IMPORTANT POINT
The jurisdiction to decline reference should be exercised sparingly, and the arbitral tribunal is generally regarded as the preferred forum for adjudication of disputes.

JUDGMENT

Prateek Jalan, J. (Oral) - The petitioner has approached this Court under Section 11 of the Arbitration and Conciliation Act, 1996 ["the Act"], for appointment of an arbitrator, to adjudicate disputes between the parties under an Agreement bearing No. 01/EE(PB)/DTTDC/2019-20 ["Agreement"], entered into pursuant to a Letter of Award dated 31.05.2019.

2. By way of the aforesaid Agreement, the petitioner was engaged by the respondent for "Construction of Integrated Election Complex at Bhakhtawar Pur, Delhi". The Agreement contains an arbitration clause, being clause 25 of the General Conditions of Contract ["GCC"], which provides that all disputes with respect to the said Agreement shall be referred to arbitration, to be conducted in terms of the Act.

3. Disputes having arisen, the petitioner invoked arbitration by letter dated 15.06.2023. The respondent replied by a letter dated 09.08.2023, wherein it stated that it had paid the entire amount as per the final bill and the same had also been acknowledged by the petitioner. The respondent further relied on clause 9 of the GCC to assert that the petitioner was barred from raising any further claims after submission of the final bill.

4. In these circumstances, the petitioner has approached this Court for appointment of an arbitrator.

5. Mr. Siddhant Nath, learned counsel for the respondent, submits that the present case does not raise an arbitrable dispute as the petitioner had submitted an undertaking dated 16.12.2022 at the time of submission of the final bill. He also submits that clause 9 of the GCC mandates that no claim would be entertained after the submission of the final bill. He relies on the judgments of the Supreme Court in Indian Oil Corpn. Ltd. vs. NCC Limited, (2023) 2 SCC 539 and NTPC Limited v. SPML Infra Limited, (2023) 9 SCC 385 in support of his contention.

6. Mr. Avinash Trivedi, learned counsel for the petitioner, however, submits that the undertaking dated 16.12.2022 itself was given as a condition for release of payments under the final bill, and cannot be considered as evidence of accord and satisfaction. He submits that the respondent requires submission of such an undertaking in order to clear even the admitted amounts due in terms of its contracts. In support of this contention, Mr. Trivedi draws my attention to a document filed with the petitioner's rejoinder, which bears the signature of the petitioner dated 16.12.2022, being a purported receipt of the amounts due, whereas the same document itself shows that payment was processed by the respondent only three months later, on 24.03.2023. He submits that, in a case of this nature, economic duress and compulsion to sign the undertaking are clearly made out. Mr. Trivedi submits that, in identical circumstances, involving the same respondent, this Court has negatived similar contentions and appointed an arbitrator.[Thermal Engineers and Insulators Pvt. Ltd. v. Delhi Tourism and Transportation Development Corporation Ltd, ARB.P. 1058/2021; and Thermal Engineers and Insulators Pvt. Ltd. v. Delhi Tourism and Transportation Development Corporation Ltd, ARB.P. 1033/2021.]

7. Having heard learned counsel for the parties, I am of the view that it is not appropriate in the present case to decline reference on the ground of lack of arbitrability. At the very outset, it may be noted that the jurisdiction of the Court to decline reference, is to be exercised sparingly. The judgments of the Supreme Court inter alia in Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1 and NTPC Limited, Supra (Note 2). [cited by Mr. Nath], make it clear that reference is to be made, except in cases where there is "not a vestige of doubt" as to the non-arbitrability of the dispute. The arbitral tribunal is generally regarded as the preferred forum for adjudication of disputes even with regard to arbitrability, with the limited caveat that an ex facie non-arbitrable dispute may not be referred.

8. In the present case, the "undertaking