*1* arbap.23.09.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION NO.23 OF 2009 Jorini Hospitality Pvt.Ltd.. ..Applicant -Versus- The New India Assurance Co.Ltd.. ..Respondent .......... Mr.A.M.Vernekar a/w Ms.Fozia Shaikh i/b Narichania and Narichania for the Applicant. Mr.A.S.Vidyarthi a/w Mr.Tripathi i/b S.M.Vidyarthi, for the Respondent. .......... CORAM : S.J. VAZIFDAR, J. DATE : 02nd September, 2010. P.C. 1 This is an application under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator. 2 It is not disputed that the Respondent had issued a Standard Fire and Special Perils Policy (Material Damage) in favour of the Applicant. Clause-13 thereof contains an arbitration agreement. According to the Applicant, as a result of floods which occurred on 29th and 30th June, 2007, the subject matter of the policy was destroyed. Accordingly, the Applicant lodged the claim. On 18.01.2008 the Respondent paid the Applicant a sum of Rs.23,94,800/- as against the claim of around Rs. 78,47,000/-. The first contention raised on behalf of the Respondent is that the said payment of Rs.23,94,800/- is towards full and final satisfaction of the claim. 3 To say the least, this is a matter which would require to be considered by the Arbitrator. The receipt does not state that it is in full and final satisfaction. In fact the words “full/partial satisfaction” have *2* arbap.23.09.sxw remained intact. Neither the word “full” nor the word “partial” has been deleted. It is not possible to state with certainty in this application as to whether the payment was made towards full and final satisfaction or not. 4 The question as to whether the clause-6(ii) of the policy bars the claim after the expiry of 12 months from the date of damage can be decided by the Arbitrator. This is in view of the amendment to Section 28 of the Indian Contract Act. The judgments of the Supreme Court relied upon by the Respondent are based on the unamended Section 28. This contention is, however, kept open for the decision of the Arbitrator. 5 The learned counsel appearing on behalf of the Respondent, without prejudice to the Respondent’s contention that the matter cannot be referred to the arbitration, states that in the event of the matter being referred to arbitration despite the Respondent’s objection, it would be appropriate to refer the same to a Sole Arbitrator and not to the panel of three Arbitrators keeping in mind the costs involved. 6 In the circumstances, the application is disposed of by appointing Mrs. Justice K.K.Baam (Retired) as a Sole Arbitrator. No orders as to costs. -