Punjab-Haryana High Court
M/S H.R. Construction Company vs Union Of India And Others on 22 February, 2012
Author: Hemant Gupta
Bench: Hemant Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
Arbitration Case No. 64 of 2010 (O&M)
Date of decision: 17.2.2012
M/s H.R. Construction Company ....Petitioner
Versus
Union of India and others ....Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
Present: Shri N.C. Kinra, Advocate, for the petitioner.
Shri Puneet Jindal, Advocate, for the respondents.
HEMANT GUPTA, J.
The petitioner has sought appointment of an Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 (for short `the Act'), by filing a petition before the learned Civil Judge (Senior Division), Panipat, on 13.3.2002.
The present petition was sent to this Court in terms of the orders passed by the Division Bench of this Court in CWP No. 1409 of 2010 on 15.2.2008 and 26.3.2010, as the jurisdiction to entertain a petition under Section 11 of the Act, is that of the Hon'ble Chief Justice after the judgment of the Supreme Court in State Bank of Patiala v. Patel Engineering Ltd. and another, (2005) 8 SCC 618. Hon'ble Chief Justice has delegated the powers to appoint an arbitrator to this court. Arbitration Case No. 64 of 2010 (O&M) (
2) The petitioner was granted contract for construction of skew Railway over bridge on pile foundation with spans on Ambala-Ludhiana Section on 19.1.2000. The work was to be completed by 19.11.2000, but was completed on 15.9.2001. The petitioner has raised a dispute claiming the amount for delay in handing over the site and other allied issues.
It is pleaded by the petitioner in the petition that the Department has prepared a final bill and has directed the petitioner to affix its signatures and also record "No Claim Certificate". It is averred that since the petitioner is under financial crunch and that under coercion and threat, it will be forced to sign the documents as the Department shall not release any amount without such document.
It is further pointed out that on 28.2.2002, the petitioner has claimed refund of earnest money of Rs.3,50,000/-; security amount of Rs.2,25,000/- and the amount of final bill of Rs.1,25,000/- vide Annexure P.1. During the course of arguments, learned counsel for the petitioner submitted that in terms of the judgment of this Court in Arbitration Case No. 109 of 2009 M/s Rakesh Kumar & Co. v. Northern Railways through General Manager etc. decided on 29.9.2011, the dispute regarding security amount alone can be referred as an excepted item, whereas the other issues are not referable to an Arbitrator.
Learned counsel for the respondents, on the other hand has submitted that the petitioner has executed a supplementary agreement dated 12.3.2002 (Annexure A.1) giving final discharge of the principal agreement and also signed on the measurement book on 13.3.2002, accepting measurement and "No Objection Claim" and also addressed communication on 14.3.2002 that the petitioner has no claim against the Arbitration Case No. 64 of 2010 (O&M) (
3) respondents. Having said so, the petitioner cannot claim adjudication of disputes as in fact, there is no dispute which is required to be referred to an Arbitrator. Learned counsel for the respondents has relied upon Union of India v. M/s Master Construction Co. , AIR 2011 SC 1312.
The judgment in M/s Master Construction Co.'s case (supra), does not help the argument raised upon by the learned counsel for the respondents. The documents relied upon by the respondents are dated 12.3.2002; 13.3.2002 and 14.2.2002, whereas the petitioner has invoked the jurisdiction of the Court on 13.3.2002, pointing out the threat and coercion in signing the documents. Therefore, it will be a disputed question of fact whether the petitioner was made to sign on the measurement book or on the agreement or communication aforesaid under threat or coercion. Therefore, such disputed question is required to be decided by an Arbitrator.
In view of the above, the present petition is allowed. The General Manager, Northern Railway, the authority competent to nominate an Arbitrator in terms of the agreement, is directed to appoint an Arbitrator, in respect of the claim of the petitioner for refund of the security, within one month. If the Arbitrator is not appointed within the time so fixed, it shall be open to the petitioner to invoke the jurisdiction of this Court by way of a miscellaneous application.
(Hemant Gupta) Judge 17.2.2012 ds