Delhi High Court
M/S. Bansal Construction Co. vs I.O.C., Ltd. on 26 May, 1992
Equivalent citations: 48(1992)DLT241, 1992(24)DRJ74, AIR 1993 DELHI 76, (1992) 2 ARBILR 251, (1992) 2 CURCC 326, (1992) 48 DLT 241, (1993) 1 RRR 360.2
ORDER
1. This application has been moved by the petitioner seeking review of my judgment dated August 2, 1991 by which I had dismissed the petition brought by the petitioner under S. 20 of the Arbitration Act.
2. The petitioner had entered into a contract with the respondent for the work of construction of some channel. Petitioner claimed to have suffered damages on account of breach of contract by the respondent inasmuch as the respondent had not made available the site on which the construction was to be done within the stipulated period and thus, the labour and material procured by the petitioner remained idle. The petitioner had set up a claim of Rs. 7,72,410/-. It appears that while settling the final bill, the petitioner was paid Rs. 1,00,000/- out of the said claim which the petitioner accepted without any protest.
3. The pleas raised by the respondent were two-fold. Firstly, that in view of clause 6.6.1.0 of the contract, the petitioner having not notified his claims in accordance with the said clause, the arbitration clause could not be invoked. It was also contended that as petitioner had accepted the payment without protest, the contract, including the arbitration clause stood discharged.
4. It is to be mentioned that the plea was specifically taken in the reply to the main petition under S. 20 of the Arbitration Act that the petitioner had not notified his claims as contemplated by clause 6.6.1.0.
5. In replication, the petitioner did not controvert the fact that said claims were not notified in accordance with the said clause. The plea taken was that the claims of the petitioner were not, in fact, notified claims at all. The Court, after considering the record and hearing the arguments, came to the conclusion that petitioner had not notified the claims as required by aforesaid clause and thus, the said claims were not within the contemplation of the arbitration clause and thus, the petition was dismissed.
6. Now, the petitioner, in the present application, has come up with the plea that in fact the petitioner had notified some of the claims and petitioner has been able to search out some documents from a file which was mixed up with some other files and was not available with the petitioner at the time of decision of the petition and as the said documents are genuine documents, so they be allowed to be produced and proved on the record and the judgment maybe reviewed in the light of the said documents and the matter be referred to arbitration. I am afraid that when in the pleadings the petitioner had not at all pleaded that petitioner had notified the claims in consonance with the aforesaid clause, the petitioner cannot be allowed to come up with the new plea that in fact some of the claims were notified in accordance with the aforesaid clause.
7. Apart from this, it is not disputed that the petitioner had accepted Rs. 1,00,000/- in the final bill out of the claim of Rs. 7,72,410/-Clause 6.7.2.0 of the contract clearly stipulates that the acceptance by the contractor of any amount paid in respect of the notified claims of the contractor included in the final bill would amount to full and final satisfaction of all claims of the contractor notwithstanding any qualifying remarks, protest or condition imposed or purported to be imposed by the contractor relative to the acceptance of such payment and with the intent that upon acceptance by the contractor of any payment made as aforesaid, the contract (including the arbitration clause) shall stand discharged and extinguished in so far as it relates to and/or concerns the claims of the contractor.
8. In the present case, admittedly, the petitioner had accepted Rs. 1,00,000/- while settling the final bill in respect of the claim of damages put up by the petitioner. The effect of such acceptance is that the contract (including the arbitration clause) stands discharged and extinguished. If that is so, it is not understandable how such a claim of the petitioner can be now referred for arbitration.
9. Learned counsel for the petitioner has contended that the question whether the acceptance of the sum of Rs. 1,00,000/- by the petitioner would amount to settlement of all the claims of the petitioner is a matter to be decided by the arbitrator and he has cited a few cases in this regard.
10. It is to be emphasised that the cases which the petitioner is referring construe the peculiar clauses of the contracts appearing in those cases. In the present case, the aforesaid clause appearing in the contract clearly envisages discharge of the contract completely including the arbitration clause. The moment it is held that the arbitration clause stands discharged, there could arise no occasion for invoking the said arbitration clause. In none of the cases cited by the petitioner, any similar clause appearing in any contract has been construed and thus, those cases are not relevant. I may refer to those cases briefly.
11. In Damodar Valley v. K. K. Kar, , the Supreme Court held that the question whether there had been full and final settlement of the claim under the contract was itself a dispute arising upon or in relation to or in connection with the contract and is, thus, liable to be decided by the arbitrator. The arbitration clause in the said case Was quite exhaustive which required that if at any time any dispute or difference whatsoever shall arise between the corporation and the successful tenderer in relation to or in connection with the contract, the matter was liable to be decided by the arbitrator. In this case, the arbitration clause and the aforesaid clause referred by me, which has the effect of discharging the contract including the arbitration clause, are differently worded.
12. Similarly, in M/s, Bharat Heavy Electricals Limited v. M/s. Amar Nath Bhan Prakash, , the arbitration clause was quite comprehensive and it was held that the question whether there was discharge of a contract by accord and satisfaction or not is a dispute arising out of the contract and was liable to be referred to arbitration.
13. In Jai Chand Bhasin v. Union of India, , the question which arose for decision was whether the dispute raised between the parties as to whether claim had been put up within the stipulated period according to the contract is referrable for arbitration or not. Considering the differently worded arbitration clause, the Division Bench of this Court held that such a dispute is referrable for arbitration.
14. Lastly, reference is made to Ved Prakash v. Union of India, . This Full Bench judgment of this Court also, for parity of reasons, is not of any help to the petitioner.
15. In view of the above discussion, I find no merit in this petition which I hereby dismiss, but I leave the parties to bear their own costs.
16. Petition dismissed.