TMI Blog2011 (4) TMI 1471X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of final bill was made to the contractor is not in dispute. After receipt of the payment, no grievance was raised or lodged by the contractor immediately. The concerned authority, thereafter, released the bank guarantee. It was then that on that day itself, the contractor lodged further claims. The conduct of the contractor clearly shows that `no claim certificates' were given by it voluntarily; the contractor accepted the amount voluntarily and the contract was discharged voluntarily. The appeal is, accordingly, allowed. The impugned order passed by the Chief Justice of the High Court of Punjab and Haryana is set aside. The parties shall bear their own costs. - Civil Appeal No. 3541 of 2011 (Arising out of SLP (Civil) No. 8162 of 2007) - - - Dated:- 25-4-2011 - Aftab Alam and R.M. Lodha, JJ. For Appellant: Brijender Chahar, Nishant Patel, C.S. Khan and Shamsuddin Khan, D.S. Mahra, Adv. For Respondents: Indu Malhotra, Jyoti Mendiratta and Prerna Priyadarshini, Advs. JUDGMENT R.M. Lodha, 1. Leave granted. 2. This appeal, by special leave, arises from the order dated December 8, 2006 passed by the Chief Justice of the Punjab and Haryana H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f request, it may be constrained to seek the remedy as may be available under the law. 10. As no arbitrator was appointed by the Appellants despite the request made in the letter dated September 10, 2000, the contractor made an application under Section 11 of the 1996 Act before the Civil Judge, (Senior Division), Bhatinda on January 10, 2001. The application, after contest, was dismissed by the Civil Judge, Senior Division, Bhatinda on January 6, 2003. 11. Being not satisfied with the order dated January 6, 2003, the contractor challenged that order by filing a writ petition before the High Court of Punjab and Haryana. 12. The Division Bench of the High Court heard the parties and by its order dated May 20, 2004 dismissed the contractor's writ petition. 13. The contractor challenged the High Court's order by filing a special leave petition before this Court. This Court disposed of the special leave petition on January 3, 2006 by directing that the application filed by the contractor under Section 11 of the 1996 Act shall be placed before the Chief Justice of the Punjab and Haryana High Court, for appropriate order thereon. This Court, consequently, set aside th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sole arbitration of an Engineer Officer to be appointed by the authority mentioned in the tender documents. Unless both parties agree in writing such reference shall not take place until after the completion or alleged completion of the works or termination or determination of the contract under Condition Nos. 55, 56 and 57 hereof. Provided that in the event of abandonment of the works or cancellation of the Contract under Condition Nos. 52,53 or 54 hereof, such reference shall not take place until alternative arrangements have been finalized by the Government to get the works completed by or through any other Contractor or Contractors or Agency or Agencies. Provided always that commencement or continuance of any arbitration proceeding hereunder or otherwise shall not in any manner militate against the Government's right of recovery from the contractor as provided in Condition 67 hereof. If the Arbitrator so appointed resigns his appointment or vacates his office or is unable or unwilling to act due to any reason whatsoever, the authority appointing him may appoint a new Arbitrator to act in his place. The arbitrator shall be deemed to have entered on the refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 126, Nathani Steels Ltd. v. Associated Constructions : 1995 Supp (3) SCC 324, Indian Drugs and Pharmaceuticals Ltd. v. Indo Swiss Synthetics Gem Mfg. Co. Ltd. and Ors. (1996) 1 SCC 54, United India Insurance v. Ajmer Singh Cotton and General Mills and Ors. (1999) 6 SCC 400, Jayesh Engineering Works v. New India Assurance Co. Ltd. : (2000) 10 SCC 178, SBP and Co. v. Patel Engineering Ltd. and Anr. (2005) 8 SCC 618, National Insurance Co. Ltd. v. Nipha Exports (P) Ltd. (2006) 8 SCC 156 and National Insurance Company Limited v. Sehtia Shoes (2008) 5 SCC 400. With regard to the jurisdiction of the Chief Justice/his designate in the proceedings under Section 11 of the 1996 Act, this Court culled out the legal position in paragraph 51 (page 294) of the report as follows: 51. The Chief Justice/his designate exercising jurisdiction under Section 11 of the Act will consider whether there was really accord and satisfaction or discharge of contract by performance. If the answer is in the affirmative, he will refuse to refer the dispute to arbitration. On the other hand, if the Chief Justice/his designate comes to the conclusion that the full and final settlement receipt or discharge vouch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re no outstanding claims or disputes, courts will not refer any subsequent claim or dispute to arbitration. Yet another exception noted therein is with regard to those cases where one of the parties to the contract issues a full and final discharge voucher (or no-dues certificate, as the case may be) confirming that he has received the payment in full and final satisfaction of all claims, and he has no outstanding claim. It was observed that issuance of full and final discharge voucher or no-dues certificate of that kind amounts to discharge of the contract by acceptance or performance and the party issuing the discharge voucher/certificate cannot thereafter make any fresh claim or revive any settled claim nor can it seek reference to arbitration in respect of any claim. 22. In paragraph 26 (pages 284-285), this Court in Boghara Polyfab Private Limited held that if a party which has executed the discharge agreement or discharge voucher, alleges that the execution of such document was on account of fraud/coercion/undue influence practiced by the other party, and if that party establishes the same, then such discharge voucher or agreement is rendered void and cannot be acted upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contract agreement No. CEBTZ-14/95-96, for which payment is claimed and that I/we have no further claims under CA No. CEBTZ-14/95-96. (b) Received rupees two lakhs fifteen thousand one hundred seventy eight only. This payment is in full and final settlement of all money dues under CA No. CEBTZ-14/95-96 and I have no further claims in respect of the CA No. CEBTZ-14/95-96. (emphasis supplied by us) 27. The contractor also appended the following certificate: It is certified that I have prepared this final bill for claiming entire payment due to me from this contract agreement. The final bill includes all claims raised by me from time to time irrespective of the fact whether they are admitted/accepted by the department or not. I now categorically certify that I have no more claim in respect of this contract beyond those already included in this final bill by me and the amount so claimed by me shall be in full and final satisfaction of all my claims under this contract agreement. I shall however, receive my right to raise claim to the extent disallowed to me from this final bill. 28. The above certificates leave no manner of doubt that upon receipt of the payment, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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