FAO No.285 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.285 of 2009 Decided on: January 25, 2011. M/s Singla Woollen Private Limited. .. Appellant VERSUS National Insurance Company Limited. .. Respondent * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI 1. Whether reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporter? 3. Whether the judgment should be reported in the Digest? * * * PRESENT Mr.Satish Goel, Advocate, for the appellant. M.M.S. BEDI, J. The appellant has filed this second appeal under Section 37 of the Arbitration and Conciliation Act (for short 'the Act'), aggrieved by the order passed by the lower appellate Court on 03.03.2008, accepting the application of the respondent-National Insurance Company Limited. . . . 1 FAO No.285 of 2009 Brief facts of the case, relevant for the adjudication of the present appeal, are that the appellant had taken four different policies in respect of stock-in-trade, plant, machinery and building from the respondent company. On account of fire on 11.03.2002, all the stocks, plant, machinery and building were destroyed in the fire. The loss was assessed and the appellant claimed ` 89,80,695/- as loss caused to them in the fire. A sum of ` 39,67,119, as full and final settlement amount regarding the claim of the appellant was paid. A discharge voucher to that effect was signed by the appellant. The appellant invoked arbitration clause for claiming the remaining amount. The remaining claim was denied on the ground that the appellant had received ` 39,67,119/- as full and final settlement regarding which the discharge voucher had been executed. The respondent was directed to pay the remaining amount of ` 38,24,816/- with interest @ 10 per cent per month w.e.f. 01.01.2005, till the date of payment by the arbitrator. The respondent-company filed objections under Section 34 of the Act and the claim of the insurance company was dismissed. The lower appellate Court has allowed the application under Section 34 of the Act holding that the appellant has already received a sum of ` 39,67,195/-, as full and final settlement and are not entitled to any additional amount. The appellant has preferred this appeal under Section 37 of the Act, on the ground that the lower appellate Court has failed to appreciate the fact that the objections filed by the . . . 2 FAO No.285 of 2009 respondent company were barred by time as award was dated 14.06.2006, whereas the objections were filed on 25.11.2006, after five months. That the judgment under Section 34 of the Act,has been wrongly passed overlooking the fact that payment of ` 39,67,195/-, had been received under protest. I have heard the counsel for the appellant as well as counsel for the respondent and gone through the various documents placed on the record. A perusal of the award of arbitrator indicates that when the claim was filed before the sole arbitrator, the insurance company had opted not to appear but sent a letter through its counsel challenging the appointment and jurisdiction of the arbitrator. They were proceeded against ex parte. On the basis of the ex parte evidence available on the record, the arbitrator had held that the claimants are entitled to compensation to the tune of ` 77,92,011/-, and after adjusting the already received amount the amount comes to ` 38,24,816/-. The award of ` 39,67,195/-, has been set aside by the Court exercising the powers under Section 34 of the Act, holding that a discharge voucher had been received by the appellant from the insurance company as full and final settlement of their claim and as such, the appellant was not entitled to any additional amount. The scope of jurisdiction in exercise of powers under Section 37 of the Act, is very limited and the said scope is not beyond the scope of Section 34 of the Act. While deciding the application under Section 34 of the Act, the validity of the arbitration . . . 3 FAO No.285 of 2009 award has been fairly adjudicated upon. The respondent had merely challenged the appointment of the arbitrator by appearing before him. The arbitrator acted illegally by granting the amount in addition to ` 39,67,195/-, on the ground that the claimant had accepted the claim. There is no dispute that there exists an arbitration agreement and that the dispute was referred by the insurer to the arbitrator. The respondent insurance company had made claim before the Court on the ground that on settlement, a discharge voucher had been executed by the appellant after signing of the said voucher and after having received the same, the appellant is not left with any claim. A similar question came up before Hon'ble the Apex Court in case National Insurance Company Limited Vs. Boghara Polyfab Pvt. Ltd., 2008 (3) Arbitration Law Reporter, 633, SC, wherein it was held that whether contract has been discharged by performance or not is not a mixed question of fact and law, as such, the matter can be referred to the arbitrator and claim for arbitration cannot be rejected solely on the ground that settlement agreement or discharge voucher had been executed. But in the present case when the matter had been referred to the arbitrator, the insurance company had intimated the arbitrator about the final discharge voucher received by the appellant. The appellant has not been able to prove before the arbitrator that the said discharge voucher had been obtained by fraud or misrepresentation or that it was not binding on the rights of the parties and that the arbitrator had wrongly awarded claim beyond the amount which has been accepted . . . 4 FAO No.285 of 2009 by the appellant. No ground is made out for interference in the order passed by the lower appellate Court. Dismissed. (M.M.S.BEDI) JUDGE January 25, 2011. rka . . . 5