Arrow Engineering Limited v. Punit Jitendra Chande & Anr.

(ix) On 24th April, 2013, as there was no response from the Petitioner and seeing no progress on the said Project, the Respondents addressed a letter dated 24th April, 2013, sent by way of Speed Post to the Petitioner requesting the Petitioner to inform the date of handing over of possession of their Plot.

(x) There was no response received by the Petitioner and accordingly the Respondents on 17th January, 2014 visited the Petitioner’s office at Belapur, Navi Mumbai for discussing with the Petitioner the handing over of possession of the Plot.

(xi) The Petitioner addressed a letter dated 29th January,

2014 to the Respondents whereby the Petitioner claimed that the possession of the said Plot could not be handed over due to unavoidable circumstances in as much as CIDCO had been appointed a Special Planning Authority from 10th January, 2018 and the Petitioner was awaiting for CIDCO to approve the Development Plan of the said Project. The Petitioner stated that the once the master plan was approved by CIDCO, necessary permission would be received within a period of one year. The Respondents were assured that they will be handed over possession of their Plot within six months once the Petitioner had got permission.

(xii) The Respondents being aggrieved by the Petitioner’s

(xiii) The Petitioner on 26th November, 2015, deposited a sum of Rs.3,29,950/- which they claimed was payment of the amount that had been paid by the Respondents/Claimants, which the Petitioner has contended was in response to the demand made by the Respondents for re-payment in view of the delay in commencing of the said Project due to change in the law and Government Policies.

(xiv) The Respondents issued Notice dated 5th December,

2015 to the Petitioner invoking the arbitration under Clause 43 of the Agreement and returned the amount deposited by the Petitioner. The return of amount was not encashed by the Petitioner.

(xv) The Petitioner addressed a letter dated 2nd December,

2015 to the Respondents informing them that the area of Pen where the said Project land was situated had come under CIDCO vide Notification dated 10th January, 2013 and CIDCO was yet to finalize the master plan of the entire area for “NAINA” and the said Project land is part of CIDCO – NAINA. The Petitioner had apologized for the indefinite delay of the said Project at Pen due to certain technical conditions. The Petitioner has accordingly stated that in view of the indefinite delay in the said Project, the Petitioner had refunded the amounts paid by the Respondents, and that the transaction between the Petitioner and Respondent in respect of the respective plots had become null and void. The Respondents claimed to have received the letter only on 14th December,

2015.

(xvi) The Respondents filed an Application under Section 9 of the Arbitration and Conciliation Act, 1996 (“the said Act”) in this Court and an order came to be passed on 1st January, 2016 by which this Court had recorded an undertaking of the Petitioner not to create any third party interest in the subject property and not to part with possession of the same till the next date. The undertaking was ordered to be continued till the disposal of the arbitration proceedings.

(xvii) The Petitioner in response to the arbitration Notice dated 5th December, 2015 through their Advocate’s letter dated 22nd December, 2015 claimed that in view of demand for refund of money by the Respondents, the Agreement came to an end / stood terminated / discharged in its entirety.

(xviii) On 7th April, 2016, during settlement negotiations, the Petitioner addressed an E-mail with an attached Map of Beta Sector 6 to Mr. Parag Mehta (Claimant in Claim No.10), which shows the villages of Odhangi / Dhondpada where the Petitioner proposed to construct and develop the said Project.

(xix) A letter dated 25th April, 2016 was issued by CIDCO which has been relied upon by the Respondents to contend that there was no issue in obtaining approvals. The Petitioner had not submitted any documents and due to the nonsubmission of documents, the Petitioner’s proposal could not be processed further.

(xx) The Arbitration Petition under Section 9 was disposed of by this Court vide common order dated 21st July, 2016 recording the consent of parties to refer their dispute arising under the Agreement to the Sole Arbitrator who was appointed.

(xxi) The Respondents claimed to have in September, 2016 learnt that Mr. Vineet Malhotra, Director of the Petitioner had filed an Application for Anticipatory Bail before the Sessions Court, Raigad, Alibaug and the same was rejected by the Court on 12th August, 2016.

(xxii) On 4th September, 2016, the Statement of Claim was filed by the Respondents/Claimants therein seeking specific performance of the Agreement and in the alternative, seeking compensation in lieu of specific performance.

(xxiii) The Statement of Defence were filed by the Petitioner on 29th September, 2016 and an Affidavit-in-Rejoinder was filed by the Respondents on 18th November, 2016.

(xxiv) The issues were framed on 5th December, 2016 and thereafter, evidence was recorded.

(xxv) The learned Arbitrator passed an Award in favour of the Respondents in Claim No.5 which is the subject matter of the Arbitration Petition (L) No. 28284 of 2022 on 22nd April,

2022.

(xxvi) On the basis of the findings and reasons in Award dated 22nd April, 2022, the learned Arbitrator passed nine other Awards on 23rd April, 2022 in nine respective references/claims which are the subject matter of the other nine Arbitration Petitions.

(xxvii) The Respondents had filed formal Application under

Section 33 of the Act on 1st June, 2022 seeking typographical corrections in the Award. This was disposed of by the learned Arbitrator on 30th June, 2022.

4. Mr. Jaisinghani, learned Counsel appearing for the Petitioner has made submissions in nine Arbitration Petitions other than Arbitration Petition (L) No.28309 of 2022 wherein Dr. Abhinav Chandrachud has made supporting submissions, for setting aside all the impugned Awards.

5. Mr. Jaisinghani has referred to the issues which were framed by the Arbitral Tribunal which were 11 in number as well as the fact that ten separate Affidavits in lieu of Examination-in-Chief were filed in each reference by Claimants/Respondents herein and / or their witnesses who were cross examined separately. He has submitted that there was a necessity to render ten separate Awards by the learned Arbitrator on the basis of the pleadings and the evidence led by each of the parties. Further, shockingly the learned Arbitrator declared and published only one reasoned Award on 22nd April, 2022 in Reference/Claim No.5 which is the subject of the Arbitration Petition (L) No.28284 of 2022. He has submitted that in the Award dated 22nd April, 2022 impugned in Petition (L) No.28284 of 2022 (referred to as “the Lead Petition”) has incorrectly, perversely and absurdly recorded that there was an understanding that “the reasoning in this Award, would form the basis for the Awards in the other nine references as well”. It has further been incorrectly, absurdly and perversely recorded “It was thus decided that the pleadings, correspondence, facts and evidence in all ten references would be treated as common”. He has submitted that nothing of the sort is borne out from the record.

6. Mr. Jaisinghani has submitted that thus in the other nine references where the Awards were passed on 23rd April, 2022, there was no reasoned Award rendered. The arbitration Clause contained in the Agreements which were invoked by the Claimants/Respondents herein do not provide that Awards may be rendered without reasons. There is no other document on record signed by the parties authorizing the Arbitral Tribunal to render unreasoned Awards. Accordingly, the Awards are liable to be set aside on this ground alone.

7. Mr. Jaisinghani has submitted that in rendering the Award in Reference/Claim No.5 which is subject matter of the Lead Petition, the Arbitral Tribunal has completely ignored and disregarded the pleadings and every piece of evidence which inter alia established (i) that no valid and/or enforceable contract came into existence; (ii) that in any event the Claimants were not ready and willing to perform their obligation under the alleged contract; (iii) that the Claimants had demanded and accepted a refund of their monies and the purported agreement has thus come to an end and (iv) that the claim for specific performance was hopelessly barred by the law of limitation. He has submitted that the Arbitral Tribunal has passed the impugned Award by disregarding well settled principles of contractual law and the law laid down by the Supreme Court.

8. Mr. Jaisinghani has made submission on whether a valid and enforceable contract came into existence on 17th June, 2009. He has submitted that in order to have a complete contract for the specific performance thereof, there must be four certainties viz. certainty as to price, certainty as to parties, and certainty as to property and certainty as to other terms. He has placed reliance upon the commentary of the Author FRY on Specific Performance – 6th Edition.

9. Mr. Jaisinghani has submitted that the Agreement of which specific performance was sought did not contain any description of the property. This is an admitted position. He has placed reliance upon Paragraph 7 of the Statement of Claim in this context. He has submitted that on this pleading alone, the claim of specific performance was liable to be rejected. Further, not only did the Agreement not contain any description of the property, even the physical area was described as “tentative”. Despite the fact that the Agreements were silent about the location of the property, in the Section 9 of the Application, the Respondents sought reliefs in respect of unidentified lands in a Village called Dhondpada. However, in the Statement of Claim dated 4th September, 2016 reliefs were sought in respect of unidentified lands in Villages Dhondpada/Odhangi. He has submitted that the Claimants in this manner, adopted a pick and choose policy knowing that the Agreements did not identify the land. The Agreements therefore were void inter alia due to uncertainty. Grant of specific performance is discretionary and the Plaintiff/Claimant must approach the Court with clean hands. He has placed reliance upon Lourdu Mari David And Ors Vs. Louis Chinnaya Arogiaswamy 1 in this context.

10. Mr. Jaisinghani supported by Dr. Abhinav Chandrachud has relied upon the evidence in the reference in Arbitration Petition (L) No.28309 of 2022.

11. In the statement recorded by the Police on 3rd April, 2017, Claimant No. 2 inter alia stated that he was shown site of the said Project in Village Kandlepada, District Pen in 2007. Whereas in cross examination of the Claimant No.1, he stated that he did not recollect the name of the village where the land was shown to him (Q&A-20). Further, it was put to Claimant No.1 that the Agreement of which specific performance was sought made no mention of where the land was situated. The Claimant replied in the affirmative. He has placed reliance upon the cross examination in this context. (Q&A 25 & 26).

12. Reliance has also been placed upon the cross examination of the Respondent’s witness on 9th October, 2019 and in particular Q&A 194 to 197. In a specific case put to the Respondents witness in

Q.No.196 viz. that the Respondents promised that as soon as road construction work is completed, the Respondents will provide exact location such as village name, land survey number and other particulars to which Respondents witness has disagreed.

13. Throughout the arbitration proceedings it is the consistent case of the Claimants that the lands which according to them formed the subject matter of the Agreements were never identified. In this context, Mr. Jaisinghani has placed reliance upon Paragraph 8 of Statements of Defence, wherein the Petitioner/Respondent therein has averred that “The statements and averments in the Statements of Claim disclose that the parties were not consensus ad idem and an enforceable contract never came into existence.”

14. Mr. Jaisinghani has submitted that the learned Arbitrator has not arrived at a finding that the lands which formed the subject matter of the purported Agreement had been described in the Agreements. On the contrary, the learned Arbitrator arrived at a finding that nothing is known of the description or location of the land other than that the land is situated in Pen Taluka. He has submitted that Taluka Pen in District Raigad is spread over more than 1500 Sq. kms. The learned Arbitrator having so held, had no option but to reject the claim for specific performance. However, the learned Arbitrator chose not to do so and shockingly held that a valid and enforceable contract had come into existence. This finding is clearly perverse and unintelligible apart from being contrary to the earlier finding that the whereabouts of the lands are not known.

15. Mr. Jaisinghani has submitted that the learned Arbitrator has inter alia held that the Petitioner/Respondent therein had not pleaded in the Statement of Defence that since the Agreement did not contain any description of the property, the Agreement was not capable of being specifically performed. He has submitted that the Claimants themselves had pleaded that the Agreement did not contain any description of the property and that they did not know where the property was located. Thus, it was not necessary for the Petitioner to plead in the Defence Statement something that has already been pleaded by the Claimant in the Statement of Claim. He has submitted that the learned Arbitrator’s finding / observation that the Petitioner herein had not pleaded that the Agreement could not be specifically performed is a perverse and patent error which is evident on the face of the record.

16. Mr. Jaisinghani has submitted that the learned Arbitrator has placed the burden of proof to show that a valid and enforceable contract had not come into existence, upon the Petitioner herein. The learned Arbitrator had observed that the Petitioner herein had not specified the location of the said Plot. He has submitted that as to how these observations make any difference to the unenforceability of the Agreement is a question which has not been deliberated upon or answered by the learned Arbitrator. Moreover, it is the Claimants who ought to have ensured that the agreement contained a proper description which would enable identification of the land with certainty.

17. Mr. Jainsinghni has submitted that one other irrelevant circumstance weighed with the Arbitral Tribunal whilst arriving at the conclusion that a valid and enforceable contract had come into existence. That is the statement of the Petitioner/Respondent therein in the Arbitral Proceedings recorded in the order passed in the Section 9 Application viz.“the Respondent undertakes not to create any third party interest in the subject property and not to part with possession of the same till the next date.” In the said order it was also recorded that “All rival contentions are kept open”. He has submitted that the Section 9 Application did not contain any description of the land. The relief sought was in respect of unidentified lands in Village Dhondpada. The statement was made by the Petitioner that they would not create any third party rights as the Petitioner at the time of the Application owned lands in Village Dhondpada. This did not absolve the Claimants from establishing that the Agreement contained a description which could enable the identification of the Plot with certainty. Since the Plot was not described at all in the Agreement or the Section 9 Application, there was no question of any admission on the part of the Petitioner herein as to the subject matter in the Agreement.

18. Mr. Jaisinghani has referred to Clause 7 of the Agreement for Sale, wherein it is stated that the area of the said Plot given in this Agreement is tentative and subject to change as per directions of the local authorities or Architect or Engineers of the company which may result in change (decrease/increase in the area upto 10% of plot size allotted). He has submitted that the contents of Clause 7 militate against the Claimants’ claim for specific performance as not only is the location of the Plot not mentioned but even the physical area of the plot is described as `tentative’. He has submitted that in the Statement of Claim none of the Claimants stated that they were ready and willing to perform their obligations in accordance with the true construction of the Agreement. They have not averred their readiness and willingness to perform their obligations under the Agreement even if the area was 10% more or less than the area mentioned in the Agreement. The claim for specific performance was accordingly liable to be rejected in view of the lack of any averment in the Statement of Claim.

19. Mr. Jaisinghani has submitted that it is settled law that if the immoveable property which forms the subject matter of the Agreement is not described to enable its identity with certainty, the Agreement is not capable of specific performance and is therefore void. He has placed reliance upon Judgments of the Supreme Court as under:

1. Mayawanti V/s. Kaushalya Devi 2

2. Nahar Singh V/s. Harnak Singh 3

3. Pawan Kumar Dutt V/s. Shakuntala Devi 4

4. Vimlesh Kumari Kulshrestha vs Sambhajirao & Anr., 5

20. He has further submitted that decisions of the various High Courts were also cited before the learned Arbitrator on this point which are as under: Nina Garments (Pvt.) Ltd. Vs. Unitech Ltd.(Delhi High Court judgment) 6 Ramcharitra R. Singh Vs. Ramesh L. Agarwal &Ors (Bombay High Court judgment) 7 Shanta Vs. Mahantesha judgment (Karnataka High Court judgment) 8 Sova Gosh And Others Vs. Mr. Shyama Charan Bhattacharyya (Calcutta High Court judgment)9 John Sylem Vs. Chanthanamuthu Pillal (died) and others (Madras High Court judgment) 10

21. Mr. Jaisinghani has submitted that the learned Arbitrator having held that nothing is known about the location of the Plot except that it is in Taluka Pen, could only have concluded that the Agreement was not enforceable and therefore void. Instead, the learned Arbitrator

[(2008) 5SCC 58] 2012 (132) DRJ 360] [2006 (1) BCR 500] Dated 14th June, 2016 Dated 20th June, 2019 Dated 12th December, 2002 has perversely concluded that the Agreement was a valid and enforceable contract. The Award, therefore suffers from a patent illegality evident on the face of the record.

22. Mr. Jaisinghani has made submissions on limitation which was the issue raised before the learned Arbitrator. He has referred to Paragraph 12 of the Statement of Claim, wherein it is stated: "It is pertinent to mention that the obligation of the Respondent was bound to convey and hand over possession of the developed plot to the Claimant in the month of November 2011." He has further referred to letter dated 24th April, 2013, wherein Claimants have stated "With the terms of agreement, the completion of above said project and handing over the possession of the said plots was within period of 24 months from the agreement date." He has further referred to the written submissions filed by the Claimants before the learned Arbitrator, wherein it is stated that “It is submitted that the said Project was agreed to be developed and completed and the possession thereof was to be given to the Claimant in the month of November, 2011.” Further, it is stated that “The possession of the said plots are due in month of November 2011 as per Agreement of Sale.”

23. Mr. Jaisinghani has submitted that Article 54 of the Schedule to the Limitation Act applies to a Suit/claim for specific performance. Since according to the Claimants, the time for performance was fixed, the first part of Article 54 applied and the stipulated period of three years commenced running from the date fixed for performance viz. November 2011. The three year period expired in November-December

2014. Admittedly the arbitration clause was invoked for the first time in December, 2015. He has placed reliance on Section 21 of the Arbitration Act in contending that the claims were therefore clearly made beyond the period of limitation and ought to have been rejected on this ground alone.

24. Mr. Jaisinghani has submitted that the Statement of Claim does not contain any averment relating to any extension of time fixed for performance. During the course of submissions made on behalf of the Petitioner, it was pointed out that since the first part of Article 54 of the Limitation Act applied, the claim was clearly barred by the law of limitation. To counter this in Rejoinder, for the first time, the Claimants relied upon a letter dated 29th January, 2014 addressed by the Petitioner herein, as an acknowledgment of liability under Section 18 of the Limitation Act and contended that a fresh period of limitation commenced running from the date of the said letter. The written submissions filed after arguments stated that the Assurance letter dated 29th January, 2014 issued by the Petitioner herein is before the limitation period ended in November/December 2014. The Respondents have relied upon the last two lines of the said Letter dated 29th January, 2014, wherein it is mentioned “We assure you that we will hand over the possession of your plot within six months, once we have got permission”. The Respondents/Claimants therein have stated in the written submission that by reading the above, the Assurance Letter, provide acknowledgement under Section 18 of Limitation Act and so limitation period start from 29th January, 2014.”

25. Mr. Jaisinghani has submitted that the rejoinder submission of the Claimants’ clearly reveal that they had accepted that the limitation period commenced running in November-December, 2011 and would have expired in November-December 2014 but for the letter dated 29th January, 2014 which according to the Claimants was an acknowledgement of liability. In view of there being no pleading at the relevant point of time on behalf of the Claimants with regard to there being an Agreement for extension of time, no issue ever arose on whether time for performance was extended by the parties. Thus, no issue has been framed in this respect.

26. Mr. Jaisinghani has submitted that this contention of the Claimants that the letter dated 29th January, 2014 was an acknowledgement of liability and therefore extended the period of limitation was not considered at all by the learned Arbitrator. However, the learned Arbitrator invented a new case for the Claimants in the Award by holding that by writing the letter dated 29th January, 2014, the Petitioner herein unilaterally extended the time for performance and therefore the claim for specific performance was within limitation. The learned Arbitrator in this manner made out a new case for the Claimants for the first time in the impugned Award which case was neither pleaded nor argued by the Claimants.

27. Mr. Jaisinghani has submitted that by inventing a new case for the Claimants on the issue of limitation for the first time in the impugned Award, the learned Arbitrator had not only committed legal misconduct and a patent illegality but had also acted in violation of the principles of natural justice, since the Claimants had never pleaded/argued that there was any agreement for extension of time for performance and the Petitioner herein therefore did not get any opportunity to deal with this issue which was never raised in the pleadings or otherwise.

28. Mr. Jaisinghani supported by Dr. Abhinav Chandrachud has submitted that what is even more fundamental is that in the reference in which the Award impugned in Petition (L) No.28309 of 2022 has been passed, the Claimant had not referred to, relied upon and/or produced on record any letter dated 29th January, 2014 addressed by the Respondent to the Claimants. The finding of the learned Arbitrator therefore that by letter dated 29th January, 2014 the Petitioner herein unilaterally extended time for performance is a patent error evident from the face of the record.

29. Mr. Jaisinghani has submitted that it is settled law that time for performance can only be extended by agreement between the parties as stipulated in Section 63 of the Indian Contract Act. Such an agreement is required to be pleaded and proved just like any other agreement. He has placed reliance upon the following Judgments of the Supreme Court and the various High Courts: Keshavlal Lallubhai Patel & Ors., Vs. Lalbhai Trikumlal Mills Ltd., 11 Anandram Mangturam & Ors., Vs. Bholaram Tanumal 12 M/s Venkateshwara Minerals, Firm & Anr., Vs. Jugalkishore Chiranjitlal, Firm 13

30. Mr. Jaisinghani has made submissions on readiness and willingness as per Issue No.5 which was determined by the learned Arbitrator. He has submitted that the burden of proof on this issue was on the Claimants who were seeking specific performance. However, the learned Arbitrator has held that the Claimants were ready and willing to perform their obligations under the Agreement as the Petitioner herein had failed to establish otherwise and in this manner has placed the burden of proof on the Petitioner herein who was the Respondent AIR 1958 SC 512 AIR (33) 1946 Bombay 1 AIR 1986 Karnataka 14 therein to establish that the Claimants were not ready and willing. Furthermore, the learned Arbitrator failed to consider relevant, crucial and material evidence on record which would establish that the Claimants were not ready and willing to perform their obligations.

31. Mr. Jaisinghani has referred to the Clauses in the Agreement dated 17th June, 2009 viz. Clause Nos.[1] to 6 and 8, 9 and 12. He has referred to Paragraph 17 of the Statement of Claim, wherein the Claimants have stated “The Claimants are always ready and willing to perform its obligations under the Agreement.” He has further referred to Paragraph 24 of the Statement of Claim, wherein the Claimants had stated that “The Claimants submit that it is amply clear that the Claimants have performed and have always been ready and willing to perform their obligations under the Agreement and the Respondent has deliberately failed to comply with the terms and conditions of the Agreement.” He has also placed reliance upon Paragraph 22 of the Statement of Defence, wherein the Respondent has stated that “It is denied that the Claimant was/is ready and willing to perform their obligations under the Agreement which in any event came to an end.” Further, in Paragraph 29 of the Statement of Defence the Respondent has stated “With reference to Paragraph 24 of the Statement of Claim, it is denied that the Claimant has performed and/or has always been ready and willing to perform his obligations under the Agreement which has come to an end.”

32. Mr. Jaisinghani has submitted that the Claimants have made vague averments relating to their readiness and willingness in their Statement of Claim. The Claimants failed to specify the obligations that they were willing to perform. The Claimants did not even specify the balance amount which according to them was payable under the Agreement. The lack of such averments assumes significance as even according to the Claimants they had not paid what according to them was the entire consideration payable under the Agreement. The pleadings of the Claimants were not in conformity with Forms 47 and 48 of the First Schedule to the Code of Civil Procedure and were clearly defective. He has placed reliance upon decision of the Supreme Court in Ouseph Varghese V/s. Joseph Aley, 14

33. Mr. Jaisinghani has submitted that in the Statement of Defence, the Petitioner/Respondent therein clearly denied that the Claimants are/were ready and willing to perform their obligations under the Agreement. He has submitted that on the basis of these pleadings the Issue No.5 was framed.

34. Dr. Abhinav Chandrachud has referred to the Affidavit in lieu of Examination-in-Chief filed by Chintan Kapdi, Claimant No.1 in Arbitration Petition (L) No. 28309 of 2022. In particular Paragraph 18 and 24 of the said Affidavit. This is in order to show that the Claimant No.1 had stated that he and his mother were always ready and willing to perform their part of the obligations under the Agreement and that the Petitioner/Respondent therein had deliberately failed to comply with the terms and conditions of the Agreement.

35. Mr. Jaisinghani supported by Dr. Abhinav Chandrachud has referred to the reference in Arbitration Petition (L) No.28309 of 2022. The Claimants had initially paid a sum of 5,48,000/- (including a sum of Rs.7,999/- towards Advocate`s fees) to the Respondent. The entire sum of Rs.5,40,001/- was admittedly returned/refunded to the Claimants in November-December, 2015. The fact that the money was returned in November-December, 2015 is an admitted position. The only dispute raised by the Claimants is that the Claimants had not demanded the refund and it is the Respondent who had directly deposited this amount in the Bank Account of the Claimants. According to the Claimants, a sum of Rs.9,99,500/- was payable as consideration under the Agreement.

36. Mr. Jaisinghani has submitted that assuming arguendo that this is to be correct, since the entire sum of 5,40,001/- had been admittedly returned, the entire consideration of Rs.9,99,500/- which according to the Claimants was payable, remained to be paid.

37. Reliance has been placed on cross examination of Claimant No.1 in which it was asked as to what according to him was the balance consideration payable to the Respondent. He has submitted that despite the fact that the entire amount of Rs.5,40,001/- was returned/refunded, Claimant No.1 in cross examination maintained that a sum of only Rs.4.60 lacs was the balance payment under the Agreement. He has referred to (Q&A 27-33) of the cross examination in that context.

38. Mr. Jaisinghani has submitted that the evidence has not been considered by the Arbitral Tribunal. He has referred to the Supplemental Written Submissions filed after arguments had concluded, where the Claimants justified the stand taken in the evidence by contending that since they had issued and sent a cheque for the amount that was refunded in November-December, 2015 and the Respondent had not encashed the said cheque, the Claimants were not liable to pay the said amount. He has submitted that the Claimants adhered to their stand that they were liable to pay only a sum of Rs.4.60 lacs on account of the fact that the Respondent had refused to encash the cheque which was issued and sent to the Respondent. In effect the Claimants contended that since the Respondent refused to accept payment, they were not liable to pay the amount that the Respondent had refused to accept. The Claimants therefore asserted that they were not willing to pay what according to them was the entire consideration payable under the Agreement.

39. Mr. Jaisinghani has submitted that it is settled law that the repudiation by one party to the contract does not absolve the other party from showing his/her readiness and willingness to perform his/her obligations under the contract. He has relied upon the following judgments in this context: Jawaharlal Wadhwa & Anr. V/s. Haripada Chakroberty15 Vidya vati v/s. Devi Das AIR16 Florrie Edridge V/s Rustomji 17

40. Mr. Jaisinghani has submitted that the evidence on record and the submissions of both Claimants and Respondent on this point has not been considered by the learned Arbitrator. The fact that it was material and relevant evidence is undisputed. The learned Arbitrator has rendered a finding that the Claimants were ready and willing to perform their obligations under the Agreement without considering the relevant material and submissions on record. The Award stands vitiated on this ground alone.

41. Mr. Jainsinghani has submitted that Section 16 (c) of the Specific Relief Act provides that the Claimant/Plaintiff seeking specific performance must aver and prove readiness and willingness. Thus, even AIR 1989 SC 606 1977 SC 397 AIR 1933 PC 233 if in a given case the Defendant does not dispute in his Written Statement that the Plaintiff is ready and willing but during the course of evidence the Plaintiff states that he is not ready and willing to pay the entire consideration, such a Plaintiff must fail in his Suit for specific performance.

42. Mr. Jaisinghani supported by Dr. Abhinav Chandrachud has submitted that the present Award is an unreasoned Award and the Arbitral Tribunal has not considered the pleadings and evidence on record before arriving at findings in favour of the Claimants. Such an unreasoned award founded on the abject failure of the Arbitral Tribunal to perform its duties and functions and to decide the matter in accordance with law is completely void and a nullity in the eye of law.

43. Mr. Jaisinghani has made submissions on the issue of demand of development charges. He has submitted that the Clauses of the Agreement clearly disclose an obligation on the part of the Claimants to pay inter alia development charges for the Special Township Project to the Respondents. The development charges were payable in addition to the basic sale price which was mentioned in clause 1 of the Agreement. He has submitted that in the Statement of Claim and in the Affidavit in lieu of Examination-in-Chief, nothing was stated about the payment of basic sale price and development charges. However, when asked in cross examination, Claimant No. 1 stated that he was not liable to pay development charges to the State Government as provided in Clause 12.

44. Mr. Jaisinghani has submitted that in view of the Claimants refuting their liability for payment of development and other charges in addition to the basic sale price, the question that arose was as to whether under the terms of the Agreement, development charges for Special township Project were payable by the Claimants. The Arbitral Tribunal was therefore required to construe the various clauses of the Agreement and reach a conclusion on whether under the terms of the Agreement the Claimants were liable to pay the development charges to the Respondent for the development of the Special Township Project.

45. Mr. Jaisinghani has submitted that the learned Arbitrator instead of arriving at a finding on this issue, adopted a completely untenable approach. The learned Arbitrator has proceeded on the basis that the Respondent had not asserted that it had made a demand upon the Claimants for development charges and in cross examination nine out of ten Claimants had refuted their liability to pay development charges. Although, the learned Arbitrator proceeds to observe “this evidence was required to be considered”, the learned Arbitrator fails to render any finding on whether the Agreement provided for payment of the development charges and straightaway jumps to the conclusion that the Respondent has not established that the Claimants were not ready and willing to perform their obligations under the Agreement.

46. Mr. Jaisinghani has submitted that the learned Arbitrator failed to construe the clauses of the Agreement and/or to render a finding on this issue which is fatal to the Award. He has submitted that by construing the pleadings in a wholly perverse manner and by disregarding relevant evidence, including the terms of the Agreement of which specific performance was sought, the learned Arbitrator has committed a patent error which is apparent on the face of the record.

47. Mr. Jaisinghani has thereafter made submissions on refund of money paid in November-December, 2015. He has submitted that the refund of money by the Petitioner/Respondent therein to the Claimants is an undisputed position. The Claimants had after receiving the refund changed their minds and issued a cheque for the amounts that were refunded to them and sent the same to the Petitioner under cover of their Advocate`s letter invoking arbitration. The cheque was admittedly not encashed by the Petitioner. He has referred to the Evidence in Chief, where the Director of the Respondent stated that the Claimant No. 2 had demanded refund of their monies pursuant to which the Respondent had refunded the entire amount. In his cross examination a specific case was put to Claimant No. 1 that his mother Claimant No.2 had demanded refund of monies from the Director of the Respondent and it is pursuant to this demand that the Respondent refunded the entire money paid by the Claimants. In response Claimant No. 1 denied the same (Q & A 34). However Claimant No. 2 did not step into the witness box to rebut what was stated by the Respondent`s Director in his Evidence Affidavit. An adverse inference ought to have therefore been drawn against the Claimants.

48. Mr. Jaisinghani has made submissions with regard to the demand for refund of balance monies with 18% interest in April, 2017. He has referred to the Statements of the Claimants recorded by the Poilce at Alibaug. He has submitted that it has been deposed by the Director of the Petitioner that on one of the days when he had attended the High Court he had bumped into Jitendra Chande, father of Claimant No. 1 in Reference No. 5 and one S.I. Swami, Investigating Officer, Economic Offences Wing of the Police Crime Branch at Alibaug who was conducting investigations pursuant to a FIR lodged by some other persons against inter alia the Directors of the Respondent. The Director of the Respondent deposed that the Investigating Officer, S.I. Swami threatened him with serious adverse consequences if the Respondent did not refund the entire monies to the Claimants together with interest at the rate of 18% per annum. It may also be stated that Jitendra Chande who attended almost every arbitration meetings in all ten references did not step into the box to rebut this evidence. The fact that the Investigating Officer S. I. Swami was acting as a sort of a Recovery Agent has been recorded in the order of this Court granting bail to the Director of the Respondent. Mr. Jaisinghani has thereafter referred to the Letter dated 6th April, 2017 sent by the Advocates of all Claimants in the 10 references demanding from the Petitioner a refund of the balance monies together with interest at the rate of 18% per annum. During the cross examination of the Claimants they stated that the letter dated 6th April, 2017 had been sent pursuant to oral directions given to the Claimants’ Advocate by a Ld. Judge of this Court at the time of hearing of the Anticipatory Bail Application filed by the Respondent`s Director on 5th April, 2017. He has referred to the said Letter dated 6th April, 2017 in order to contend that it had not been sent pursuant to oral directions.

49. Mr. Jaisinghani has submitted that the learned Arbitrator whilst arriving at a conclusion that monies were not demanded by letter dated 6th April, 2017, the learned Arbitrator failed to consider the evidence of all the Claimants including the evidence of Satish Shah (Reference No.7) who admitted that the Claimants had demanded a refund of their balance monies together with interest at the rate of 18% per annum. He also mentioned that this was done pursuant to an order (not oral directions) of this Court. Mr. Jaisinghani has referred to the order passed by this Court on 5th April, 2017 which does not record the presence of any of the Claimants or their Advocates. He has submitted that the Arbitral Tribunal has shockingly believed the ipse dixit of the Claimants and has disregarded the record of this Court.

50. Mr. Jaisinghani has submitted that none of the Claimants including Claimant No. 1 in the Reference No.5 stated that they were present in Court on 5 th April, 2017. Claimant No.1 stated that the information was given to him by his Advocate thereby admitting that he had no personal knowledge. The Advocate concerned was not examined as a witness.

51. Mr. Jaisinghani has submitted that the only person who claimed to be present in Court viz. Rasiklal Bhavsar, Claimant in Reference No. 8 did not state that any directions were given to the Claimants to do anything. He has stated that the Court had directed the Respondent viz. the Petitioner herein to calculate the money refundable to the Claimants. Mr. Jaisinghani has placed reliance upon Q&A 104 in that context. Mr. Jaisinghani has submitted that the findings of the learned Arbitrator that some oral directions were given to the Claimants who were not party to any litigation before the Court is a shockingly perverse finding based on no evidence and is contrary to the evidence on record. Rendering of such a finding discloses the learned Arbitrator’s bias and predisposition to decide issues in favour of the Claimants regardless of the state of the record.

52. Mr. Jaisinghani has submitted that the learned Arbitrator whilst considering whether by Letter dated 6th April, 2017 the Claimants sought a refund of the monies with 18% interest, has held that a ‘vital’’ factor to be considered is that it is not in dispute that settlement talks were between the parties. He has submitted that it is common ground that no settlement talks were on going when the letter was sent. This was emphasized by the Claimants themselves after the Award was rendered, in an Application filed by them under Section 33 of the Act seeking to have this portion of the Award corrected.

53. Mr. Jaisinghani has submitted that attempts to refer to matters which do not find place in the judicial record have been strongly deprecated by the Supreme Court. He has placed reliance upon decision of the Supreme Court in State Of Maharashtra V/s. Ramdas Shriniwas (AIR 1982 SC 1249)

54. Mr. Jaisinghani has made submissions on the effect of demand for refund. He has submitted that the only construction that could have been placed on the letter dated 6th April, 2017 was that it was a demand for return of monies. He has referred to the expression “DUE”, “DUE THEREON”, “OUSTANDING” employed by the Claimants’ Advocate in the said letter which clearly established that the letter constituted a demand for refund of the monies. He has placecd reliance upon the decision of the Supreme Court in Modern Industries V/s. Steel Authority of India 19 wherein the Supreme Court has held that the word 'due' has a variety of meanings. In its narrowest meaning, the word 'due' may import a fixed and settled obligation or liability. In a wider context, the amount can be said to be 'due' which may be recovered by action. He has further referred to the definition of "Outstanding" which means 'remaining undischarged'; 'unpaid'; 'uncollected'; as an outstanding debt. Constituting an effective obligation. In this context he has placed reliance upon BLACKS LAW DICTIONARY- Sixth Edition.

55. Mr. Jaisinghani has submitted that once a Purchaser under the Agreement demands return of monies paid, he elects to treat the contract at an end and is not therefore entitled to specific performance. He has placed reliance upon the following judgments which had been cited before the learned Arbitrator and not been taken into consideration at all, namely:

1. Ardeshir H Mama V/s. Flora Sasoon 20

2. Ayissabi V/s. Gopala Konar 21

3. Gopal Devi V/s. Kanta Bhatia 22

4. Ashwini Kumar V/s. Vijay Tandon23

5. Sundarramayyar V/s. K. Jagdeeshan24,

6. Harbans Lal vs Daulat Ram 25

56. Mr. Jaisinghani has submitted that in determining the compensation granted in lieu of specific performance, what is given in terms of money is the value of the property which the Claimant/Plaintiff would have got had specific performance been granted. To arrive at this value, the amount of consideration (including development charges) which was still to be paid by the Claimant/Plaintiff is necessary to be deducted. He has submitted that the Supreme Court has laid down that unless the exact location is known the valuation cannot be done. The AIR 1928 PC 208 AIR 1989 Kerala 134 AIR 1994 Delhi 349 [2014 SCC Online Del 1495] AIR 1965 Madras 85 [ILR (2007) 1 Delhi 706]: 2006 SCC Online Delhi 1520 Supreme Court has held that the lands cannot be valued by considering the average value of the lands in the same locality etc. He has placed reliance upon a judgment of the Supreme Court in Printers House P. Ltd. v. Mst. Saiyadan26 which had been cited by the Petitioner before the Arbitral Tribunal on this point which has been disregarded.

57. Mr. Jaisinghani has submitted that the Arbitral Tribunal mainly relied on a Valuation Report prepared by one Mr. Hitendra Gangwar whose evidence was led by the Claimants. The valuer had stated in his Report that in order to arrive at a valuation of certain lands in the Village Dhondpada, he had relied solely on two Agreements which were annexed to his Report. These were Joint Development Agreements under the terms whereof, the land was to be jointly developed on FSI sharing basis. Thus, apart from the fact that location of the land was not known, the two Joint Development Agreements could certainly not have been taken into consideration as the said Joint Development Agreements were not for sale of land but Joint Development Agreements on FSI sharing basis. He has submtited that Mr. Gangwar had arrived at a valuation of Rs.10,800/- per sq.metres. AIR (1994) 2 SCC 133 He has placed reliance on Mr. Gangwar’s cross examination (Q&A 18 to 22, 26, 31, 32, 38, 39 amd 43) in this context.

58. Mr. Jaisinghani has submitted that Mr. Gangwar has admitted that he did not know the nature of the transaction that was reflected in the Agreements between the Claimants and the Respondent and his valuation was entirely based on the two Joint Development Agreements which were annexed to his report. He has also admitted that he had not gone through the Agreements of which specific performance was being sought by the Claimants. He was not aware of the exact location and was not told the Survey Nos. etc. of the plot. Mr. Gangwar’s Report was thus not worth the paper it was written on.

59. Mr. Jaisinghani has submitted that the average value of the land as reflected in the Government Ready Reckoner rate was approximately Rs.2,500 per square yard. Thus, in any event the Arbitral Tribunal could not have valued the land at more than Rs.2,500 per square yard which was the ready reckoner rate of the lands in the absence of any other relevant material. The learned Arbitrator however has granted compensation at the rate of Rs.9035.95 per square yard (10,800/- per sq. mt.), thus conferring a bounty upon the Claimants.

60. Mr. Jaisinghani has submitted that the Arbitral Tribunal has inexplicably deducted only a sum of Rs. 5,40,001/-. Since the maximum value of the land which formed the subject matter of the Joint Development Agreement was Rs.2,500 sq. yard, the value of the 500 sq. yard would be Rs.12,50,000/- and from this, a sum of Rs.9,99,500/would have to be deducted. The total compensation, even assuming arguendo that the lands were the same lands which formed the subject matter of the Joint Development Agreements, would be Rs.12,50,000/less Rs.9,99,500/- which equals 2,50,500/-. Instead the Arbitral Tribunal has granted compensation of Rs.39,78,016/- (after deducting a sum of Rs.5,40,001/-.) In this manner the learned Arbitrator has unjustly enriched the Claimants by awarding an astronomical amount which bears no relation whatsoever to the actual value of the lands in Dhondpada.

61. Mr. Jaisinghani has submitted that under Section 14 of the Specific Relief Act the contracts mentioned under the Sub-Clauses thereof cannot be specifically enforced in law. This was raised but not considered at all by the learned Arbitrator. He has submitted that the Agreement was of a nature/character falling within Section 14(b) and

(d) of the Specific Relief Act and hence, could not be specifically enforced in law. He has submitted that the decision of the Supreme Court in Indian Oil Corporation Ltd. Vs. Amritsar Gas Service And Others27 had been cited before the learned Arbitrator but has not been considered.

62. Mr. Jaisinghani has submitted that if Agreement was void as provided in Section 2(g) of the Contract Act, the learned Arbitrator has no jurisdiction to grant any reliefs. He has placed reliance upon the decision of the Supreme Court in Union Of India V/s. Kishorilal Gupta & Bros.28, wherein the Supreme Court has held that if the original contract has no legal existence, the arbitration clause also cannot operate, for along with the original contract, it is also void.

63. Mr. Jaisinghani has submitted that it was the Petitioner’s case in the pleadings that the said Project could not be executed due to

AIR 1959 SC 1362 reasons beyond the control of the Petitioner. He has placed reliance upon Notification issued in December 2012 after it became unlawful which to develop STP's on lands falling within the G[2] zone. In this context he has relied upon the cross examination of Mithilesh Patil (Q&A 36), wherein Mithilesh Patil deposed that the villages mentioned including Odhangi which fell within the G[2] zone.

64. Mr. Jaisinghani has submitted that the learned Arbitrator has relied upon the answer given by Mithilesh Patil to Q&A 30 namely that if the Government had given a location clearance, then CIDCO had to honour the promise and the application cannot be rejected on this ground, to support his finding that it was possible for the Respondent to proceed with the development of the project notwithstanding the fact that the State Government had made it impermissible to develop STP’s in the G[2] Zone. However, the learned Arbitrator overlooked Q&A 36 of Mr. Mithilesh Patil. Further, Mr. Jaisinghani has submitted that the learned Arbitrator by relying upon Q&A 30, has arrived at a wholly erroneous finding that the Notification dated 1st January, 2014 issued under Section 20(3) of the MRTP Act did not prohibit the Respondent from developing the STP on G[2] Zone lands. The learned Arbitrator ought to have considered the evidence of Mr. Mithilesh Patil which followed and in particular Q&A 31 to 33. It was the evidence of Mr. Mithilesh Patil, that only if the State Government had issued a notification which was published in the Gazette granting location clearance and which notification contained certain directions, that CIDCO would be in a position to grant permission to develop STP on G[2] Zone. Thus, if there was no location clearance granted by the State Government by a Gazetted Notification, CIDCO would not be in a position to give permission for development of STP on lands falling within G[2] Zone.

65. Mr. Jaisinghani has submitted that CIDCO did not finalise the Development Plan for NAINA area till the year 2018. A draft Development Plan was notified sometime in the year 2016. Under the draft Development Plan which was finalised in 2018 lands falling within area designated as LDZ in the Development Plan could be utilised for development of Special Township Project.

66. Mr. Jaisinghani has submitted that during the course of the hearing the Claimants admitted as such. Thus, the Claimants accepted that till the year 2018 the Respondent was precluded from developing the Special Township Project on lands designated as LDZ. He has placed reliance upon Written Submissions of the Claimants filed before the arguments commenced, wherein it is contended by the Claimants that as per the Notification dated 18th September, 2019, the State Government had approved “As it is” i.e. without any changes, as proposed in the said Modified Draft Development Plan of NAINA. Thus, till the year 2019 the Respondent could not have developed STP on LDZ lands. The Claimants had invoked the arbitration clause in December, 2015. Thus, it was evident from the records that the delay in the execution of the project was on account of delay beyond the control of the Petitioner. The fact that the Claimants had themselves placed reliance on the modified Developed Plan in the year 2019 is inter alia evident from Paragraph 57 of the Impugned Award.

67. Mr. Jaisinghani has accordingly submitted that it is evident that the delay in execution was on account of force majeure reasons. Clause 21(g) of the Agreement provided that in such an event, the Claimants would not be entitled to compensation but only for refund of monies with interest at the rate of 8%. The Claimants have not sought relief of refund of their monies as the entire amount had already been refunded in November/December, 2015.

68. Mr. Jaisinghani has accordingly submitted that the impugned Award is perverse and unintelligible and has been passed disregarding the law, the terms of the agreement and the evidence on record. In the circumstances. He has respectfully submitted that the impugned Award be set aside and costs of the arbitration proceedings including of the present petition be granted to the Petitioner.

69. Mr. Rohan Savant the learned Counsel appearing for the Respondents has submitted that the contention of the Petitioner that the Awards passed in the other 9 references are liable to be set aside as the same did not contain any independent reasons and rely upon the Award impugned in the lead Arbitration Petition is contrary to the record, is malafide and ought not to be countenanced. He has submitted that the learned Arbitrator at paragraph 4 of the impugned Award clearly recorded that the pleadings, correspondence, facts and evidence in all 10 references would be treated as common. It was agreed between the parties that Reference No.5 would be taken as lead reference and heard as lead reference and the reasoning in this Award, would form the basis in the Awards in the other 9 references as well. He has further submitted that apart from the fact that this was clearly the understanding and agreement between the parties, Petitioner is estopped from contending to the contrary as despite such a categorical observation in the Award, the Petitioner at no point of time approached or made any application to the learned Arbitrator disputing such an agreement. Further, when a party contends that the recording of any understanding or agreement as regards procedure or otherwise recorded by the Court was incorrect, the party ought to approach that very Court so that the said issue can be conclusively determined by the Court which is cognizant with all the facts and circumstances of the case and surrounding such an agreement or understanding.

70. Mr. Savant has submitted that the Petitioner is estopped from contended anything contrary to the understanding and agreement recorded by the learned Arbitrator at paragraph 4. The Petitioner has merely challenged the same as an afterthought after having accepted all throughout that the Awards in the other 9 references could be passed on the basis of the award in Reference No. 5.

71. Mr. Savant has submitted that without prejudice to the aforesaid submission, the record before the learned Arbitrator bears out such an understanding and agreement between the parties. The statement of claim filed by the Respondents herein in the lead Petition and the other

9 Claimants / Respondents in connected Arbitration Petitions were identical in all respects but for minor differences such as difference in dates of the allotment letters, dates of agreements, plot numbers, consideration amounts, etc. There was no difference in the fundamental case of the Claimants in the lead reference and the Claimants in the other nine reference. Further, the Statement of Defense is identical in all 10 References and the contentions taken by the Petitioner / Respondent therein are identical. The Petitioner has not taken any contention factual or otherwise which would distinguished the case of one Claimants from that of the others. The Arbitrator also noted that issues framed in all 10 references in essence are common. The issues are common except the date of the agreement and plot number. Each of the Claimants led their individual evidence in their respective arbitration proceedings. The Petitioner has also filed individual Affidavits of evidence in all ten references. Like the pleadings, the evidence filed by the Petitioner as well as the Respondents was identical in all 10 references but for minor changes in the nature of dates of agreements, allotment letters, plot details, amounts paid and allegedly refunded were different.

72. Mr. Savant has submitted that the cross examination of the Petitioner’s witness, Mr. Vineet Malhotra was agreed to be common and was adopted in all references. Further, on account of one difference in two references, where the Petitioner had not unilaterally deposited monies into the bank accounts of the two Respondents / Claimants in Claim Nos. 9 and 10, the Respondents herein sought to cross examine the Petitioner’s witness on the said additional aspect. The parties also agreed that a suitable modality would be worked out. This agreement between the parties has been recorded in the minutes of meeting held on 29th November, 2019.

73. Mr. Savant has submitted that as regards the Claimants cross examination in 10 references, it was agreed that the cross examination of the Claimants shall also be treated in common in all references. This was recorded in paragraph 4 of the minutes of the meeting held on 19th December, 2019. Further, the Claimants had filed four identical additional documents by way of application in all 10 references. The additional documents were also given appropriate exhibit numbers by consent in all 10 references. Further, there were documents produced during the evidence of the Claimants in one reference which were not produced in other references. The parties by consent marked all such documents in all references.

74. Mr. Savant has submitted that they were five witnesses whose evidence was recorded in common in all 10 references. The Affidavit of Evidence, documents as well as cross examination of these five witnesses was common in all 10 references.

75. Mr. Savant has submitted that the Arbitrator in the minutes of meeting held on 22nd January, 2021 noted that the disputes involved in all 10 references were largely similar and that the arguments shall be commenced in the Claim No.5 which is the subject matter of the lead Petition first. He has submitted that the Advocates for the Claimants made final arguments in the lead reference and the final arguments were treated as common for all other nine references. This facts has been record in the Minutes of Meeting dated 27th February, 2021. The Claimants filed 10 identical written submissions only with minor differences in plot numbers, dates, amounts etc. The Petitioner finally argued the matter in common in all the 10 references. The Petitioner filed only one i.e. common additional written submission in all 10 references.

76. Mr. Savant has submitted that the Petitioner also relied upon cross examination of more than one Claimant only in respect of three contentions:- (i) whether the issuance of the letter dated 6th April, 2017 by the Respondents and the reply by the Petitioner dated 11th April, 2017 demonstrated that the Claimants were not ready and willing to perform their agreement; (ii) on the contention that the Petitioner had returned certain amounts and that the claimants in 10 references gave inconsistent answers on the amounts payable by them; (iii) the Respondents were not ready and willing to make payment of alleged development charges which they were bound to do under the said Agreement.

77. Mr Savant has submitted that the learned Arbitrator passed reasoned Award in the reference / Claim No.5 and the reasons in the Award were adopted for remaining 9 Awards. This was as per the agreement between the parties. He has referred to the paragraphs 2 to 4, 17 and 18 of the said Award which clearly records the agreement and the reasons why such a course of conduct was followed.

78. Mr. Savant has submitted that without prejudice to the above submissions, assuming but not admitting that there was no understanding or agreement between the parties with respect to the passing of a common Award or the reliance of the Award in Claim No.5 to the other 9 references / Claims such a course followed by the learned Arbitrator was proper and legal in the facts and circumstances of the present case. He has submitted that the case in the 10 references / Claimas and the defence of the Petitioner in the 10 references are identical in all respects, but for dates and figures such as dates of allotment letters, dates of agreements, plot details and consideration price. The minor differences in the 10 references would have no bearing on the ultimate results. The Petitioner has been unable to show the prejudice caused to the Petitioner by virtue of making the lead Award applicable to 9 other references.

79. Mr. Savant has submitted that the 10 Awards are reasoned Awards and that the reasons contained in the Award in reference No.5 are deemed to form part of the other 9 Awards and which has been stated to be so in the other 9 Awards.

80. Mr. Savant has submitted that the Petitioner’s contention that the other 9 Awards are unreasoned is contrary to the record.

81. Mr. Savant has made submissions on the grounds raised by the Petitioner in the lead Petition. He has submitted that the grounds raised by the Petitioner are questions of fact and are at least mixed questions of fact and law which cannot be raised by a party in a Petition under Section 34. He has submitted that it is well settled that the learned Arbitrator is the final authority on the appreciation of facts, evidence and on the construction of the contract.

82. Mr Savant has submitted that the Petitioner has also raised contentions such as limitation, time being of the essence and readiness and willingness of the Respondents. These are also questions of fact and law and cannot be raised in a Petition under Section 34. The Petitioner has also challenged the damages granted to the Respondents. Once again, the issue raised with respect to the quantum of damages granted cannot be raised before the Section 34 Court.

83. Mr. Savant has submitted that the Petitioner’s contention that grant of specific performance in a contract of the present nature being contrary to law also cannot be raised in the Petition under Section 34. He has submitted that contravention of a statute not linked to public policy or public interest cannot be a ground to set at naught an arbitral award either being contrary to the fundamental policy of India or on the ground of patent illegality. A mere contravention of substantive Indian law is not a ground to set aside an arbitral award. He has in this context relied upon the decision of the Supreme Court in Ssangyong Engineering and Construction Company Limited Vs. National Highways Authority of India (NHAI)29. (2019) 15 Supreme Court Cases 131.

84. Mr. Savant has addressed the contention of the Petitioner that parties were not ad-idem and the contract was not enforceable as the location of the plot was not identified. He has submitted that the contention of the Petitioner is required to be considered in the context of the pleadings of the Petitioner. The Petitioner had not raised any contention as regards the enforceability of the said Agreement on the ground that the plot was not identified. He has submitted that the Respondents had in paragraph 8 of the Statement of Claim stated that the Petitioner had not provided the exact survey number, property card, approved plan or any other document which would show where the said Plot is situated. The Petitioner in paragraph no.13 and 8 to the Statement of Defence had only sought to make a bald contention that the parties were not ad-idem and an enforceable contract never came into existence.

85. Mr. Savant has submitted that the findings of the learned Arbitrator and the contention of the Petitioner is required to be examined in the light of the fact that the Agreement between the parties was not for sale of specific constructed immovable property like a flat, but was on the basis of development and sale of a fully developed bungalow Plot. The Plot was to be developed in as much as the Petitioner was required to provide electricity, roads, sewage, drainage and other basic facilities on the said Plot. The Petitioner was developing a special township project and such facilities would run through the township consisting of several land parcels falling in various villages. The Respondents’ Plot was identified in Beta Sector 6 and the Plot number was EE-16. He has referred to the Clauses 1 and 7 of the Agreement in this context. He has submitted that the said Clauses provided that it was the obligation of the Petitioner to provide the final area, size, location, number and boundaries of the said Plot. Hence, the parties were at all times ad idem that this was the obligation of the Petitioner. The contract was thus enforceable.

86. Mr. Savant has submitted that the Petitioner cannot seek to take advantage of its own wrong by not performing the contract. The Petitioner did not perform its obligation and hence the Respondents filed their claim for specific performance. The Respondents have sought specific performance of the Agreements for allotment of Plots at village Dhondpada / Odhangi, Tal. Pen, Dist Alibag, State of Maharashtra in the Statements of Claim. This was on the basis of the information available with the Respondents and the understanding of the Respondents that the Petitioner had decided to allot the Plots to the Respondents in village Dhondpada / Odhangi, Taluka Pen, Dist. Raigad. It is a matter of record that the Petitioner throughout the trial did not identify the Plots of the Respondents.

87. Mr. Savant has submitted that the Petitioners in their Statement of Defence has not denied the contentions of the Claimants in the Statement of Claim at Paragraphs 5 and 6 and in the prayers set out that according to the Respondents, the plots were at Village Dhondpada / Odhangi, Taluka Pen, District Raigad. The Petitioner has not dealt with the factual averments in the Statement of Defence. The Petitioner having failed to meet the substance of the case of the Respondents and hence for want of denial, the Petitioner is deemed to have admitted the case of the Respondents. In this context he has relied upon the case of Gian Chand and Brothers and Anr. Vs. Rattan Lal alias Rattan Singh30. Mr. Savant has submitted that the contact itself provided the manner in which (2013) 2 Supreme Court Cases 606. the contract is to be performed. Hence, the Petitioner’s contention that the parties were not ad-idem or that the said Agreement cannot be enforced is misconceived and baseless. He has submitted that though the Petitioner’s contention is that the Plot area was only tentative, the Agreement itself provides that the reduction or addition in plot area is to be calculated on the basis of sale price. He has relied upon Clause 3 of the said Agreement in this context.

88. Mr. Savant has submitted that the Respondents Plot was sufficiently identified in the allotment letter dated 15th October, 2008 and in the agreement for sale dated 29th May, 2009. The Petitioner has also identified this land to be the area where the said Project was to be developed. He has placed reliance upon the cross examination of the Petitioner’s witness (Q &A Nos. 35 to 37) read with booking form of September, 2007.

89. Mr. Savant has submitted that the in the Affidavit of Evidence of the Petitioner, the Petitioner did not contend that the Plots were not at village Dhondpada / Odhangi, Taluka Pen, District Raigad. The cross examination of one of the Respondents (Q & A 24), where one of the Respondents was asked a question whether the Respondents were agreeable to the allotment of a Plot in a different location, the Respondents agreed to accept another plot.

90. Mr. Savant has submitted that when the Respondents had filed the Petition under Section 9 before this Court, the Respondents had claimed relief in respect of Dhondpada village, Taluka Pen, District Raigad. This was because the Petitioner had verbally informed the Respondents at the time of bhoomi pujan in the year 2007 that the Plots would be at village Dhondpada. The Petitioner did not dispute the relief claimed in respect of village Dhondpada in the Section 9 Petition and in fact made a statement which was recorded in the Order dated 1st January, 2016 passed by this Court that the Petitioner would not create any third party rights or part with possession in the subject property.

91. Mr. Savant has submitted that as regards the Petitioner’s contention that the Respondents mentioned village Kandlepada in the statement to the EoW, the Respondents have stated that in the year 2007, the Petitioner’s site office being at Kandlepada and in 2010, the registered office was shifted from Delhi to Kandlepada. He has submitted that the Petitioner is misguiding and misinterpreting the statement given to the EoW.

92. Mr. Savant has submitted that merely because the Plot was not specifically identified or demarcated does not affect the enforceability of the agreement. The Petitioner must perform its obligation and identify the Plot of the Respondents. He has placed reliance upon the case of Gaddipati Divija and Anr. Vs. Pathuri Samrajyam and Ors.31 where a similar situation arose namely the vendor was called upon to measure and demarcate the land of the vendee. The vendee was granted specific performance. He has placed reliance upon paragraphs 3, 21, 22, 26, 30, 35 and 36 of the said decision in this context.

93. Mr. Savant has submitted that in the case of Madhavrao Ramchandra More Vs. Griha Nirman Sanstha32 at paragraphs 7, 13, 32, 33, 33 to 49, this Court has considered the aspect of identification and / or demarcation of plots and rejected the contention of the vendor as regards the absence of prior permission of any authority and as regards the parties not being ad-idem on account of uncertainty or vagueness.

2019(1) Mh.L.J. He has submitted that the decisions in Nahar Singh V.s Harnak Singh33 and Mayawanti Vs. Kaushlya Devi34 (Supra) relied upon by the Petitioner have been distinguished. By an order dated 22nd October, 2018 passed by the Supreme Court, the Judgment in Madhavrao (Supra) has been stayed. However, the precedential value of the said judgment would continue. He has placed reliance on Shree Chamundi Mopeds Ltd. Church of South India Trust Association CSI CINOD Secretariat, Madras and Pramod K. Shah Vs. Commissioner of Customs and Anr., (Criminal Application No.4230 of 2006) in this context.

94. Mr. Savant has relied upon the decision of this Court in Rizvi Builders Vs. Arun Subrao Prabhu and Ors.35 at Paragraphs 2 to 5, 19 to 23, 32, 34, 44 to 52. This Court had granted specific performance in respect of flats in a building which was under construction. In this case the developer’s contention was that the flat purchasers had averred that their flats were located in the building in respect of which construction had not taken place, yet the Court considered the conduct of the developer and the stand taken at the interim stage where the developer had agreed not to create third party rights in respect of the certain flats. He has submitted that this case is similar to the facts of the present case where the Plots are under construction and the developer had made a statement before the Court on 1st January, 2016, not to create any third party interest in respect of the subject property. The subject property in the Section 9 Petition was village Dhondpada / Odhangi, Taluka Pen, District Raigad.

95. Mr. Savant has submitted that the Petitioners have argued lack of consensus ad-idem. Such a plea can only be countenanced if both parties proceed on an erroneous assumption of belief. In the present case, the parties are clear that the obligation to identify the Plot was on the Petitioner in terms of Clause 7 of the Agreement. He has placed reliance upon the decision of the Supreme Court in the case of ITC Ltd. Vs. George Joseph Fernandes and Anr.36

96. Mr. Savant has submitted that in the event there was a mistake as to any particular fact or if the parties are not ad-idem, the Petitioner ought to have brought the said fact to the notice of the Respondents at the earliest point of time and could not have taken advantage under the said Agreement. The Petitioner has received substantial sums under the said Agreement and cannot raise the said contention at a belated stage. He has placed reliance upon the judgment of the Supreme Court in of Oriental Insurance Co. Ltd. Vs. Mantora Oil Production Pvt. Ltd.37 and in particular paragraph 5 thereof in this context.

97. Mr. Savant has submitted that once the agreement itself provided a mechanism by which any aspect of the contract is to be completed then such a contract cannot be said to be vague or uncertain. Such mechanism may either be available to the Arbitrator, to the parties by agreement or by one of the parties. He has placed reliance upon the decision of this Court in Sachin C. Shah Vs. Hemant D. Shah and Ors.38 and in particular paragraphs 18 to 21 thereof.

98. Mr. Savant has submitted that the contentions raised by the Petitioner with respect to the interpretation of contract between parties inter alia with respect to identification of plots, absence of maps and payment of development charges are issues of fact and cannot be re- opened in the present Petition. The learned Arbitrator has rendered a finding of fact which is final in this regard, unless shown to be completely perverse. In any case, in the event of any ambiguity, such ambiguity ought to be resolved by an interpretation which is against that contended by the Petitioner. This is in terms of the rule of Contra Proforentum, which provides that any ambiguity in a contract ought to be resolved by interpreting the same against the maker. He has placed reliance upon the decision of the Supreme Court in the case of Bank of India and Anr. Vs. K. Mohandas and Ors.39. in this context.

99. Mr. Savant has submitted that the judgments cited by the Petitioner to contend that the agreement is void if the property is not identified is not applicable as in those cases there was a dispute between the parties in respect of the property that was agreed to be sold under the agreement. He has distinguished the judgments in Mayawanti (Supra), Nahar Singh (Supra) and Pawan Kumar Dutt (Supra).

100. He has submitted that in the case of Shanta Vs. Mahantesha, an order dated 14th June, 2016 passed by the Karnataka High Court, the agreement was for sale of plot which was to be formed in Revenue Survey No.490/B of Mahal Bagayat, Bijapur. The Plaintiff identified the plot. The plot layout had not been approved by the Statutory Authority. The land was to be measured by the Assistant Director of Land Records and the plan in respect of the proposed layout was to be approved by the Statutory Authority. The approvals were uncertain. The Court on this ground held that there was no enforceable agreement between the parties. He has submitted that this decision is distinguishable from the present case as in the present case it has been held that the Petitioner failed in obtaining approvals which otherwise would be granted and moreover the identification of the Plot was to be done by the Petitioner.

101. Mr. Savant has placed reliance on the case of Chandnee Widya Vati Madden Vs. C. L. Katial and Anr.40 which clearly holds that specific performance of such an agreement can be granted with a direction.

102. Mr. Savant has dealt with the contentions of the Petitioner with respect to readiness and willingness of the Respondents. He has submitted that the contentions of the Petitioner with respect to readiness AIR 1964 SC 978. and willingness of the Respondents were in common. The Petitioner did not seek to raise any contention of any individual Respondent being ready and / or willing as distinguished from other Respondents.

103. Mr. Savant has submitted that the Petitioner’s contention that by accepting refund of amounts the Respondents have treated contract at an end is frivolous and false. The Petitioner on 26th November, 2015 unilaterally deposited amounts in the Respondents’ bank accounts. He has submitted that upon becoming aware of the same, the Respondents immediately addressed a letter dated 5th December, 2015 pointing out that the monies were wrongly deposited in their accounts and returned a cheque of the said amount. He has submitted that in order to maintain its false case, the Petitioner sought to rely upon the letter dated 2nd December, 2015, which was received by the Respondents only on 14th December, 2015. The backdating of the said letter was a mischievous attempt on the part of the Petitioner so that it could be contended that the said letter was sent by the Petitioner prior to the Respondents sending letter dated 5th December, 2015 returning the amount. The falsity of the Petitioner’s case is apparent from the fact that the envelope containing the letter dated 2nd December, 2015 was dated 11th December, 2015. This ex-facie shows that the said letter was backdated.

104. Mr Savant has submitted that apart from the bald contention of the Petitioner as regards the acceptance of the understanding to refund or acceptance of the refund of amount by the Respondents, no evidence was produced to substantiate this case. Further, the case of refund of money by cash was also unbelievable. The Petitioner could not prove that monies were returned in cash and sought to contend that the original receipts would be furnished by the Respondents. The learned Arbitrator has held that the Petitioner had failed to prove the said case. This contention cannot be countenanced in a challenge under Section 34.

105. Mr. Savant has submitted that the Petitioner’s contention that the Respondents were not willing to perform the agreement as the Respondents were not agreeable to pay development charges, is false and misconceived. He has submitted that admittedly no demand was made by the Petitioner to the Respondents towards payment of development charges. The development charges contemplated under the agreement were towards external development charges and infrastructure development charges which were payable to the State Government or the statutory authorities dependent upon such a demand being made by such authorities. The development charges were to be paid at the time of possession. He has placed reliance upon Clause 2, 5, 10 and 12 of the said agreement in this context. Further, no pleadings was made by the Petitioner with respect to the development charges.

106. Mr. Savant has submitted that the Petitioner has mischievously and with ill motive and malafidely examined the Respondents on the word ‘development charges’. He has referred to the cross examination of the Respondents’ witness on the issue of development charges.

107. Mr. Savant has submitted that the Petitioner has sought to rely on a statement dated 3rd April, 2017 given by the Respondents to EoW. The said statement cannot be relied upon as in the event the Petitioner was desirous to rely upon portion of the said statement, the witness ought to have been confronted with the statement and the relevant portion thereof and given an opportunity to explain the statement. Without prejudice to the aforesaid and in any case the statement given to EoW ought to be read as whole. The Respondents never demanded any money from the Petitioner and the said statement is misinterpreted by the Petitioner.

108. Mr. Savant has submitted that by the letter dated 6th April, 2017, the Respondents / Claimants therein along with the other 9 claimants had not demanded the refund of amounts. The learned Arbitrator has interpreted the said letter and come to this conclusion. Additionally, the learned Arbitrator has recorded that during April, 2017 settlement talks were ongoing. However, there were no settlement talks in April, 2017. The Respondents had addressed an email seeking clarification under Section 33 of the Arbitration Act and thereafter filed an application before the Arbitrator. The Petitioner has objected to the said Application. The learned Arbitrator did not provide any further clarification. However, the same would not be relevant as the Arbitrator has clearly observed that no demand was made by the Respondents by way of the said letter.

109. Mr. Savant has submitted that the said letter was addressed by the Respondents to the Petitioner during the pendency of the anticipatory bail application of the Director of the Petitioner before this Court. The matter had been listed before this Court on 5th April, 2017 at which time, the Respondents appeared and raised their grievances before this Court. As this Court orally directed the Advocates for the Respondents to furnish a letter containing calculations, the same was done. Subsequently, on 13th April, 2017, the Court permitted the Respondents to file an intervention application in the anticipatory bail application.

110. Mr. Savant has submitted that in the subject letter dated 6th April, 2017, the Respondents recorded the fact that the said letter was being issued pursuant to the directions by this Court. The Petitioner responded to the said letter by its letter dated 11th April, 2017. However, this contention has not been refuted by the Petitioner whilst disputing the calculations on account of the interest.

111. Mr. Savant has submitted that the Petitioner seeks to contend that this Court by order dated 8th February, 2019 passed in Bail Application No.525 of 2018 made certain observations as regards the conduct of the investigating officer who issued letter dated 10th March, 2017. The Petitioner has stated that the Court directed the Petitioner to pay back investors’ money with 18% p.a. interest. Firstly, the said letter cannot be linked to the present Respondents as it is an admitted position that Plots have been sold to several purchasers in a similar manner and that such purchasers have filed criminal complaints against the Petitioner. Secondly, the letter dated 6th April, 2017 addressed by the Respondents was duly responded to by the Petitioner by the letter dated 11th April, 2017, which was after the letter dated 10th March, 2017 addressed by the Investigating Officer to the Petitioner. In fact, the Respondents were not even aware that such a letter was addressed to the Petitioner at the relevant time. No evidence has been produced by the Petitioner in this regard.

112. Mr. Savant has submitted that readiness and willingness of the party has to be judged from the entirety of the facts and circumstances of the case. It would not be sound rule of appreciation of evidence to pick an answer from cross-examination and draw an inference in isolation. The entirety of the evidence is required to be considered. He has placed reliance upon the decision in the case of Boramma Vs. Krishna Gowda and Ors.41 at paragraphs 8 to 10 in this context.

113. Mr. Savant has submitted that whilst readiness and willingness of the Plaintiff has to be considered, this would depend also upon the question as to whether the Defendant did everything that he was required to do under the Agreement. He has placed reliance upon the decision of the Supreme Court in P. D’Souza Vs. Shondrilo Naidu42.

114. Mr. Savant has submitted that it was sought to be contented by the Petitioner that under the Agreement, the possession of the fully developed bungalow plot was to be provided within a period of 24 months with grace period of 6 months aggregating to 30 months. This time period came to an end in November, 2011. He has submitted that the Petitioner at no point of time denied the performance of the Agreement to the Respondents. The Petitioner at all times continued to assure and represent to the Respondents that the Petitioner would perform the said Agreement. Further, the Petitioner by letter dated 29th January, 2014 categorically acknowledges its liability to perform the Agreement and without prejudice to the other contentions of the Respondents, the period of limitation stood extended. (2004) 6 Supreme Court Cases 649.

115. Mr. Savant has submitted that the letter dated 29th January, 2014 clearly admitted a jural relationship between the parties and extended limitation. The Petitioner has not disputed this position either in the pleadings or its evidence. Further, on 18th November, 2015 the Respondents addressed a letter to the Petitioner seeking specific performance of the contract and the same was acknowledged by the Petitioner. However, upon receipt of the said notice, the Petitioner had on 26th November, 2015 unilaterally deposited the refund in the bank account of the Respondent. He has submitted that deposit of the amount unilaterally in the bank account of the Respondents constitute the cause of action for filing the proceedings and in any case extended limitation as an acknowledgment of debt.

116. Mr. Savant has referred to paragraph 30 of the statement of Claim filed by the Respondents and paragraph 7 of the Affidavit in Rejoinder filed by the Respondents wherein it is mentioned that cause of action arose on 26th November, 2015 when the Petitioner unilaterally deposited the amount in the bank account of the Respondents. The action of depositing the amount by Petitioner in the Respondent’s bank represents that the Petitioner acknowledged the debt of the Respondent on 26th November, 2015 and thereafter disputes arose between the parties.

117. Mr. Savant has submitted that on 17th January, 2014, the Petitioner had sent the email to the Respondents thereby offering proposals to enter into the Joint Development Agreement against the specific performance of the said Agreement. This also constituted an acknowledgment of liabilities. The notice invoking arbitration was on 5th December, 2015 and thus the claim of the Respondents is clearly within limitation.

118. Mr. Savant has further relied upon Section 63 of the Indian Contract Act which reads, “Every promiser may dispense with or remit, wholly or in part, the performance of the promise made to him or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit.” He has submitted that date of performance can be extended even by implied agreement which can be evidenced by conduct including forbearance on the part of the other party. There need not be a formal acceptance or an agreement to extend time. The Petitioner is bound by its stand in its letter dated 29th January,

2014. The conduct of the parties is extremely relevant in this regard and the Petitioner at no stage disputed its liability to specifically perform the Agreement. He has placed reliance upon the decision in the case of S. Brahmanand & Ors. Vs. K.R. Muthugopal (Dead) and Ors.43 in this context.

119. Mr. Savant has further submitted that the case of Keshavlal Lallubhai Patel and Ors. Vs. Lalbhai Trikumlal Mills Ltd.44 at paragraphs 6 to 8 clearly support the case of the Plaintiff. It was held that there was extension of time on account of the forbearance of parties. It has been held that the contract to extend time need not be reduced to writing and it may be proved by oral evidence and by conduct. Forbearance to make a demand on the due date may also be sufficient to come to this conclusion.

120. Mr. Savant has distinguished the decisions relied upon by the Petitioner on readiness and willingness as being inapplicable as the Claimants in the present case have always been ready and willing and the parties are ad-idem. (2005) 12 Supreme Court Cases 764. AIR 1958 SC 512.

121. Mr. Savant has submitted that the contention of the Petitioner that the delay was beyond the control of the Petitioner would not in any manner absolve the Petitioner of its obligations and liabilities under the said agreement. This contention of the Petitioner would at the highest be a factor to be weighed whilst awarding damages to the Respondents.

122. Mr. Savant has submitted that on the facts and material on record it was abundantly clear that the said contention of the Petitioner was completely false and malafide. He has placed reliance upon the finding of the learned Arbitrator in paragraph 86 to 91 of the Award, wherein it is found that the Petitioner was not proactive in the discharge of its obligation under the said Agreement after entering into the same and receiving monies from the claimants.

123. Mr. Savant has submitted that between the years 2013 and 2016, there was no draft development plan for ‘Naina’. Even during this time, CIDCO was granting permission to carry out projects including Special Township Projects. He has placed reliance on letter dated 25th April, 2016 of CIDCO which records that permission could not be granted only because the Petitioner had not submitted all the requisite documents. He has submitted that in any case a draft development plan of the year 2016 and modified draft development plan of the 2017 clearly permitted the development of Special Township Project, later known as Integrated Township Project in limited development zone. This fact has been admitted by the officer of the CIDCO in his cross examination. This provision is also contained in the final development plan approved by notification dated 18th September, 2019.

124. Mr. Savant has submitted that the Petitioner had given assurance on 29th January, 2014 that once CIDCO Master Plans of ‘Naina’ is approved, the Petitioner will take necessary permission and will hand over the possession of Respondents plots, therefore Petitioner were liable to hand over the possession of plots to these Respondents.

125. Mr. Savant has submitted that the Petitioner’s case that the said Project could not be developed as a portion of the subject Project fell within G[2] zone is completely false. There is no pleading as such made in the arbitration proceedings. He has submitted that even if the lands fell under the G[2] Zone, they were under the Limited Development Zone (LDZ) area and STP project was permissible in the LDZ Zone. Thus, merely because the land fell under G[2] zone would not prohibit the Petitioner from completing the said Project which was STP Project. The Petitioner in the Affidavit of Evidence at page 19 has admitted that the ‘the land falling in these villages fall within the Limited Development Zone (LDZ) under the draft development plan issued by CIDCO in November, 2016’.

126. Mr. Savant has thereafter addressed the contention of the Petitioner that the valuation was arrived at by the valuer on the basis of the consideration payable under Joint Development Agreement and not on the basis of the lands. He has submitted that the Joint Development Agreements are of the year 2014. The Petitioner had sold the development rights on the said project lands in form of FSI sharing basis. However, as per Clause No.8(i) of the said Joint Development Agreements even assuming the maximum FSI available is 2.50, the cost of purchaser’s developments rights in the year 2014 on the said project land would be around Rs.9,500/- per sq.mtrs. This value would be much higher in the year 2017 in terms of which the Award was passed.

127. Mr. Savant has submitted that the learned Arbitrator has correctly considered the case of the Respondents that there has been huge, if not exponential rise in the value of properties located in the Pen region and also gone through the evidence led by the Respondents in support thereof. He has referred to the evidence which were the Petitioner’s advertisement in Hindustan Times dated 9th March, 2013, Brochure which was uploaded by the Petitioner on their website and News Letter dated 16th May, 2016 issued by the Petitioner. There is also a finding of Mr. H. Gangwar, Government Valuer to this effect.

128. Mr. Savant has submitted that the Valuer has considered a 10% increase in rates to arrive at the value of the plot in the year 2017. The valuer has taken into consideration comparable instances and arrived at an average rate of Rs.10,807/- per square metre, equivalent to Rs.9040/- per square yard. Since the area of the project land was large, the valuer has taken the minimum rate of a non-agricultural land in the entire project, which is apparent from Q/A 41.

129. Mr. Savant has submitted that the Petitioner has raised baseless contentions as regards the valuation considered by the learned Arbitrator when the Petitioner himself has not produced any evidence to substantiate that the rate of land would be lesser than that awarded to the Respondents and adverse inference ought to be drawn against the Petitioner.

130. Mr. Savant has submitted that Section 14 of the Specific Relief Act was relied upon by the Petitioner to contend that there was a bar, since the Specific Amendment Act of 2018 had taken away the discretionary power not to grant specific performance, in view of the bar specific performance could not have been granted by the learned Arbitrator. He has submitted that the Amendment Act cannot be applied to the pending proceedings as held by the Supreme Court in Smt Katta Sujatha Reddy and Arn. Vs. Siddamsettyy Infra Projects Pvt. Ltd. & Ors.45. He has submitted that in any event, the contentions of the Petitioner are contrary to the Specific Relief Act, un-amended as well as amended by the 2018 amendment. Mr. Rohan Savant has submitted that the contention of the Petitioner that agreement is void and / or unenforceable is ex-facie contrary to law. He has submitted that without admitting that the Civil Appeal No.5822 of 2022. agreement is void and / or unenforceable, the same does not affect the jurisdiction of the Arbitrator to adjudicate the disputes.

131. Mr. Savant has accordingly submitted that the present Arbitration Petition deserves to be dismissed with exemplary costs upon the Petitioner.

132. Having considered rival submissions, in my view, it would be necessary to first address the issue as to whether the learned Arbitrator could have applied the Award rendered in Reference / Claim No.5 impugned in Arbitration Petition (L) No.28284 of 2022 to the other 9 references wherein separate Statements of Claim, separate Statements of Defense, separate Affidavits in lieu of examination in chief have been filed. Further, the Claimants and / or their witnesses in the references have been separately cross examined and final arguments addressed in all the 10 references. Considering all these factors, it would have been prudent for the learned Arbitrator to render 10 separate Awards with reasons and findings on the pleadings and evidence led in each of the references. This given the varying nature of evidence of the claimants’ witnesses in the 10 references.

133. The learned Arbitrator in considering Claim No.5, subject matter of Arbitration Petition (L) No.28284 of 2022 (“the lead Arbitration Petition”) and holding that the reasons and findings therein will apply to the 9 other references / claims, has rendered unreasoned Awards in the other 9 references. These Awards are impugned in the 9 Arbitration Petitions before this Court for consideration. I do not find from the record that there was any understanding between the parties for the learned Arbitrator to hold that “the reasoning in this Award, would form the basis for the Awards in the other 9 references as well”. Further, I do not find from the minutes of the meetings of the learned Arbitrator, that it was agreed that the pleadings, correspondence, facts and evidence in all 10 references would be treated as common.

134. I find there to be much merit in the submission on behalf of the Petitioner that the Arbitration clause contained in the respective Agreements which were invoked by the claimants did not provide that the Award may be rendered without reasons.

135. The contention of the Respondents that the evidence filed by the Petitioner as well as Respondents were identical in 10 references but for minor changes in the nature of dates of agreement, allotment letters, plot details and amounts paid is entirely misconceived. The letter dated 29th January, 2014 addressed by the Petitioner to the Respondents have neither been produced nor referred to in pleadings in two of the references i.e. reference Nos.[4] and 6. This is a material factor since the learned Arbitrator has held that by the Petitioner writing the said letter dated 29th January, 2014, the Petitioner had unilaterally extended the time for performance and therefore the claim for specific performance was within limitation. Thus, this omission was a material factor to be considered by the learned Arbitrator for adjudicating upon these references.

136. Further, in the evidence there have been varying statements of the Claimants with regard of the money refunded by the Petitioner to the Claimants in November – December, 2015 as well as the issue with regard to payment of development charges. Further, there are varying evidence given in the references with regard to the letter dated 6th April, 2017 addressed by the Petitioner to the Respondents and the circumstances in which the letter had been addressed, particularly with reference to the purported directions issued by this Court in the Anticipatory Bail Application which finds no place in the said Order dated 5th April, 2017. Another material factor is that varying evidence has been given in the references with regard to the location of the Plots in the said Project. This particularly is relevant since the Agreements for which specific performance has been granted by the learned Arbitrator is silent on the location of the plots claimed by the respective Claimants.

137. Given that the learned Arbitrator has passed unreasoned Awards in 9 out of 10 references, which are the subject matter of the 9 Arbitration Petitions other than the lead Petition being Arbitration Petition (L) No.28284 of 2022, the Awards passed in these Arbitration Petitions are set aside on this ground alone.

138. I shall now consider the findings of the learned Arbitrator on the issues raised which form the subject matter of challenge in the Arbitration Petition (L) No.28284 of 2022 (the lead Arbitration Petition).

139. The first of these issue is whether a valid and enforceable contract came into existence on the date of agreement. I find much merit in the submission of Mr. Jaisinghani on behalf of the Petitioner that in order to have a complete contract for specific performance, there must be four certainties, namely, certainty as to price, certainty as to parties, certainty as to property and certainty as to other terms.

140. I find from the clauses in the Agreement that there is no certainty as to the location of Plot which was to be allotted to the Claimants / Respondents herein and this is an admitted position. In the Statement of Claim, the Claimants have stated that the Petitioner / Respondent therein had not attached and / or provided the land details, survey numbers, property card, approved plan or any other document that shows where the Plot is situated. Further, the clauses in the Agreement do not contain any description of the property, even the physical area was described as ‘tentative’. The Claimants have sought relief in respect of unidentified lands in a village called Dhondpada in the Section 9 Application. Further, in the Statement of Claim, the relief has been sought in respect of unidentified lands in villages Dhondpada/Odhangi. Thus, it is clearly apparent that the Claimants are uncertain as to where the unidentified lands are situated. There is no clarity in the agreement as neither the Plot has been identified nor has it been provided that the Plot is in a particular village. The Claimants cannot pick and choose, where their Plot is situated. Further, the finding of the learned Arbitrator whilst granting damages in lieu of specific performance is that nothing is known of the description or location of the Plot other than that the Plot is situated in Pen Taluka. This finding runs contrary to the relief sought for in the Statement of Claim, where the Claimants have sought relief in respect of unidentified lands in village Dhondpada / Odhangi. I am given to understand that Taluka Pen in District Raigad is spread over more than 1500 Sq.kms. and thus the finding of the learned Arbitrator apart from running contrary to relief sought for in the Statement of Claim is a finding which is perverse.

141. The learned Arbitrator has also overlooked the cross examination of the Claimants where the Claimants have admitted that the agreement made no mention where the plot was situated. Thus the Claimants consistent stand was that the Plot which formed the subject matter of Agreement was never identified. However, the learned Arbitrator has held that the Petitioner herein had not pleaded that by virtue of the Agreement not containing any description of the Plot, the Agreement was not capable of being specifically performed. On this basis the learned Arbitrator has arrived at a finding that the Agreement is capable of specific performance as the land is situated in Taluka Pen in District Raigad. This finding overlooks the pleading of the Claimants in the Statement of Claim that the Agreement did not contain any description of the Plot and that they did not know where the Plot was located. Further, I find that in Paragraph 8 of the Statement of Defence, it was clearly stated that a valid and enforceable contract had not come into existence and this was evident from the statements and averments contained in the Statement of Claim. Thus, this finding of the learned Arbitrator is in my view perverse and a patent error on the face of the Award.

142. The learned Arbitrator has further overlooked Clause 7 of the Agreement, wherein the Plot has been described as “tentative” and subject to change as per the directions of the local authorities or architect or engineers of the Company which may result in decrease / increase in the area (upto 10% of the Plot size allotted). In my view the contents of the Clause 7 would militate against the Claimants’ claim of specific performance as not only is the location of the Plot not mentioned but even the physical area of the Plot is described as tentative. Thus, the Plot forming the subject matter of the agreement has not been described for enabling its identity with certainty.

143. It has been a well settled position of law as laid down by the Supreme Court that if immovable property forming the subject matter of the Agreement is not described to enable its identity with certainty, the Agreement is not capable of specific performance and is therefore void. This has been held in the decisions relied upon on behalf of the Petitioner viz. Mayawanti (Supra), Nahar Singh(Supra), Pawan Kumar Dutt(Supra), and Vimlesh Kumari (Supra). This has also been held by various High Courts in Nina Garments (Supra), Ramcharitra Singh (Supra), Shanta (Supra), Sova Ghosh (Supra) and John Sylem (Supra).

144. The Supreme Court in Mayawanti (Supra) in paragraph 18 held as under:-

145. Thus, the Award by holding that specific performance of the Agreement can be granted where nothing is known about the location of the Plot except that it is in Taluka Pen, suffers from a patent illegality on the face of the Award.

146. I do not find any merit in the submissions of the Respondents that the parties to the Agreement were ad-idem. The decisions relied upon by the Respondents are where the terms of the Agreement is clear and unambiguous and in such circumstances, if the terms are applied by one party the interpretation against that party is preferred. The principle of Contra Proforentum has been propounded in the decision of the Supreme Court in Bank of India and Anr. Vs. K. Mohandas and Ors.46 relied upon by the Respondents. In the present case, the learned Arbitrator failed in his duty to interpret / construe any of the terms of the Agreement, although he was enjoined to do so. It has been held by the Supreme Court in the decision relied upon by the Petitioner, namely Rashtriya Ispat Nigam Vs. Dewan Chand Ram Saran47, that the principle of Contra Proforentum has no application to a bilateral agreement mutually agreed upon like the Agreement in the present case. Further, in the decision relied upon by the Petitioner namely Mayawanti (Supra), the Supreme Court has held that the burden of showing the stipulations and terms of the contract and that the minds were ad-idem is, ofcourse, on the Plaintiff. Thus, I do not find any merit in the submission of the Respondents that the parties were at all time ad-idem and / or that it was the obligation of the Petitioner to provide the final area size, location, number and boundaries of the said Plot.

147. I do not find merit in the Respondents’ contention that the Plot which was to come to them had been sufficiently identified either in the allotment letter or agreement for sale. The reliance placed by the Respondents upon the order passed by this Court in the Petition under Section 9 and the statement made by the Petitioner that it would not create any third party rights and / or part with possession of the subject property is misconceived as without there being an identification of the said Plot, the statement cannot imply that the parties were id-idem as to where the said Plot was situated.

148. I further find no merit in the contention of the Respondents that the village Odhangi / Dhondpada had been identified by the Petitioner as to where the plots were to be situated and the same is evident from the email dated 7th April, 2016 sent by the Petitioner to the Respondents providing a map of Beta Sector Block-6 which reflected that the Plot of the Respondents would be at the villages at Odhangi / Dhondpada. This email had been sent during settlement talks as it has been admitted by the parties that the settlement talks were ongoing during that period. Further, this runs contrary to the statement made by the Respondents to the EoW in the year 2007, that village Khandlepada is where the Plot coming to the Respondents is situated.

149. Further, I find no merit in the contention of the Respondents that merely because the contract could not be specifically performed is not a ground to deny the claim for damages in lieu thereof. This is not a case where the contract is capable of specific performance and / or that the contract has become incapable of specific performance. Thus, in my view the learned Arbitrator has in the said Award committed a patent illegality in granting compensation in lieu of specific performance.

150. I shall now deal with the decisions relied upon on behalf of the Respondents on Specific Performance to be granted. The decision relied upon by the Respondents namely Gaddipati Divija (Supra) is distinguishable on facts. The Supreme Court in that case upheld the judgment of the Court which had decreed the Suit for specific performance on the finding that the purchasers were always ready and willing to perform their obligations under the Agreement. I do not find that any contention was raised in that case that since the property was not identified there was no valid or enforceable contract and therefore, specific performance could not be granted. Thus, in my view, the decision is not an authority for the proposition that specific performance can be granted even where the property was not identified.

151. Further, the decision relied upon on behalf of the Respondents namely Rizvi Builders (Supra) for the proposition that the specific performance could be granted even though the property was not identified is inapplicable in the present case as in that case the property was a flat in the building to be constructed which was clearly identified. There is a finding in that decision that “As far as the contention of the Appellant therein that there is consensus ad-idem on the description of the property and therefore, no scope for specific performance is concerned, the premises which forms the very subject matter of the agreement to sell, has been precisely defined and identified in the agreement at Exhibit P2”.

152. Further, the reliance upon the decision of the Supreme Court in Chandnee Widya Vati Madden Vs. Dr. C.L. Katial and Anr48 by the Respondents in support of their contention proposition that the Petitioner could be ordered and directed to identify the property in the final Award for decree for specific performance is misconceived. In that case the essential terms have been agreed upon and a complete contract had come into existence. The only requirement of the vendor was to apply to the Chief Commissioner for permission to sell the property. It is on these facts the Supreme Court upheld the decree for specific performance granted by the High Court which had directed the vendor AIR 1964 SC 978 to make the application for permission to Chief Commissioner for sale of the property. In the present case, as held above a complete contract has not come into existence as the identity of the property was never agreed upon between the parties. A query had fallen from this Court as to whether the Claimants are willing to accept any Plot which may have been identified by the Petitioner in the event specific performance was awarded to which the Counsel for the Respondents submitted that it was upto the Respondents to accept or not to accept a plot of land identified by the Petitioner after specific performance was awarded. This would only go to show that a valid and enforceable contract had not come into existence inter alia due to the fact that the parties had not agreed upon the identity of the property.

153. The decision of this Court in Sachin Shah(Supra) relied upon on behalf of the Respondents in support of their contention that specific performance could be granted even if the property was identified in the agreement, is distinguishable on facts. In that case the Award had been passed in respect of a Family Arrangement whereunder certain properties of joint family were to be divided amongst the disputing groups of the joint family. Although, one of the annexures to the Family Arrangement was left blank, the Arbitral Tribunal held that the properties to be divided were to be included in the list which had in face been prepared by the parties and that the Annexure therefore which was left blank could be filled in on that basis as this was contemplated by the parties in the Family Arrangement.

154. Further, the decision of this Court in Madhavrao Ramchandra More (Supra) which has been cited by the Respondents in support of their contention that specific performance could be granted even though the property was not identified is distinguishable on facts as in that case the property had been identified and both the parties viz. Vendor and Purchasers were aware of the identity of the property which formed the subject matter of the Agreement.

155. The decision in Gian Chand (Supra) relied upon by the Respondents in support of their contention that there was no specific denial in the Statement of Defence that the Plot of land was situated in Dhondpada / Odhangi is misconceived as in the present case the Claimants have in the statement of claim contended that at the time of execution of the Agreement, the parties had not agreed upon the identity of the property including the village in which it was to be located. This has also been borne out from the evidence. Thus the Agreement in the present case is void for uncertainty as it suffers from patent ambiguity. Thus, this decision is also inapplicable.

156. In so far as the issue of limitation is concerned, in my view the learned Arbitrator has not considered the pleadings as it stands and has gone beyond the pleadings in holding that by letter dated 29th January, 2014, the Petitioner unilaterally extended the time for performance. This in my view is a patent error apparent from the face of the record.

157. The learned Arbitrator ought to have applied Article 54 of the Schedule of the Limitation Act which is applicable to a Suit for specific performance. This is particularly since the time for performance had been fixed viz. November, 2011, and thus the first part of the Article 54 applied and the stipulated period of three years commenced running from the date fixed for performance. Admittedly, the arbitration clause was invoked for the first time in December, 2015.

158. The pleadings of the Respondent was that the said letter dated 29th January, 2014 was an acknowledgment of liability and therefore, the period of limitation was extended. This pleading has not even been considered by the Arbitral Tribunal and the Arbirtral Tribunal as aforementioned has arrived at a new case for the Claimants.

159. I find much merit in the submission of Mr. Jaisinghani on behalf of the Petitioner that time for performance of a contract can only be extended by agreement between the parties as stipulated in Section 63 of the Indian Contract Act. Such an agreement is required to be pleaded and proved just like in other agreement. This has been held by the Supreme Court in Keshavlal Lallubhai Patel (Supra) as well as by this Court in Anandram Mangturam (Supra) and the Karnataka High Court in Venkateshwara Minerals (Supra) which have been relied upon by the Petitioner.

160. The decision relied upon by the Respondents viz. S. Brahmanand & Ors (Supra) in support of the proposition that the agreement between the parties to extend time of performance as envisaged in under Section 63 of the Contract Act need not necessarily be in writing and can be inferred inter alia from the conduct of the parties is inapplicable in the present case. The learned Arbitrator has not arrived at any finding that there was an agreement between the parties to extend time for performance. On the contrary the finding is that the Petitioner herein unilaterally extended the time for performance. Further, this Court in Board of Control for Cricket in India (Supra) in a Section 34 Petition held that it is not permissible to add anything to the Award and / or supply reasons.

161. Further, the decision of Supreme Court in Panchanan Dhara and Ors. Vs. Monmatha Nath Maity49 relied upon by the Respondents which is line with the decision of the Supreme Court in S. Brahmanand & Ors. (Supra) is also inapplicable on the same point as aforementioned. It is an admitted position that in the present case no such agreement to extend time for performance was either pleaded or established.

162. Further, the decision relied upon by the Respondents in Madhavrao Ramchandra More (Supra) on the point of limitation (2006) 5 Supreme Court Case 340. contending that the claim for specific performance was not barred by limitation as the time was not essence of the contract and that cause of action for seeking specific performance does not arise till the permission is obtained from the authorities concerned for sale of the property is misconceived. The time not being essence of the contract is nothing to do with the point of limitation and in the present case Article 54 of the Limitation Act applies namely that the period of limitation commences running from the date fixed for performance in the contract. Further, it is not the Respondents contention at any point of time before the Arbitral Tribunal that any permission was required from any authority to complete the sale.

163. The above reasoning would also apply to the decision in Arosan Enterprises Vs. Union of India & Ors.50 relied upon by the Respondents.

164. With regard to the issue of readiness and willingness, it was for the Claimants to prove that they were at all times ready and willing to perform the Agreement. However, the Arbitral Tribunal has held that it was for the Petitioner / Original Respondent to establish that the Claimants were ready and willing to perform their obligations under the Agreement. This in my view is a perverse finding which cannot be sustained. The learned Arbitrator has overlooked the evidence of the Respondents witnesses as well as the pleadings and material on record which would go to show that the Claimants have not been able to establish their readiness and willingness to perform their obligations under the agreement, according to the tenor of that agreement. The Claimants have in the pleadings failed to specify their obligations that they were willing to perform as well as not specifying the balance amount which according to them was payable under the Agreement. This particularly considering that the Petitioner had refunded the entire amount to the Claimants in November – December, 2015. The only dispute raised by the Claimants is that the Claimants had not demanded the refund and it is the Petitioner / original Respondent who had directly deposited this amount in the bank account of the Claimants.

165. The learned Arbitrator ought to have considered that the Claimants were not willing to pay what according to them was entire consideration payable under the agreement. The Claimants had thus not displayed their readiness and willingness to perform their obligations under the contract. The decisions relied upon on behalf of the Petitioner that the repudiation by one party to the contract does not absolve the other party from showing its readiness and willingness to perform his / her obligations under the contract are apposite. This has been held by the Supreme Court in Jawaharlal Wadwa (Supra) and Vidya vati Vs. Devi Das 51 as well as by the Priviy Council in Florrie Edridge Vs. Rustomji52 which has been relied upon by the Petitioner.

166. The learned Arbitrator has overlooked Section 16(c) of the Specific Relief Act which provides that the Claimants / Plaintiffs in seeking specific performance must aver and prove readiness and willingness.

167. The learned Arbitrator has failed to consider whether there was an obligation on the part of the Respondents to pay development charges and whether that was provided in the agreement. Although this issue was raised, the learned Arbitrator has failed to consider the AIR 1977 SC 397 AIR 1933 PC 233. Clauses in the agreement and render a finding on this point which in my view is fatal to the award. The learned Arbitrator has only arrived at a finding that the Petitioner / Original Respondent has not established that the Claimants were not ready and willing to perform their obligations under the agreement. This again puts the burden of proof on the Petitioner / original Respondent which is contrary to settled law.

168. The decision relied upon by the Respondents in P.D.’Souza Vs. on the proposition that readiness and willingness on the part of the party seeking specific performance also depends on the Defendants’ conduct is misconceived. I am of the view that the evidence on record demonstrates that the Claimants were not ready and willing to perform their obligations under the Agreement and hence this decision is inapplicable in the present case.

169. Now coming to the common letter dated 6th April, 2017 addressed by Respondents to the Petitioner, wherein the Respondent had demanded refund of balance monies with 18% interest. The learned Arbitrator has placed reliance on purported oral directions given by this

Court in Anticipatory Bail Application on 5th April, 2017 to the Claimants' Advocates despite the fact that the Claimants were not parties to the said proceedings before this Court is in my view not only a perverse finding but contrary to the evidence on record. The learned Arbitrator ought to have considered events prior to the passing of the order dated 5th April, 2017 by this Court in the Bail Application. The Petitioner’s witness had deposed that the investigating officer had threatened the Petitioner of serious adverse consequences if the Petitioner did not refund the entire monies to the Claimants together with the interest @ 18% p.a. This event had taken place in the presence of Jitendra Chande, father of Claimant No.1 in the lead Petition in the corridors of this Court. The order of this Court passed in the Bail Application had recorded that the investigating officer was acting as a Recovery Agent and had sent letters to some other persons falsely representing that this Court had directed the Petitioner / Original Respondent to refund of monies with 18% p.a. interest. One of these letters had been written by the investigating officer S.I. Swami which was brought on record in the Arbitration Proceedings and marked in evidence at Exhibit R-6A. This evidence has been overlooked by the learned Arbitrator in construing the order as having issued “oral directions” to the Claimant’s Advocate allegedly seeking details as to the monies payable by the Petitioner / Original Respondent to the Claimants. Further, the learned Arbitrator has by finding that the said letter dated 6th April, 2017 was issued by the Claimants during settlement talks, overlooked the admitted fact that the settlement talks were not ongoing when said letter dated 6th April, 2017 had been issued by the Claimants. The ongoing settlement talks were admittedly in the previous year i.e. 2016.

170. I do not accept the submission on behalf of the Respondent that the said letter dated 6th April, 2017 does not make any demand for refund of amounts and / or that this is from a reading of common letter dated 6th April, 2017.

171. Having perused the said letter dated 6th April, 2017, the words used namely “Due”, “Due Thereon”, “Outstanding” in the said letter would in my view be nothing but a demand for refund of monies. The definition of the word “Due” in Black Law Dictionary – sixth edition relied upon on behalf of the Petitioner is apposite. It means a debt which is enforceable. Further, the word “outstanding” means ‘remaining undischarged’ ‘unpaid’, ‘uncollected’ as an outstanding debt. This is also been defined in Blacks Law Dictionary – sixth edition.

172. The decisions relied upon on behalf of the Petitioner that once the purchaser under the agreement demands return of monies paid, he elects to treat the contract at an end and is not therefore entitled to specific performance is apposite.

173. The decision relied upon by the Respondents in Boramma (Supra) on the proposition that it is not a sound to pick an answer and draw any inference in isolation is misconceived as it is the Petitioner’s contention that the learned Arbitrator had not considered any material on record.

174. With regard to the issue of compensation granted in lieu of specific performance, in my view having arrived at a finding that the Agreement in the present case is incapable of being specifically performed in that one of the essential ingredients in the Agreement viz. identification of property is absent, compensation could not have been awarded by the learned Arbitrator. Further, the exercise of valuation which has been carried out by Mr. Gangwar could not have been carried out given the fact that the said Plot was not identified.

175. Further, in the event one was to consider the valuation report, the method of valuation is flawed as it relies on two Joint Development Agreements whereas the Agreement in question is an Agreement for Sale. Having arrived at a finding that compensation could not have granted in lieu of specific performance, the arguments on the rates arrived at by the valuer is not required to be gone into. Suffice it to say that the valuer has failed to consider the government ready reckoner rate which is approximately Rs.2500/- sq. yard for the average value of the land. Further, the valuer has not accounted for the amounts which have been returned by the Petitioner / original Respondent which was required to be deducted from the compensation granted. In any event, the learned Arbitrator has committed patent illegality in granting compensation in lieu of specific performance, when specific performance was not capable of being granted.

176. With regard to issue of delay, the learned Arbitrator has failed to consider the aspect of delay in light of the evidence on record and particularly the evidence of Mitilesh Patil, the Director of CIDCO who had been examined as witness by the Claimants. The learned Arbitrator ought to have construed his evidence as a whole rather than selective reading. Mithilesh Patil in his evidence has admitted that only if the State Government issued a notification which was published in the Gazette granting location clearance and which notification contained certain directions, that CIDCO would be in a position to grant permission to develop a STP on G[2] Zone lands. It is an admitted fact that no location clearance was granted or notified by the State Government. Thus, the learned Arbitrator by ignoring this evidence has committed a patent illegality.

177. The learned Arbitrator ought to have considered that it was common ground that till the year 2019, the Respondent could not have developed the STP project on LDZ lands as the modified development plan for NAINA was finalized only in 2018. Further, by Notification dated 18th September, 2019, the State Government approved “As it is” i.e. without any changes, as proposed in the said Modified Draft Development Plan of NAINA. The Claimants have invoked the Arbitration Clause in December, 2015 and thus delay as contended by the Claimants could not have been on account of the Petitioner / Original Respondent, when the Claimants themselves have placed reliance on the Notification dated 18th September, 2019 approving the Modified Development Plan which has also been referred to in paragraph 57 of the impugned Award.

178. Thus, in my view the delay in execution of the Agreement could only be as as result of force Majeure reason. The learned Arbitrator ought to have construed this evidence as well as Clause 21 (g) of the Agreement which provided that in such an event, the Claimants would not be entitled for compensation but only refund of money with interest at the rate of 8% p.a.

179. The Petitioner having refunded the entire monies in November – December, 2015, no relief had been sought by the Claimants for refund of monies.

180. In view of the above findings, I find that the impugned Award dated 22nd April, 2022 is patently illegal and perverse on the face of it by not applying settled law, going beyond the terms of the Agreement and overlooking the evidence on record. In that view of the matter, the impugned award dated 22nd April, 2022 passed in lead Petition, being Arbitration Petition (L) No.28284 of 2022, is set aside.

181. I have already held that the impugned Award dated 23rd April, 2022 passed in the other 9 Arbitration Petitions are set aside.

182. The Respondent shall pay costs to the Petitioner in the sum of Rs.[3] lakh within a period of four weeks from the uploading of this Order.

183. The above Arbitration Petitions are accordingly disposed of. The Interim Applications filed therein do not survive and are disposed of. [ R.I. CHAGLA, J. ]