Reva Khetrapal, J.;—

1. The aforesaid petition has been filed by M/s Pacific Garments Pvt. Ltd. for appointment of an Arbitrator under Section 11of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’).

2. Shorn of details, the facts are that a fire accident occurred on 22.04.2008 in the factory of the petitioner, in which huge stocks of raw and finished materials were lost, apart from the massive and enormous damage to the building. A claim was lodged by the petitioner with the respondent for Rs.4,46,61,615/-. After the lodging of the said insurance claim and exchange of various letters between the parties, the respondent – M/s Oriental Insurance Company Limited settled the claim for Rs.1,58,35,377/-. The petitioner claims that the said amount was accepted under protest and the signature of the petitioner on the discharge voucher was obtained by the respondent on the dotted lines because the petitioner was in great need of money. Since the respondent failed to honour their obligations under the insurance contract and failed to indemnify the genuine losses of the petitioner, the petitioner served a legal notice dated 28.04.2010 invoking the arbitration clause under the contract being Clause 13 which reads as under:-

“If any dispute or difference shall arise as to the quantum to be paid under this policy (liability being otherwise admitted) such difference shall independently of all other questions be referred to the decision of a sole arbitrator to be appointed in writing by the parties to or if they cannot agree upon a single arbitrator within 30 days of any party invoking arbitration, the same shall be referred to a panel of three arbitrators, comprising of two arbitrators, one to be appointed by each of the parties to the dispute/difference and the third arbitrator to be appointed by such two arbitrators shall be conducted under and in accordance with the provisions of the Arbitration and Conciliation Act, 1996. It is clearly agreed and understood that no difference or dispute shall be referable to arbitration as hereinbefore provided, if the Company has disputed or not accepted liability under or in respect of this policy.

It is hereby expressly stipulated and declared that it shall be a condition precedent to any right of action or suit upon this policy that the award by such arbitrator/arbitrators of the amount of the loss or damage shall be first obtained.”

3. The aforesaid arbitration invocation notice was received and replied by the respondent vide its reply dated 20th May, 2010 stating that there does not exist any dispute between the parties, the claim amount having been accepted by the petitioner by signing the discharge voucher. The petitioner rejoined to the said notice vide letter dated 28.06.2010 stating that there is a genuine dispute which needs to be agitated before the Arbitrator. The respondent having refused to appoint the Arbitrator, the petitioner was left with no other efficacious remedy; hence the present petition.

4. In the reply filed by the respondent, the respondent submitted that the present petition is not maintainable since the petitioner has accepted the amount under the Insurance Policy No. 271501/11/2008/238, 271501/11/2008/73 and 27150/48/2008/1605 on 31.12.2009 in full and final settlement of its claim through signing the discharge voucher.

5. It is further submitted that the petitioner having accepted the amount after mutual settlement, cannot now allege that the settled amount obtained by him was under pressure and undue influence by the insurance company. It is stated that the surveyor submitted his report on 25.09.2009 observing that the respondent company was liable for an amount of Rs. 1,58,35,377/- against the claim of Rs.4,46,61,615/-. The petitioner was duly informed about the basis of the assessment of loss to the tune of Rs.1,58,35,377/- and in response to the same, the petitioner had sent an authority letter dated 22.12.2009. The petitioner received the afo

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