The onus to establish coercion or duress lies upon the person alleging such a fact. Voluntary offer for settlement and withholding crucial evidence can disentitle a party to relief.

Rajive Bhalla, J

1. The petitioner has filed a petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act'), for appointment/constitution of an Independent Arbitral Tribunal to adjudicate disputes between the parties arising out of an agreement dated 14.09.2005.

2. The petitioner and the respondent entered into an agreement dated 14.09.2005, requiring the petitioner to carry out construction of proposed plant/building and other civil works. The petitioner accepted the work and proceeded with its execution. The petitioner addressed a letter dated 02.12.2006 enumerating problems being faced during the execution of work, including non-payment of his upto date dues etc. The petitioner once again addressed another letter dated 06.12.2006 clarifying the problems being faced including non-clearance of his dues and his helplessness in executing the work. The petitioner finally addressed a letter dated 27.12.2006, Annexures A-5, warning the respondent that in case payment of Rs.1,38,98,662/-is not made within four days, the petitioner would demobilise the site.

3. The petitioner demoblised the site and thereafter raised a claim for Rs.54,50,000/-for work done, Rs.3,42,000/-as refund of security and Rs.0.91 lacs and Rs. 3.50 lacs as amounts arbitrarily, withheld by the respondent.

4. Counsel for the petitioner submits that vide letter dated 14.06.2007, the petitioner made a request, to the respondent, to clear his dues, failing which the petitioner would invoke the arbitration clause and warned that the letter may be treated as a notice under Section 21 of the Act. The respondent addressed a letter dated 19.06.2007 alleging that the petitioner has not deputed any officer for measurement of the work done at site.

5. In response, the petitioner vide letter dated 22.06.2007 refuted this allegation and positively asserted that the respondent is in possession of duly verified bills with respect to final measurement. The petitioner also prayed that as a dispute has arisen between parties, an Arbitrator may be appointed in terms of Clause 11 of the agreement dated 14.09.2005.

6. The petitioner, thereafter, approached the respondent for payment but was eventually coerced, under pain of nonpayment into addressing two letters dated 23.07.2007 and 24.07.2007, offering an amicable settlement. The proposal was accepted by the Senior General Manager(Commercial), and an amount of Rs.35,11,374/-was released on 11.08.2007 after deducting a penalty of Rs.15 lacs. The petitioner received Rs.35,11,374/-and immediately, addressed a letter dated 17.08.2007, asserting that as the settlement was extracted, under duress, it is illegal, invalid and not binding, particularly with respect to the deduction of Rs.15 lacs as penalty. The petitioner invoked Clause 11 of the agreement and called upon the respondent to refer the dispute to an Arbitrator. However, as the respondents have not appointed an Arbitrator, the petitioner is left with no option but to file this petition and pray that an Arbitrator, be appointed.

7. Counsel for the petitioner further submits that as the settlement and the proposal preceding the settlement were extracted under duress, namely, under pain of refusal to release admitted amounts, the so called settlement, does not bind the petitioner or nullify the arbitration clause. It is further submitted that while considering a similar controversy, the Hon'ble Supreme Court has held in National Insurance Company Limited v. Boghara Polyfac Private Limited, 2009(1) SCC, 267, that the Chief Justice or his designate, exercising power under Section 11 of the Act, shall consider whether there was really an accord between the parties, and if they come to a conclusion that the full and final settlement was the result of fraud/ coercion or undue influence, the matter be referred to arbitration. It is further submitted that while holding as above the Hon'ble Supreme Court has held that where a cont