TMI Blog2006 (11) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... rd September, 2004 passed by the said High Court on a Review Petition in respect of the main judgment. Pursuant to a Tender Notice, issued by the respondent for certain new works, additions, alterations, repair and maintenance works in the Mancheswar Complex, the appellant submitted its tender on 2nd September, 1992. The appellant's tender was duly accepted by a letter dated 14th September, 1992 with the stipulation that the work was to be completed in all respects by 30th June, 1993. It was also indicated that the work orders were to be issued within 7 days from the date of receipt of the acceptance letter. A formal contract was executed between the parties on 4th March, 1993 and the said agreement provided that the General Conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant, was due from the respondent to the appellant under the contract, failing which the respondent was requested to appoint an Arbitrator for adjudication of the disputes which had arisen between the parties. In view of the failure of the respondent either to pay the dues, as demanded, or to appoint an Arbitrator, the appellant filed an application under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter called the 1996 Act ) before the Calcutta High Court for reference of its claims in terms of its letter dated 17th January, 1996 to arbitration and for appointment of an Arbitrator. No reply was filed by the respondent to the said application but during the pendency thereof, the respondent refunded to the appellant, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenged by the respondent herein- Union of India under Section 34 of the 1996 Act, being A.P. No.193 of 2001, before the learned Single Judge of the Calcutta High Court. On behalf of the Union of India it was urged that the Arbitrator had not considered the General Conditions of Contract and in particular Rules 43(2) and 16(2) thereof. The learned Single Judge appears to have been of the view that by participating in the proceedings under Section 11 of the 1996 Act and no objection having been made to the appointment of an Arbitrator despite the submission of a No Claim Certificate by the appellant, the Award did not warrant any interference. According to the learned Single Judge the matters had been adjudicated upon by the Arbitr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the two appeals, Mr.Raj Kumar Mehta, Advocate, urged that the Division Bench of the Calcutta High Court had been persuaded to allow the appeal filed by the Union of India on the sole ground that by furnishing the No Claim Certificate the appellant herein was no longer entitled to raise any claim having regard to Clause 43(2) of the General Conditions of Contract. Mr.Mehta also submitted that the Division Bench had wrongly held that there was no proof in support of the allegations that such No Objection Certificate had been furnished by the appellant under coercion and duress. It was urged that there were sufficient materials on record to indicate that the authorities of the respondent were bent upon denying the appellant its just dues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MD, NTPC Ltd. vs. Reshmi Constructions, Builders Contractors [2004 (2) SCC 663] wherein the aforesaid maxim had been explained and applied to a similar situation where a question had arisen for decision as to whether an arbitration clause in a contract agreement continues to survive despite the purported satisfaction thereof. This Court while adverting to various decisions on the subject, including the decision in P.K. Ramaiah's case (supra), came to the conclusion that notwithstanding the submission of a No Demand Certificate, the arbitration agreement continued to subsist because of the several reasons indicated in the judgment. Having regard to the views expressed in the aforesaid judgment, Mr.Mehta submitted that the Division B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nally measured up. The contractor shall be debarred from disputing the correctness of the items covered by No Claim Certificate or demanding a reference to arbitration in respect thereof. A glance at the said clause will immediately indicate that a No Claim Certificate is required to be submitted by a contractor once the works are finally measured up. In the instant case the work was yet to be completed and there is nothing to indicate that the works, as undertaken by the contractor, had been finally measured and on the basis of the same a No Objection Certificate had been issued by the appellant. On the other hand, even the first Arbitrator, who had been appointed, had come to a finding that No Claim Certificate had been given und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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