SARVESH CHOPRA Vs. IRCON INTERNATIONAL LTD

JUDGEMENT

(1.) BY this petition under Section 34 of the Arbitration and conciliation Act, 1996, the petitioner has challenged the award dated 15th march, 2005 passed by the Sole Arbitrator.

(2.) VIDE an agreement dated 31st July, 1989, the petitioner was to supply 04 crores first class/picked jhama bricks for Bangladesh RIP contractor in terms of the contract. The petitioner was to receive 25% of the price in foreign currency (US $) and balance payment of 75% to be made in the Bangladesh currency (Bangladesh Takka ). The scope of the contract contemplated to manufacture and supply of 4 crore bricks within two years to the respondent. The respondent had obligation to supply Raniganj field grade "a" Coal free of cost to the petitioner for the purpose of manufacture of bricks. A dispute arose between the parties and dispute was referred to the Arbitrator. Before the Arbitrator, claimant/petitioner raised a claim that its dues were not paid by the respondent. Out of a sum of US $ 5,27,768, part payment of only US $ 1,17,038 was made and a "no Claim" certificate was obtained from him under duress and coercion. The learned Arbitrator considered the claim of the petitioner and the plea of the petitioner that "no Claim" certificate was obtained from him under duress and coercion. After going through the entire evidence and the record came to the conclusion that there was no evidence to support the plea of the petitioner that "no Claim" certificate was obtained from the petitioner under coercion. The Arbitrator found that the plea taken by the petitioner that only a part of the claim was settled by receipt of amount of US $ 1,17,038 was false. The correspondence exchanged between the parties clearly showed that all pending claims of the claimant were discussed between the parties and the amount arrived at, was paid to the petitioner and "no Claim" certificate was signed by the petitioner after settlement of all his claims.

(3.) THE petitioner has challenged the award on the ground that the learned Arbitrator failed to appreciate that the case of the petitioner was covered by the judgment of the Hon"ble Supreme Court delivered in "chairman and m. D. NTPC v. Reshmi Constructions, Builders and Contractors 2004 (1) ALR 156 SC. Though the learned Arbitrator agreed that the judgment of Reshmi Constructions made it clear that the claim could be entertained even after "no Claim" certificate had been issued, however, the Arbitrator made factual incorrect observation stating that there were no pleadings in those claims and held that claims were not maintainable. It is submitted that the Arbitrator wrongly observed that the pleadings regarding other contracts were not made whereas the petitioner in affidavit dated 9th October, 2003 clearly pleaded on this ground. The other ground taken by the petitioner is that though this Court in its order dated 1st October 2002 had directed the Arbitrator to decide all the disputes including the maintainability of the proceedings in an expeditious manner, however, the learned Arbitrator failed to direct respondent to file replies to the various detailed claims of the petitioner. The Arbitrator also failed to take cognizance, the dual stand taken by the respondent. The respondent on the one hand stated that the contract had come to an end after signing of "no Claim" certificate and on the other hand respondent admitted that 50,000 Bangladesh takka were wrongfully withheld in the year 1994 therefore, the contract could not be said to have come to an end. In view of this dual stand of the respondent, the learned Arbitrator failed to appreciate that petitioner had invested huge sum of money and was hard pressed for money, had no option but to accept the amount of US $ 1,17,038 offered to him about 2 - years after completion of the contract. Thus, the "no Claim" certificate was obtained under coercion and duress and therefore, was a vitiated document.