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Punjab-Haryana High Court
Ajit Prasad Jain vs Union Of India on 15 November, 2000
Bench: R Anand


JUDGMENT

1. This is a Civil Revision under Arti-

cle 227 of the Constitution of India read with Section 151 of the Code of Civil Procedure, through which the challenge has been given to the order dated 27.1.2000, passed by the Civil Judge (Sr. Division), who, dismissed the application of the petitioner under Section 11(6) of the Arbitration and Conciliation Act, 1996, for the reasons given in paras No. 7 and 8 of the impugned order, which read as under :-

“It is not disputed between the parties that the work was completed by the applicant on 25.9.1992 and final bill Ex.P.5 was signed by him on 24.3.1993 without any protest. A glance over the final bill would also show that applicant has signed a certificate in the end to the effect that he has performed the work under the condition of CWE(P)/CHM-26/86-87 beyond the amount of this Bill. Applicant-Ajit Prasad Jain AW1 during his cross- examination has clearly admitted that he has authorised his attorney-Rajinder Kumar to sign the aforesaid bill on his behalf. It will also be seen that the applicant, admittedly, also wrote a letter Ex.P7 dated 4.9.1995 to the respondent No. 3 submitting “No Demand Certificate” duly completed and signed by him and stating therein clearly that the additional security be now released as the final bill has been paid and the defects rectification (Liability) period has expired on 25.9.1994.

8. Learned counsel for the applicant Smt. Vandana Bhura while placing reliance on a decision of the Hon’ble Supreme Court in Union of India v. M/s L.K. Ahuja and Co., AIR 1988 SC 1172 and two decisions Hon’ble Bombay High Court given in Naginbhai C. Patel v. Union of India, 1999(2) Arb. Law Reporter 343 and Larsen and Toubro Limited v. Konkan Railway Corporation Limited, 1992(2) Arb. Law Reporter 354 (Bombay) contended that in view of the disputes and differences between the parties having arisen out of the contract, the claim of the applicant still subsists and, therefore, the matter in dispute is arbitral and respondents having failed to appoint an arbitrator as per the arbitration clause of the agreement, an arbitrator be appointed by this Court under provisions of Section 11(6) of the Act to adjudicate the disputes and differences between the parties. I regret my inability to accept these contentions of the learned counsel. Hon’ble Supreme Court in latest decision given in M/s. P.K.. Ramaiah and Company v. Chairman and Managing Director, National Theremal Power Corpn., 1994 Supp (3) Supreme Court Cases 126 while distinguishing the law laid down in earlier decision in L.K. Ahuja and Company’s case (supra) has held that where there is a voluntary and unconditional written acceptance in full and final settlement of the contract, subsequent claim for further amounts in respect of the same work is not an arbitral dispute. In the present case also, the applicant having signed the certificate in the final bill Ex.P.5 and submitting no demand certificate through letter Ex.P.7 dated 4.9.1995 acknowledged the full and final satisfaction of the claims, therefore, it is held that there is other existing

arbitral dispute for reference to the arbitration. Accordingly, issue No. 1 is decided against the applicant and issue No. 3 is decided in favour of respondents”.

The learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court reported as 2000(3) Arbitration Law Reporter 162; 2000(4) RRR 153(SC), Konkan Railway Corporation Ltd. and others v. Mehul Construction Co. and submits that when a contentious issue is raised before the arbitral Tribunal, at that stage it is not appropriate on the part of the Court to decide the same at his own level. Rather this matter should be referred to the arbitration.

2. I have gone through the cited judgment but in my opinion, this judgment can be made distinguishable without any difficulty. In the present case, the work was completed by the contractor on 25.9.1992 and he gave the final bill on 24.3.1993 without any protest. So much so it has been clarified by the trial Court that the contractor even signed the certificate at the end of the bill that he had performed the work under the condition of the contract for which the payment was being claimed and that he had no other claim beyond the amount of this bill.

3. In these circumstances, no contenlious issue arose which can be adjudicated by the Court, In 1994 Supp.(3) Supreme Court Cases 126, M/s. P.K. Ramaiah and Company v. Chairman and Managing Director, National Thermal Power Corporation, it was observed by the Hon’ble Supreme Court (hat if a contractor has given a voluntary and unconditional written acceptance of payment in full and final settlement of the contract, he is debarred from raising an arbitral dispute subsequently with respect to the same work. The ratio of this judgment of the Hon’ble Supreme Court is applicable to the case in hand.

In this view of the matter, I am not in a position (o issue notice of motion to the respondent. The revision petition is dismissed in limine. No order as to costs.

4. Revision dismissed.


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