- (1.) The Court: In proceeding with his argument Mr. Kar, learned senior advocate appearing on behalf of petitioner draws attention to record in the award that where first question arisen for determination is whether there was misrepresentation by respondent in asserting department of tourism, Government of West Bengal, was owner of the land and it had transferred same in its favour for construction of tourist lodge. He draws attention to page 125 of the award, in which the Tribunal makes a distinction between section 73, 74 on one hand and section 76 on the other (Contract Act , 1872). He submits, the Tribunal did say, inter alia, as follows:- "Position, however, would have been different in this case, if a valid contract was unlawfully terminated by the Respondent notwithstanding the fact that the Claimant did not violate any of its obligations. In such situation, the Claimant could not only claim compensation for the loss actually suffered but also for damage which it has suffered, i.e. the future loss of profit arising out of unlawful termination of the contract."
(2.) He submits, the question arisen as to whether there was misrepresentation is a question framed and answered as third case made by the Tribunal. The minutes do not record arguments of parties. His client had no inkling on working of mind of the Tribunal so as to have opportunity to address on this point. As such, this severable part of the award was made in violation of principles of natural justice. Respondent had, before the Tribunal, contended on alter ego. There was no case made out of misrepresentation or defence thereto. He submits, it was nobody's case in the Tribunal that respondent had knowingly promised to do something, which it knew, or, with reasonable diligence, might have known to be impossible or unlawful. He hands up meaning given to words 'loss' and 'damages' by Black's Law Dictionary (tenth edition).
(3.) Court has interrupted to express its mind on having heard thus far. Meaning of loss is also disappearance or diminution of value. One meaning given to damages is, it is the sum of money, which a person wronged is entitled to receive from the wrongdoer as compensation for the wrong. Section 56 uses the word 'loss' while section 73 uses words 'loss or damages'. On query from Court Mr. Kar submits, his client is a hotelier who had invested and supervised construction of the structure for it to then exploit the property as such. There has been award made of cost of construction but rejection of claim for compensation of business loss.;