M.K. Sharma, J.
1. Disputes and differences having arisen between the parties in respect of the work contract awarded by respondent No. 1 to the petitioner, the said disputes were referred to the sole arbitration of respondent No. 2. The arbitrator after perusing the evidence and upon hearing the parties passed an award on 31st August, 1985 as against which objections have been filed by both the parties. The petitioner has filed objections in respect of the findings of the arbitrator as against claim Nos.1,2,6,7 and 8, whereas the respondent has also filed an objection, which was registered as I.A. No. 7303/96 as against the award of the arbitrator in respect of claim Nos. 3,4,5, 8,11,12,15 and 16. Preliminary objection is also raised by the respondent that the entire claim of the petitioner was barred by limitation. The said issue was also raised before the arbitrator, who on appreciation of evidence, held that the claims of the petitioner were not barred by limitation.
2. I have heard the learned-counsel appearing for the petitioner as also the learned counsel appearing for the respondent No. 1 on both the objections as also on the preliminary issue raised in the present case.
3. Counsel for respondent No. 1 submitted that the petitioner raised its claims and invoked the arbitration clause only on 17th July, 1993 whereas the final bill was ready for payment on 17th April, 1993 and thus, the claim of the petitioner is beyond the period of 90 days as laid down in Clause 25 of the contract and is accordingly barred by limitation.
4. Counsel for the petitioner, on the other hand, submitted that payment under Clause 10 cc of the contract was made only on 1st January, 1993 and that payment of Rs. 16,000/-, which was withheld from the final bill was paid in the month of February, 1994 and thus the claim of the petitioner and invocation of the arbitration clause is not time barred.
5. Clause 25 of the arbitration agreement provides that a claim is to be raised by the contractor within 90 days from the date of payment of the final bill. According to the said provisions, if a claim is not lodged and arbitration clause is not invoked within 90 days of the date of payment of final bill, the said claim would not be entertained.
6. Article 137 of the Limitation Act also lays down provisions fixing the time limit for raising the claims and invocation of the arbitration agreement. According to the said provisions, a claim is to be raised within a period of three years from the date when the right to apply first accrues. The Supreme Court in the decision of State of Orissa v. Damodar Dass reported in 1 (1996) C L T 294 has held that no right to apply would accrue until there is a clear and unequivocal denial of that right by the respondent.
7. My attention was also drawn to the notification dated 8.1.1997 notifying the Indian Contract (Amendment) Act, 1996 amending the provisions of Section 28 of the Contract Act which provides thus:-
'Every agreement:
(a) By which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunal, or which limits the time within which he may thus enforce his rights; or
(b) Which extinguishes the rights of any party thereto, or discharges any party thereto from any liability, under or in respect of any contract on theexpiry of a specified period so as to restrict, any party from enforcing his rights, is void to that extent.'
Prescribing that an agreement by which a party thereto is restricted absolutely from restricting his rights under or in respect of any contract, which limits the time within which he may thus enforce his rights, is void to that extent. However, I need not enter into the aforesaid aspect of the matter in view of the fact that the Arbitrator in the present case on consideration of the evidence on record found that the claim of the petitioner is within the period of limitation of 90 days and thus even the limitation prescribed under Clause 25 of the agreement has not expired.
8. It is an admitted position that the petitioner invoked the arbitration clause on 17th July, 1993. Payments were continued to be made by the respondent even after 17th April, 1993. The final bill was ready for payment only on 17th April, 1993. Unless and Until the petitioner is intimated about the preparation and finalisation of the final bill and the petitioner has knowledge about the same, it is not in a position to raise any dispute as it is not aware as to which of its claims have been accepted and which are rejected. Admittedly, payments of the bills were made even subsequent to 17th April, 1993 and in the context thereof, the arbitrator found that the claim is not barred by the limitation of 90 days as provided for under Clause 25 of the agreement. The aforesaid conclusion has been arrived at by the arbitrator on the basis of appreciation of the evidence on record and this court would not embark upon the task of re-appreciating the aforesaid records and reasonings to come to a contrary finding which even otherwise is not permissible under the settled law. This objection stands rejected and the finding and conclusion of the arbitrator in respect of the aforesaid preliminary objection stands upheld.
9. Having so decided, let me consider the objections filed by the respective parties against the claims in Serialtim.
CLAIM NO. 1:
10. The petitioner claimed a sum of Rs. 80,000/- in respect of the aforesaid claim. The aforesaid claim was not entertained. The petitioner has filed objection as against the aforesaid award. The aforesaid claim relates to disputed items of work allegedly executed by the petitioner. The arbitrator has rejected the claim on the ground that petitioner has accepted measurements on full and final settlement and, thereforee, there was accord and satisfaction. He also rejected the aforesaid claim on the ground that the same is barred by limitation. As on appreciation it was found that there was full and final accord and satisfaction in respect of the aforesaid claim, no such claim is maintainable, which is an admitted position. It is admitted that on 17th April, 1993, the respondent had served on the petitioner the final bill prepared by the respondent and in the measurement book it accepted the measurements on full and final settlement. Thus, the petitioner accepted measurements without any reservation and it was not stated by the petitioner at that point of time that there was any disputed item of work in the bill. The petitioner now, thereforee, cannot challenge the aforesaid award as there was accord and satisfaction by settlement of the claim of the petitioner. The same is apparently an afterthought and is a deviceto get over the settlement of disputes and acceptance of the payment. In this connection, reference may be made to the decision of the Supreme Court in The State of Maharashtra v. Nav Bharat Builders reported in and also to the decision of P.K. Ramaiah & Co. v. Chairman & Managing Director, National Thermal Power Corporation; reported in : 1994(1)SCALE1 . In P.K. Ramaiah's case (supra) it was held that full and final satisfaction is acknowledged by receipt in writing and the amount was received unconditionally and thus there is accord and satisfaction by final settlement of the claims and that subsequent allegation of coercion is an after thought and a devise to get over the settlement of the dispute. In my considered opinion ratio of the aforesaid two decisions of the Supreme Court is squarely applicable to the facts and circumstances of the present case and thus the findings of the arbitrator that the petitioner is debarred from raising a dispute subsequently regarding items of work, stands upheld. The objection in respect of this award stands rejected.
CLAIM NO. 2:
11. Objection in respect of this claim has also been filed by the petitioner. In respect of this a claim of payment of an amount of Rs. 10,000/- was made by the petitioner. The arbitrator found that nothing was due to the petitioner. For coming to the aforesaid conclusion, the arbitrator has taken note of the fact of issue of 3.5% over-weight steel bars. He also found that it was not the case of the petitioner that the petitioner's measurements had not been taken in terms of the contract. Since aforesaid conclusion has been arrived at by the arbitrator by giving reasons, and on the basis of the evidence, no interference is called for in respect of the aforesaid award.
CLAIM NO.3:
12. In respect of this claim, objection has been filed by the respondent. This claim relates to payment of claim for payment of Rs. 5,214.30 which was deducted by the respondent as rebate. It is an admitted position that an amount of Rs. 5209.99 was recovered on account of rebate for timely payments. The arbitrator on consideration of the documentary evidence on record found that no payments for the work done were made during August, 1990 and July to December, 1991 and February, 1992. On appreciation of the evidence, the arbitrator found that though there was a substantial carrying out of its obligation by the respondent in making payments but the same was not a regular and complete one. Considering the entire facts and circumstances the arbitrator found that the rebate actually availed of was much in excess of that laid down in the contract and accordingly held that the petitioner is liable to get refund of an amount of Rs. 1004/- from the respondent. No error apparent could be shown and proved by the respondent in respect of the aforesaid award and thus, the said award is also not interfered with.
CLAIM NO.4:
13. Objection has also been filed by the respondent in respect of the award made by the arbitrator so far claim No. 4 is concerned. In respect of the same the arbitrator held that the petitioner is entitled to reimbursement of the excess amount ofRs. 3,396.20 spent by him. The aforesaid conclusion is also based on appreciation of records. The finding that the contractual obligation of the respondent was to issue steel to the claimant at fixed rates do not suffer from any error of law. On the face of the records, no interference is called for and this award is upheld.
CLAIM NO.5:
14. In respect of claim No. 5 also an objection has been preferred by the respondent on which head, an amount of Rs. 9,000/- has been awarded by the arbitrator. The aforesaid amount of Rs. 9,000/- was awarded as against the claim for the rates of extra items and substituted items. It is held by the Arbitrator that the aforesaid payment is justified as there is no justification for paying anything less than the rates from DSR-85 duly enhanced by the percentage laid down in Clause 12 (iii). No plausible reason has been shown as to how the aforesaid finding is erroneous. Thus, no interference is called for in respect of the aforesaid award as well.
CLAIM NO.6, 9 & 30:
15. The petitioner did not press the said claims at the time of arguments before the arbitrator thus the arbitrator awarded the nil award in respect of the aforesaid claims. Presently, the petitioner has filed an objection as against claim No. 6 also. Having not pressed the said claim before the arbitrator, the petitioner is not entitled to raise an objection at this stage and on that account the said objection stands rejected.
CLAIMS NO.7& 8:
16. In respect of claim No. 7, a claim has been made for payment of Rs. 1,95,000/- on account of maintaining establishment at site due to prolongation of the contract. Although the objection has been filed in respect of the aforesaid claim, I found from the award passed by the arbitrator that he did not consider the aforesaid claim in this head but consider the same together with claim No. 8 which was a claim of the general nature, which also included the claim in respect of claim No. 7. According to the arbitrator the claim in claim No. 7 overlapped with that of claim No. 8 and he considered the said claim Along with claim No. 8 and, thereforee, no objection of the petitioner in respect of the award on claim No. 7 could be entertained and I propose to discuss about the aforesaid claim while dealing with the objections filed by the petitioner and the respondent in respect of the said claim No. 8.
17. In respect of claim No. 8 the claim is for Rs. 4,73,738/- towards losses suffered by the petitioner for the work done after stipulated dale of completion. The nature of the claim is also on account of maintaining establishment at site due to prolongation of the contract and, thereforee, the claim made in claim No. 7 could be included as against claim No. 8 as they are overlapping. In respect of the aforesaid claim of Rs. 4,73,738/-, the arbitrator has awarded the amount of Rs. 30,000/-. On consideration of the contents of the award passed by the arbitrator in respect of the aforesaid award, I find that the arbitrator has considered the pros and cons of the matter and also the records of the case. On consideration thereof, he found that the respondent committed breach of contract and , thereforee, it is liable to pay damages. He alsofound on consideration of the evidence that the amount of work done at contract rates during prolongation of the contract is for an amount of Rs. 4,17,000/- and that the petitioner had been partly compensated under Clause 10 cc of the contract. thereforee, the arbitrator came to the conclusion that the petitioner is entitled to compensation of the balance amount beyond that received by him under Clause 10 cc for the same period. Thereby he arrived at the conclusion that Rs. 30,000/- is payable by the petitioner after taking note of the fact that some material was supplied by the respondent at fixed rates to the petitioner. The arbitrator has considered the documentary evidence on record, appreciated them and thereafter has recorded his conclusion, Fixing liability for payment of damages for an amount of Rs. 30,000/- on the respondent. No error apparent could be shown and established by any of the counsel appearing for the parties as against the aforesaid award passed by the arbitrator. This court cannot and should not re-appreciate the evidence to come to a contrary finding. The objections filed by the petitioner against award in claim No. 7 and 8, and of the respondent against claim No. 8 have thus no merit and are accordingly rejected.
CLAIM NO. 11:
18. Claim No. 11 relates to claim of the petitioner for an amount of Rs. 6,626/- wrongfully recovered at penal rates for the over use of steel. The arbitrator held that the petitioner is entitled to refund of the aforesaid amount wrongfully recovered. According to the counsel for the respondent Clause 42 of the agreement applies to the facts of the present case and thus it should have been held by the arbitrator that the respondent is entitled to recover penal rate from the petitioner. Reference may be made to the decisions in Salwan Construction Company v. Union of India and Ors. reported in : 41(1990)DLT374 and Hargobind Jaggi v. Executive Engineer, DDA and others reported in 1997 (1) A L R 425 wherein it was held that in order to recover penal rate, the respondent is to establish that there was loss or damages suffered by the respondent. No evidence is available on record to prove and establish that any damage or loss was suffered by the respondent. Besides, the arbitrator found that the excess works out to less than, 1.4% which is less than 3.5% and, thereforee, the petitioner was not responsible for the excess drawal. No plausible reason is found to interfere with the said findings and accordingly, the said award also stands upheld.
CLAIM NO.12:
19. Objection to the award passed by the arbitrator with regard to claim No. 12 has also been filed by the respondent. In respect of the aforesaid claim, the arbitrator granted simple interest @ 8% from 3.9.1991 to 22.1.1992 at Rs. 1,04,457.50 on the ground that the aforesaid amount which is the amount for 18th R/A bill was paid by the respondent to the petitioner on 23.1.1992 although the same was due for payment in August, 1991. The petitioner issued a notice dated 3.9.91 claiming interest at 24% p.a. to the respondent for non-payment of the aforesaid bill. Thus, no error is found on the arbitrator awarding interest @ 8% p.a. on the aforesaid amount which was due to the petitioner for the period from 3.9.1991 the date of issuance ofnotice to the date of payment i.e. 22.1.1992. The objection in respect of this award is rejected.
CLAIM NOS. 13 & 14:
20. No objection has been filed in respect of claim Nos.13 and 14 by any of the parties. Even otherwise, on perusal of the same, I find that no interference is necessary in respect of the aforesaid award as the arbitrator has given his reason which is reasonable and thus no interference is called for as against the said awards as well.
CLATM NO.15:
21. Claim No. 15 relates to claim of interest for present, pendente lite and future interests @ 24% p.a. by the petitioner in respect of which the arbitrator awarded an amount of Rs. 1900/- towards pendente lite interest. The claim for pre-suit interest was rejected by the arbitrator. To grant or not to grant pre-suit and pendenlelite interest is within the sole discretion of the arbitrator and exercising the said discretion while Rs. 1900/- directed to be paid towards pendente lite interest, no objection could possibly be taken as against the said award and , thereforee, the objection raised is rejected.
CLAIM NO.16:
22. Claim No. 16 relates to payment of cost of arbitration proceedings. In respect of the aforesaid claim, as against the claim of Rs. 25,000/- of the petitioner, the arbitrator awarded Rs. 3,000/- towards the cost of arbitration proceedings. I do not see any reason to interfere with the said discretion exercised by the arbitrator for awarding the cost of Rs. 3,000/- towards cost of arbitration proceedings. The award is upheld.
23. Having rejected all the objections filed by the parties in the present case, the award passed by the arbitrator is made a rule of the court. The petitioner shall be entitled to interest @ 15% p.a. on the awarded amount from the date of decree till realisation, in addition to the award passed by the arbitrator. Let a decree be prepared in terms of the award.