Judgment : 1. Parties were heard on 27th July 2012 and after noticing the question, which arises for determination, matter was adjourned to today. Today respective learned Counsel are heard further. 2. Existence of arbitration clause, service of a valid notice are not the issues in dispute. Only defence raised by Insurance Company (respondent) is of accord and satisfaction on the strength of a full and final settlement receipt issued on 6.5.2010 by the applicant. Other defence raised is, the relevant clause i.e. Clause 13 of insurance policy permits reference to Arbitration only when the liability is otherwise admitted and dispute or difference is in relation to quantum to be paid under the policy. Advocate Shri Naik-Thigale has invited attention to the fact that the claim was made on account of a major fire in the factory in which entire stock of waste papers was lost. The fire took place on 15.2.2009 and claim was lodged on 16.2.2009. It was immediately followed by appointment of Surveyor and no payment was made till 6.5.2010. He submits that as against claim amount of Rs.5,30,61,213/-on 6.5.2010, applicant was constrained to accept amount of Rs.1,59,49,535/-. He submits, this undue delay had put applicant in difficult situation and it was the question of applicant’s/industry’s existence itself. This was pointed out to the respondent by making an application in July 2009 and in subsequent reminders. 3. He has placed reliance upon the judgment of Honourable Apex Court reported in (2009) 1 Supreme Court Cases 267 (National Insurance Company Limited Vs. Boghara Polyfab Private Limited), particularly paragraph 7, paragraph 53 and 54 to urge that the accord and satisfaction story in this situation cannot be accepted and matter needs to be referred to Arbitrator. He submits that the similar clause has been looked into by this Court in proceedings under Section 11 (6) in Arbitration Application No.182 of 2006 and vide judgment delivered on 19.4.2007 reference under Section 11 was made. The above mentioned Supreme Court judgment is delivered in challenge by Insurance Company to this judgment of High Court. 4. Shri Chapalgaonkar relies upon very same judgment of Honourable Apex Court, particularly paragraph 52 to urge that the facts pleaded on record are not sufficient to show that Insurance Company has exerted any pressure upon applicant to accept the amount. He submits that the acceptance of amount of Rs. 4. Shri Chapalgaonkar relies upon very same judgment of Honourable Apex Court, particularly paragraph 52 to urge that the facts pleaded on record are not sufficient to show that Insurance Company has exerted any pressure upon applicant to accept the amount. He submits that the acceptance of amount of Rs. 1,59,49,535/-on 6.5.2010, is voluntary and free act of the applicant. He invites attention to relevant pleadings in application under Section 11 filed before this Court to urge that the same does not satisfy the requirements of law in this respect. He points out that as dispute about liability arises in this matter, the provisions of clause 13 under policy are not attracted. He, therefore, prays for dismissal of the application. 5. Perusal of the judgment dated 19.4.2007 of this Court in Arbitration Application No.182 of 2006 shows that the arbitration clause being looked into permitted reference only if Insurance Company had accepted the liability. Consideration of arguments in relation to that clause in paragraph 4 of the judgment show that applicant had contended that it was wide enough to take in its ambit the claim raised by it and the full and final settlement being under duress and coercion could not have prevented the dispute being referred to arbitration. The ultimate reference to arbitration shows that this argument has been accepted. 6. Perusal of judgment of Honourable Apex Court reported in National Insurance Company Limited Vs. Boghara Polyfab Private Limited (supra) shows that the amount claimed by insurer was Rs.3,18,26,025/-and under duress and implicit coercion payment of Rs.2,33,94,964/-was accepted. In this background, in paragraph 53 onwards, Honourable Apex Court has noted that the full and final settlement receipt was obtained on a proforma, which contained some words, which were not relevant. It is also noticed that thus the claimant was made to sign on dotted line. In paragraph 54, the fact that discharge voucher was handed over on 21.3.2006 and after obtaining signature upon it, the amount was paid later on has also been looked into. In this background, the finding recorded by High Court that prima facie there was no accord and satisfaction or discharge of contract has been upheld. 7. In paragraph 54, the fact that discharge voucher was handed over on 21.3.2006 and after obtaining signature upon it, the amount was paid later on has also been looked into. In this background, the finding recorded by High Court that prima facie there was no accord and satisfaction or discharge of contract has been upheld. 7. The clause 13 which is arbitration clause reads as under: “Clause 13 : If any dispute or difference shall arise to the quantum to be paid under this policy (liability being otherwise admitted) such difference shall independently of other questions be referred to decision of Sole Arbitrator to be appointed in writing by the parties to or if they cannot agree upon a single arbitrator within 30 days of any party invoking arbitration, the same shall be referred to a Panel of Three Arbitrators, comprising of two arbitrators, one to be appointed by each of the parties to the dispute/difference and the third Arbitrator to be appointed by such two arbitrators and arbitration shall be conducted under and in accordance with provisions of Arbitration and Conciliation Act, 1996. It is clearly agreed and understood that no difference or dispute shall be referable to arbitration as herein above provided, if the company has disputed or not accepted liability under or in respect of his policy. It is hereby expressly stipulated and declared that it shall be condition precedent to any right of action or suit upon this policy that the award by such Arbitrator/Arbitrators of the amount of loss or damage shall first be obtained.” It is obvious that the Insurance Company admitted its liability under the contract and, therefore, only the amount of Rs. 1,59,49,535/-was paid to applicant. It cannot be, therefore, said that here the liability was not accepted or liability was in dispute. Question involved is only of the quantification of that liability. Liability being otherwise admitted, according to applicant it has to be Rs. 5,30,61,213/-, while according to respondent it is Rs.1,59,49,535/-. These facts therefore, show that clause 13 is squarely attracted in this case, as dispute pertains to only computation of the liability i.e. about quantum. 8. The pleadings in paragraphs 7 and 8 of the application briefly show that the applicant had suffered a substantial loss and his prayers for settling the claims at the earliest were not being looked into. 8. The pleadings in paragraphs 7 and 8 of the application briefly show that the applicant had suffered a substantial loss and his prayers for settling the claims at the earliest were not being looked into. The correspondence between parties has been produced along with the application to substantiate this contention. It is stated that this unjustified delay created a situation in which applicant had no other option but to succumb to the conditions imposed by respondent. In paragraph 8 it is stated that those conditions were accepted without prejudice to his rights and claim to agitate the same. In order to find out substance in this plea, I have perused the communication sent in July 2009 by applicant to respondent. After brief history in it, fire which occasioned on 15.7.2009 has been mentioned, lodgment of claim is disclosed and it is pointed out that claim has not been settled for more than six months. It is also pointed out that very existence of the applicant/industry was threatened because of this delay. The document of full and final settlement dated 6.5.2010 needs to be viewed in this background. The document is dated 6.5.2010 and signed by Managing Director of applicant and submitted to respondent on same day. The cheque has been handed over for said amount on 26.5.2010. 9. Shri Chapalgaonkar has pointed out that no protest was lodged immediately after taking cheque and first notice is given almost after 47 days thereafter. It was suitably replied to and after receipt of reply, present application has been filed after almost one and half year. According to him, this delay and conduct shows that this court has been approached by way of after thought. 10. When above facts are examined in the background of law as laid down by Apex Court in National Insurance Company Limited Vs. Boghara Polyfab Private Limited (supra), as also 2011 AIR SCW 2669 (Union of India and Ors. V. M/s Master Construction Co.), it cannot be said that the applicant has no prima facie case to seek a reference. The other details to which Advocate Shri chapalgaonkar wants to invite attention are disputed questions of facts and law, which can be looked into by Arbitrator. Hence, those facts and contentions or accompanying documents or evidence are kept open and it is for the Arbitrator to look into said details. 11. The other details to which Advocate Shri chapalgaonkar wants to invite attention are disputed questions of facts and law, which can be looked into by Arbitrator. Hence, those facts and contentions or accompanying documents or evidence are kept open and it is for the Arbitrator to look into said details. 11. In this situation, application under Section 11 (6) is allowed and Honourable Shri Justice M.G.Gaikwad (Retd.) is appointed as Arbitrator. Proceedings charges of Rs.5,000/-be deposited within two weeks. Application is accordingly allowed and disposed of.