IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Arb. Case No. 25 of 2008 Date of decision: 1.4.2011 Jagdish Rai, Contractor …..petitioner vs. The Executive Engineer Hisar and ors …..respondents CORAM: - HON’BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. D. R. Bansal, Advocate for the petitioner Mr. D.K.Khanna, Advocate for respondents. HEMANT GUPTA, J Present is the petition for appointment of an Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 (for short the ‘Act’). It is the case of the petitioner that respondent No. 1 invited tenders for the lining of water course 19400/R Harita minor. The petitioner submitted his offer to carry out the said work which was accepted on 12.4.2006. The Agreement between the parties was executed on 6.6.1996 (Anexure P-2) after the petitioner deposited the security amount of Rs. 1,15,000/- The respondent could not hand over the site for lining of water course, therefore, the Agreement between Arb. Case No. 25 of 2008 the parties was cancelled. It is, thereafter, the amount of security was refunded to the petitioner in installments from 10.11.1998 to 8.4.1999. The grievance of the petitioner is that the contract has to be terminated for no fault of the petitioner whereas the respondents have refunded the security amount after gross delay. Therefore, the petitioner is entitled to interest on the amount of security. It is averred by the petitioner that security was released to the petitioner after he was compelled to file affidavit with the respondents not to claim any damages. In reply, respondents have inter alia, averred that petitioner filed an affidavit on 7.8.1997 giving consent for cancellation of the Agreement, refund of the security and that he will not claim any interest on account of the termination of the Agreement. It is thus pleaded that the petitioner is not entitled to any interest on the amount of security having consented to refund of the security without any interest. Learned counsel for the petitioner vehemently argued that in the affidavit, the petitioner has not given up his right to claim interest on the amount of security. What is given up in the affidavit is the amount of compensation or interest on account of termination of the Agreement which is not inclusive of interest on the security. On the other hand, Mr. Khanna, learned counsel for respondents 2 Arb. Case No. 25 of 2008 submitted that the petitioner has consented not to claim any compensation i.e. on account of non execution of the contract. The consent not to claim interest is only on the amount of security as that was the only amount which was available with the respondents. I have heard learned counsel for the parties and find that the present petition for appointment of an Arbitrator is not maintainable in view of the affidavit filed by the petitioner consenting not to claim any compensation and interest. Though, the affidavit was filed on 7.8.1997 but till the filing of the petition i.e. 29.10.2007, the petitioner has not made any whisper of grievance regarding the affidavit being filed under force. Though, the petitioner has averred in the petition that the security was released after he was compelled to file affidavit but such assertion does not satisfy the requirement to avoid a contract i.e. undue influence, coercion and misrepresentation. Since, the pre condition to avoid the valid contract has not been even alleged by the petitioner, I do not find that the dispute between the parties regarding the non-payment of interest on the refund of the security amount can be referred for adjudication to an Arbitrator. Even, the dispute has been raised much after the expiry of three years. The last payment of security was 3 Arb. Case No. 25 of 2008 made on 8.4.1999, whereas, the petitioner has sought appointment of an Arbitrator after three years on 29.10.2007. Consequently, present petition is dismissed being barred by limitation. (HEMANT GUPTA) JUDGE 1.4. 2011 preeti 4