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2013 (4) TMI 304 - BOMBAY HIGH COURTAppointment of Arbitrator - The time limit for completion of contract has been stipulated to be essence of the contract imposing reciprocal obligation - No claim certificate is specifically denied by the applicant- Held that:- Upon careful perusal of para 52 of the judgment of the Supreme Court in the case of National Insurance Company Ltd. (), the case in hand will fall under clause III of the said paragraphs - Therefore, the contention of the counsel appearing for the respondents that the case of the applicant would fall in clause II of para 52 from the said judgment, cannot be accepted. Upon careful reading of the averments in the application and contents of the notice/letter/correspondence by the applicant with the respondent, it prima facie appears that said no claim certificate is under financial duress on account of condition of the employer that unless such certificate is issued by the applicant/contractor, he is not entitled to get the payment. Whether the claim made falls within arbitration clause or not, can be taken care of by the Arbitrator -Held that:- As stated by the Supreme Court in para 22.3 of the judgment in the case of National Insurance Company (supra). The issue (third category) as stated in paragraph which the Chief Justice/his designate should leave exclusively to the Arbitral Tribunal. When the facts of the case in hand are examined in the background of law as laid down by Apex Court in the case of National Insurance Company Ltd. (supra) - It cannot be said that the applicant has no prima facie case to seek a reference - The other details to which advocate Shri Godhamgaonkar wants to invite attention are disputed questions of facts and law, which can be looked into by Arbitrator - Hence, those facts and contentions or accompanying documents or evidence are kept open and it is for the Arbitrator to look into said details - The Arbitrator will also look into whether the parties have concluded the contract/transaction by recording satisfaction of their mutual right or obligation or by receiving final payment without objection or whether the claim is a dead (long barred) claim or a live claim. The issue (third category) whether the claim made falls within the arbitration clause (as for example, a matter which is reserved for final decision of a departmental authority and excepted or excluded from arbitration) and merits of any claim involved in the arbitration will be looked into by the Arbitrator -Aapplication U/s 11(6) is allowed - Hon’ble Shri Justice S.C. Malte (Retired) is appointed as Arbitrator - Proceeding charges of Rs.5000/- be deposited within two weeks. Application is accordingly allowed and disposed of.
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