OIL AND NATURAL GAS COMMISSION Vs. SAMARTH BUILDERS

JUDGEMENT

(1.) Rule. Mr.Bhatt, learned Counsel appears for respondents and waives service of rule.

(2.) The short facts of the case appear to be that a contract was entered into by the petitioner with the respondent company for construction of development work on turnkey basis for a lumpsum amount of Rs.9,75,00,000/=. It appears that pending the contract, the payments were being made by the petitioner to the respondents and ultimately at the time of final payment the deed of settlement was entered into on 18th March, 1998 between the petitioner and the respondents, whereby the respondents accepted the net amount of Rs.19,23,355.19 as full and final settlement. It is the case of the petitioners that the said full and final settlement was under the free will. It is the case of the respondent that the said full and final settlement came to be entered into by the respondent under the coercion and duress. The respondent thereafter raised the dispute and as the matter was not referred to the arbitrator, the respondent preferred petition under Arbitration Act, 1996 being Case No.22/1999 before the Hon'ble the Chief Justice of this Court. In the said petition, the contention was raised regarding maintainability of the reference by the petitioner, who was respondent 2. However, as per the order dated 1.9.2000 the Hon'ble the Chief Justice observed as under:

(3.) Therefore, it appears that it was found while making reference that the question as to whether signing of the settlement by the petitioner would debar him from invoking arbitration clause, would require inquiry into the facts and consideration of the documents and it was observed that this disputed question of facts and law can be referred to the arbitrator and preliminary objection raised on behalf of the petitioner herein who was respondent in the aforesaid proceedings was overruled. Thereafter, it appears that the matter was further taken up by the Arbitrator, Mr.Justice D.V.Patel (Rtd.) ( who shall now be referred to "Arbitrator" for the sake of convenience). Before the arbitrator, the petitioner herein submitted the application for raising preliminary objection and it was prayed that as per the petitioner herein the subject matter/claims are not maintainable and the same do not deserve to be entertained and the learned Arbitrator does not have the jurisdiction to arbitrate and to determine the same as the arbitration clause is exhausted and the prayer was made to declare accordingly in the said application. It appears that the learned Arbitrator thereafter heard the said application and passed the order on 24.10.2003, whereby the learned Arbitrator found that the agreement of settlement is void and the contractor is entitled to proceed with the reference. However, the learned Arbitrator also observed that as the deed of settlement dated 18.3.1998 is found to be void, the issue of coercion is not considered. It is under these circumstances the petitioner has approached this Court by preferring this petition, challenging the order of the learned Arbitrator dated 24.10.2003.