ORDER : 1. This application is filed to appoint a sole Arbitrator under Section 11(5) and (6) of the Arbitration and Conciliation Act, 1996 for resolving the dispute between the parties arising out of the Insurance Contract dated 31.03.2010, entered into between the parties dated, and to pass an award in accordance with law. 2. Applicant is a company represented by its authorised signatory and the respondents are the insurers – Oriental Insurance Company. 3. As per the averments made in the affidavit filed in support of the arbitration application, the case of the applicant – company is that it is involved in the manufacturing of bulk Ferro Alloys and its plant is situated at Palvancha, Khammam District. 4. Through one M/s J.B. Boda Insurance Brokers Private Limited, engaged by the respondent – insurers, the applicant has taken an “Industrial All Risks Policy” vide policy No.431800/11/2010/177 dated 31.03.2010, and the period of the policy is from 31.03.2020 midnight to 30.03.2011. The said policy is a comprehensive policy, covering the risks concerning the buildings, machineries, stocks etc., including loss of profit on account of fire (FLOP) and machinery loss of profit (MLOP), and that policy also covers the business interruption on account of damages caused to machinery etc., and for the sum assured under the policy for damage to machinery and for the damages under the interruption to business, the company paid a premium of Rs.1,55,44,355/-. 5. On 1.10.2010, due to fire damage, the generator (62.5 MVA power) and transformer got damaged and due to the same, there was loss both to property and profits. Hence, the applicant raised the claim to a tune of Rs.8,40,76,639/- (Rupees eight crores, forty lakhs, seventy six thousand, six hundred and thirty nine only) vide claim Bill dated 21.03.2012. 6. The respondents – insurer appointed a Surveyor M/s Professional Surveyors and Loss Adjusters (P) Ltd., and the said surveyor submitted report dated 14.08.2012 assessing the loss at Rs.5,76,27,882/-(Rupees five crores, seventy six lakhs, twenty seven thousand, eighty hundred and eighty two only), and limiting the amount deducatable under the policy from the said assessed amount at Rs.50,00,000/- (Fifty lakhs only). 7. 7. The respondents disagreeing with the surveyor’s report, deducted an amount of Rs.2,57,83,723/- (Rupees two crores fifty seven lakhs eighty three thousand seven hundred and twenty three only), and offered to settle the claim for loss of property claims to a tune of Rs.3,18,44,159/- (Rupees three crores eight lakhs forty four thousand, one hundred and fifty nine only). 8. The grievance of the applicant is that the respondents, instead of considering the claim as submitted by the surveyor at Rs. 5,26,27,882/-, which is after deducting of maximum amount of Rs.50,00,000/-, has offered the above stated amount. 9. The applicant submitted a conditional discharge voucher dated 20.03.2013 for the said amount offered by the respondents, with a request to reconsider the claim relating to balance amount of Rs.2,07,83,723/-. The respondent No.1 vide letter dated 26.03.2013, informed the applicant that the authority has approved the claim for Rs.3,18,44,159/- towards full and final settlement and the issue of reconsidering the claim of Rs.2,07,83,723/- was not accepted, and unless a clean discharge voucher is issued, the respondents expressed their inability to release the payment of Rs.3,18,44,159/-. 10. Further the respondent vide letter dated 23.04.2013 informed the applicant that the quantum of settlement by the company is full and final amount and that if the applicant is not agreeable to the same, it can avail the remedy in terms of the conditions of the insurance contract. 11. The further case of the applicant is that in view of dire need of funds and under economic duress, the applicant was forced to issue unconditional discharge voucher dated 24.05.2013, and receive the amount of Rs.3,18,44,159/-. 12. It is stated that on 01.07.2013, the applicant narrating the circumstances under which it was constrained to sign the unconditional discharge voucher, requested to release the balance claim amount of Rs.2,07,83,723/-. Vide letter dated 01.07.2013, the respondent replied stating that no further payment was possible. 13. In view of the above circumstances, as the respondents are disputing the balance claim, the applicant got issued notice dated 24.03.2014 drawing the attention of the respondent with regard to arbitration clause under condition No.12 of the General Conditions of the Policy, and requested to refer the issue for arbitration. Vide letter dated 29.04.2014, the respondents have rejected the request of the applicant for reference of the dispute to arbitration. 14. Vide letter dated 29.04.2014, the respondents have rejected the request of the applicant for reference of the dispute to arbitration. 14. In view of the same, the application issued legal notice dated 15.12.2014 invoking the arbitration clause vide Condition No.12 of the General Conditions of Contract and nominated Justice T.Ch.Surya Rao, retired judge of the High Court of the Andhra Pradesh as Arbitrator. But the respondent vide letters dated 16.01.2015, rejected to confirm the name of the Arbitrator nominated by the applicant, stating that in view of the present facts and circumstances, the arbitration clause under General Condition No.12 cannot be invoked. Aggrieved by the same, the present application is filed under Section 11(5) and (6) of the Act, seeking to nominate an arbitrator for resolution of the dispute. 15. Counter affidavit is filed on behalf of the respondents. In the counter affidavit, the respondents – insurers, while disputing the claim of the applicant – company on merits, stated that once the amount offered by the respondents has been accepted by the applicant, and a discharge voucher was signed by the applicant voluntarily, as full and final settlement of the amount, the contract under the policy does not survive, and no claim can be made under the said contract. 16. It is further stated that the averment of the applicant that the discharge voucher was signed under compulsion, coercion and economic duress, are all invented for indulging in speculative litigation. It is stated that as per the balance sheet of the applicant company for the financial year ending 31.03.2013, it has earned a net profit of Rs.29,674,53/- before tax, and for the financial year ending 31.03.2012, the applicant has earned a net profit of Rs.22,827,67/-, and thus when the company, as per its balance sheets, is in profits, it cannot contend that it is in financial loss, or that it was constrained to signed under economic duress, and hence the averments in this regard are an after thought. With these averments inter alia and disputing the claim of the applicant on merits, the present arbitration application is sought to be dismissed. 17. With these averments inter alia and disputing the claim of the applicant on merits, the present arbitration application is sought to be dismissed. 17. Learned counsel for the applicant reiterating the above averments made in the affidavit filed in support of the arbitration application further submits that prior to submission of the unconditional voucher towards full and final settlement of the claim, the applicant – company has submitted a voucher dated 20.03.2013 requesting the respondents to reconsider the rest of the claim amount of Rs.2,07,83,723/-, but the respondents vide letter dated 26.03.2013, expressed their inability to release the payment on the basis of the qualified voucher, and required the applicant to submit clean / unqualified discharge voucher for the said amount. Learned counsel submits that the respondents are in superior / bargaining position and the applicant under the compelling circumstances to avoid loss of interest on the allowed amount, was constrained to, or rather forced to sign an unqualified voucher towards full and final satisfaction. He submits that in view of the above circumstances, and the correspondence between the parties, it cannot be said that the signing of the discharge voucher is voluntary, nor under free will, but it was under compelling circumstances. Subsequent to discharge, the applicant has addressed letters dated 01.07.2013, narrating the circumstances under which it was constrained to sign the unqualified discharge voucher, but the respondents vide letters dated 06.02.2014 and 29.4.2014 rejected the request of the applicant to reconsider the balance claim. Since the applicant is disputing the amount, and as the respondents failed to confirm the arbitration named by the application in the arbitration notice, the present application is filed. 18. Learned counsel further submits that in the arbitration application seeking to refer the matter to arbitrator, the applicant has to prove existence of an arbitration clause in the agreement and that the dispute arose out of the said agreement, and that it is only required to prima facie show that the signing of the discharge voucher was involuntary, and under compelling circumstances. Under Condition No.12, of the insurance contract, if there is dispute with regard to quantum, the same has to be resolved through arbitration. Learned counsel submits that the correspondence between the parties would show that the applicant was initially not acceptable for the amount offered by the insurer. Under Condition No.12, of the insurance contract, if there is dispute with regard to quantum, the same has to be resolved through arbitration. Learned counsel submits that the correspondence between the parties would show that the applicant was initially not acceptable for the amount offered by the insurer. This correspondence prima facie shows that the signing of the discharge voucher was not voluntary, and the merits of the case has to be considered by the arbitral tribunal based on the evidence lead by the parties, and that this court may not record any finding in that regard. In support of these contentions, learned counsel relied on the judgments of the Apex Court in ORIENTAL INSURANCE CO. LTD. v. DICITEX FURNISHING LTD., 2019 SCC Online SC 1458 and UNION OF INDIA v. PRADEEP VINOD CONSTRUCTION CO., (2020) 2 SCC 464 . 19. With these submissions, learned counsel for the applicant seeks to appoint an arbitrator for resolution of dispute between the parties with regard to quantum as per Condition No.12 of the insurance contract dated 31.03.2010. 20. On the other learned counsel appearing for the respondents while reiterating the averments made in the counter affidavit, further submits that in the present case, when the applicant submitted a qualified voucher, the respondent vide letter dated 23.04.2013 has categorically informed the applicant that if the amount offered by the insurer is not acceptable, it may find the remedy in terms and conditions of the insurance contract and invoke it. But the applicant instead of invoking the arbitration clause under the insurance contract, chose to submit the unqualified voucher towards full and final settlement of the claim vide discharge voucher dated 24.05.2013. In these circumstances, it cannot be said that signing of the voucher is involuntary. He submits that once the amount is paid towards full and final settlement, the contract policy stands discharged, and the arbitration clause under the discharged contract, cannot be permitted to be invoked. 21. Learned counsel for the respondents further submits that the case of the applicant, as per the averments made in the arbitration application is that it was constrained to sign the unqualified voucher due to dire need of funds and under economic duress. 21. Learned counsel for the respondents further submits that the case of the applicant, as per the averments made in the arbitration application is that it was constrained to sign the unqualified voucher due to dire need of funds and under economic duress. Learned counsel pointing out to the copies of the balance sheets for the financial year ending 31.03.2013 and 31.03.2012, which are filed along with the counter affidavit, submits that the applicant - company was earning profits i.e., Rs.29,674,53/- and 22,827,67/- respectively for the said years and when the applicant company was earning profits during the relevant period, it cannot be said it was under dire needs of funds, or that it was under economic duress. He submits that the averments in this regard are only an after thought, and invented to indulge in speculative litigation and they does not constitute prima facie case for reference of the alleged dispute to arbitration. 22. Relying on the judgments of the Apex Court reported in NEW INDIA ASSURANCE CO. LTD. v. GENUS POWER INFRASTRUCTURE LTD, (2015) 2 SCC 424 and UNITED INDIA INSURANCE CO. LTD. v. ANTIQUE, (2019) 5 SCC 362 , learned counsel for the respondents submits that bald pleas of fraud, coercion, duress or undue influence is not enough, and party who sets up such plea, must prima facie establish said allegations by placing material before the court. He submits that even the judgement of the Apex Court in Oriental Insurance Company Ltd. v. Dicitex Furnishing Ltd. (1 supra), relied on by the learned counsel for the applicant, enunciates the very same principle. Therefore, he submits that the arbitration application has no merits, and the same may be dismissed. 23. Learned counsel for the respondents alternatively submitted that if this court is not convinced with the arguments, and is inclined to appoint an arbitrator, the respondents may be given liberty to raise all the issues before the arbitrator. 24. In view of the above rival contentions, the issue that arises for consideration is whether the applicant made out a prima facie case of coercion for referring the dispute to arbitration? 25. 24. In view of the above rival contentions, the issue that arises for consideration is whether the applicant made out a prima facie case of coercion for referring the dispute to arbitration? 25. There is no dispute that the applicant has entered into insurance contract with the respondent vide policy No.431800/11/2010/177 dated 31.03.2010 and the period of insurance coverage commences from 31.03.2010 midnight to 30.03.2011, and the fire damage to the generator and transformer was caused on 1.10.2010, and the surveyor was appointed by the respondents and he submitted report assessing loss at Rs.5,76,27,882/- limiting the deductable amount to Rs.50,00,000/-. The case of the applicant is that the insurer while not agreeing with the said report, deducted an amount of Rs.2,57,83,723/- and offered the applicant - company an amount of Rs.3,18,44,159/-; and the applicant submitted a conditional voucher on 20.03.2013 requesting to reconsider its claim for the balance amount, as assessed by the Surveyor appointed by the respondents, but the said conditional voucher was not accepted by the respondents and, thereafter, the applicant submitted a unconditional voucher on 24.05.2013, towards full and final discharge and subsequently raised the claim, which the respondents rejected, and eventually vide notice dated 15.12.2014 the applicant invoked the arbitration clause by issuing notice and as the respondents failed to confirm the name of the arbitrator nominated by the application, the present application under Section 11(4) to (6) of the Act, came to be filed. 26. Under General Conditions of Policy, clause 12 provides for arbitration in case of dispute with regard to quantum. The said clause for ready reference is extracted as under: “If any difference shall arise as to the quantum to be paid under this policy (liability being otherwise admitted) such difference shall independently of all other questions be referred to the decision of an arbitrator to be appointed in writing by the parties in difference, or if they cannot agree upon a single arbitrator, to the decision of two disinterested persons as arbitrators of whom one shall be appointed in writing by each of the parties within two calendar months after having been required so to do in writing by the other party in accordance with the provision of the Arbitration Act, 1940, as amended from time to time and for the time being in force. In case either party shall refuse or fail to appoint arbitrator within two calendar months after receipt of notice in writing requiring an appointment, the other party shall be at liberty to appoint sole arbitrator and in case of disagreement between the arbitrators, the difference shall be referred to the decision of an umpire who shall have been appointed by them in writing before entering on the reference and who shall sit with the arbitrators and preside at their meetings. It is clearly agreed and understood that no difference or dispute shall be referable to arbitrator as hereinbefore provided, if the company has disputed or not accepted liability under or in respect of this policy. It is hereby expressly stipulated and declared that it shall be a condition precedent to any right of action or suit upon this policy that the award by such arbitrator, arbitrators or umpire of the amount of the loss or damage shall be first obtained.” 27. Thus if there is no dispute with regard to liability, and difference is with regard to quantum, it can be referred to arbitration for resolution of the dispute. 28. In the present case, the question is whether the applicant/claimant, after receiving the amount towards full and final settlement, can raise claim for the balance amount, pleading that the full and final settlement was accepted by force or coercion, and whether the applicant could show a prima facie case in support of his plea before this court. 29. The facts on record show that in the initial discharge voucher dated 20.03.2013, the applicant sought the respondents to reconsider its claim. The relevant portion of the said voucher is as under: “I/We hereby voluntarily give discharge receipt to the company in respect of Rs.3,18,44,159/- of all our claims, present or future arising directly/indirectly to such an extent of the admitted amount in respect of said loss/accident for which the claim was made with your company for actual loss of Rs.8,40,76,639/-. I/We request you to consider the rest of the amount of Rs.2,07,83,723/- out of our actual claim of Rs.8,40,76,639/-. We hereby also subrogate all my /our rights and remedies to the company in respect of the above loss/damages proportionately to the extent of Rs.3,18,44,159/- pending the rest of our claim for your consideration” 30. I/We request you to consider the rest of the amount of Rs.2,07,83,723/- out of our actual claim of Rs.8,40,76,639/-. We hereby also subrogate all my /our rights and remedies to the company in respect of the above loss/damages proportionately to the extent of Rs.3,18,44,159/- pending the rest of our claim for your consideration” 30. To the above conditional voucher, the respondents vide letter dated 26.03.2013, replied as under: “We acknowledge receipt of the modified/qualified discharge voucher duly discharged for Rs.3,18,44,159/- with a request to reconsider the claim relating to policy excess of Rs.2,07,83,723/-. In this connection we wish to inform you that the competent authority has approved the claim for Rs.3,18,44,159/- towards full and final settlement. In the light of your modified / qualifying the discharge voucher we regret to express our inability to release the payment of Rs.3,18,44,44,159/-. We once again request you to please give a clean / unqualified discharge voucher for the amount of Rs.3,18,44,159/- to enable us to release the payment.” 31. Thus from the above correspondence it is clear that initially the amount offered by the respondents was not acceptable to the applicant, therefore, it submitted a conditional voucher to reconsider the balance claim, which the respondents vide letter dated 26.03.2013, expressed their inability to release the amount based on such conditional discharge voucher, and required the applicant to submit clean / unqualified discharge voucher for releasing of the amount. Subsequently, the applicant submitted an unqualified voucher on 24.05.2013 and the amount was released. Thereafter, vide letter dated 01.07.2013, the applicant sought the respondent to reconsider the payment of balance amount of Rs.2,07,83,723/-, stating that it is a list company having 17,000 share holders and that allowing of the claim will be in the larger interest of the share holders. The request of the applicant was rejected by the respondents vide letters dated 6.02.2014 and 29.04.2014 on merits, which the applicant disputes. 32. The case of the applicant is that in order to avoid loss of interest on the amount, as the respondent is in a superior bargaining position, it has accepted the amount, and further in the averments made in the arbitration application it is stated that due to dire need of amounts and economic duress, it was constrained to sign the unconditional discharge voucher. Learned counsel for the respondents, disputing the said submitting and pointing out the balance sheets of the relevant years of the applicant company, submits that the applicant was in profits and hence the averments of the applicant in this regard are without any basis and only an after thought. 33. However, as noted above, the facts remains that the amount offered by the insurers was not initially acceptable to the applicant and it sought to reconsider for the balance claim. However, the respondents informed that unless the applicant submits unconditional voucher towards full and final satisfaction, they cannot release the amount. This correspondence between the parties, in my considered view, shows credence to the claim of the applicant that it was constrained to accept the amount offered by the respondents, and the circumstances also suggest that the applicant could show that an arbitral dispute exists with regard to quantum. However, the correctness or otherwise of the same, has to be considered by the arbitrator based on the material evidence to be adduced by the parties. This observation is only a prima facie view, to examine whether arbitral dispute exists with regard to quantum and whether there is a prima face case to refer the dispute to arbitration. Hence, it cannot be construed as a finding in this regard and it is left open for the arbitrator to record appropriate finding in accordance with law. 34. In similar facts and circumstances, considering the request of the claimant therein for reference of the dispute to arbitrator, and which request was made prior to Amendment Act of 2015, the Apex Court in the case of Dicitex Furnishing Ltd., (1 supra), held as under: “23. An overall reading of Dicitex’s application (under Section 11(6)) clearly shows that its grievance with respect to the involuntary nature of the discharge voucher was articulated. It cannot be disputed, that several letters – spanning over two years stating that it was facing financial crisis on account of the delay in settling the claim, were addressed to the appellant. This court is conscious of the fact that an application under Section 11(6) is in the form of a pleading which merely seeks an order of the court, for appointment of an arbitrator. It cannot be conclusive of the pleas or contentions that the claimant or the concerned party can take, in the arbitral proceedings. This court is conscious of the fact that an application under Section 11(6) is in the form of a pleading which merely seeks an order of the court, for appointment of an arbitrator. It cannot be conclusive of the pleas or contentions that the claimant or the concerned party can take, in the arbitral proceedings. At this stage, therefore, the court-which is required to ensure that an arbitrable dispute exists, has to be prima facie convinced about the genuineness or credibility of the plea of coercion; it cannot be too particular about the nature of the plea, which necessarily has to be made and established in the substantive (read; arbitration) proceedings. If the court were to take a contrary approach and minutely examine the plea and judge its credibility or reasonableness, there would be a danger of its denying a forum to the applicant altogether, because rejection of the application would render the finding (about the finality of the discharge and its effect as satisfaction) final, thus precluding the applicant of its right event to approach a civil court.” 35. In UNION OF INDIA v. PRADEEP VINOD CONSTRUCTION CO. (2 supra), the Apex Court considering the facts therein, which are akin the facts of the present case, held as under: “18. Insofar as the plea of the appellant that there was settlement of final bill/insurance of “no claim” letter is concerned, the learned counsel for the appellant has drawn our attention on Clause 43(2) – Signing of the “No claim” certificate and submitted that as per Clause 43(2), the contractor signs a “no claim” certificate in favour of the Railways in the prescribed format after the work is finally measured up and the contractor shall be debarred from disputing the correctness of the items covered under the “no claim” certificate or demanding a clearance to arbitration in respect thereof. On behalf of the respondent, it has been seriously disputed that issuance of “no claim” certificate as to the supplementary agreement recording accord and satisfaction as on 6-5-2-14 (CA No.6400 of 2016) and issuance of “no claim” certificate on 28-8-2014 (CA No.6420 of 2016) that they were issued under compulsion and due to undue influence by the Railway Authorities. We are not inclined to go into the merits of the contentions of the parties. We are not inclined to go into the merits of the contentions of the parties. It is for the arbitrator to consider the claim of the respondent and the stand of the appellant Railways. This contention raised by the parties is left open to be raised before the arbitrator.” 36. Having regard to the facts and circumstances of the case and the submissions of the learned counsel, and also in view of the law laid down by the Apex Court in the decisions 1 and 2 supra, relied on by the learned counsel for the applicant, I am of the considered view that the that the dispute raised by the applicant has to be referred to the arbitrator for passing of an award in accordance with law. 37. The facts in New India Assurance Company Limited (3 supra) disclose that the Apex Court, considering the facts and circumstances in the said case, has categorically recorded a finding of fact that the allegations made by the respondent /claimant therein with regard to fraud, coercion, duress or undue influence are bald, and the claimant could not prima facie establish the said allegations. In those circumstances, the Apex court held that bald pleas of fraud, coercion, duress or undue influence, is not enough and the party who sets up such plea, must prima facie establish the said allegations by placing material. In the said judgment also, the Apex Court was considering the request of the claimant made prior to Amendment Act of 2015. 38. Similarly, in United India Insurance Company (4 supra), the Apex Court recorded findings as under: “21. In the instant case, prima face no dispute subsisted after the discharge voucher being signed by the respondent without any demur or protest and claim being finally settled with accord and satisfaction and after 11 weeks of the settlement of claim a letter was sent on 27.07.2016 for the first time raising a voice in the form of protest that the discharge voucher was signed under undue influence and coercion with no supportive prima facie evidence being placed on record in absence thereof, it must follow that the claim had been settled with accord and satisfaction leaving no arbitral dispute subsisting under the agreement to be referred to the arbitrator for adjudication.” 39. The facts of the present case are different, where the applicant based on correspondence between the parties, could show a prima facie case in support his claim. 40. Having regard to the facts and circumstances, the law laid down by the Apex Court in the judgments 2 and 3 supra, relied on by the learned counsel for the respondents, though unexceptionable, cannot be made applicable to the facts and circumstances of the present case. 41. For the foregoing reasons, the arbitration application is allowed, and Sri Justice B.Seshasayana Reddy, Former Judge of erstwhile High Court of Andhra Pradesh, is nominated as sole arbitrator to resolve the disputes between the parties and to pass an award in accordance with law. 42. The learned Arbitrator is entitled to fees as per the rates specified in the Fourth Schedule to the Act of 1996, inserted by Act 3 of 2016 with effect from 23-10-2015, which shall be borne by both parties in equal shares. 43. Interlocutory applications pending, if any, shall stand closed. No order as to costs. 44. Before parting with the case it is made clear that all the issues are left open to both the parties to agitate before the learned Arbitrator, and the said Arbitrator shall pass award on merits and in accordance with law, uninfluenced by any finding or observation made in this order.