SURENDRA SINGH KALRA Vs. GENERAL MANAGER,

JUDGEMENT

(1.) This is an application filed seeking appointment of arbitrator on the strength of arbitration clause contained in the contract agreement dated 24-4-2008. The applicant entered into contract agreement for construction of major bridge No.12 (7x12.2 m PSC) and bridge No.38 (1x18.3 m PSC) in Pindrai Ghansore section detour alignment in connection with Gondia Jabalpur Gauge conversion Project. The approximate value of contract is ? 4,66,76,348/- and the completion period was 18 months from the date of acceptance. The agreement was executed on 1-2-2011. The work was finally measured in presence of the contractor and final bill was submitted by the contractor which was paid on 21-8-2014. Thereafter, the applicant issued notice on 15-4-2015 stating inter alia that there is Arb. Application No.35/2015 price variation for additional work which he has executed and sought appointment of arbitrator on 15-4-2015 which was replied by the Railways stating that clause 43(2) provides for no claim and once no claim certificate is issued by the contractor, he shall be debarred from disputing the correctness of the items covered by no claim certificate. Clause 63 excludes the remedy of arbitration in a case where no claim certificate has been given by the contractor and therefore no arbitrator can be appointed. Thereafter, the applicant has filed this application on 17-8-2015 for appointment of arbitrator to which reply has been filed stating that since no claim certificate has been issued by the contractor and such claims are excepted matters not within the purview of dispute resolution by arbitration, that will debar him from making claim for appointment of arbitrator as such, no arbitral dispute exists between the parties which requires reference of dispute to the Arbitral Tribunal and the application deserves to be rejected.

(2.) Learned counsel for the applicant submits that no claim was issued by the applicant under duress and coercion and not voluntarily. No claim was issued under compulsion on the pressure exerted by the non-applicant Railways that unless such certificate is issued, final payment would not be disbursed, therefore to meet the financial liability and to overcome the hardship, no claim certificate has been issued and it will not come in the way for appointment of arbitrator and intervention by the court and as such, the application deserves to be allowed. Arb. Application No.35/2015

(3.) Learned counsel for the non-applicant Railways would submit that there is no arbitral dispute exists in view of no claim certificate signed by the applicant under his own signature willingly and without protest or demur as such, this will be an explicit matter under clause 43 (2) of the contract agreement and arbitration is not the remedy and the matter cannot be referred to arbitration under the Arbitration and Conciliation Act, 1996. Even thereafter, performance guarantee and security deposit were released in favour of the applicant which he did not object and willingly accepted. He placed reliance upon the decisions of the Supreme Court in the matters of National Insurance Company Limited v. Boghara Polyfab Private Limited1 and New India Assurance Company Limited v. Genus Power Infrastructure Limited 2.