M/S. Associated Construction vs Pawanhans Helicopters Pvt. Ltd on 7 May, 2008
26. An overall reading of Dicitex's application
[under Section 11(6)] clearly shows that its
grievance with respect to the involuntary nature of
the discharge voucher was articulated. It cannot
be disputed that several letters — spanning over
two years—stating that it was facing financial
crisis on account of the delay in settling the claim,
were addressed to the appellant. This Court is
conscious of the fact that an application under
Section 11(6) is in the form of a pleading which
merely seeks an order of the court, for
appointment of an arbitrator. It cannot be
conclusive of the pleas or contentions that the
claimant or the party concerned can take in the
arbitral proceedings. At this stage, therefore, the
court which is required to ensure that an
arbitrable dispute exists, has to be prima
facie convinced about the genuineness or
credibility of the plea of coercion; it cannot be too
particular about the nature of the plea, which
necessarily has to be made and established in
the substantive (read : arbitration) proceeding. If
the court were to take a contrary approach and
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minutely examine the plea and judge its credibility
or reasonableness, there would be a danger of its
denying a forum to the applicant altogether,
because rejection of the application would render
the finding (about the finality of the discharge and
its effect as satisfaction) final, thus, precluding
the applicant of its right even to approach a civil
court. There are decisions of this Court (Associated
Construction v. Pawanhans Helicopters Ltd. and
Boghara Polyfab) which upheld the concept of
economic duress. Having regard to the facts and
circumstances, this Court is of the opinion that
the reasoning in the impugned judgment cannot
be faulted.