Jayanta Kumar Ghosh Outdoor Catering Pvt Ltd v. The State of Maharashtra

13. It is also stated that Jayanta Kumar Ghosh was the proprietor of the firm Jayanta Kumar Ghosh and the appellant company, Jayanta Kumar Ghosh Outdoor Catering Pvt. Ltd. was incorporated only in 19th November 2014. The company took over the assets and liabilities of the proprietorship firm vide Agreement dated 20th April 2017. Jayanta Kumar Ghosh is not a shareholder in the appellant company and had no say in the affairs of the company. He was a director in the company but resigned on 22nd September 2022. Reliance has been placed upon the judgment of New Horizons Ltd. & Anr. Vs. Union of India (1995) 1 SCC 478.

14. It is submitted that M/s Cuisine Caterers was an H[2] Bidder that failed to procure the Contract which was awarded to the appellant herein by the respondent. Thereafter, it approached the Courts assailing the Contract awarded to the appellant, however, failed to get any relief before this Court as well as the Hon’ble Supreme Court on the ground that M/s Cuisine Caterers has no locus standi to challenge the same. After failing to get any relief from the two rounds of litigation, M/s Cuisine Caterers made several representations to the respondent on 9th January 2021, 26th March 2021, 15th July 2021, 4th August 2021, 14th August 2021 and 26th November 2021 against the appellant making certain allegations. The said allegations had no truth in them yet the respondent entertained the representations/complaints made by M/s Cuisine Caterers and terminated the Contract awarded to the appellant.

15. It is submitted that even the Termination Order dated 4th October 2022 is per se illegal, arbitrary, unjust and is issued against the principles of natural justice and without any hearing and the same is violative of Articles 14, 19 and 21 of the Constitution of India. It is submitted that Clause 9 of Tender Documents provided for the terms and conditions for termination of the Contract, however, none of the conditions were fulfilled by the respondent at the time of issuance of the Termination Notice/Order dated 4th

16. It is submitted that the respondents issued the Termination Notice without affording a hearing opportunity to the appellant and hence, the same is in complete violation of the principles of natural justice. Reliance has been placed upon the judgments passed in Gorkha Security Services vs. Govt. of NCT of Delhi & Ors. (2014) 9 SCC 105, UMC Technologies Pvt. Ltd. vs. FCI & Anr. (2021) 2 SCC 551, Hindustan Petroleum Corporation Ltd. & Ors vs. Super Highway Services & Anr. (2010) 3 SCC 321 to submit that there is impediment on the authority concerned to issue a proper show cause notice with a clear intention of the authority calling upon the party for explanation before an action is taken. However, the learned Arbitrator did not consider the same.

17. It is submitted that the purported termination is itself illegal and in violation of Clause 13 of the Tender Documents as the respondents have sought to give effect to the termination with immediate effect upon service, whereas the clause categorically states that the termination shall take effect 90 days after the mandatory opportunity of 30 days. In the present case, there is no opportunity given of 30 days neither there is implementation of 90 days’ period after expiry of mandatory 30 days’ period.

18. It is submitted by virtue of the impugned Interim Order, the learned Arbitrator has decided the issue of legality of the claim of Termination Order as valid even without there being claim proceedings before the learned Arbitrator. It is submitted that by virtue of the impugned Order the learned Tribunal had already pronounced the final verdict on the illegal termination and left the appellant to claim damages without any evidence and without any proof.

19. It is submitted that the appellant has been running the canteen successfully from September 2021 without any complaint. The Governor of Maharashtra had also issued an appreciation letter dated 21st July 2022 to the appellant. It is strongly urged that if the Termination Notice and the impugned Order are sustained, the same will cause great prejudice to the appellant as there are raw materials, perishable goods and items which the appellant uses for canteen purposes and the livelihood of the appellant, as well as the persons and dignitaries who are residing at Maharashtra Sadan will be directly affected. The Termination Order and the impugned Order have a cascading and serious repercussion on the appellants.

20. Therefore, it is prayed that the impugned Order dated 17th April 2023 may be set aside.

21. Per Contra, Mr. Balbir Singh, the learned ASG appearing on behalf of the respondents vehemently opposed the instant petition, the averments made therein and the submissions made on behalf of the petitioner.

22. It is submitted that the learned Arbitrator has passed the impugned Order after due consideration and appreciation of the facts and circumstances. There is no error or illegality on the face of record in the impugned Order which warrants the interference of this Court.

23. It is further submitted that various notices were issued to the petitioner prior to the Termination Order viz. notices dated 2nd September 2021, 20th December 2021 and 24th December 2021, as mentioned in the Termination Letter dated 4th

24. It is submitted that after the proprietorship firm of Jayanta Kumar Ghosh converted into a private limited company, he continued to be a Director of the appellant company. The respondents received representation from authorized representative of M/s Cuisines Caterers and Hospitality Services, by which it was informed that Jayanta Kumar Ghosh had been convicted by the Special NIA Court for charges under Sections 120 B, 121, 121-A of the Indian Penal Code, 1860 read with Sections 16, 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 along with offences under Section 25(1)(B) of the Arms Act by the Special Judge, NIA Court Assam, Guwahati and that he has been sentenced to rigorous imprisonment for 10 years under Section 120(B) of Indian Penal Code, 1860 and further rigorous imprisonment for 10 years under Section 17 of the Unlawful Activities (Prevention) Act, 1967.

25. It is submitted that the present contract was taken by the appellant by submitting a false declaration. As per the tendered document declaration was to be given that there was no pending case against the firm. However, the fact regarding cases against one of the Directors, i.e. Jayanta Kumar Ghosh or his conviction thereof was never disclosed by the appellant. It was further submitted that in terms of Clause 13 of the General Conditions of Contract and Clause 9 of Special Conditions of Contract the respondent had the right to terminate the contract. It was submitted that Clause 9(a) of the SCC specifically provides in sub-clause VIII that if the contractor brings in bad name to Maharashtra Sadan by his/her acts and deeds, the contract shall be liable for termination. It is further submitted that extensive inquiry was carried out for almost one year and thereafter, after due process the Contract was terminated by the respondent.

26. It is submitted that on one hand the appellant has submitted that Jayanta Kumar Ghosh was not linked to the company and had no say in handling of affairs and day-to-day business and on the other hand, the appellant requested that experience of Jayanta Kumar Ghosh as a sole proprietor may be considered for fulfilment of the requirement of thirty years plus experience as per the tender invitation. It is submitted that without taking benefit of Jayanta Kumar Ghosh’s experience, the appellant would not have been entitled per se for the tender. The learned ASG made reference to the letter dated 11th March 2021 issued by the appellant to give force to the said argument.

27. The learned ASG submitted that after the passing of the impugned Order dated 17th April 2023, the respondents have already taken action and issued the notice of vacation as well as awarded the contract to another bidder. It has also been strongly urged on behalf of the respondent that the scope of adjudication under Section 37 of the Arbitration Act is narrow and limited. In the instant petition, this Court shall not conduct a roving inquiry into the evidence and facts, but the powers are limited to adjudicating upon the impugned Order.

28. Therefore, it is submitted by the learned ASG that the instant petition being devoid of merit is liable to be dismissed.

29. Upon hearing the learned ASG for the respondent, on a specific query of this Court, whether a Court exercising its jurisdiction under Section 37 of the Arbitration Act can adjudicate and pass an order regarding a contract which already stands terminated and awarded to someone else, the learned senior counsel for the appellant submitted that in such cases, the principle of lis pendens would apply.

30. The learned senior counsel appearing for the appellant submitted that the principle arising from Section 52 of the Transfer of Property Act, 1882, provides that a conclusive and final order on the subject matter may not been passed when the lis is pending for consideration. In such cases the subject matter may not be transferred or alienated except under the authority of the court concerned. Reliance has been placed upon the judgment of Sanjay Verma vs. Manik Roy & Ors., (2006) 13 SCC 608 to give force to the arguments.

31. Reliance has further has been placed upon the judgment passed in the case of Jagan Singh vs. Dhanwanti & Ors., (2012) 2 SCC 628 wherein it was held as under:- “32. The broad principle underlying Section 52 of the TP Act is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. Even after the dismissal of a suit, a purchaser is subject to lis pendens, if an appeal is afterwards filed, as held in Krishanaji Pandharinath v. Anusayabai [AIR 1959 Bom 475]. In that matter the respondent (original plaintiff) had filed a suit for maintenance against her husband and claimed a charge on his house. The suit was dismissed on 15-7-1952 under Order

9 Rule 2, of the Code of Civil Procedure, 1908 for nonpayment of process fee. The husband sold the house immediately on 17-7-1952. The respondent applied for restoration on 29-7-1952, and the suit was restored leading to a decree for maintenance and a charge was declared on the house. The plaintiff impleaded the appellant to the darkhast as purchaser. The appellant resisted the same by contending that the sale was affected when the suit was dismissed. Rejecting the contention the High Court held in para 4 as follows: “… In Section 52 of the Transfer of Property Act, as it stood before it was amended by Act 20 of 1929, the expression „active prosecution of any suit or proceeding‟ was used. That expression has now been omitted, and the Explanation makes it abundantly clear that the „lis‟ continues so long as a final decree or order has not been obtained and complete satisfaction thereof has not been rendered. At p. 228 in Sir Dinshah Mulla's „Transfer of Property Act‟, 4th Edn., after referring to several authorities, the law is stated thus: „Even after the dismissal of a suit a purchaser is subject to “lis pendens”, if an appeal is afterwards filed.‟ If after the dismissal of a suit and before an appeal is presented, the „lis‟ continues so as to prevent the defendant from transferring the property to the prejudice of the plaintiff, I fail to see any reason for holding that between the date of dismissal of the suit under Order 9 Rule 2 of the Civil Procedure Code and the date of its restoration, the „lis‟ does not continue.”

33. It is relevant to note that even when Section 52 of the TP Act was not so amended, a Division Bench of the Allahabad High Court had following to say in Moti Chand v. British India Corpn. Ltd. [AIR 1932 All 210]: (AIR p. 212) “… The provision of law which has been relied upon by the appellants is contained in Section 52, TP Act. The active prosecution in this section must be deemed to continue so long as the suit is pending in appeal, since the proceedings in the appellate court are merely continuation of those in the suit (see Gobind Chunder Roy v. Guru Churn Kurmokar [ILR (1988) 15 Cal 94] ).”

34. If such a view is not taken, it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail. The Explanation to this section lays down that the pendency of a suit or a proceeding shall be deemed to continue until the suit or a proceeding is disposed of by a final decree or order, and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.”

32. It is submitted that the respondent cannot frustrate the appeal which the appellant was entitled to seek by taking a consequential action. The learned senior counsel by relying upon the principle of lis pendens submitted that until the final conclusion of the lis the respondent could not have awarded a contract to a third party. Any consequential order of alienation by giving the contract to a third party was subject to orders passed in the lis. The appellant is unaffected by such alienation, and is the appellant is to succeed in the lis, which was prior to the alienation, this Court need not take cognizance of the consequential order. Hence, the alienation is of no consequence.

33. The learned senior counsel further relied upon the judgment of Old World Hospitality Pvt. Ltd. vs. Indian Habitat Centre, (1996) SCC OnLine Del 580. The relevant paragraphs of the same are reproduced hereunder:-

148. What is done by the defendant by issuing this letter is in effect and in substance a termination of the contract. In the present case, the plaintiff had to the best of his ability and resources had placed before the Court all facts which would go to show its rights under the contract which would constitute an interest in the services undertaken by it as per the terms of the contract. It is well-settled that when we deal with principles of contract the Court has to remember two basic principles, first is the principle of sanctity of contract. Sometimes expressed in the Latin maxim PACTA SUNT SERVANA. This speaks of purpose of the contract in accordance with the terms of the contract. The other principle is REBUS SIC STANTIBUS. This speaks of discharge of contractual obligations owing to events which had occurred destroying the basic assumption which the parties had made at the time of entering into the contract.

152. Before I go to the other arguments of Dr. Singhvi one principal point very much pressed by him was that the plaintiff is seeking to enforce the contract which requires supervision and therefore, by virtue of Section 14 of the Specific Relief Act, 1963, the plaintiff would not be entitled to the relief of specific performance and therefore, the plaintiff is not entitled to an order of interim injunction. The ancillary argument to this is, that the proper remedy of the plaintiff is to sue for damages and therefore, the plaintiff is not entitled to the specific relief. In Chitty on Contracts 27th Edition 1994 Vol. I in paragraph 27.003 the statement of law is as follows: “The question is not simply whether damages are an „adequate‟ remedy, but whether specific performance will “do more perfect and complete justice than an award of damages”.”

154. In the Law of Contract by Hugh Collins 2nd End. 1993 the learned Author has posited as under: “Although the Courts still repeat the rule that damages must be inadequate before they will award an order for compulsory performance, the rule has been subtly modified in recent years. In Beswick v. Beswick, (1968 AC 58), an elderly and ailing coal merchant sold his business to his nephew in return for various promises including a promise to pay his widow Pond 5 per week after his death. When the nephew refused to pay, the widow in her capacity as administratrix of her husband's estate claimed specific performance of the contract. Since the estate had lost nothing by the nephew's breach of contract, because the payments were owed to the widow personally, it was likely that the measure of damages would be nominal. The House of Lords ordered specific performance of the contract even though an award of nominal damages would have covered all the losses of the estate. The Court made the award of compulsory performance because they though that it achieved a just result, for otherwise the nephew would have been unjustly enriched by being entitled to hold onto his uncle's business without paying his aunt a penny. The modern judicial test asks the question: is it just in all the circumstances that the plaintiff should be confined to his remedy in damages?”

155. This test squarely raises the issue of describing the circumstances which induce a Court to find the award of the remedy of specific performance more just than damages.

156. The key to the law of compulsory performance lies in recognizing that such a remedy is not designed to compensate the injured party for the losses, but to force performance of the contract. Normally a Court declines to order performance because damages provide a sufficient incentive to complete most contracts except where the defendant hopes to achieve unusual economic benefits from breach, in which case to compel performance would only serve to discourage contracts and to reduce the combined wealth of the contracting parties. A remedy of compulsory performance, therefore, deliberately overrides these normal considerations concerning remedies in order to serve different policies. Courts use orders of compulsory performance to resist exploitation of relations of domination and to prevent unfair outcomes arising from break of contract.

222. There shall be an injunction restraining the defendant, its officers, servants and agents from in any manner whatsoever giving effect to or acting in pursuance of the letter of the defendant dated 16th October, 1995 and from in any manner whatsoever creating any obstruction or hindrance in the functioning of the plaintiff from the portion of the premises/property in the possession of the plaintiff or permitting any other agency to operate in the property and facility awarded to the plaintiff and from in any manner whatsoever dispossessing the plaintiff therefrom and from taking possession of any capital goods, equipment and supplies in the possession of the plaintiff till the disposal of the suit.”

34. It is submitted in view of the aforesaid that damages of any kind would not be able to compensate the appellant and the remedy lies beyond damages.

35. In reply to the stand taken on behalf of the appellant, the learned ASG for the respondent submitted that the principle of lis pendens as provided for under Section 52 of the Transfer of Property Act, 1882, does not apply to a service contract which is before this Court for consideration.

36. Heard the learned counsel for the parties at length and perused the record, including the impugned Order.

37. The sum and substance of the matter in the instant case, as per the case of the appellant, is that the appellant company was awarded a contract by the respondent upon fulfilment of conditions of tender so invited by the respondent, however, upon a representation of a third party, i.e., M/s Cuisine Caterers, the respondent terminated the contract on the ground that one of the Director’s of the appellant company was convicted in a criminal case, which fact, according to the respondent, was not disclosed by the appellant at the time of the declaration. The appellant approached the learned Arbitrator by way of filing an application under Section 17 of the Arbitration Act seeking setting aside of the Termination Order and, in the interregnum, a stay on operation of the said Order dated 4th October 2022. The application came to be dismissed vide the impugned Order dated 17th April 2023 and thereafter, the respondent acted upon the Termination Order and even awarded the contract to a third party. The learned senior counsel for the appellant has inter alia sought to the invoke the ground of lis pendens stating that the respondent should not have alienated the contract by awarding it to a third party when the lis on the same issue was pending.

38. The appellant has sought a remedy under Section 37 of the Arbitration Act. The said provision provides for orders that are arising out of arbitration proceedings and may be appealed against. Section 37 of the Arbitration Act provides as under:-

39. In the instant matter, the appellant has invoked Section 37(2)(b) of the Arbitration Act since the application preferred by the appellant under Section 17 of the Arbitration Act before the learned Arbitrator was dismissed vide the impugned Order dated 17th April 2023.

40. At this juncture, it is pertinent to examine the scope of powers which may be exercised by this Court while adjudicating upon a challenge under Section 37 to an impugned Interim Order.

41. The principle of limited intervention by the Court in arbitration proceedings has been time and again reiterated by this Court as well as by the Hon’ble Supreme Court. The law to that effect is no more res integra. The limited grounds available with the Court for intervention in an impugned award, interim or final, were discussed by the Hon’ble Supreme Court in Haryana Tourism Ltd. vs. Kandhari Beverages Ltd.,

42. There is no dispute to the position that a Court adjudicating a challenge under Section 37 of the Arbitration Act shall not conduct a roving inquiry into the facts of the case on merits and re-examine evidence or other material before the arbitrator.

43. A Division Bench of this Court in the judgment of Union of India vs. Sikka Engineering Company, 2019 SCC OnLine Del 8788 held as under:-

”

19. Thus, in view of the law under Section 37 of the Act, we find no ground to entertain this appeal.”

44. Reference is also made to the judgment passed by this Court in Dinesh Gupta vs. Anand Gupta, 2020 SCC OnLine Del 2099, while emphasizing on the restricted intervention of Courts over arbitral awards. The relevant portion of the judgment is reproduced hereunder:-

65. Interestingly, while examining, in Snehadeep Structures (P) Ltd. v. Maharashtra Small Scale Industries Development Corporation Ltd., the scope of the expression “appeal” as employed in Section 7 of the Interest on Delayed Payments to Small Scale and Ancillary Undertakings Act, 1993, the Supreme Court held that, “if … the meaning of “appeal” is ambiguous, the interpretation that advances the object and purpose of the legislation, shall be accepted.” Purposive interpretation, as has been noticed in Shailesh Dhairyawan v. Mohan Balkrishna Lulla and Richa Mishra v. State of Chhattisgarh, has, over time, replaced the principle of “plain reading” as the golden rule, for interpreting statutory instruments.

66. In my opinion, this principle has to guide, strongly, the approach of this Court, while dealing with a challenge such as the present, which is directed against an order which, at an interlocutory stage, merely directing furnishing of security, by one of the parties to the dispute. The power, of the learned Sole Arbitrator, to direct furnishing of security, is not under question; indeed, in view of sub-clause (b) of Section 17(1)(ii) of the 1996 Act, it cannot. The arbitrator is, under the said sub-clause, entirely within his jurisdiction in securing the amount in dispute in the arbitration. Whether, in exercising such jurisdiction, the arbitrator has acted in accordance with law, or not, can, of course, always be questioned. While examining such a challenge, however, the Court has to be mindful of its limitations, in interfering with the decision of the arbitrator, especially a decision taken at the discretionary level, and at an interlocutory stage.” (emphasis supplied)

45. It is hence settled that the scope of interference in an appeal under Section 37 of the Arbitration and Conciliation Act is narrow. The Courts shall neither enter into the merits of the facts and case of the parties nor enter into the merits of the findings made by the arbitrator.

46. This Court has time and again reiterated the spirit of the Arbitration Act. There is no doubt on the fact that the Arbitration Act was enacted for providing a mechanism to the public to resolve their disputes in a process less rigorous, technical and formal than that of a litigation. It has proven to be easier, more accessible, efficient and even cost effective for the parties involved, whether at an individual level or at the level of a business or corporation. The alternative dispute mechanism is not only advantageous for the people involved in disputes but has also been aiding the effective disposal and release of burden on the Courts of the Country. The parties have a more hands-on involvement in an Arbitration process and play an active role in the adjudication process. Therefore, expeditious and effective disposal of matters are most certainly considered the primary objectives of the enactment of the Arbitration Act. To fulfil the objective of introducing the Arbitration Act, it has been deemed necessary by the legislature as well as the Hon’ble Supreme Court to limit interference by the Courts in the process of arbitration, whether before, during or after the conclusion of the proceedings.

47. It is, thus, clear that in the instant petition under Section 37(2)(b) of the Arbitration Act, the impugned Order passed by the learned Arbitrator dated 17th April 2023 and the findings therein are in consideration before this Court and not the Termination Order dated 4th October 2022 passed by the respondent. Further, the vacation notice or even the notice awarding the contract to a third party are no extension of interpretation under consideration before this Court. This Court, hence, shall limit itself to the contents of the impugned Order.

48. The appellant had moved the application under Section 17 of the Arbitration Act, on which the impugned Order was passed, seeking the following reliefs:- “(a) Pass an order or direction quashing and setting aside the impugned termination notice/ order dated 04.10. 2022 issued by the Resident Commissioner, Maharashtra Sadan, New Delhi; and (b) Stay the operation and implementation of notice/order dated 04.10.2022 issued by the Resident Commissioner, Maharashtra Sadan, New Delhi;

(c) Restrain the respondent Nos. 1 to 4 from causing any disturbance or hindrance in peaceful running of the Maharashtra Sadan Canteen (Old and New) by the petitioner during the pendency of the present petition;

(d) Ad-interim orders in terms of prayer (b) and (c) (e) Cost of the petition;

(f) Pass such further order or orders as this Hon'ble Court deem fit and proper in the facts and circumstances of the case.”

49. The grounds which were raised before the learned Arbitrator were to some extent also reiterated before this Court. One of the primary grounds raised is that the appellant company is a separate legal entity from its employees, directors etc. and hence, a criminal proceedings or conviction of concerned ex-Director of the appellant company, Jayanta Kumar Ghosh, had no bearing on the record of the company. The appellant submitted that the declaration at the time of the tender was made qua the company itself and not qua any one person. On the argument, the learned Arbitrator noted as under:-

50. Therefore, before arriving at the conclusion that the conviction of Jayanta Kumar Ghosh had a direct and substantial affect on the eligibility of the company, the learned Arbitrator considered the material submissions as well as the record before her. The learned Arbitrator considered the fact that the appellant was not the highest bidder before the experience of thirty plus years of Jayanta Kumar Ghosh was not considered. To this effect, reference was also made to the letter dated 11th March 2021 furnished by the appellant to the respondent in paragraph 59(f) of the impugned Order, which is reproduced as under:- “The Claimant was initially the second highest bidder in the tender. In order to avail higher marks in the Technical bid evaluation, the Claimant requested that the individual 30 years+ experience of Mr. Jayanta Kumar Ghosh as a Sole proprietor from 1989 onwards till 2014, should be included in the prior experience of the Claimant Company. This is evident from the Claimant's letter dated 11.03.2021 28 to the Respondent which inter alia reads as under:

1. Experience: We have already submitted relevant document regarding the same in the tender filled by us. Please refer to page no 6 of documents submitted by us. Issuing Authority: Northeast Frontier Railways. No. C 56 / CD / Pt. VIII, dated April 11, 1989. Subject: CATERING SERVICES on 57 Up I 58 On Guwahati- Howrah Kanchanjungha Express (BG). This was the first Catering Services order by Ministry of Railways, Govt. of India issued to our parent company Mls Jayanta Kumar Ghosh. We are in regular Catering business from than onwards, hence we have 30+ years of experience. Also, we have submitted copy of couple of orders from page no. 123 to 201, details of which we have already mentioned in page no. 3 of tender documents. These documents are also submitted to show that the transfer of business from a proprietorship company to Pvt. Ltd. company, which has been approved and accepted by Indian Railways and /RCTC. Moreover, in our reply to your letter no. RC / MMS / NMS / Canteen / 95-V / 3073 dated 11.02.2020, we have submitted Empanelment for provision of onboard Catering Services in various types of trains on Indian Railways by IRCTC, dated 23.12.2020 which shows that we are still in business of Catering Services. As the tender requires 10 years plus experience for 25 marks, we are attaching some of our Govt. Catering Services orders from 2010 onwards.”

51. Hence, it cannot be said that the material aspects of the severability and separability of the Director and appellant company was not considered by the learned Arbitrator.

52. Further, the learned Arbitrator noted that the contract between the parties was determinable and hence, could be terminated in terms of and in accordance with the provisions of the contract. The relevant portion referring to this point is reproduced hereunder:-

53. A perusal of this portion reveals that after appreciating the relevant provisions of the contract, it was found that the contract by nature was determinable and hence, the termination was possible upon fulfilment of the conditions laid therein. The respondent had terminated the contract after finding that the appellant had concealed information in its declaration.

54. The learned Arbitrator also discussed the issue of specific performance at length while considering the submissions of the parties, the judicial precedents, the fact that the contract was determinable, law laid down and the interpretation and analysis thereof and thereafter passed the following findings:-

55. As discussed above, the limitation of this Court is to examine whether the learned Arbitrator, while passing the impugned Order, had considered the relevant material and thereafter arrived at a finding supported by reasoning. The validity or merit of the reasons or the findings/observations thereto are not for this Court to enter into and adjudicate upon. Neither the bare provisions of the Arbitration Act, nor its interpretation by the Hon’ble Supreme Court and other Courts permits the same. Upon a perusal of the entire Order, it is evident that all of the findings of the learned Arbitrator were supported by facts, material, relevant documents, and provisions of the contract between the parties.

56. The learned senior counsel for the petitioner also argued that the instant case falls under the scope of the principle of lis pendens, to aver that the respondent did not have the authority to terminate the contract of the appellant and award it to a third party when the subject matter was pending. As stated above, the Termination Order is not before this Court under the instant petition. Further, it has been settled that the principle of lis pendens as provided for under Section 52 of the Transfer of Property Act, 1882, is applicable only where the requisites of its applicability are met. The Hon’ble Supreme Court in Amit Kumar Shaw vs. Farida Khatoon, (2005) 11 SCC 403, on the question of lis pendens held as under:-

57. The aforesaid makes it clear that for applicability of the doctrine/principle, stemming from Section 52 of the Transfer of Property Act, 1882, the subject matter of the lis must be one in which a right to an immoveable property is in question, directly and substantially. Moreover, the transfer that is alleged to have been taken place must also be regarding the said immoveable property. On behalf of the appellant, an attempt has been made to give a wider interpretation to the principle which the provision and Hon’ble Supreme Court itself has narrowed down.

58. Further, in Jayaram Mudaliar v. Ayyaswami, (1972) 2 SCC 200, the Hon’ble Supreme Court had earlier interpreted the principle and held as under:-

59. In Rajender Singh vs. Santa Singh, (1973) 2 SCC 705, the Hon’ble Supreme Court held as under:-

60. It is apparent that the principle which was introduced and is applicable where the matter sub-judice before the Court pertains to immoveable property, whereas, in the instant case, the subject matter is a service contract. Further, it is also seen that the doctrine where the court court acquires jurisdiction, power or control over property involved in a suit pending the continuance of the action, however, in the instant proceedings, the Termination Order dated 4th October 2022, which is subject matter raised for the applicability of the principle is admittedly not before this Court. Hence, the appellant has failed to show that the principle/doctrine of lis pendens, which in itself is a discretionary remedy, will apply in the instant case.

61. In view of the aforesaid circumstances, the submissions and averments on behalf of the parties as recorded, the observations of the learned Arbitrator, and the discussion and analysis thereto, this Court is of the considered view that the instant matter does not warrant interference of this Court.

62. The appellant has failed to show that the findings of the learned Arbitrator were patently illegal, erroneous based on no evidence or reached any conclusion which a rational person could not arrive at. The appellant has further failed to show any illegality on the face of record so as to shock the conscience of the Court. The limited and narrow scope of Section 37 of the Arbitration Act does attract any interference in the facts and circumstances of the instant case. This Court finds that the learned Arbitrator considered all relevant material before her and only subsequent to consideration and appreciation of the same passed the impugned Order.

63. Accordingly, in view of the aforesaid, the instant petition stands dismissed.

64. Pending applications also stand dismissed.

65. The order be uploaded on the website forthwith.