- (1.) THE Judgment of the Court was as follows : Both the claimant and the respondents in the reference seek the annulment of the arbitral award, but to varying ends and extents. The respondents in the reference say that the award rendered under the Arbitration Act, 1940 is perverse and there are errors apparent on the face thereof as no reasonable person, on the basis of the material as carried by the parties to the reference, could have concluded that the claimant in the reference was entitled to an order for specific performance of the agreement between the parties. Though the arbitrator, in exercise of the perceived discretion under Section 20 of the Special Relief Act, 1963, did not direct specific performance of the agreement but awarded damages in lieu thereof, the respondents in the reference insist that since the claimant was not entitled to specific performance there was no occasion for the claimant to be awarded damages. The further ground urged by the respondents in the reference (hereinafter referred to as the owners) is that the statement of claim did not contain any relief for damages in lieu of specific performance nor did the claimant quantify the alleged damages on such count. The owners refer to the arbitrary conduct of the arbitrator in inviting a suggestion from the claimant at the second-last sitting of the reference and passing an award in damages in lieu of specific performance on the basis of the claimant's unsubstantiated statement in a few loose sheets of paper which the owners did not get a meaningful chance to deal with.
(2.) THE claimant's grievance, on the other hand, is that upon the arbitrator finding that the claimant was entitled to specific performance of the agreement, specious grounds were proffered to deny the claimant its rightful due. The claimant, however, admits that its statement of claim in the reference did not indicate any relief for damages in lieu of specific performance nor did the claimant quantify the damages on such score in any subsequent pleadings. The claimant maintains that it is entitled to specific performance. The claimant says that it had sought damages in addition to specific performance of the agreement and submits that the award of damages in lieu of specific performance by the arbitrator can, in any event, not be sustained. The claimant has expressly agreed to the award being set aside to the extent that it granted damages in New of specific performance to the claimant, on the ground that given the manner in which the award on such account was made, the claimant is in no position to sustain it. The agreement between the parties of June 28, 1989 envisaged the demolition of the existing structures at the Outram Street premises and the construction of three buildings on the land measuring about 37 cottah. A sketch-map was appended to the agreement and the original agreement carved out three distinct portions of the land marked in blue, pink and green. The claimant was obliged, under the agreement, to construct, according to the plan sanctioned by the Calcutta Municipal Corporation, a commercial building on the 23-cottah southern portion of the premises, the constructed area whereof was to be shared by the owners and the claimant; and, two buildings on about seven cottah land each, one being exclusively for the owners and the other being exclusively for the claimant. The agreement recorded that there was an individual occupant at a part of the premises and a company functioned thereat under the control of such individual.
(3.) THE claimant alleged in the reference that despite the claimant having performed its obligations under the agreement in, inter alia, making the initial payment to the owners and causing the property to be rid of the occupant, the owners did not permit the agreement to be executed by discharging the obligations cast on the owners thereunder. The owners cited the long delay on the part of the claimant and the claimant's conduct amounting to lack of readiness and willingness on its part to pursue the work under the agreement. The owners also maintained that the claimant had failed to carry out its part of the bargain and was, thus, not entitled to specific performance of the agreement that the claimant had claimed.;