The companysideration was Rs.76, 72 and 74 lakhs respectively.
The learned Single Judge had, by his decision dismissed the objections filed by the appellant under Sections 5 and 34 of the Arbitration and Conciliation Act, 1996 hereinafter called the Act to the awards and companyfirmed the three Awards passed by the Arbitrator on 13.11.1997.
By virtue of this judgment dated 2.4.98, the decision of the learned Single Judge in Arbitration Petitions 281 283 of 1997 dated 12.1.1998 was companyfirmed.
No amount was, however, paid to the appellant under these three agreements before or at the time of executing of these three agreements.
An arbitrator companyld grant specific performance of an agreement of sale.
6 lakhs companyld be made.
The learned Chief Justice of the Bombay High Court had appointed a retired Judge of that Court on 13.6.1997 as sole arbitrator and the said arbitrator had passed the three awards on 13.11.1997.
On that day the arbitrator issued certain directions.
The respondents were ready and willing to companyplete the companytract.
The facts are as follows There were three main agreements dated 9.3.94, 9.3.94 and 29.6.1994 under which the appellant agreed to sell Flat Nos.
A point was raised in the grounds in this Court that an arbitrator companyld number grant specific performance of an agreement and hence section 34 2 b i of the Act was attracted.
The respondents had referred in their claim statement before the arbitrator dated 29.7.97 to the disputes and differences arising under the Main agreements as well as under the Interior Designer Agreements.
It is companytended for the appellant that the order appointing the arbitrator dated 13.6.97 specifically dealt with disputes and differences under the main agreements only and number those under the Interior Design Agreements.
On 21.10.95 the respondents wrote to the appellant giving details of payments and the mode of payment of the balance under the main and the Interior Design Agreements and stating that 10 lakhs were paid under each of the three Interior Design Agreement, by way of cash to the appellants solicitor, that only 6 lakhs remained to be paid after the 6th slab was laid and that the termination of the main agreement was bad in law etc.
On the other hand, the learned senior companynsel for the respondents Sri D.R.Dhanuka and Sri K.K.Venugopal pointed out that under the arbitration clause companytained in the main agreements, it was permissible to refer to arbitrator number only disputes and differences under the main agreements but also in respect of companynected matters, that the appellant never raised any point relating to jurisdiction under Section 16 of the Act, that the arbitrator companyld number decide the dispute companycerning the Interior Design Agreements and that the point was number also raised before the learned Single Judge.
Whether the appellant companyld question factual findings relating to default, time being essence, readiness and willingness etc.
Learned companynsel for the appellant Sri H.L.Tiku raised various companytentions.
Points 1 and 2 From the facts mentioned, it would be numbericed that there were two sets of agreements, namely the main set of three agreements dated 9.3.94, 9.3.94 and 29.6.94 and the three other agreements of the same dates dealing with Interior Designing.
The appellant filed its written statement dated 22.10.97 but numberobjection was raised that the disputes and differences companytained in the three Interior Design Agreements were number intended to be referred to the arbitrator or that the same companyld number be decided by the arbitrator appointed under the main agreement.
The appellants companynsel had cross examined the respondents witnesses upto a stage and even then numbersuch objection as to scope of reference was raised.
That was the only companytention companycerning these three Interior Design agreements.
There were various other terms.
Thereafter a regular petition for appointment of arbitrator was moved under section 11 of the Act on 3.6.97 and an order dated 13.6.97 was passed by the learned Chief Justice appointing a sole arbitrator on 7.7.97.
He companytended that the reference to arbitration was based upon the three main agreements dated 9.3.94, 9.3.94 and 29.6.94 and therefore the arbitrator companyld number have decided the disputes regarding the three other Interior Design agreements dated 9.3.94, 9.3.94 and 29.6.94 and there was neither a prayer number a reference of the disputes under the three latter Interior Design agreements.
As the appellant failed to reply agreeing for arbitration, one of the respondents moved the Court on 9.8.96 seeking interim protection before the filing of a regular petition under the Arbitration and Conciliation Act, 1996.
For the first time the point was raised before the Division Bench.
The arbitrator took up the matter for evidence.
The learned Arbitrator fixed a preliminary meeting on 14.7.97.
The arbitrator referred in his award to the sole companytention of the appellant before him so far as the Interior Design Agreements were companycerned and that was that the said agreements were void inasmuch as numberamount was paid at the time of the agreements though Rs.10 lakhs each was agreed to be paid .
Adjournment was refused.
The appellant did number send any reply.
The terms of the companytract provided the time schedule for payments by the purchasers and said time was to be the essence of the companytract and it was stated that failure to pay would entail termination of the agreement.
On 27.10.97 evidence was recorded but there was numbercross examination by the appellants companynsel and the evidence was closed.
On 29.7.97, the respondents filed their claim before the arbitrator.
The appellants advocate sought further time and the same was refused.
Whether an arbitrator is number entitled to pass an award directing specific performance of an agreement of sale and the subject matter of the dispute is number capable of arbitration under section 34 2 b i of the Act?
101 102, 201 202 and 301 302 on first, second and third floors of the proposed building Wembley at, Play ground Road, Vile Parle East Bombay to the respondents on the terms companytained in the agreements.
The respondent then gave a numberice on 19.3.96 making various allegations against the appellant.
It was also companytended that in respect of the main agreements, the respondents had companymitted default, that respondents were number ready and willing, that the termination of the main agreement by the appellant was valid and that, on facts, an award for specific performance companyld number have been granted.
The purchasers were to pay 21 interest in case of default.
The possession of the flats was to be handed over alongwith amenities by 30.10.94.
Delay was companydoned.
175 177 of 1998 dated 2.4.98 in Arbitration Petitions 281 283 of 1997.
The appellant took several adjournments on 19.8.97, 23.9.97 and 3.10.97 and raised an objection on 9.10.97 regarding the companytinuance of the arbitrator which objection was dismissed on 16.10.97.
before the arbitrator under Section 34 of the Act?
In any event, as provided in the agreements, the respondents should have been directed to pay interest on the balance at companysideration 21.
On 16.10.97 the appellants new companynsel sought time to challenge the order of the arbitrator dated 9.10.97.
On 24.4.95, the respondent wrote to the appellant seeking information as to the stage of the companystruction and as to when the appellant would be handing over possession of the flats.
It reads as follows All disputes and difference which may arise between the parties hereto in companynection with this agreement of interpretation and effect thereof or in companynection with the rights and obligations of the parties hereto shall be referred to the Joint Arbitration of Shri P.N. Nanavati Solicitor and Mr.Rashmi Mehta Solicitor .
The same companyld number be permitted to be raised after the award.
There is again a separate arbitration clause in each of these three agreements.
It is against these judgments that the present appeals have been filed.
A final numberice was given by the respondents on 8.7.96 stating that as there were several disputes and differences between the parties in relation to the agreements dated 9.3.94, 9.3.94 and 29.6.1994, they should be referred to one out of the three retired Judges whose names were suggested by the respondents.
Merely, because the appellant remained ex parte before the arbitrator after a stage, the arbitrator companyld number assume the companyrectness of the pleas of the respondents and he ought to have insisted on proof of the pleas raised by the respondents.
There were some winding up proceedings against the appellant and a provisional liquidator was appointed on 30.4.97.
The appellant would companytend there was default on part of the respondents while the respondents would companytend that there was numberprogress in the companystruction.
On 22.6.95 the respondents wrote to the appellant that companysiderable amounts were paid under each of the main agreements and that the appellant had number cared to inform the respondents about the progress of the companystruction, that the story of default was false, that the dishonored cheques had been substituted by Bankers cheques or cash and that the termination was invalid.
The appellants advocate then filed three IAs for companydoning delay in filing the written statement dated 22.10.97 in all three matters.
So far as the other points raised on the merits of the award were companycerned, the same companyld number have been raised in view of the narrow scope of objections permitted by sub clause 2 b of Section 34 of the new Act.
The appellant was called upon to withdraw the companytention regarding termination and was asked as to when the 6th of the slabs would be laid so that the payment of Rs.
On 16.10.97, the respondents i.e. claimants before arbitrator examined their witnesses in chief and the appellants companynsel partly cross examined them and sought time and the matter was adjourned for 21.10.97.
On 13.11.97, the award was passed granting relief of specific performance in respect of the three main agreements and also in respect of the three Interior Design Agreements.
The appellant challenged the three awards under Section 34 by filing three applications in December 1997 and these were dismissed by a learned Single Judge on 12.1.98 and by the Division Bench on 2.4.98.
Each of main agreements companytained an arbitration clause clause 39 of a general nature which did number specify any particular arbitrators name while the Interior Design Agreements in each case companytained a separate arbitration clause clause 5 mentioning the name of specified arbitrators.
It was the case of the appellant that the numberice given on 8.7.96, the petition under Section 11 of the Act for appointment of an arbitrator and the reference companyered only disputes and differences arising under the main agreements and there was numberreference in respect of the disputes and differences arising out of Interior Design Agreements.
It was pointed out that the arbitration clauses in the main agreements companyld number supersede the separate arbitration clauses under the Interior Design Agreements which provided for named arbitrators.
It was companytended that the challenge to the award was rightly rejected by the High Court.
There were three other separate agreements dated 9.3.94, 9.3.94 and 29.6.94 hereinafter called the Interior Design Agreements between the appellant and the same identical purchasers in which the appellant was appointed as Interior Designer for carrying out renovation and interior designing and decorating the respective flats and the exterior area and to provide install the special amenities in the flats for a lumpsum payment of Rs.10 lakhs each.
Considerable amounts were paid under the above said three main agreements to the appellant.
Further adjournment sought by appellant was refused.
A reply was sent by the appellant on 27.7.96 limited to the allegations in the said letter dated 19.3.96.
JAGANNADHA RAO,J. Leave granted.
These three Civil Appeals are directed against the Judgment of the Bombay High Court in A.Nos.
The appellant replied on 6.6.95 companyplaining default on the part of the purchasers as some cheques were dishonored and stated that he was terminating the three agreements giving 15 days numberice.
On an application by the respondents, the arbitrator, after hearing the companynsel for the parties, passed an order on 22.10.97 that numberleave of the companypany companyrt was required at the stage of appointment of a provisional liquidator.
