Power Infrastructure Limited - (2015) 2 SCC 424.
(3.) In view of the stand taken by respondent, this court, by order dated 04.09.2015, required applicant to file an additional affidavit showing that there existed an arbitral dispute and whether he, having issued receipt of aforesaid amount as full and final settlement of his claim, sent reminders to respondent for payment of remaining amount.;