Submission of 'No Claim Certificate' and acceptance of final payment without protest can bar a party from invoking the arbitration clause.

JUDGMENT

Prakash Shrivastava, CJ. - This application under Section 11(6) of the arbitration and Conciliation act has been filed by the applicant for appointment of arbitrator to resolve the dispute between the parties.

2. The case of the applicant is that in response to the e-tender, applicant had given the offer and letter of acceptance dated 29.01.2016 was issued to the applicant by the respondent for construction of 750m approx. concrete road as per technical and MORTH Specifications. The formal agreement was executed on 14.03.2016. The work was to be completed within 9 months, but there was some delay in completion. The extension of time was granted by the respondent by their letter dated 05.06.2017. Ultimately, the work was completed on 15.12.2017. The allegation of the applicant is that the work was delayed due to the default on the part of the respondent. according to the applicant the payment was also delayed and was made only after 05.03.2019 that too on submission of No Claim Certificate which was submitted under economic duress. applicant had issued the letter dated 02.09.2019 for appointment of arbitrator. applicant thereafter had sent the notice for conciliation dated 19.06.2020 which was replied by the respondent stating that the full payment was made in March, 2019 and No Claim Certificate was submitted by the applicant in January, 2019, hence, the contract was discharged, therefore, the prayer for conciliation could not be accepted. The applicant thereafter had sent the communication dated 01.10.2020 for appointment of arbitrator which was replied by the respondent on 27.10.2020 taking the stand that after acceptance of the final bill of payment on 05.03.2019 and on submission of No Claim Certificate the contract stood discharged, therefore, the applicant could not invoke the mutual settlement, conciliation or arbitration clause.

3. The submission of the learned Counsel for the applicant is that the No Claim Certificate was issued by the applicant under economic duress as the payment was delayed by the respondent, therefore, on the basis of such No Claim Certificate, the remedy of arbitration cannot be denied.

4. Submission of the learned Counsel for the respondent is that the applicant had submitted No Claim Certificate voluntarily and there is no material on record to show that it was submitted in duress, hence he cannot invoke the arbitration clause after receiving full payment.

5. Having heard the learned Counsel for the parties and on the perusal of the record, it is noticed that the arbitration agreement is undisputed which provides for the following conciliation/arbitration clause:

'45.2 Conciliation/arbitration

45.2.1 It is a term of this contract that Conciliation/arbitration of disputes shall not be commenced unless an attempt has first been made by the parties to settle such disputes within 120 days of submission of monthly statement of such claim, through mutual settlement.

45.2.2 In the event of failure to resolve and dispute or differences between the parties hereto as to the construction or operation of this contract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account or as to the withholding by the Employer of any certificate to which the Contractor may claim to be entitled to, through mutual settlement, the Contractor may refer such matters to the Chairman & Managing Director in writing within 60 days from the date of failure of amicable settlement of such disputes or differences for settlement through Conciliation.

45.2.3 If the effort to resolve all or any of the disputes through Conciliation fails, the Contractor may refer to the Chairman & Managing Director of the Employer for settlement of such disputes or differences through arbitration. No disputes or differences shall be referred to arbitration after expiry of 60 days from the date of notification of the failure of Conciliation.'

6. The record further reflects that in January, 2