The execution of a discharge voucher in full and final settlement of a claim without reservation or demur indicates lack of credibility in claiming compulsion or duress.

ORDER :

1. The short point which arises for consideration in this petition is whether sole Arbitrator has to be appointed despite two e-mails dated 08.04.2021 namely one from the respondent addressed to the petitioner and in reply petitioner accepting the claim made by it and had restricted its claim to Rs. 5,37,24,725/-

2. Petitioner raised a claim in respect of the insurance policy obtained from the respondent under two heads namely material damage loss and Business Interruption Loss of Rs.106,42,56,638/- and 39,90,55,000/- respectively. During the consideration of the claim certain amounts were paid namely ad-hoc payments between 31.07.2017 to 19.09.2017 and in all a sum of Rs. 24,98,70,432/- was paid. After negotiations, survey reports, discussions and deliberations, settlement agreement was executed for material damage claim for Rs. 68,39,13,309/- and thus giving deductions to the amount already paid, a balance of Rs. 43,36,89,396/- was paid to the petitioner by the respondent. It is thereafter petitioner pursued its grievance for payment of business interruption loss or loss of profit and in this regard, petitioner forwarded an e-mail on 26.08.2020 to the respondent and raised a grievance for undue delay and settlement of loss of profit i.e. business interruption loss. In fact, petitioner also forwarded a communication to the Surveyor requesting to consider the claim for increased cost of working and showing concern for exorbitant delay in settlement of business interruption loss and contending that it resulted in further loss of Rs. 2 crores. It was followed by further e-mail dated 04.03.2021 by the petitioner to the Surveyor appointed by respondent. It is thereafter there was exchange of mail between the petitioner and the respondent on 08.04.2021. Under the e-mail forwarded by the respondent at 6:52 p.m. on 08.04.2021, attention of petitioner was sought for to the discussion with Mr. Praveen Pathak (CTO) and it has been specifically stated in the said e-mail by the respondent to the petitioner as under : -

“As you have now consented the surveyors assessment of Rs. 5,37,24,725/- which they have already shared with you.

We are processing the claim.”

3. The aforesaid mail was replied to immediately on the same day at 8:54 p.m, by the petitioner addressed to the respondent agreeing or accepting and stating as “OK”. In other words, petitioner accepted the claim amount to be settled for Rs. 5,37,24,725/-. It is this consent which has been given by the petitioner which the respondent had relied upon to stave off the demand of petitioner for appointment of an Arbitrator on the ground that there is voluntary consent and there was no duress at that point of time and hence the petitioner cannot turn around now and contend that said consent was given was on account of any compulsion, duress, threat or coercion. Whereas, the learned counsel appearing for the petitioner has vehemently contended that said e-mail which was replied to by giving consent of the petitioner was with the fond hope of receiving the said amount as otherwise petitioner would not have even received the amount that was paid namely 5.37 crores, and immediately after receiving the said amount, petitioner has forwarded a notice on 08.06.2021 invoking arbitration clause and narrating the circumstances under which said discharge voucher came to be forwarded by petitioner. In the interregnum i.e. after the exchange of e-mails by the petitioner and respondent on 08.04.2021, and before forwarding the letter invoking arbitration clause on 08.06.2021, it is an undisputed fact that on 15.04.2021, respondent had forwarded discharge voucher to the petitioner for its execution and re-transmission and accordingly it was executed and re-transmitted to by the petitioner to the respondent which culminated in payment of Rs. 5,36,91,803/- on 16.04.2021 by releasing the amount in favour of petitioner to its bank account by the respondent. In other words, on receipt of discharge voucher