Punjab-Haryana High Court
Ram Avtar Gupta vs Oriental Bank Of Commerce And Another on 25 January, 2013
Author: A.K.Sikri
Bench: A.K.Sikri
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Arbitration Case No. 119 of 2011
Date of Decision: 25.01 2013
Ram Avtar Gupta ...Petitioner
Versus
Oriental Bank of Commerce and another ..Respondents
CORAM: HON'BLE MR. JUSTICE A.K.SIKRI, CHIEF JUSTICE.
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Wazir Singh, Advocate, for the petitioner.
Mr. Aalok Jagga, Advocate, for the respondents.
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A.K.SIKRI, CHIEF JUSTICE In this petition filed under Section 11 of the Arbitration & Conciliation Act, 1996 (for short 'the Act'), the petitioner alleges that the disputes have arisen between the parties out of award of work/contract by the respondent bank to the petitioner vide letter dated 14.05.2004 which pertains to construction of a building of the respondent-bank in Sector 12, Urban Estate, Karnal. As per this contract, the work was to be completed within nine months. According to the petitioner, the entire work had been completed within the specified period as per the agreement even there were several breaches and failures or acts of omission and commission on the part of the respondents. The petitioner alleges that the entire amount for this contract was not paid. It is further alleged that the respondents paid Arbitration Case No. 119 of 2011 -2- some amount on 15.03.2010 and took receipt-cum-undertaking on that date forcing the petitioner to accept the lower settlement. The petitioner wrote a letter dated 18.04.2010 stating the circumstances under which he was compelled to accept the payment and stated that the amount payable to him was much more than ` 7,03,875/- paid vide that receipt. Thereafter on 13.08.2010, the petitioner served a legal notice claiming the balance amount along with interest @ 24% per annum.
2. The respondents gave reply to the said legal notice on 13.09.2010 disputing the averments by alleging that the payment had been received by the petitioner in full and final settlement. The petitioner served another legal notice dated 11.11.2010 on the respondents for appointment of sole Arbitrator as per Arbitration Clause No. 44 in the agreement. As the Arbitrator is not appointed, the present petition is filed. According to the petitioner, the following claims are still payable:-
"Claim No.1:- Security amount of ` 5,94,715/- was to be paid after completion of six months from the date of completion certificate dated 29.06.2005 and the security amount was paid on 23.04.2008 i.e. delay of two years and seven months. Claim No. 2:- On receipt of full and final settlement amount was noted Rs. 7,45,619/- which has not been paid to the petitioner on spot rather a cheque of ` 7,03,875/- dated 17.03.2010 was given to the petitioner.
Arbitration Case No. 119 of 2011 -3- Claim No. 3:- Some other payment is also made after delay of about 2-3 years as terms and conditions of the agreements.
Claim No. 4:- Interest at the rate of 24% per annum from the date of 29.06.2009 till the date of payment on awarded amount.
Claim No. 5:- Cost ` 20,000/-."
3. The respondents have filed reply stating that no such claim is due as all the claims of the petitioner have been settled on payment of a sum of ` 7,03,875/- by cheque and the petitioner executed the full and final receipt.
4. The petitioner filed rejoinder in which he has annexed Annexure P-13 which is the statement of account prepared at the time of settling the account. It reads as under:-
Total amount of 6th Running Bill `. 1698619/-
Payment made for suspense account on 28.07.2008 `. 1273964/-
Balance Payment `. 424655/- Escalation Bill ` 383434/- Total Bill payable ` 808089/- Amount received on a/c of Risk and cost ` 62,470/- TDS @ 1% ` 7456/- TDS Education Asses 3% ` 224/- TDS @ 2% on advances payment from suspense ` 25480/-
account on 28.07.2008 as per sanction 194c(2) Surcharge on TDS @ 10% `. 2548/-
Education Asses @ 3% `. 840/- Internet @ 12% for 18 months on TDS not deducted on ` 5196/- 28.7.2008 Net Payable ` 703875/-.
5. At the time of arguments, the petitioner himself relied upon this statement of account on the basis of which it is stated that further claims are due. However, as per the statement of account, total amount Arbitration Case No. 119 of 2011 -4- payable was ` 7,03,875/-, which was paid to the petitioner vide cheque No. 449296 dated 17.03.2010.
6. Further more, on going through the claims, it is clear that as far as the first claim is concerned, the petitioner accepts that the security amount has been paid to him. However, he states that there is a delay of two years and seven months in payment of the aforesaid amount. Pertinently this amount was paid on 23.04.2008 but no claim for interest was made. The present petition is filed on 01.06.2011 i.e. more than three years after receiving the refund of the security amount and therefore, it would clearly be time barred.
7. In so far as claim No. 2 is concerned, this is ex-facie misconceived. No doubt, total amount payable as per the full and final settlement is ` 7,45,619/-. However, the petitioner was paid a sum of ` 7,03,875/- after adjusting TDS there from. Therefore, the entire amount as full and final payment was paid. Claims No. 3 and 4 are totally vague.
8. It would also be pertinent to mention that the receipt of full and final payment was signed by the petitioner on 17.03.2010 but it did not state immediately thereafter that it was under duress. The petitioner wrote a letter to this effect after more than one month i.e. on 08.04.2010, that too in the following terms:-
Arbitration Case No. 119 of 2011 -5- To 08.04.2010 The DGM, Oriental Bank of Commerce, (Regional Office) SCO 23-24, Sector 12, Karnal, Haryana.
Sub: Receipt of part payment under protest.
Sir,
1. My firm M/s Ram Avtar Gupta was awarded contract for building regional office at Plot No. 23-24, Sector 12, Karnal.
2. The said building was handed over to your bank on 25.9.2005 and completion certificate dated 28.9.2005 was issued to me.
3. As per the contract dated 13.5.2004 (date of allotment) you had to pay my complete dues within 14 days of completion certificate but you failed to pay all outstanding dues till date.
4. Due to non-payment of dues by your bank I had to suffer a lot. I faced financial crunch and had to go through financial miseries.
5. When your bank had put condition for release of payment on the condition of first signing a blank full and final serttlement note, I had to sign it. Although my dues were much more as per the bills raised by me, your Bank gave me cheque of Rs. 7,03,875/-
dated 17.3.2010. I was compelled to sign full and final note and the same is not binding on me. The same is also illegal, null and void. The same had to be signed by me under coercion and duress because your bank was not prepared to pay my dues without first signing blank note of full and final payment.
6. I am sending separate notice regarding pendency of balance amount payable alongwith interest by your bank.
Yours sincerely, Sd/-Ram Avtar Gupta,,Prop.
M/s Ram Avtar Gupta, House No. 650, Sector 8, Karnal, Haryana."
Arbitration Case No. 119 of 2011 -6- This is hardly an explanation and is clearly an after thought. I am, therefore, of the opinion that there are no disputes which remain between the parties to be referred to the Arbitrator. Accordingly, this petition is dismissed.
(A.K.SIKRI) CHIEF JUSTICE 25.01 2013 'ravinder'