Pushpendra Singh Bhati - (1.) This misc. appeal U/s.39 of Arbitration Act, 1940 has been filed by the appellant State claiming the following reliefs:- "That in view of the circumstances, it is most respectfully prayed that the judgment and decree of the trial court may kindly be set aside and the appeal of the appellants may kindly be allowed with costs and it may further be held that the contractor is not entitled to any claimed amount or any item on those claim items and the appellants may kindly be allowed the special costs in this regard and the Award of the Sole Arbitrator may kindly be allowed to be set aside completely for all intents and purposes."
(2.) The dispute between the parties was regarding the claim of certain items for the construction of B.R. II R.D. 1860 Meter to R.D. 2100 Meter at Power House No. II, Lilwani, Mahi Bajaj Sagar Project, Banswara. The work under contract No. 62/1987-1988 was to be executed between 3.3.1988 to 2.12.1988 and thereafter, the contractor was given extension of 49 days i.e. upto 20.1.1989. The running bills were submitted by the contractor as per the GSR. However, on being not satisfied, the contractor submitted a claim for Rs. 12,92,000/- on 5.5.1989 before the learned District Judge, Banswara seeking appointment of arbitrator. Sole arbitrator was appointed and out of 12 claimed items, sole arbitrator decided claims Nos. 1 to 5 and 12 only and vide award dated 9.6.1997, awarded a sum of Rs. 8,87,700/- as the principal claimed amount with interest. The appellants herein raised objections before the learned Court below but the learned Court below upheld the award vide judgment dated 21.4.1999, which have been challenged by the appellants before this Court.
(3.) Learned counsel for the appellants has demonstrated from the record that each running bill at the time of award was signed and endorsed by the contractor without any objection and while the last bill was signed in March, 1989, the contractor made an endorsement on the bill that it was sufficient for full and final settlement of all dues. Learned counsel for the appellants thus submits that once on 21.1.1989 after completing all work and in March, 1989, the contractor himself has recorded that his dues have been fully and finally settled, then it was bound by estopple to say that any of the dues remained unpaid. Learned counsel for the appellants has further shown the objection petition filed before the learned Court below so as to demonstrate that the issue of no dues on the last working day was very much taken before the learned Court below. The relevant portion of the objection petition reads as follows:- ...[VARNACULAR TEXT OMITTED]... 3.2 Learned counsel for the appellants has relied upon the judgment of the Hon'ble Supreme Court in ONGC Mangalore Petrochemicals Ltd. v. ANS Constructions Ltd. and Ors., reported in AIR 2018 SC 796, relevant paras Nos. 24 and 24 read as follows:- "(24) From the materials on record, we find that the contractee-Company had issued the "No Dues/No Claim Certificate" on 21.09.2012, it had received the full amount of the final bill being Rs. 20.34 crores on 10.10.2012 and after 12 days thereafter, i.e., only on 24.10.2012, the contractee-Company withdrew letter dated 21.09.2012 issuing "No Dues/No Claim Certificate". Apart from it, we also find that the Final Bill has been mutually signed by both the parties to the Contract accepting the quantum of work done, conducting final measurements as per the Contract, arriving at final value of work, the payments made and the final payment that was required to be made. The contractee-Company accepted the final payment in full and final satisfaction of all its claims. We are of the considered opinion that in the presents facts and circumstances, the raising of the Final Bill and mutual agreement of the parties in that regard, all claims, rights and obligation of the parties merge with the Final Bill and nothing further remains to be done. Further, the appellant-Contractor issued the Completion Certificate dated 19.06.2013 pursuant to which the appellant-Contractor has been discharged of all the liabilities. With regard to the issue that the "No-Dues Certificate" had been given under duress and coercion, we are of the opinion that there is nothing on record to prove that the said Certificate had been given under duress or coercion and as the Certificate itself provided a clearance of no dues, the contractee could not now turn around and say that any further payment was still due on account of the losses incurred during the execution of the Contract. The story about duress was an afterthought in the background that the losses incurred during the execution of the Contract were not visualised earlier by the contractee. As to financial duress or coercion, nothing of this kind is established prima facie. Mere allegation that no-claim certificates have been obtained under financial duress and coercion, without there being anything more to suggest that, does not lead to an arbitrable dispute. The conduct of the contractee clearly shows that "no-claim certificate" was given by it voluntarily; the contractee accepted the amount voluntarily and the contract was discharged voluntarily. Conclusion: (25) Admittedly, No-Dues Certificate was submitted by the contractee-Company on 21.09.2012 and on their request Completion Certificate was issued by the appellant- Contractor. The contractee, after a gap of one month, that is, on 24.10.2012, withdrew the No Dues Certificate on the grounds of coercion and duress and the claim for losses incurred during execution of the Contract site was made vide letter dated 12.01.2013, i.e., after a gap of 3 1/2 (three and a half) months whereas the Final Bill was settled on 10.10.2012. When the contractee accepted the final payment in full and final satisfaction of all its claims, there is no point in raising the claim for losses incurred during the execution of the Contract at a belated stage which creates an iota of doubt as to why such claim was not settled at the time of submitting Final Bills that too in the absence of exercising duress or coercion on the Contractee by the appellant-Contractor. In our considered view, the plea raised by the contractee- Company is bereft of any details and particulars, and cannot be anything but a bald assertion. In the circumstances, there was full and final settlement of the claim and there was really accord and satisfaction and in our view no arbitrable dispute existed so as to exercise power under Section 11 of the Act. The High Court was not, therefore, justified in exercising power under Section 11 of the Act." ;