MOHAMMAD RAFIQ,J. - (1.) Petitioner, Maya Construction Pvt. Ltd., has filed this application under section 11 of the Arbitration and Conciliation Act, 1996, praying for appointment of sole Arbitrator to resolve its dispute with the respondents. Pursuant to NIT No.Const./BKN/26(R)/2008-09 dated 13.02.2009 issued by the respondents for construction of Ratangarh Bye Pass in connection with Bikaner-Ratangarh-Sadulpur Gauge Conversion Project, the petitioner submitted the tender, which was found mot suitable and accordingly work order was issued in his favour. The estimated cost of the work was Rs. 8,29,25,822.68 and the stipulated dates of commencement and completion of the work were 17.08.2009 and 16.08.2010. An agreement to this effect was executed between the parties. The working period of the petitioner was extended up to 15.05.2011 by letter dated 28.04.2011 issued by the respondent No. 2. The petitioner completed the execution of the work on 09.05.2011. Despite completion of the work, the respondents did not make payment of the dues of the petitioner for long. The respondents vide letter dated 01.02.2013 asked the petitioner to submit 'No claim Certificate', which the petitioner submitted along-with letter dated 01.02.2013. Again the respondent No. 2 required the petitioner to submit 'No claim Certificate' and in compliance whereof the petitioner submitted letter dated 30.04.2013 along-with 'No claim Certificate' afresh, but the respondent department did not release the due payment. The petitioner submitted letter dated 09.10.2013 to the respondent No. 1 for appointment of an independent Arbitrator for settlement of the differences and disputes between the parties. The respondents vide letter dated 13.01.2014 informed the petitioner that its requests for appointment of Arbitrator under Clauses 63 and 64 of the agreement has not been considered by the competent authority in terms para 43(2) of the GCC as the petitioner has already signed 'No claim Certificate' in the contract. The petitioner submitted letter dated 19.04.2014 to the respondent No. 1 for reconsideration of its decision and for appointing an Arbitrator for resolving the disputes between the petitioner and the respondents.
(2.) Mr. Satish Chandra Mittal, learned counsel for petitioner argued that the petitioner executed the work as directed by the respondent department from time to time and fulfilled all contractual obligations on its parts. The respondents miserably failed to perform their contractual obligations and committed breach of contract by not making payment for the works executed by the petitioner as per their instructions. The respondents also failed to make payment at revised rates for the works done beyond 125% of the estimated quantities of the works in accordance with the provisions of the agreement, and also the payment of additional overhead charges due to the prolongation of time limit for completion of the works for the reasons attributable to the respondents. It is submitted that 'No claim Certificates' were obtained from the petitioner on account of fraud/coercion/undue influence practiced by the respondents on the petitioner as the petitioner was facing great financial crunch leading to various problems as its huge sum was pending with the respondents and they were not releasing the same. Thus the 'No claim Certificates' were void and cannot be acted upon. It is submitted that the disputes would be arbitrable. Learned counsel for the petitioner submitted that Clause 35 of the agreement provided that the disputes will be settled under the 1996. Clauses 63 and 64 of the GCC provide how arbitration agreement is to be invoked. The respondents have not responded so far.
(3.) Learned counsel argued that the condition of restricting the claim to 20% of the contract value is violative of the provisions of section 28 of the Indian Contract Act, 1872. It is argued that it cannot be said that the petitioner accepted payment without objection and relinquished its claims by accepting final bill. In support of this, learned counsel for the petitioner has relied on the judgments of the Supreme Court in Union of India and Another v. M/s. L.K. Ahuja and Co.(1988) 3 SCC 76 ; Bharat Coking Coal Ltd. v. M/s. Annapura ConstructionAIR 2003 SC 3660 and Chairman and MD NTPC Ltd. v. M/s. Rashmi Construction, Builders and Contractors2004 (1) WLC (SC) Civil 246 .;