Delhi High Court

Seema Gupta vs Sunny Talwani on 26 April, 2023

Author:
Chandra Dhari Singh

Bench:
Chandra Dhari Singh

NEUTRAL CITATION NO. 2023:DHC:2815

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 23rd January 2023
Pronounced on: 26th April, 2023

+ O.M.P. (COMM) 144/2020 & I.A. 1384/2020 & I.A. 1386/2020
SEEMA GUPTA ..... Petitioner
Through: Mr. Arvind Varma, Sr. Advocate
with Mr. Ashutosh Gupta, Mr.
Gaurav Rana and Ms. Smridhi
Sharma, Advocates
versus

SUNNY TALWANI ..... Respondent
Through: Mr. Kanhaiya Singhal, Mr. Chetan
Bhardwaj, Ms. Priyal Garg, Mr.
Udit Bakshi, Mr. Prasanna, Mr.
Jasmeet S. Chadha and Mr. Ajay
Kumar, Advocates

CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH

JUDGMENT

CHANDRA DHARI SINGH, J.

1. The instant petition under
Section 34
of the Arbitration and
Conciliation Act, 1996 read with
Section 10
of the Commercial Courts,
Commercial Division and Commercial Appellate Division of High Courts
Act, 2015 has been filed on behalf of the petitioner seeking the following
reliefs:-

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―(a) Set aside the award dated 30th September 2019 passed
by Ld. Sole Arbitrator Justice Manmohan Sarin (Retd.), titled
as ―Sunny Talwani Vs Seema Gupta‖;

(b) The record may be summoned from the Ld. Arbitrator;
and /or

(c) Any other relief as the Hon'ble Court may deem fit in the
interest of the justice may be granted to the Petitioner.‖
BACKGROUND

2. A perusal of the record reveals that the following course of events
has led to the filing of the instant petition:-

a. The disputes and controversy that are before this Court are
stemming out of financial relations between the husband of the
petitioner and one Surinder Wadhwa and his associates.
Transactions, primarily in the nature of financial loans, were being
carried out between the said persons to this effect by the personal
accounts of the petitioner and her family with Surinder Wadhwa,
his associates and family members.

b. An Agreement to Sell dated 26th October 2015 was
purported to be executed between the petitioner and
claimant/respondent, an associate of Surinder Wadhwa, for sale of
property bearing Mustail No. 3 Killa Nos. 21/1 (1-14), 21/2 Min
(1-4) situated in the revenue estate of Village Jonapur, Tehsil
Mehrauli, New Delhi. The case of the petitioner is that the said
Agreement to Sell came to her knowledge only upon receiving the
letter dated 14th March 2017 and that she had never executed the
same. The petitioner denied even the existence of the said
Agreement, through her husband.

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c. Subsequently, a complaint dated 10th April 2017 was lodged
with the Joint Commissioner of Police (South), Delhi Police, by the
husband of the petitioner against Surinder Wadhwa against
Surinder Wadhwa for offences of cheating, criminal conspiracy,
criminal breach of trust, amongst others.

d. The respondent approached this Court for the appointment of
an arbitrator for adjudication of the disputes which arose between
the parties seeking specific performance of the purported
Agreement to Sell dated 26th October 2015. Accordingly, a
Coordinate Bench of this Court in Arb. P. No. 402/2017 vide its
order dated 2nd November 2017 appointed the learned Sole
Arbitrator.

e. The arbitration proceedings were initiated amongst the
parties and upon conclusion of the arbitration proceedings, the
Award dated 30th September 2019 came to be passed by the learned
Arbitrator.

f. The complaint lodged on by the husband of the petitioner
against Surinder Wadhwa and his associates came to be registered
as an FIR bearing No. 0027 dated 7th February 2018 for offences
under
Section 420
,
,
,
and
120B
of the Indian Penal
Code, 1860, during the pendency of the arbitration proceedings.

g. Vide the Award dated 30th September 2019 the learned
Arbitrator had granted the reliefs partly in the favour of the
respondent herein, the relevant portion of which is reproduced
hereunder:-

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Relief of Specific Performance:

........

In view of the aforesaid authoritative pronouncement
of the Supreme court directly applicable to the case, I
have not considered it necessary to advert to other
judgments cited by the Claimant and Respondent. It is
therefore held that the Claimant is not disentitled to
the relief of decree of Specific Performance merely on
the ground of absence of communication for the period
of 11 months during which time he was following up
and making efforts with the Respondent for completing
the sale and not resort to litigation.

Further, I am of the view that, Claimant having proved
his readiness and willingness with financial capacity to
pay the remaining balance sale consideration of
Rs.20,00,000/-, is entitled to the decree of Specific
Performance of the Agreement to Sell dated
26.10.2015. An award is accordingly passed in favour
of the Claimant and against the Respondent granting
specific performance of the Agreement to Sell dated
26.10.2015 in respect of Agriculture land admeasuring
2 bighas 8 biswas, bearing Mustatil No. 3, Killa Nos.

21/1 (1-4) and 21/2 Min 11/2 (1-4), situated in village
Jonapur, Tehsil, Mehrauli, New Delhi, subject to the
Claimant depositing the balance sale consideration of
Rs. 20,00,000/- before the Registrar General of High
Court of Delhi within 2 weeks of the Respondent
applying for and obtaining NOC/ Permission for
transfer of the suit land under the (Delhi Land
Restriction on Transfer) Act. Claimant shall join the
Respondent in any such application for obtaining
NOC. In case, the Respondent fails to apply for such
permission, the Claimant may apply to the Registrar of
the High Court for obtaining such permission.

Claim No.1A:

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In the alternative a Decree of Compensation to the
tune of Rs.7,00,00,000/- (70% of the market value as
claimed by Respondent)
Claimant prays that if for any reason the Court is not
inclined to grant the decree of specific performance
then in that eventuality, the Claimant seeks the
alternative relief of compensation as above.
In view of the award for Specific Performance being
granted in favour of the Claimant, the alternate relief
for grant of compensation has not been considered.
Claim No. 2:

A Decree of perpetual injunction to restrain in any
manner the Respondent asserting any right or acting
contrary to the terms and conditions of Agreement to
Sell dated 26.10.2015. Claimant also seeks an
injunction to restrain the Respondent from creating
any third-party rights pending the grant and
execution of decree of specific performance.
Vide order passed on 19.04.2018 on the Application
under
Section 17
of the Act of 1996, the undertaking
given by the Respondent that neither she nor anyone
acting on her behalf would sell. Transfer, alienate or
create a third-party interest or part with possession of
land admeasuring 2 bighas 8 biswas, bearing Mustatil
No. 3, Killa Nos. 21/1 (1-4) and 21/2 Min 11/2 (1-4),
situated in village Jonapur, Tehsil, Mehrauli, New
Delhi was accepted. The said undertaking has
continued during the arbitral proceedings. Now that
an award of Specific Performance in respect of
Agreement to Sell Ex. CW 1/A has been granted, an
award of perpetual injunction in favour of the
Claimant and against the Respondent restraining her
and her agents or any other person acting on her
behalf, parting with possession or from selling,
alienating, transferring or creating any third party
rights whatsoever in respect of Agriculture land
admeasuring 2 bighas 8 biswas, bearing Mustatil No.

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3, Killa Nos. 21/1 (1-4) and 21/2 Min 11/2 (1-4),
situated in village Jonapur, Tehsil, Mehrauli, New
Delhi, pending the enforcement of the decree for
Specific Performance and registration of the sale deed
in favour of the Claimant is passed.

Claim No. 3:

Claimant also seeks interest on the payment of
advance consideration of Rs.40,00,000/- paid on
26.10.2015, @ 18% per annum. The interest claimed
is w.e.f. 26.12.2015.

In view of the grant of decree of Specific Performance
and considering all the attendant circumstances, the
prayer for grant of interest on the part consideration
paid is declined.

Claim No. 4:

Arbitral and litigation cost.

The entire arbitral fee of Rs. 29.50 lakhs which
includes the share of the Respondent has been paid by
the Claimant. The said amount is awarded in favour of
the Claimant and against the Respondent. In addition,
Claimant is also awarded legal fee i.e. Counsel's fee
assessed at Rs. 5,00,000/- and the cost of stamp duty
on the award shall be recoverable from the
Respondent.

Prayer for award of costs of litigation, in proceedings
before the High Court and Ld. Additional District
Judge, is declined.

h. The petitioner, being a party to the arbitration proceedings
having been aggrieved of the Award has approached this Court
bringing forth a challenge to the same.

SUBMISSIONS

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3. The parties have advanced their arguments on the challenge to the
Arbitral Award passed by the learned Arbitrator before this Court as well
as in their pleadings and written submissions. The sum of the arguments
advanced is discussed hereunder.

Submissions on behalf of the petitioner

4. Mr. Arvind Varma, the learned senior counsel appearing on behalf
of the petitioner submitted that the alleged Agreement to Sell dated 26th
October 2015, which has allegedly given rise to the arbitration
proceedings in question, has never been executed by the petitioner. It is
submitted that the Agreement is forged and fabricated. Therefore, the first
part of the arguments on behalf of the petitioner is that there was no
arbitrable dispute which required the intervention of the Court or an
arbitrator.

5. The objection to the existence of an Agreement has been taken by
the petitioner since the very beginning of the litigation between the
parties and the was also set out in her email dated 20th March 2017 sent in
reply to Notice issued by the respondent on 14 th March 2017. The
objection was noted by the Coordinate Bench of this Court while
appointing the Arbitrator in its order dated 2nd November 2017.
Moreover, in her Statement of Defence, the petitioner denied signing any
Agreement to Sell.

6. It is submitted that the learned Arbitrator did not give any specific
finding on the said issue and wrongly held that the Agreement to Sell has
been executed properly without any basis or justification.

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7. It is further submitted that the consideration which has been
purported to be consideration for the Agreement was in fact the amount
for cross-loans exchanged between the parties involved. The cross-loan
transactions have been coloured as Agreement to Sell by the respondent.
It is submitted that the petitioner has a long history of financial
transactions with Surinder Wadhwa and his associates. Moreover, the
original deeds of the property in question were handed over to the
respondent as security against the loan provided by him, however, in his
Statement of Claim, the respondent stated that the original deeds were not
handed over.

8. As per alleged Agreement to Sell, possession of the property in
question was handed over to the respondent at the time of its execution
however, the fact is that till date the possession of the property is being
enjoyed by the petitioner.

9. It is submitted that the learned Arbitrator did not consider that on
the day of the alleged execution of the Agreement between the parties the
petitioner along with her husband had gone to Chandigarh. She has also
produced an independent witness, RW-3, Dr. Naresh Kaushal, who
supported the said averment. Further, the alleged Agreement to Sell at
various spaces is hand written however same has not been counter signed
by either party which clearly suggests that said spaces wherein are filled
later so as to suit the case of the respondent.

10. The alleged Agreement to Sell was never registered before an
appropriate authority under the
Registration Act, 1908
, which specifically

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provides for an Agreement to Sell to be necessarily registered under

Section 17
.

11. It is further submitted that the testimonies of the respondent
witnesses are also wholly unreliable since there are significant
contradictions and material discrepancies in the statements of the
witnesses. It is submitted that CW-1 himself stated that he has had a long-
standing association with Surender Wadhwa. Therefore, his statement has
no evidentiary value.

12. It is further submitted that as per the alleged Agreement to Sell the
petitioner had agreed to sell the property for a sum of Rs. 60 lakhs.
However, the value of the property is more than Rs. 10 crores, which has
been admitted by the respondent. The sale consideration to this effect is
fictitious and unreasonable.

13. While granting the Claim No. 1, pertaining to the specific relief of
the Agreement in favour of the respondent, the learned Arbitrator failed to
consider that specific performance is a discretionary relief. Relying upon
the judgment of
Om Prakash vs. Amarjit Singh
, 1988 Supp SCC 780,
the learned senior counsel submitted that
Section 20
of the Specific Relief
Act, 1963 provides that the jurisdiction to decree specific performance is
discretionary, and the Court is not bound to grant such relief merely
because it is lawful to do so, but the discretion of the Court is not
arbitrary but sound and reasonable, guided by judicial principles.

14. It is further submitted that the Hon'ble Supreme Court has time and
again reiterated the scope of intervention by an Arbitrator in cases where
there are serious allegations of fraud. Learned senior counsel relied upon

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several judgments passed by the Hon'ble Supreme Court, the relevant
portion of which are reproduced hereunder:-

a.
A. Ayyasamy vs. A. Paramasivam & Ors.
(2016) 10 SCC 386

―25 [Ed. : Para 25 corrected vide Official Corrigendum
No. F-3/Ed.B.J./101/2016 dated 17-7-2017.] . In view of
our aforesaid discussions, we are of the opinion that mere
allegation of fraud simpliciter may not be a ground to
nullify the effect of arbitration agreement between the
parties. It is only in those cases where the court, while
dealing with
Section 8
of the Act, finds that there are very
serious allegations of fraud which make a virtual case of
criminal offence or where allegations of fraud are so
complicated that it becomes absolutely essential that such
complex issues can be decided only by the civil court on
the appreciation of the voluminous evidence that needs to
be produced, the court can sidetrack the agreement by
dismissing the application under
Section 8
and proceed
with the suit on merits. It can be so done also in those
cases where there are serious allegations of
forgery/fabrication of documents in support of the plea of
fraud or where fraud is alleged against the arbitration
provision itself or is of such a nature that permeates the
entire contract, including the agreement to arbitrate,
meaning thereby in those cases where fraud goes to the
validity of the contract itself of the entire contract which
contains the arbitration clause or the validity of the
arbitration clause itself. Reverse position thereof would
be that where there are simple allegations of fraud
touching upon the internal affairs of the party inter se
and it has no implication in the public domain, the
arbitration clause need not be avoided and the parties
can be relegated to arbitration. While dealing with such
an issue in an application under
Section 8
of the Act, the
focus of the court has to be on the question as to whether
jurisdiction of the court has been ousted instead of
focusing on the issue as to whether the court has

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jurisdiction or not. It has to be kept in mind that insofar
as the statutory scheme of the Act is concerned, it does
not specifically exclude any category of cases as non-
arbitrable. Such categories of non-arbitrable subjects are
carved out by the courts, keeping in mind the principle of
common law that certain disputes which are of public
nature, etc. are not capable of adjudication and
settlement by arbitration and for resolution of such
disputes, courts i.e. public fora, are better suited than a
private forum of arbitration. Therefore, the inquiry of the
Court, while dealing with an application under
Section 8

of the Act, should be on the aforesaid aspect viz. whether
the nature of dispute is such that it cannot be referred to
arbitration, even if there is an arbitration agreement
between the parties. When the case of fraud is set up by
one of the parties and on that basis that party wants to
wriggle out of that arbitration agreement, a strict and
meticulous inquiry into the allegations of fraud is needed
and only when the Court is satisfied that the allegations
are of serious and complicated nature that it would be
more appropriate for the Court to deal with the subject-
matter rather than relegating the parties to arbitration,
then alone such an application under
Section 8
should be
rejected.

b.
Rashid Raza v. Sadaf Akhtar
, (2019) 8 SCC 710

―4. The principles of law
laid down in
this appeal make a
distinction between serious allegations of
forgery/fabrication in support of the plea of fraud as
opposed to ―simple allegations‖.

Two working tests
laid
down in
para 25 are: (1) does this plea permeate the
entire contract and above all, the agreement of
arbitration, rendering it void, or (2) whether the
allegations of fraud touch upon the internal affairs of the
parties inter se having no implication in the public
domain.‖
c.
Vidya Drolia v. Durga Trading Corpn.
, (2021) 2 SCC 1

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―78.
In view of the aforesaid discussions, we overrule the
ratio in N. Radhakrishnan [N. Radhakrishnan v. Maestro
Engineers, (2010) 1 SCC 72 : (2010) 1 SCC (Civ) 12]
inter alia observing that allegations of fraud can (sic
cannot) be made a subject-matter of arbitration when
they relate to a civil dispute. This is subject to the caveat
that fraud, which would vitiate and invalidate the
arbitration clause, is an aspect relating to non-
arbitrability.
We have also set aside the Full Bench
decision of the Delhi High Court in
HDFC Bank Ltd.
[HDFC Bank Ltd. v. Satpal Singh Bakshi
, 2012 SCC
OnLine Del 4815 : (2013) 134 DRJ 566] which holds that
the disputes which are to be adjudicated by the DRT
under the
DRT Act
are arbitrable. They are non-
arbitrable.

82. Issue of non-arbitrability can be raised at three
stages. First, before the court on an application for
reference under
Section 11
or for stay of pending judicial
proceedings and reference under
Section 8
of the
Arbitration Act; secondly, before the Arbitral Tribunal
during the course of the arbitration proceedings;

or thirdly, before the court at the stage of the challenge to
the award or its enforcement. Therefore, the question --
―Who decides non-arbitrability?‖ and, in particular, the
jurisdiction of the court at the first look stage, that is, the
referral stage.‖
d.
N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
,
(2021) 4 SCC 379

―45. The civil aspect of fraud is considered to be
arbitrable in contemporary arbitration jurisprudence,
with the only exception being where the allegation is that
the arbitration agreement itself is vitiated by fraud or
fraudulent inducement, or the fraud goes to the validity of
the underlying contract, and impeaches the arbitration
clause itself...

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46. The civil aspect of fraud can be adjudicated by an
Arbitral Tribunal...‖

15. Further, the second challenge to the impugned Award is that the
Award is in conflict with the public policy of India and is also patently
illegal. Reliance has been placed upon
Ssangyong Engineering and
Construction Company Limited vs. NHAI
, (
2019) 15 SCC 131, Patel
Engineering Limited vs. North Eastern Electric Power Corporation
Ltd.
, (
2020) 7 SCC 167 and Delhi Airport Metro Express Ltd. vs. Delhi
Metro Rail Corporation Ltd.
, (2021) 1 SCC 131 to submit that where an
Award suffers from patent illegality, it is liable to be set aside.

16. It is submitted that a criminal complaint dated 10th April 2017 has
also been filed against Surinder Wadhwa and his associates, including the
defendant herein under
Sections 420
,
,
,
,
and
120-B
of the
Indian Penal Code, 1860. The said complaint was registered as an FIR
bearing No. 27/2018 on 7th February 2018. However, the learned
Arbitrator has not considered the same while allowing Claim No. 1 in
favour of the respondent and did not even discuss the criminal
proceedings.

17. It is further submitted that the learned Arbitrator granted the relief
of specific performance of a contract in the absence of readiness and
willingness as stipulated under the
Specific Relief Act, 1963
. It is
submitted that this Court as well as the Hon'ble Supreme Court in various
pronouncements categorically held that, the words "ready" and "willing"
imply that the person was prepared to carry out the terms of the contact.
Reliance has been placed upon the judgment of
N.P. Thirugnanam vs.
Dr. R. Jagan Mohan Rao
, (1995) 5 SCC 115 to give force to this

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argument. However, the Respondent was never ready and willing to
satisfy his part in accordance with the alleged Agreement to Sell dated
26th October 2015 as Clause 2 of the alleged Agreement to Sell stipulated
that the respondent shall make the balance payment of Rs. 20,00,000/-
within a period of six months from the date the alleged Agreement to Sell
was signed. It is submitted that the accounts statements of the respondent
show that he never processed requisite funds to make payment for the
balance consideration. Moreover, the specific performance is a
discretionary relief which need not be necessarily granted. Therefore, the
observation of the learned Arbitrator regarding readiness and willingness
on the part of the respondent is erroneous.

18. Therefore, it is prayed that the impugned Award be set aside.

Submissions on behalf of the respondent

19. Per Contra, the learned counsel for the respondent vehemently
opposed the instant petition and submitted that there is no error in the
impugned Award passed in the arbitration proceedings between the
parties.

20. The learned counsel presented the respondent's version of the facts
and submitted that the petitioner approached the respondent, through her
husband Mr. Amrish Gupta, and represented that she is sole, legal and
absolute owner of property in question situated in revenue estate of
Village Jonapur, Tehsil Mehrauli, New Delhi. After due negotiations and
deliberations, the sale consideration amount was settled as Rs. 60 lakhs
and it is decided between the parties that an amount of Rs. 40 lakhs would
be paid at the time of execution of Agreement to Sell and balance sale

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consideration amount of Rs. 20 lakhs would be paid within a period of six
months from the date of the Agreement to Sell. It was also agreed
between the parties that the First Party, the petitioner herein, shall get the
mutation of the property done in favor of Second Party, the respondent
before this Court. It is submitted that based upon the representations and
assurances, the respondent agreed to enter into the Agreement to Sell with
the petitioner.

21. It is submitted that out of total sale consideration, the part payment
of Rs. 40 lakhs was paid through UTR No. BARBR52015102600767457
dated 26th October 2015 through Bank of Baroda, Shalimar Bagh, New
Delhi, by the respondent. The said Agreement was duly executed out of
free will and with consent of both the parties. However, the petitioner has
raised the objection to the existence of the Agreement.

22. The respondent has offered Rs. 20 lakhs to the petitioner at several
occasions, however, the petitioner was not coming forward for the
execution of Agreement to Sell. The respondent has been and is still
ready and willing to pay balance sale consideration amount of Rs. 20
lakhs to the petitioner subject to the petitioner executing the Sale Deed in
favor of respondent. It is submitted that the learned Arbitrator duly noted
the financial capacity of the respondent, pari delicto relations of the party
and then passed the finding regarding the readiness and willingness to
perform.

23. It is submitted that Clause 7 of the Agreement to Sell clearly
stipulates that in case if any party hereto infringes any of the terms and
conditions of the agreement to sell, the other party shall be entitled to get

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this transaction enforced through specific performance of the contract at
the costs and expenses of the defaulting party. Therefore, the observation
of the learned Arbitrator after due consideration of the validity of
Agreement for specific performance of the Agreement was in accordance
with the law as well as facts of the case.

24. The Clause 15 of the Agreement to Sell stipulates an Arbitration
Clause and provides that in case of any dispute arising out of or in
connection with this agreement, the same shall be referred to sole
Arbitration of Mr. Vineet Malhotra. Accordingly, when the dispute
regarding remaining consideration amount arose, the respondent invoked
the Arbitration Clause and sought to initiate arbitration proceedings.

25. The petitioner raised objections qua the possession of the property.
To this this effect, it is submitted that though the Agreement mentions
that the possession/original title deed of the said property was handed
over to the respondent, however, the correct facts are that the petitioner
requested for some time for handing over the possession, as the property
has to be surveyed by the concerned department for obtaining necessary
permissions for NOC and believing the request of petitioner to be bona
fide, the respondent agreed for the same and the possession of the
property remained with the petitioner. The respondent was assured by the
petitioner that she has already initiated the process of obtaining the
necessary permissions/NOC and will soon register the transfer document
in favor of respondent, however, the petitioner never took the necessary
steps. It is submitted that the petitioner delayed the execution of the
Agreement on one or another pretext. The petitioner also represented that

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the sale deed would be registered in the name of the respondent on or
before January 2017, however, the petitioner has failed to get the sale
deed registered in favor of respondent and hence, the Arbitration Clause
was invoked.

26. It is also submitted that the petitioner purchased the property in
question for Rs. 28 lakhs and the consideration for the Agreement to Sell
in question is Rs. 60 lakhs, which is more than double the purchase
amount. Therefore, there arises no objection to this issue. The issue has
also been discussed by the learned Arbitrator in the impugned Award.

27. To the objections raised on behalf of the petitioner regarding the
findings of the learned Arbitrator, the learned counsel for the respondent
submitted that the learned Arbitrator gave the parties were proper
opportunity to lead their documentary as well as oral, which was duly led
and only thereafter passed the finding granting Claim No. 1 in favour of
the respondent. It is submitted that the Agreement to Sell in question was
prepared on the Stamp Paper which is in the name of the petitioner.
Moreover, the learned Arbitrator in paragraphs no. 26, 27, 28, 29, 31, 32,
34, 35 and paragraph no. (ii), (iii), (iv), (v) & (xv) of the Award,
discussed the issue of genuineness of the Agreement to Sell in question
and analysed the evidence/material extensively, including the affixation
of signatures of Mrs. Seema Gupta on the Agreement to Sell, before
allowing the specific performance of the Agreement.

28. It is submitted that the petitioner never raised the plea of alibi in
the Statement of Defence or even while adducing evidence by way of the
affidavit of RW-1, Amrish Gupta and RW-2, Seema Gupta. At the fag

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end of proceedings before the learned Arbitrator, an application came to
be filed by the petitioner to examine Dr. N.K. Kaushal, which was
allowed on 4th December 2018. Dr. N.K. Kaushal was examined as RW-

3. No original prescription was produced. No fee bill was examined.
During the course of oral arguments as well, it was admitted by
petitioner's counsel that the doctor was known to him. Therefore, the
petitioner failed to establish that she was not present at the time of
execution of the Agreement.

29. The learned Arbitrator made specific observations to this effect and
found that the plea was not taken at any earlier stage. To support the
argument, the learned counsel referred to the evidence of the petitioner.
Reliance has also been placed on the judgment passed in Mohinder Singh
vs. State, AIR 1953 SC 415 whereby the Hon'ble Supreme Court held
that the standard of proof required in regard to a plea of alibi must be the
same as the standard applied to the prosecution evidence and in both
cases it should be a beyond reasonable doubt.
Further, in
Lakhan Singh
@ Pappu vs. the State of NCT of Delhi, Crl Appeal No.
166/1999, this
Court held that the plea of alibi cannot be equated with a plea of self-
defence and ought to be taken at the first instance and not belatedly at the
stage of defence evidence. In any case, the appellant/accused gives no
reason or explanations for not taking this plea of alibi at the earliest
opportunity. Therefore, there is no force in the argument of the petitioner
to this effect.

30. It is submitted that it has been argued on behalf of the petitioner
that there have been several cross-loan transactions between, however,

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the husband of the petitioner, during his cross-examination, clarified that
there is no transaction between the parties. Moreover, the Bank Account
Statement or the Financial Statements of the petitioner herein do not
display any repayment of loan or any payment of interest on loan and
moreover, if the same has been treated as a loan transaction by the
petitioner, then due diligence under
Section 194A
of Income Tax Act,
1961 has not been made.

31. The learned counsel submitted the scope of enquiry in the
proceedings under
Section 34
of the Arbitration Act is restricted to a
consideration whether any of the grounds mentioned in
Section 34(2)
or

Section 13(5)
or
Section 16(6)
of the Act are made out to set aside the
award. The grounds for setting aside the award are specific. It is
imperative for expeditious disposal of cases under
Section 34
of the
Arbitration Act be decided only with reference to the pleadings and the
evidence placed before the arbitral tribunal and the limited grounds
specified under
Section 34(2)
of the Act.

32. In the present case, the petitioner has failed to raise and establish
grounds as enumerated under
Section 34(2)
of the Arbitration Act. The
Award is a well-reasoned and speaking Award not warranting any
interference from this Court. Therefore, the instant petition is liable to be
dismissed for being devoid of merit.

33. Heard the learned counsel for the parties at length and perused the
record.

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FINDINGS AND ANALYSIS

34. The petitioner has assailed the Award dated 30th September 2019
passed by the learned Arbitrator, which has been thoroughly perused and
considered by this Court. After hearing the parties at length and perusing
the record, this Court deems it necessary to narrow down the controversy
and dispute between the parties to the following questions:-

I. What is the scope of the jurisdiction of the Arbitrator as well as
of the interference of this Court while adjudicating a petition under

Section 34
of the Arbitration Act.

II. Whether the learned Arbitrator has considered the objections
raised on behalf of the petitioner regarding the execution of the
Agreement to Sell while considering the grant of relief of specific
performance.

III. Whether the grounds stipulated under
Section 34
of the
Arbitration Act have been satisfied to set aside the impugned
Award in the instant matter.

Accordingly, this Court shall delve into the adjudication upon the
aforesaid issues.

ISSUE NO. I

Spirit of the Arbitration Act

35. Before adjudicating upon the merits of the case, it is essential to
recapitulate the idea, purpose, goal and objective of the
Arbitration Act
as
well as
Section 34
of the Arbitration Act to understand the implications
the provisions therein have on the powers and jurisdiction of this Court.

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36.
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.

37. The Hon'ble Supreme Court in
Union of India vs. Varindera
Constructions Ltd.
, (2018) 7 SCC 794, while discussing the object of
arbitration held as under:-

―12. The primary object of the arbitration is to reach a final
disposition in a speedy, effective, inexpensive and expeditious
manner. In order to regulate the law regarding arbitration,
legislature came up with legislation which is known as

Arbitration and Conciliation Act, 1996
. In order to make
arbitration process more effective, the legislature restricted
the role of courts in case where matter is subject to the
arbitration.
Section 5
of the Act specifically restricted the
interference of the courts to some extent. In other words, it is
only in exceptional circumstances, as provided by this Act,
the court is entitled to intervene in the dispute which is the
subject-matter of arbitration. Such intervention may be
before, at or after the arbitration proceeding, as the case
may be. In short, court shall not intervene with the subject-
matter of arbitration unless injustice is caused to either of the
parties.‖

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38. 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.

39. The petitioner before this Court has invoked
Section 34
of the
Arbitration Act to challenge the impugned Award. The relevant portion of
the said provision is reproduced hereunder for perusal and consideration:-

―34. Application for setting aside arbitral award.--

(1) Recourse to a Court against an arbitral award may be
made only by an application for setting aside such award in
accordance with sub-section (2) and sub-section (3).
(2) An arbitral award may be set aside by the Court only if--

(a) the party making the application establishes on the
basis of the record of the arbitral tribunal that--

(i) a party was under some incapacity, or

(ii) the arbitration agreement is not valid under
the law to which the parties have subjected it or,
failing any indication thereon, under the law for
the time being in force; or

(iii) the party making the application was not
given proper notice of the appointment of an
arbitrator or of the arbitral proceedings or was
otherwise unable to present his case; or

(iv) the arbitral award deals with a dispute not
contemplated by or not falling within the terms
of the submission to arbitration, or it contains
decisions on matters beyond the scope of the

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submission to arbitration:

Provided that, if the decisions on matters
submitted to arbitration can be separated from those
not so submitted, only that part of the arbitral award
which contains decisions on matters not submitted to
arbitration may be set aside; or
arbitral award which contains decisions on
matters not submitted to arbitration may be set
aside; or

(v) the composition of the arbitral tribunal or
the arbitral procedure was not in accordance
with the agreement of the parties, unless such
agreement was in conflict with a provision of
this Part from which the parties cannot
derogate, or, failing such agreement, was not in
accordance with this Part; or

(b) the Court finds that--

(i) the subject-matter of the dispute is not
capable of settlement by arbitration under the
law for the time being in force, or

(ii) the arbitral award is in conflict with the
public policy of India.

[Explanation 1.--For the avoidance of any doubt, it is
clarified that an award is in conflict with the public
policy of India, only if,--

(i) the making of the award was induced or
affected by fraud or corruption or was in
violation of section 75 or section 81; or

(ii) it is in contravention with the fundamental
policy of Indian law; or

(iii) it is in conflict with the most basic notions
of morality or justice.

Explanation 2.--For the avoidance of doubt, the test as
to whether there is a contravention with the

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fundamental policy of Indian law shall not entail a
review on the merits of the dispute.]
[(2A) An arbitral award arising out of arbitrations other than
international commercial arbitrations, may also be set aside
by the Court, if the Court finds that the award is vitiated by
patent illegality appearing on the face of the award:

Provided that an award shall not be set aside merely on the
ground of an erroneous application of the law or by
reappreciation of evidence.] ...‖

40. The contents of the provision clearly show that the intention of
legislature while enacting the
Arbitration Act
, as well as while carrying
out amendments to the same, was that there should be limited
intervention of the Courts in arbitral proceedings, especially after the
proceedings have been concluded and an Award thereto has been made
by the concerned Arbitral Tribunal. Any claim brought forth a Court of
law under
Section 34
of the Arbitration Act shall be in accordance with
the principle of the provisions laid down under the
Arbitration Act
as well
as interpreted by the Hon'ble Supreme Court.

41. The Law Commission of India in its 246 th Report has also
elaborated upon the background of introducing
Section 34
of the
Arbitration Act and laid down as under:-

―3.
The Arbitration and Conciliation Act, 1996
(hereinafter
"the Act") is based on the UNCITRAL Model law on
International Commercial Arbitration, 1985 and the
UNCITRAL Conciliation Rules, 1980.
The Act
has now been
in force for almost two decades, and in this period of time,
although arbitration has fast emerged as a frequently chosen
alternative to litigation, it has come to be afflicted with
various problems including those of high costs and delays,
making it no better than either the earlier regime which it
was intended to replace; or to litigation, to which it intends

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to provide an alternative. Delays are inherent in the
arbitration process, and costs of arbitration can be
tremendous. Even though courts play a pivotal role in giving
finality to certain issues which arise before, after and even
during an arbitration, there exists a serious threat of
arbitration related litigation getting caught up in the huge
list of pending cases before the courts. After the award, a
challenge under
Section 34
makes the award inexecutable
and such petitions remain pending for several years. The
object of quick alternative disputes resolution frequently
stands frustrated.

4. There is, therefore, an urgent need to revise certain
provisions of the Act to deal with these problems that
frequently arise in the arbitral process. The purpose of this
Chapter is to lay down the foundation for the changes
suggested in the Report of the Commission. The suggested
amendments address a variety of issues that plague the
present regime of arbitration in India and, therefore, before
setting out the amendments, it would be useful to identify the
problems that the suggested amendments are intended to
remedy and the context in which the said problems arise and
hence the context in which their solutions must be seen.

25. Similarly, the Commission has found that challenges to
arbitration awards under
Sections 34
and
are similarly
kept pending for many years. In this context, the Commission
proposes the addition of
Sections 34(5)
and
48(4)
which
would require that an application under those sections shall
be disposed of expeditiously and in any event within a period
of one year from the date of service of notice. In the case of
applications under
Section 48
of the Act, the Commission has
further provided a time-limit under
Section 48(3)
, which
mirrors the time-limits set out in
Section 34(3)
, and is aimed
at ensuring that parties take their remedies under this section
seriously and approach a judicial forum expeditiously, and
not by way of an afterthought.‖

42. With the repeal of
Arbitration Act
of 1940 by way of
Arbitration
Act, 1996
, the legislature sought to achieve the objective of reducing the

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supervisory role of courts in arbitration proceedings. The amendment of

Section 34
was also to have the Courts readily and expeditiously
adjudicate upon any proceedings arising out of arbitration proceedings.
The challenge to an Award also must be disposed of as expeditiously
possible by the Courts.

43. It is clear that the speed and efficiency of disposal of disputes
between parties are few of the substantial and key purposes of the
introduction, development and promotion of resolving disputes by way of
alternate mechanisms of dispute resolution.

44. Hence, the objective, goal and purpose of the Act as well as the
intention of the legislature have to be given due consideration while
adjudicating a petition under
Section 34
of the Arbitration Act.

Scope of Powers of Arbitrator & Intervention of Courts

45. The Arbitrator, who in his wisdom, passes an Award, upon
conducting the arbitration proceedings with the participation of parties to
the dispute, considering the Statement of Claim and Statement of Defence
presented by and on behalf of the parties, the relevant documents placed
on record by the parties, is considered a Court for the purposes of
adjudicating the dispute before him. An unfettered intervention in his
functioning would defeat the spirit and purpose of the
Arbitration Act
, as
discussed in the foregoing paragraphs.

46. An Arbitrator has wide powers while adjudicating arbitration
proceedings. There is, undoubtedly, a scrutiny on the Arbitrator and the
Awards passed by him, which has been stipulated under the
Arbitration
Act
. However, there is a deemed privilege of limited intervention from

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the Courts which the Arbitrators have. The same has been reiterated by
the Hon'ble Supreme Court time and again.

47. There is an extent to the accountability put upon an Arbitrator
while passing an Award. This is evident from the fact that with the
enforcement of the
Arbitration and Conciliation Act, 1996
, an Arbitrator
needs only to adhere to and fulfil the requirements under
Section 31
of
the Act. The limited requirements under
Section 31
are reproduced
hereunder:-

―Form and contents of arbitral award. -

(1) An arbitral award shall be made in writing and shall be
signed by the members of the arbitral tribunal.
(2) For the purposes of sub-section (1), in arbitral
proceedings with more than one arbitrator, the signatures of
the majority of all the members of the arbitral tribunal shall
be sufficient so long as the reason for any omitted signature
is stated.

(3) The arbitral award shall state the reasons upon which it
is based, unless--

(a) the parties have agreed that no reasons are to be
given, or

(b) the award is an arbitral award on agreed terms
under
section 30
(4)
The arbitral award shall state its date and the place of
arbitration as determined in accordance with
section 20
and
the award shall be deemed to have been made at that place.
(5) After the arbitral award is made, a signed copy shall be
delivered to each party.

(6) The arbitral tribunal may, at any time during the arbitral
proceedings, make an interim arbitral award on any matter
with respect to which it may make a final arbitral award. ...‖

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48. In addition to the requirements laid down under the provision, an
Arbitrator, although acting in accordance with the requirements of the

Arbitration Act
, need not act as a formal Court while adjudicating a
dispute and pass an Award which is lengthy, detailed or speaking. The
Hon'ble Supreme Court has reiterated that an Award which is not
speaking shall be set aside by the Court only in exceptional cases.

49.
In
Anand Brothers (P) Ltd. vs. Union of India & Ors.
, (2014) 9
SCC 212, the Hon'ble Supreme Court on the question of a reasoned or
speaking Award observed and held as under:-

―7. Before we examine whether the expression ''finding"

appearing in Clause 70 would include reasons in support of
the conclusion drawn by the arbitrator, we consider it
appropriate to refer to the Constitution Bench decision of this
Court in
Raipur Development Authority v. Chokhamal
Contractors
wherein this Court was examining whether an
award without giving reasons can be remitted or set aside by
the Court in the absence of any stipulation in the arbitral
agreement obliging the arbitrator to record his reasons.
Answering the question in the negative, this Court held that a
nonspeaking award cannot be set aside except in cases where
the parties stipulate that the arbitrator shall furnish reasons
for his award. This Court held: (SCC pp. 750-51, para 33)
―33 . ... When the parties to the dispute insist upon
reasons being given, the arbitrator is, as already
observed earlier, under an obligation to give reasons.
But there may be many arbitrations in which parties to
the dispute may not relish the disclosure of the reasons
for the awards. In the circumstances and particularly
having regard to the various reasons given by the
Indian Law Commission for not recommending to the
Government to introduce an amendment in the Act
requiring the arbitrators to give reasons for their
awards we feel that it may not be appropriate to take

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the view that all awards which do not contain reasons
should either be remitted or set aside.‖
Having said that, this Court declared that the Government
and their instrumentalities should-as a matter of policy and
public interest-if not as a compulsion of law, ensure that
whenever they enter into an agreement for resolution of
disputes by way of private arbitrations, the requirement of
speaking awards is expressly stipulated and ensured. Any
laxity in that behalf might lend itself to and, perhaps justify
the legitimate criticism, that the Government failed to
provide against possible prejudice to public interest.

8. The following passage is in this regard apposite: (
Raipur
Development Authority
case, SCC pp. 752-53, para 37)
―37. There is, however, one aspect of non-speaking
awards in non-statutory arbitrations to which
Government and governmental authorities are parties
that compel attention. The trappings of a body which
discharges judicial functions and is required to act in
accordance with law with their concomitant
obligations for reasoned decisions, are not attracted to
a private adjudication of the nature of arbitration as
the latter, as we have noticed earlier, is not supposed
to exert the State's sovereign judicial power. But
arbitral awards in disputes to which the State and its
instrumentalities are parties affect public interest and
the matter of the manner in which Government and its
instrumentalities allow their interest to be affected by
such arbitral adjudications involve larger questions of
policy and public interest. Government and its
instrumentalities cannot simply allow large financial
interests of the State to be prejudicially affected by
non-reviewable---except in the limited way allowed by
the statute-non-speaking arbitral awards. Indeed, this
branch of the system of dispute resolution has, of late,
acquired a certain degree of notoriety by the manner
in which in many cases the financial interests of
Government have come to suffer by awards which

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have raised eyebrows by doubts as to their rectitude
and propriety. It will not be justifiable for
Governments or their instrumentalities to enter into
arbitration agreements which do not expressly
stipulate the rendering of reasoned and speaking
awards. Governments and their instrumentalities
should, as a matter of policy and public interest-if not
as a compulsion of law-ensure that wherever they
enter into agreements for resolution of disputes by
resort to private arbitrations, the requirement of
speaking awards is expressly stipulated and ensured. It
is for Governments and their instrumentalities to
ensure in future this requirement as a matter of policy
in the larger public interest. Any lapse in that behalf
might lend itself to and perhaps justify, the legitimate
criticism that Government failed to provide against
possible prejudice to public interest.‖

9. Reference may also be made to the
Arbitration and
Conciliation Act, 1996
which has repealed the
Arbitration
Act, 1940
and which seeks to achieve the twin objectives of
obliging the Arbitral Tribunal to give reasons for its arbitral
award and reducing the supervisory role of courts in
arbitration proceedings.
Section 31(3)
of the said Act obliges
the Arbitral Tribunal to state the reasons upon which it is
based unless the parties have agreed that no reasons be
given or the arbitral award is based on consent of the
parties. There is, therefore, a paradigm shift in the legal
position under the new Act which prescribes a uniform
requirement for the arbitrators to give reasons except in the
two situations mentioned above. The change in the legal
approach towards arbitration as an alternative dispute
resolution mechanism is perceptible both in regard to the
requirement of giving reasons and the scope of interference
by the court with arbitral awards. While in regard to
requirement of giving reasons the law has brought in
dimensions not found under the old Act, the scope of
interference appears to be shrinking in its amplitude, no
matter judicial pronouncements at time appear to be heading

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towards a more expansive approach that may appear to some
to be opening up areas for judicial review on newer grounds
falling under the caption ―public policy‖ appearing in

Section 34
of the Act. We are referring to these developments
for it is one of the well-known canons of interpretation of
statutes that when an earlier enactment is truly ambiguous in
that it is equally open to diverse meanings, the later
enactment may in certain circumstances serve as the
parliamentary exposition of the former.

14. It is trite that a finding can be both: a finding of fact or a
finding of law. It may even be a finding on a mixed question
of law and fact. In the case of a finding on a legal issue the
arbitrator may on facts that are proved or admitted explore
his options and lay bare the process by which he arrives at
any such finding. It is only when the conclusion is supported
by reasons on which it is based that one can logically
describe the process as tantamount to recording a finding. It
is immaterial whether the reasons given in support of the
conclusion are sound or erroneous. That is because a
conclusion supported by reasons would constitute a "finding"

no matter the conclusion or the reasons in support of the
same may themselves be erroneous on facts or in law. It may
then be an erroneous finding but it would nonetheless be a
finding. What is important is that a finding presupposes
application of mind. Application of mind is best
demonstrated by disclosure of the mind; mind in turn is best
disclosed by recording reasons. That is the soul of every
adjudicatory process which affects the rights of the
parties....‖

50. Therefore, while considering a challenge to an Arbitral Award
where private parties are involved, the Court need not examine the
validity of the findings or the reasoning behind the findings given by an
Arbitrator. The extent to which a Court may exercise supervisory powers
in this respect is limited to examining whether the Award and the

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conclusion drawn therein is supported by findings and not whether the
findings themselves are erroneous or sound.

51. It has also been reiterated that, while adjudicating a challenge
under
Section 34
of the Arbitration Act, the Courts must limit themselves
to examining the Award itself and not the facts of the case. A Court shall
not conduct a roving enquiry into the facts and evidence of the matter and
neither shall the Court sit in appeal against the Award of the Arbitrator.

52.
In
UHL Power Co. Ltd. vs. State of Himachal Pradesh
, (2022) 4
SCC 116, the Hon'ble Supreme Court reiterated the narrow scope under

Section 34
of the Arbitration Act and held as under:-

―16. As it is, the jurisdiction conferred on courts under

Section 34
of the Arbitration Act is fairly narrow, when it
comes to the scope of an appeal under
Section 37
of the
Arbitration Act, the jurisdiction of an appellate court in
examining an order, setting aside or refusing to set aside an
award, is all the more circumscribed.
In
MMTC Ltd. v.
Vedanta Ltd.
5, the reasons for vesting such a limited
jurisdiction on the High Court in exercise of powers under

Section 34
of the Arbitration Act have been explained in the
following words: (SCC pp. 166-67, para 11)
―11. As far as
Section 34
is concerned, the position is
well-settled by now that the Court does not sit in
appeal over the arbitral award and may interfere on
merits on the limited ground provided under
Section
34(2)(b)(ii)
i.e. if the award is against the public policy
of India. As per the legal position clarified through
decisions of this Court prior to the amendments to the
1996 Act in 2015, a violation of Indian public policy,
in turn, includes a violation of the fundamental policy
of Indian law, a violation of the interest of India,
conflict with justice or morality, and the existence of
patent illegality in the arbitral award. Additionally, the

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concept of the "fundamental policy of Indian law"

would cover compliance with statutes and judicial
precedents, adopting a judicial approach, compliance
with the principles of natural justice, and
Wednesbury6 reasonableness. Furthermore, "patent
illegality" itself has been held to mean contravention
of the substantive law of India, contravention of the
1996 Act, and contravention of the terms of the
contract.‖

17. A similar view, as stated above, has been taken by this
Court in
K. Sugumar v. Hindustan Petroleum Corpn. Ltd.
7,
wherein it has been observed as follows: (SCC p. 540, para

2)
―2. The contours of the power of the Court under

Section 34
of the Act are too well established to
require any reiteration. Even a bare reading of
Section
of the Act indicates the highly constricted power of
the civil court to interfere with an arbitral award. The
reason for this is obvious. When parties have chosen to
avail an alternate mechanism for dispute resolution,
they must be left to reconcile themselves to the wisdom
of the decision of the arbitrator and the role of the
court should be restricted to the bare minimum.

Interference will be justified only in cases of
commission of misconduct by the arbitrator which can
find manifestation in different forms including exercise
of legal perversity by the arbitrator.‖

53.
In
Delhi Airport Metro Express Pvt Ltd vs. Delhi Metro Rail
Corporation
, (2022) 1 SCC 131, the Hon'ble Supreme Court to this
aspect held as under:-

―28. The limited grounds available to Courts for annulment
of arbitral awards are well known to legally trained minds.
However, the difficulty arises in applying the well established
principles for interference to the facts of each case that come
up before the courts. There is a disturbing tendency of Courts

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of setting aside arbitral awards, after dissecting and
reassessing factual aspects of the cases to come to a
conclusion that the award needs intervention and thereafter,
dubbing the award to be vitiated by either perversity or
patent illegality, apart from the other grounds available for
annulment of the award.‖

54. Further, in
State of Jharkhand vs. HSS Integrated DSN
, (2019) 9
SCC 798, the Hon'ble Supreme Court held that even when there are more
than one plausible views and the Arbitrator, in his wisdom, adopts one of
them, having given reasons for his findings, the Courts shall not interfere
with such an Award. It was observed as under:-

―6.1. In Progressive-MVR3, after considering the catena of
decisions of this Court on the scope and ambit of the
proceedings under
Section 34
of the Arbitration Act, this
Court has observed and held that even when the view taken
by the arbitrator is a plausible view, and/or when two views
are possible, a particular view taken by the Arbitral Tribunal
which is also reasonable should not be interfered with in a
proceeding under
Section 34
of the Arbitration Act.
6.2. In Datar Switchgear Ltd., this Court has observed and
held that the Arbitral Tribunal is the master of evidence and
the findings of fact which are arrived at by the arbitrators on
the basis of the evidence on record are not to be scrutinised
as if the Court was sitting in appeal. In para 51 of the
judgment, it is observed and held as under: (SCC pp. 169-70)
―51. ..... The proposition of law that the Arbitral
Tribunal is the master of evidence and the findings of
fact which are arrived at by the arbitrators on the
basis of evidence on record are not to be scrutinised as
if the Court was sitting in appeal now stands settled by
a catena of judgments pronounced by this Court
without any exception thereto.‖

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55. Hence, the law which has been settled by the Hon'ble Supreme
Court is that the scope of interference with an Arbitral Award under

Section 34
of the Arbitration Act is fairly limited and narrow. The Courts
shall not sit in an appeal while adjudicating a challenge to an Award
which is passed by an Arbitrator, the master of evidence, after due
consideration after facts, circumstances, evidence and material before
him.

56. Therefore, it is clear that this Court shall also limit itself to the
Award in question and not re-appreciate evidence and all material before
the Arbitrator.

ISSUE NO. II

57. The foremost ground raised on behalf of the petitioner is that the
findings of the learned Arbitrator qua the specific performance of the
Agreement to Sell dated 26th October 2015 are erroneous since the
learned Arbitrator failed to consider that the same was a forged and
fabricated document, never executed by the petitioner.

58. To this extent the arguments which have been detailed above are
reiterated to sum up the objections to be considered while adjudicating
the instant issue.

a. The petitioner claimed that she had not signed the Agreement
to Sell.

b. The petitioner took the plea of alibi and stated that she was not
in the City when the alleged Agreement to Sell was purported
to be signed.

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c. It was argued that the consideration for the Agreement was in
fact the amount for cross-loan transactions between the
parties.

59. It has been averred on behalf of the petitioner that the learned
Arbitrator did not consider the said aspects while granting the relief of
specific performance of contract. Therefore, it is pertinent to reproduce
and look into the findings of the learned Arbitrator. The same are
discussed hereunder.

60. The petitioner raised the objection of the Agreement to Sell before
the learned Arbitrator, which has been raised before this Court as well. To
this issue the learned Arbitrator as under:-

―Claim No.1
Decree for specific performance of Agreement to Sell dated
26.10.2015, against the Respondent for execution of sale
deed of property in question.

i. For consideration of relief of specific performance, the first
question to be determined is whether the Agreement to Sell
dated 26.10.2015, was executed between the parties? This is
because Respondent claims it to be forged and fabricated.
While referring the dispute to arbitration, 'the above issue
including all others had been left open for adjudication by
the arbitrator. To prove execution of Agreement to Sell,
Claimant produced original Agreement to Sell (Ex-CW 1/ A)
with proof of payment of part sale consideration of
Rs.40,00,000/- through banking channel. As noted earlier,
Claimant deposed regarding Respondent's husband proposal
to sell the agricultural land for the total sale consideration of
Rs.60,00,000/- being agreed with Rs.40,00,000/- being paid
at the time of execution of the Agreement to Sell. Claimant
deposed as to due execution of Agreement to Sell dated
26.10.2015 and proved the due execution by parties. Conjoint

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reading of his answers to question nos. (4, 6 and 20-22) of
his cross examination affirm the execution. Ownership of
land in question is not disputed. He categorically stated to
have paid Rs. 40,00,000/- through banking channel as
recorded in the Agreement and receipt of the said amount is
duly admitted by the Respondent albeit falsely claimed as
loan.

ii. Claimant's testimony was further supported by the
attesting witness CW-2, Ran Vijay Singh who also deposed
that Claimant and Respondent had executed the agreement.
Mr. Ran Vijay Singh verified Respondent's signatures on the
Agreement to Sell. He categorically stated that Respondent
had signed the agreement in his presence. In his reply in
Cross Examination, he deposed to be a witness to the
Agreement to Sell and that Agreement to Sell had been
executed in his presence. Relevant extract is reproduced
herein below:

"Q.15. Whether you had occasion to see Ms. Seema
Gupta write and sign her signatures before
26.10.2015?

Ans: No, I had seen her sign only on 26.10.2015 when
she signed CW 1/A.
iii. Respondent/RW-2 denied execution of the Agreement to
Sell. In her cross-examination she stated that signatures on
the Agreement to Sell were 'very similar' to her signatures
but they were not her signatures. Respondent's husband RW-
1 also denied the execution of the Agreement to Sell by
Respondent. In his cross examination, he deposed that
Agreement to Sell was not got examined by Truth Lab as
Respondent's signatures on the alleged Agreement to Sell,
looked similar to her usual style of signatures. Relevant
extract is-produced below for ready reference:

Q.6 Is it correct that you did not get the agreement to
Sell dated 26.10.2015, examined from the Truth Lab.
Ans: Yes.

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Q.7. I put it to you and your wife were fully in the
knowledge that the agreement to Sell dated 26.10.2015
was signed by your wife and therefore you did not get
this agreement examined from any expert. What do you
say?

Ans: It is incorrect to so suggest. We did not get it
examined from the handwriting expert because the
signatures on the alleged agreement looked similar to
her usual style. of signatures.

iv. During arguments, Counsel for Respondent submitted that
signatures on Agreement to Sell appears to be of Respondent,
but she does not remember to have signed the agreement. On
perusal of whole cross examination of Respondent, it is
strongly suggestive that it was her husband who took care of
all her financial dealings and she only affixed her signatures,
whenever she was told to do so by her husband.
v. This would further show that when a question was put to
her by the Tribunal regarding Balance sheet of M/s Blue
Planet Farms Pvt. Ltd. filed with Ministry of Corporate
affairs, and Director's Report of Jaguar Farms Private
Limited, where Respondent had been a Director Claimant
showed certified copies of the same to Respondent which she
denied having signed. "Do we take it that you are oblivious of
the affairs of the various businesses and companies since the
same are looked after by your husband and as per you on his
asking you affix your signatures without knowing or
understanding the contents of the documents xi to x17?" She
answered in affirmative 'Yes'. Tribunal further enquired if
her answer in respect of Balance sheet of M/s Blue Planet
Farms Pvt. Ltd. and Director's Report of Jaguar Farms
Private Limited., (x1-x17) was true as well as for other
documents, to which she replied in affirmative.
vi. Testimonies of CW-1 and CW-2 remained unshaken
throughout cross examination. Testimony of Respondent
show her obliviousness of nature of business and contents of
documents where she affixes her signatures to. In such
circumstances, it would be appropriate to infer that she often

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affixes her signatures in a mechanical manner on her
husband's instructions.‖

61. The learned Arbitrator noted that the petitioner herein failed to
corroborate her plea that the document pertaining to the Agreement to
Sell was not signed by her. It was noted that the petitioner was often
oblivious of the contents of the documents she used to sign since her
husband used to take care of the finances. It was also noted by the learned
Arbitrator that the petitioner herein suggested that the signatures on the
document in question were very similar to hers, however, she did not take
any steps to have the same examined.

62. Thereafter, to the issue of plea of alibi, the learned Arbitrator held
as under:-

―Respondent raised the plea of alibi for the first time in her
cross-examination. In her cross- examination, she deposed
that they were not in Delhi and had gone to Panchkula to
invite former Deputy Chief Minister Mr. Chandramohan and
his wife for her son's wedding. As already noted application
to examine Dr. Naresh Kaushal was allowed by the Tribunal
in view of "no objection" by Respondent's Counsel. In
addition to reasons already stated, it was admitted by RW-3
that he met Respondent and her husband Mr. Amrish Gupta
only once; but curiously, was able to identify RW-1.
It is pertinent to note that Mr. Amrish Gupta, RW-1, the
patient himself did not mention the visit to Panchkula or
falling ill at Kamal in his affidavit by way of evidence or
during his cross examination. It was only during the cross-
examination of Respondent/RW-2, at a later date, when she
for first time volunteered to say that they were not in Delhi
on 26/10/2015 i.e. the date of execution of the Agreement to
Sell.

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Evidence of Dr. Naresh Kaushal does not instil confidence of
this Tribunal for several reasons. RW-3 deposed to have
checked blood pressure, ECG and carried out other random
blood tests including sugar. No entries were made either in
the hospital register or laboratory, where tests had been
conducted. He admitted that as a matter of course, entries
were made in patient's record, laboratory and hospital
register when blood tests, ECG and intravenous glucose is
administered to a patient, but no such entry had and
administration of intravenous glucose takes away the
credibility of bald statement of the witness. Moreover, no
ECG report or test results have been produced by
Respondent or the laboratory of that date to substantiate
examination/tests but only photocopy of prescription was
shown. Curiously, Dr. Naresh Kaushal recognized Mr.
Amrish Gupta whom he claims to have met only once on
26.10.2015 but could not give the name of even one patient
out of 12 patients, he claimed to have examined the day
before his deposition on 20.02.2019. He appears to be a
procured and biased witness, who does not deserve any
credence or inspire any confidence. The absence of any entry
in the Hospital record of the tests carried out or ECG done,
or any payment therefor cuts at the root of his deposition
been made in present case. No convincing reason had been
given by the witness during the cross-examination for this.

Absence of entries of blood tests, ECG and administration of
intravenous glucose takes away the credibility of bald
statement of the witness. Moreover, no ECG report or test
results have been produced by Respondent or the laboratory
of that date to substantiate examination/tests but only
photocopy of prescription was shown. Curiously, Dr. Naresh
Kaushal recognized Mr. Amrish Gupta whom he claims to
have met only once on 26.10.2015 but could not give the
name of even one patient out of 12 patients, he claimed to
have examined the day before ·his deposition on 20.02.2019.
He appears to be a procured and biased witness, who does
not deserve any credence or inspire any confidence. The
absence of any entry in the Hospital record of the tests

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carried out or ECG done, or any payment therefor cuts at the
root of his deposition.

Moreover, plea of alibi was not taken at the earliest stage.
Respondent, neither in Statement of Defence nor in her
evidence by affidavit, had taken this plea. It arouses
suspicion when taken at belated stage, in a last ditch attempt
to support the plea of nonexecution of the agreement in the
face of credible evidence led by the Claimant. Respondent
throughout the proceedings had simply denied execution of
Agreement to Sell without raising plea of alibi or examining
any of the witnesses to prove her alleged trip to Panchkula. It
shows nothing but an afterthought defence. Judicial
Pronouncements relied on by the Claimant namely
Mohinder
Singh v State
, reported at AIR 1953 Cri LJ 1761;
Lakban
Singh @ Pappu vs The State of NCT of Delhi
, reported at Cr.
Appeal No. 166/1999, are with regard to consequences
flowing from the plea of alibi in criminal matters being found
to be false. Even though analogy of adverse inference to
reject the other defences as well can be drawn, but in view of
foregoing discussion and reasons, the plea of alibi as taken
by Respondent deserves to be rejected on merits as well.
In light of foregoing discussion, I hold that the Agreement to
Sell dated 26.10.2015 was duly executed between Claimant
and the Respondent with sum of Rs.40,00,00/-, being paid as
part sale consideration and the denial thereof by Respondent
is wrongful, with ulterior motive to somehow avoid, deny and
resile from the bargain entered into.‖

63. It was observed by the learned Arbitrator that the application for
plea of alibi was raised by the petitioner herein at a belated stage. It was
further noted that nothing on record, including material or even the
testimony of RW-3, could substantiate the claim raised by the petitioner
to suggest that she was not present at the place of signing of the
Agreement on the day it was signed.

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64. While considering the objection the question of allegations
regarding cross-loan transaction, the learned Arbitrator held as under:-

―vii. Let us now consider the defence raised by the
Respondent namely the receipt of Rs. Rs.40,00,000/- was
towards a loan. Not a single document has been produced by
way of any receipt or any loan agreement. The said amount
has also not been reflected in the Income Tax returns of the
Respondent. No remittance of any interest or deduction of
any tax on the interest income has been either produced, or
proved on record. Respondent also was unaware about the
rate or interest or if it was an interest free loan. Relevant
portion from her cross-examination is reproduced herein
below:

Q.28. What kind of financial transaction between your
husband and Mr. Sunny Talwani? Tribunal has
allowed the witness to refer to para 3 of Exhibit R W2/
A to give complete answer to the question.
Ans: I am not aware. Again, said 1 am not aware of
the nature of transactions or the numbers thereof and
the amounts thereof.

Q. 33. Kindly see para No 14 of Exhibit RW2/A. Can
you explain or give details of the loan(s) taken by
Claimant from you, your husband or any of your
family member?

Ans: I don't know. My husband was taking care of all
the financial transactions.

viii. Though Respondent and· her husband in their pleadings
and evidence had taken the plea that the said financial
transaction of Rs.40,00,000/- was part of numerous cross-
transactions where loans were taken and cross-loans were
given between Claimant, his associates and Mr. Surinder
Kumar Wadhwa and Respondent and her family. However,
Claimant in his evidence had categorically stated that
agreement dated 26.10.2015, was the only transaction which
the Claimant and/or his family ever had with Respondent or

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her family. It is supported by RW-1 's evidence as noted
earlier in paragraph 24 where Respondent's husband
admitted that, except the agreement in question, there was no
other transaction between Claimant and his wife Seema
Gupta/Respondent directly. Relevant extract of Cross-
examination is reproduced herein below:

Q.10. I put it to you that there was no transaction
between Claimant and your wife Ms. Seema Gupta,
Mr. Amrish Gupta and any of your family members
except the present agreement to Sell dated 26.10.2015
between the Claimant and Ms. Seema Gupta.
Ans: No. Again said, 'there were transactions between
me arid associates of Claimant.

Per Tribunal:

Q. Is it correct that the only transaction between the
Claimant and your wife Mrs. Seema Gupta is
pertaining to the agreement, which is the subject
matter of the arbitration and execution of which is
denied by the Respondent?

Ans. Yes, it is correct. There is no other direct
transaction between the Claimant and my wife Seema
Gupta.

Q.11 Shown para 3 of your affidavit Ex. RW1/A. I put
it to you that there was no transaction between
Respondent and her family with the Claimant's family
and your statement to the fact that the transaction has
been done from the personal accounts of Respondent
and his family with the Claimant's family members is
incorrect. What do you have to say?

Ans. It is correct.

Answer to Question no. 11 by Respondent's husband is a
clear admission of the falsity of the plea taken regarding
cross-loans with Claimant and his family. Further
suggestions in respect of Claimant's association with
numerous companies to prove cross loans also proved to be a

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wild goose chase. Respondent in her written submission and
her affidavit pleaded that Claimant had taken cross-loans
from Respondent's husband of more than four to five crores
for his related firms like M/S Sarna Sale, M/S ASP Sealing
Products Pvt. Ltd., MIS Supreme Electricals and M/S Bharat
Communication. There is no special relation of Respondent's
husband with Claimant pleaded or shown or even Claimant's
connection with the said parties so as to secure loan for them
from Respondent and/or her husband. Respondent further
referred to ongoing recovery proceedings against these firms
which are related to Claimant. Respondent's husband was
cross-examined on these aspects of cross-loans and business
transactions. Extract from cross-examination of Respondent's
husband are given below for ready reference:

Q.13. What was/is the constitution of M/s Sarna Sale,
M/s ASP Sealing Products Pvt. Ltd., M/s Supreme
Electricals and M/s Bharat Communications, to whom
you have allegedly advance loans ofRs.4 to 5 crores?
Ans: I do not know the constitution of the above
entities except that of M/s Bharat Communications.
M/s Bharat Communication is a sole proprietorship
concern owned by Mr. Bharat Goel. All these loans
were given at the behest of the Claimant without
knowing the other concerns.

x. The answers to questions as above do not indicate any
connection of Claimant with these transactions. Moreover,
Claimant is not impleaded as party in any of these recovery
proceedings, filed by Respondent's and/or her husband.
Respondent's claim of cross-loans falls flat. It is Clear
therefore that no financial transaction had been made by
Respondent or her family with Claimant. Moreover, her plea
of associating Claimant is without any factual foundation.
Therefore, the plea of Respondent, that the said sum being a
loan transaction or part of a cross-loans with
Claimant/family members is found to be baseless and without
any factual foundation and has only be to state to be rejected,

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insofar as the Claimant and the present transaction are
concerned.‖

65. Upon consideration of the examination and cross-examination of
the relevant witnesses, the learned Arbitrator made the above findings.

66. A perusal of the aforementioned portions of the Award clearly
show that the claims raised on behalf of the petitioner herein have been
considered, adjudicated upon and answered by the learned Arbitrator in
the impugned Award. It is evident that not only has he given sufficient
reasons for the findings but such findings have also been supported with
evidence and other material on record. The petitioner failed to
corroborate, with her submissions and even evidence that the Agreement
to Sell was forged and fabricated. At this stage, the scope of interference,
which has been laid out in the foregoing paragraphs, is referred to. There
is no need for this Court to enter into the validity of the reasoning and the
findings given by the learned Arbitrator.

67. During the course of the argument before this Court, it was argued
on behalf of the petitioner that the learned Arbitrator did not give any
finding on the aspect of execution of the Agreement, however, the
contrary is evident from the perusal of the Award that the aspect was duly
and carefully considered by the learned Arbitrator at length and only after
consideration and appreciation of material, the findings against the
petitioner were passed.

68. After considering the question of whether an Agreement to Sell
was executed between the parties concerned, the learned Arbitrator

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proceeded to adjudicate the question whether the respondent was entitled
for specific relief of the Agreement to Sell.

69. The law regarding the issue specific performance under the

Specific Relief Act
, has been settled. The same stands modified with the
amendments brought about in the
Specific Relief Act
introduced in 2018.
The relief of specific performance is an equitable relief. As per the
amended Act, the Courts no longer have discretionary powers under the

Specific Relief Act
while adjudicating a relief of specific performance.
The Court may require to be satisfied on certain tests before granting the
relief of specific performance, however, upon fulfilment of the
ingredients and satisfaction of the court, a relief of specific performance
may mandatorily be granted. To this effect, the Hon'ble Supreme Court in

Katta Sujatha Reddy v. Siddamsetty Infra Projects (P) Ltd.
, (2023) 1
SCC 355 while holding that the amendments brought to the
Specific
Relief Act
in the year 2018 are prospective and not retrospective in
nature, observed as under:-

―44. We may note that the
Specific Relief Act, 1963
is the
second legislation, replacing the earlier 1877 enactment of
the
Specific Relief Act
. The 1963 Act was enacted after
consideration of the Law Commission in its Ninth Report.
The 1963 Act more or less followed the English position on
equitable remedy of specific performance. In Common Law,
the remedy of specific performance was unknown in the
initial days and courts only granted damages for the value of
goods if there was any breach of contract. Accordingly
English courts, in the early years, granted monetary relief. In
order to rectify the harsh stance of law, Courts of Equity in
England started granting relief of specific performance if the
Court of Equity found that granting damages would be

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inadequate or some special equitable rights of the plaintiff
under a trust have been breached.

45. In any case, grant of such relief, which emanated from
equitable principles, remained discretionary. This principle is
clearly explained by Swinfen Eady M.R., in Whiteley
Ltd. v. Hilt [Whiteley Ltd. v. Hilt, (1918) 2 KB 808 (CA)] , in
the following manner : (KB p. 819)

―... the power vested in the Court to order the delivery
up of a particular chattel is discretionary, and ought
not to be exercised when the chattel is an ordinary
article of commerce and of no special value or interest,
and not alleged to be of any special value to the
plaintiff, and where the damages would fully
compensate.‖

46. However, this was not the position under the Civil Law.

Under the Civil Law of contracts, adherence to the sanctity of
contract is enforced with greater rigour by inversing the
situation. The reason for choice of damages and specific
performance range from legal to economic. It is in this
context that the courts cannot engage on the merits of having
damages or specific performance or a hybrid. It is best left to
the legislature to choose the course best-suited to the
economy without sheepishly following the typecast approach
in England or Civil Law systems.

48. We do not subscribe to the aforesaid reasoning provided
by the High Court for the simple reason that after the 2018
Amendment, specific performance, which stood as a
discretionary remedy, is not (sic now) codified as an
enforceable right which is not dependent anymore on
equitable principles expounded by Judges, rather it is
founded on satisfaction of the requisite ingredients as
provided under the
Specific Relief Act
. For determination of
whether a substituted law is procedural or substantive,
reference to the nature of the parent enactment may not be
material. Instead, it is the nature of the amendments which

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determine whether they are in the realm of procedural or
substantive law.

51. In any case, the amendment carried out in 2018 was
enacted to further bolster adherence to the sanctity of
contracts. This approach was radical and created new rights
and obligations which did not exist prior to such an
amendment.
Section 10
, after amendment, reads as under:

―10. Specific performance in respect of contracts.--
The specific performance of a contract shall be
enforced by the court subject to the provisions
contained in sub-section (2) of
Section 11
,
Section 14

and
Section 16
.‖

52. This provision, which remained in the realm of the courts'
discretion, was converted into a mandatory provision,
prescribing a power the courts had to exercise when the
ingredients were fulfilled. This was a significant step in the
growth of commercial law as the sanctity of contracts was
reinforced with parties having to comply with contracts and
thereby reducing efficient breaches.

53. Under the pre-amended
Specific Relief Act
, one of the
major considerations for grant of specific performance was
the adequacy of damages under
Section 14(1)(a)
. However,
this consideration has now been completely done away with,
in order to provide better compensation to the aggrieved
party in the form of specific performance.

54. Having come to the conclusion that the 2018 Amendment
was not a mere procedural enactment, rather it had
substantive principles built into its working, this Court
cannot hold that such amendments would apply
retrospectively.‖

70. The Hon'ble Supreme Court, prior to holding that the relief of
specific performance is no longer discretionary, in the judgment of
Kamal
Kumar v. Premlata Joshi
, (2019) 3 SCC 704 stipulated certain

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considerations while adjudicating a plea so raised by a party and held as
under:-

―7. .... The material questions, which are required to be gone
into for grant of the relief of specific performance, are:

7.1. First, whether there exists a valid and concluded
contract between the parties for sale/purchase of the suit
property.

7.2. Second, whether the plaintiff has been ready and willing
to perform his part of contract and whether he is still ready
and willing to perform his part as mentioned in the contract.

7.3. Third, whether the plaintiff has, in fact, performed his
part of the contract and, if so, how and to what extent and in
what manner he has performed and whether such
performance was in conformity with the terms of the
contract;

7.4. Fourth, whether it will be equitable to grant the relief of
specific performance to the plaintiff against the defendant in
relation to suit property or it will cause any kind of hardship
to the defendant and, if so, how and in what manner and the
extent if such relief is eventually granted to the plaintiff;

7.5. Lastly, whether the plaintiff is entitled for grant of any
other alternative relief, namely, refund of earnest money, etc.
and, if so, on what grounds.

8. In our opinion, the aforementioned questions are part of
the statutory requirements [See
Sections 16(c)
,
,
,
,
of the Specific Relief Act, 1963 and Forms 47/48 of
Appendices A to C
of the Code of Civil Procedure
]. These
requirements have to be properly pleaded by the parties in
their respective pleadings and proved with the aid of
evidence in accordance with law. It is only then the Court is
entitled to exercise its discretion and accordingly grant or

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refuse the relief of specific performance depending upon the
case made out by the parties on facts.‖

71. In the instant case, the learned Arbitrator, while allowing the Claim
of the respondent, held as under:-

―For purposes of grant of relief of specific performance,
Tribunal is to look into Claimant's averments and conduct to
adjudge whether he performed or has always been ready and
willing to perform, essential terms of contract, other than
those which are prevented or waived by Respondent. While
examining the entitlement, the conduct of parties is also to be
seen qua the obligations undertaken. Specific Performance
being a statutory remedy, Tribunal has to examine readiness
and willingness of Claimant, conduct of the parties by
evaluating the evidence led by the parties and whether the
same meets the statutory requirements and exercise
discretion accordingly. This needs to be done in the context
of the obligations, reciprocal promises undertaken in terms
of the Agreement to Sell.

***
In view of the discussion in preceding paras, the due
execution of Agreement to Sell stands established. We now
need to examine whether the Claimant has also shown its
readiness and willingness to go through the transaction
and/or whether he was precluded from doing so by the
actions and conduct of the Respondent. Claimant in his
affidavit by way of evidence, deposed that he had offered the
balance sale consideration of Rs.20,00,000/- number of times
but Respondent was not coming forward for execution of the
Sale Deed. Claimant reiterated his readiness and willingness
to pay remaining sale consideration of Rs.20,00,000/- subject
to the latter executing the sale Deed in favour of Claimant in
his cross-examination. As per requirement
u/s 16
of the
Specific Relief Act, 1963 that Claimant must plead/aver to
have performed or being ready and willing to perform, the
essential obligation under the contract, Claimant has
discharged that burden to aver.

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xviii. It may also be noticed that apart from the conduct of
the Claimant, in case, it is found that the
Respondent/defendant who either does not come with clean
hands or suppresses or delays or misleads the Court, then
discretion is not to be exercised in Respondent/ defendant's
favour by refusing Specific Performance to the Claimant.
Reference is invited to judgment of Supreme Court in
Zarina
Siddiqui vs A. Ramalingam@ R. Amarnathan
reported at
2015 (1) SCC 705 while dealing on issue of specific
performance observed:

33. "The equitable discretion to grant or not to grant a
relief for specific performance also depends upon the
conduct of the parties. The necessary ingredient has to
be proved and established by the plaintiff so that
discretion would be exercised judiciously in favour of
the plaintiff At the same time. if the defendant does not
come with clean hands and suppresses material facts
and evidence and misled the Court then such
discretion should not be exercised by refusing to grant
specific performance.

34. In the instant case, as noticed above, although
Defendant 2 held a registered power of attorney on
behalf of Defendant 1 to Sell and dispose of the
property, but the defendants not only made a false
statement on affidavit that the power of .attorney had
authorized the second defendant only to look after .and
manage the property but also. withheld the said power
of attorney from the court in order to misguide the
court from the truth of the facts. Further, by registered
agreement the defendants agreed to Sell the suit
premises after receiving advance consideration but
they denied the existence of the agreement in their
pleadings. Such conduct of the defendants in our
opinion. disentitles them to ask the court for exercising
discretion in their favour by refusing to grant a decree
for specific performance. Further, If a party to a lis
does not disclose all material facts truly and fairly but

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states them in distorted manner and misleads the
court, the court has inherent power to exercise its
discretionary jurisdiction in order to prevent abuse of
process of law ".

Applying the ratio of
the above case
, it would be seen that in
the instant case, Respondent has falsely chosen to deny the
factum of execution of Agreement to Sell itself and rather
taken a defence of the payment of substantial consideration
of Rs.40,00,000/- being a loan with other cross-loans, which
defence has been found to be moonshine and wholly
unsustainable. It would follow from the above that the
Respondent who was denying transaction of Agreement to
Sell, had no intention to perform her part of obligation.
Neither did Respondent handover possession nor did
Respondent take any other steps, towards initiating the
process of obtaining the permission
u/s 4
of The Delhi Land
(Restrictions on Transfer) Act, 1972. Therefore, in terms of
the aforesaid judgments the Respondent, who is guilty of
abuse of legal process and taking false pleas cannot seek the
discretion of the Tribunal in her favour by refusing to grant a
decree of Specific performance.

Reference may also be made in this regard to the case of

Silvey and Ors. vs. Arun Varghese and Ors.
reported at
(2008) 11 SCC 45, to support the proposition that discretion
should not be exercised in favour of the defendant by refusing
grant of specific performance to plaintiff, where defendant
took a false plea and was not ready to perform his part of the
obligation.

xxi. Claimant's conduct prior and subsequent to filing of
claim are taken into consideration. Readiness of Claimant
can be seen from his financial capacity whereas willingness
would be derived from his conduct. Therefore, to prove
readiness Claimant must prove his financial capacity to pay
the balance amount ofRs.20,00,000/- since the day of
execution of Agreement to Sell till the date of award and the
same is examined in light of evidence led by Claimant.

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To determine readiness, Claimant's income for the
assessment year of 2016-17 is Rs.12,32,767/- as per his Bank
Statement/Balance Sheet. Income Tax Returns for
"assessment year of 2018-19 is Rs. 20,86,217/-. Additionally,
Claimant produced Bank Statement of Claimant's
proprietorship M/S GRV Polymers w.e.f 01.01.2016 to
31.03.2017 with sanctioned loan facility of Rs. Rs.94,00,000/-
(Ninety Four Lakhs) and additional Rs.20,00,000/- extended
to Claimant's proprietorship by Bank of Baroda against
collateral Securities.

In view of the above evidence, it would be seen that loan
facility extended to Claimant against securities of Claimant
was at his disposal with liberty to put money to his use. As on
25:04.2016, it had drawing option/window of Rs.93,79,548/-.
Subsequently profit ofRs.16,25,085/- is reflected for the year
ending on 31.03.2018. Moreover, Claimant's own income for
the year ?O 16-1 7 was shown to be of about 12 lakhs and for
the year 2018-19, it was Rs.20 lakhs. Moreover, Claimant
also discharged the burden of paying the entire arbitral fee
with Respondent unwilling to pay due to alleged financial
duress and hardship. Claimant had enough liquidity to pay
the balance sale consideration of only Rs.20,00,000/- while
substantial consideration of Rs.40,00,000/- stood already
paid. Therefore, Claimant has proved his readiness and
capacity to pay the remaining sum ofRs.20,00,000/
throughout.

In view of the aforesaid authoritative pronouncement of the
Supreme court directly applicable to the case, I have not
considered it necessary to advert to other judgments cited by
the Claimant and Respondent. It is therefore held that the
Claimant is not disentitled to the relief of decree of Specific
Performance merely on the ground of absence of
communication for the period of 11 months during which
time he was following up and making efforts with the
Respondent for completing the sale and not resort to
litigation.

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Further, I am of the view that, Claimant having proved his
readiness and willingness with financial capacity to pay the
remaining balance sale consideration of Rs.20,00,000/-, is
entitled to the decree of Specific Performance of the
Agreement to Sell dated 26.10.2015. An award is accordingly
passed in favour of the Claimant and against the Respondent
granting specific performance of the Agreement to Sell dated
26.10.2015 in respect of Agriculture land admeasuring 2
bighas 8 biswas, bearing Mustatil No. 3, Killa Nos. 2111 (1-

4) and 2112 Min 1112 (1-4), situated in village Jonapur,
Tehsil, Mehrauli, New Delhi. subject to the Claimant
depositing the balance sale consideration of Rs. 20,00,000/-
before the Registrar General of High Court of Delhi within 2
weeks of the Respondent applying for and obtaining NOC/
Permission for transfer of the suit land under the (Delhi Land
Restriction on Transfer) Act. Claimant shall join the
Respondent in any such application for obtaining NOC. In
case, the Respondent fails to apply for such permission, the
Claimant may apply to the Registrar of the High Court for
obtaining such permission.‖

72. It is apparent that the learned Arbitrator considered the aspect of
readiness and willingness to perform an Agreement while deciding the
question of specific performance while applying the principles to the facts
of the instant case. Referring to the judgments of the Hon'ble Supreme
Court as well as the issue of extended time period raised by the petitioner
herein, the learned Arbitrator found that there was a degree of readiness
and willingness on the part of the respondent to fulfil his obligations and
perform the Agreement. The learned Arbitrator has thoroughly considered
the evidence, contentions of the parties as well as the law
laid down by

the judicial precedents before reaching the conclusion that the respondent
is entitled for specific performance of the Agreement.

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73. Therefore, this Court on the Issue No. II is of the opinion that the
learned Arbitrator thoroughly and elaborately considered the objections
raised on behalf of the petitioner regarding execution of the Agreement to
Sell and only thereafter considered the question of specific performance
of the Agreement after due appreciation of evidence and material on
record.

ISSUE NO. III

74. Since, it has been settled that the scope of interference under

Section 34
of the Arbitration Act is limited, it is now pertinent to see the
considerations that are to be considered while adjudicating upon a
challenge and in what circumstances may an Award may be set aside.

75. On a bare reading of the invoked provision
Section 34
of the
Arbitration Act as quoted above, it has become evident the words used
therein are that "An arbitral award may be set aside by the Court only if",
which signifies the intent of limiting the scope of interference by Courts
in an Arbitral Award, passed after thorough procedure, involvement of
parties, and appreciation of facts, evidence and law, "only" in the event of
the circumstances delineated in the provision being met. The limited
grounds which may invite the intervention and action thereupon by the
Courts are explicitly laid down under the provision. What is to be seen by
a Court exercising jurisdiction under
Section 34
of the Arbitration Act is
that an Award passed by an Arbitral Tribunal may only be set aside if it is
patently illegal, against the public policy of India, based on no evidence
and delineates no reason for passing the Award.

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76. The petitioner has raised the ground of patent illegality as well as
contravention to public policy while impugning the Award dated 30 th
September 2019.

77. The Hon'ble Supreme Court in BCCI vs. Cricket Association &
Ors. (2015) 3 SCC 251, on the question of public policy, held as under:-

―90. The validity of Rule 6.2.4 as amended can be examined
also from the standpoint of its being opposed to "public
policy". But for doing so we need to first examine what is
meant by "public policy" as it is understood in legal
parlance. The expression has been used in
Section 23
of the
Contract Act, 1872 and in
Section 34
of the Arbitration and
Conciliation Act, 1996 and host of other statutes but has not
been given any precise definition primarily because the
expression represents a dynamic concept and is, therefore,
incapable of any straitjacket definition, meaning or
explanation. That has not, however, deterred jurists and
courts from explaining the expression from very early times.

91. Mathew, J. speaking for the Court in
Murlidhar
Aggarwal v. State of U.P.
27 referred to Winfield's definition
in Public Policy in English Common Law 42 Harvard Law
Review 76 to declare that: (SCC p. 482, para 31)
―31. Public policy does not remain static in any given
community. It may vary from generation to generation
and even in the same generation. Public policy would
be almost useless if it were to remain in fixed moulds
for all time.‖

92. The Court then grappled with the problem of ascertaining
public policy if the same is variable and depends on the
welfare of the community and observed: (Murlidhar
Aggarwal case27 , SCC pp. 482-83, para 32)
―3 2. If it is variable, if it depends on the welfare of the
community at any given time, how are the courts to
ascertain it? The Judges are more to be trusted as
interpreters of the law than as expounders of public

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policy. However, there is no alternative under our
system but to vest this power with Judges. The
difficulty of discovering what public policy is at any
given moment certainly does not absolve the Judges
from the duty of doing so. In conducting an enquiry, as
already stated, Judges are not hidebound by
precedent. The Judges must look beyond the narrow
field of past precedents, though this still leaves open
the question, in which direction they must cast their
gaze. The Judges are to base their decisions on the
opinions of men of the world, as distinguished from
opinions based on legal learning. In other words, the
Judges will have to look beyond the jurisprudence and
that in so doing, they must consult not their own
personal standards or predilections but those of the
dominant opinion at a given moment, or what has been
termed customary morality. The Judges must consider
the social consequences of the rule propounded,
especially in the light of the factual evidence available
as to its probable results. Of course, it is not to be
expected that men of the world are to be subpoenaed
as expert witnesses in the trial of every action raising
a question of public policy. It is not open to the Judges
to make a sort of referendum or hear evidence or
conduct an inquiry as to the prevailing moral concept.

Such an extended extra-judicial enquiry is wholly
outside the tradition of courts where the tendency is to
'trust the Judge to be a typical representative of his
day and generation'. Our law relies, on the implied
insight of the Judge on such matters. It is the Judges
themselves, assisted by the Bar, who here represent the
highest common factor of public sentiment and
intelligence. No doubt, there is no assurance that
Judges will interpret the mores* of their day more
wisely and truly than other men. But this is beside the
point. The point is rather that this power must be
lodged somewhere and under our Constitution and
laws, it has been lodged in the Judges and if they have

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to fulfil their function as Judges, it could hardly be
lodged elsewhere.‖

93. In Central Inland Water Transport Corpn. this Court was
also considering the import of the expression "public policy"

in the context of the service conditions of an employee
empowering the employer to terminate his service at his
sweet will upon service of three months' notice or payment of
salary in lieu thereof. Explaining the dynamic nature of the
concept of public policy this Court observed: (SCC pp. 217-
18, para 92)
―92. . . . Public policy, however, is not the policy of a
particular Government. It connotes some matter which
concerns the public good and the public interest. The
concept of what is for the public good or in the public
interest or what would be injurious or harmful to the
public good or the public interest has varied from time
to time. As new concepts take the place of old,
transactions which were once considered against
public policy are now being upheld by the courts and
similarly where there has been a well recognised head
of public policy, the courts have not shirked from
extending it to new transactions and changed
circumstances and have at times not even flinched
from inventing a new head of public policy ....
It is thus clear that the principles governing public
policy must be and are capable, on proper occasion, of
expansion or modification. Practices which were
considered perfectly normal at one time have today
become obnoxious and oppressive to public
conscience. If there is no head of public policy which
covers a case, then the court must in consonance with
public conscience and in keeping with public good and
public interest declare such practice to be opposed to
public policy. Above all, in deciding any case which
may not be covered by authority our courts have
before them the beacon light of the Preamble to the
Constitution. Lacking precedent, the court can always

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be guided by that light and the principles underlying
the fundamental rights and the directive principles
enshrined in our Constitution.‖

94. We may also refer to the decision of this Court in ONGC
Ltd. v. Saw Pipes Ltd., wherein this Court was considering
the meaning and import of the expression "public policy of
India" as a ground for setting aside an arbitral award.
Speaking for the Court M.B. Shah, J. held that the expression
"public policy of India" appearing in the Act aforementioned
must be given a liberal meaning for otherwise resolution of
disputes by resort to arbitration proceedings will get
frustrated because patently illegal awards would remain
immune to court's interference. This Court declared that
what was against public good and public interest cannot be
held to be consistent with public policy. The following
passage aptly summed up the approach to be adopted in the
matter: (Saw Pipes Ltd. case, SCC pp. 727-28, para 31)
―31. Therefore, in our view, the phrase 'public policy
of India' used in
Section 34
in context is required to be
given a wider meaning. It can be stated that the
concept of public policy connotes some matter which
concerns public good and the public interest. What is
for public good or in public interest or what would be
injurious or harmful to the public good or public
interest has varied from time to time. However, the
award which is, on the face of it, patently in violation
of statutory provisions cannot be said to be in public
interest. Such award/judgment/decision is likely to
adversely affect the administration of justice. Hence, in
our view in addition to narrower meaning given to the
term 'public policy' in Renusagar case it is required to
be held that the award could be set aside if it is
patently illegal. The result would be-award could be
set aside if it is contrary to:

(a) fundamental policy of Indian law; or

(b) the interest of India; or

(c) justice or morality, or

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(d) in addition, if it is patently illegal.

Illegality must go to the root of the matter and if the
illegality is of trivial nature it cannot be held that
award is against the public policy. Award could also
be set aside if it is so unfair and unreasonable that it
shocks the conscience of the court. Such award is
opposed to public policy and is required to be
adjudged void.‖

95. In ONGC Ltd. v. Western GECO International Ltd., this
Court was examining the meaning of "fundamental policy of
Indian law", an expression used by this Court in Saw Pipes
case. Extending the frontiers of what will constitute "public
policy of India" this Court observed: (Western GECO
International Ltd. case , SCC pp. 278-80, paras 35 & 38-39)
―35. What then would constitute the 'fundamental
policy of Indian law' is the question. The decision in
ONGC does not elaborate that aspect. Even so, the
expression must, in our opinion, include all such
fundamental principles as providing a basis for
administration of justice a and enforcement of law in
this country. Without meaning to exhaustively
enumerate the purport of the expression 'fundamental
policy of Indian law', we may refer to three distinct
and fundamental juristic principles that must
necessarily be understood as a part and parcel of the
fundamental policy of Indian law. The first and
foremost is the principle that in every determination
whether by a court or other authority that affects the
rights of a citizen or leads to any civil consequences,
the court or authority concerned is bound to adopt
what is in legal parlance called a 'judicial approach'
in the matter. The duty to adopt a judicial approach
arises from the very nature of the power exercised by
the court or the authority does not have to be
separately or additionally enjoined upon the fora
concerned. What must be remembered is that the
importance of a judicial approach in judicial and

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quasi-judicial determination lies in the fact that so
long as the court, tribunal or the authority exercising
powers that affect the rights or obligations of the
parties before them shows fidelity to judicial
approach, they cannot act in an arbitrary, capricious
or whimsical manner. Judicial approach ensures that
the authority acts bona fide and deals with the subject
in a fair, reasonable and objective manner and that its
decision is not actuated by any extraneous
consideration. Judicial approach in that sense acts as
a check against flaws and faults that can render the
decision of a court, tribunal or authority vulnerable to
challenge.

38. Equally important and indeed fundamental to the
policy of Indian law is the principle that a court and so
also a quasi-judicial authority must, while determining
the rights and obligations of parties before it, do so in
accordance with the principles of natural justice.
Besides the celebrated audi alteram partem rule one of
the facets of the principles of natural justice is that the
court/authority deciding the matter must apply its mind
to the attendant facts and circumstances while taking a
view one way or the other. Non-application of mind is
a defect that is fatal to any adjudication. Application
of mind is best demonstrated by disclosure of the mind
and disclosure of mind is best done by recording
reasons in support of the decision which the court or
authority is taking. The requirement that an
adjudicatory authority must apply its mind is, in that
view, so deeply embedded in our jurisprudence that it
can be described as a fundamental policy of Indian
law.

39. No less important is the principle now recognised
as a salutary juristic fundamental in administrative
law that a decision which is perverse or so irrational
that no reasonable person would have arrived at the
same will not be sustained in a court of law. Perversity
or irrationality of decisions is tested on the touchstone

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of Wednesbury Principle of reasonableness. Decisions
that fall short of the standards of reasonableness are
open to challenge in a court of law often in writ
jurisdiction of the superior courts but no less in
statutory processes wherever the same are available.‖

96. To sum up: public policy is not a static concept. It varies
with times and from generation to generation. But what is in
public good and public interest cannot be opposed to public
policy and vice versa. Fundamental Policy of Law would also
constitute a facet of public policy. This would imply that all
those principles of law that ensure justice, fair play and
bring transparency and objectivity and promote probity in
the discharge of public functions would also constitute public
policy. Conversely, any deviation, abrogation, frustration or
negation of the salutary principles of justice, fairness, good
conscience, equity and objectivity will be opposed to public
policy. It follows that any rule, contract or arrangement that
actually defeats or tends to defeat the high ideals of fairness
and objectivity in the discharge of public functions no matter
by a private non-governmental body will be opposed to
public policy. ....‖

78. While discussing the fundamentals of patent illegality, the Hon'ble
Supreme Court in
State of Chhattisgarh vs. Sal Udyog (P) Ltd.
, (2022) 2
SCC 275 held as under:-

―14. The law on interference in matters of awards under the
1996 Act has been circumscribed with the object of
minimising interference by courts in arbitration matters. One
of the grounds on which an award may be set aside is "patent
illegality". What would constitute "patent illegality" has been
elaborated in
Associate Builders v. DDA
, where "patent
illegality" that broadly falls under the head of "Public
Policy", has been divided into three sub-heads in the
following words: (SCC p. 81, para 42)

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―42. In the 1996 Act, this principle is substituted by
the "patent illegality" principle which, in turn,
contains three sub-heads:

42.1. (a) A contravention of the substantive law of
India would result in the death knell of an arbitral
award. This must be understood in the sense that such
illegality must go to the root of the matter and cannot
be of a trivial nature. This again is really a
contravention of
Section 28
(1 )(a) of the Act, which
reads as under:

'28. Rules applicable to substance of dispute.-(])
Where the place of arbitration is situated in
lndia,-

(a) in an arbitration other than an international
commercial arbitration, the Arbitral Tribunal
shall decide the dispute submitted to arbitration
in accordance with the substantive law for the
time being in force in India;'
42.2. (b) A contravention of the
Arbitration Act
itself
would be regarded as a patent illegality - for example
if an arbitrator gives no reasons for an award in
contravention of
Section 31 (3)
of the Act, such award
will be liable to be set aside.

42.3. (c) Equally, the third sub-head of patent illegality
is really a contravention of
Section 28
( 3) of the

Arbitration Act
, which reads as under:

'28. Rules applicable to substance of dispute.-

(1)-(2) * * *
(3) In all cases, the Arbitral Tribunal shall
decide in accordance with the terms of the
contract and shall take into account the usages
of the trade applicable to the transaction.'

15. In Ssangyong Engg. & Construction Co. Ltd. v. NHAJ9,
speaking for the Bench, R.F. Nariman, J. has spelt out the
contours of the limited scope of judicial interference in

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reviewing the arbitral awards under the 1996 Act and
observed thus: (SCC pp. 169-71, paras 34-41)
"34. What is clear, therefore, is that the expression
"public policy of India", whether contained in
Section
or in
Section 48
, would now mean the "fundamental
policy of Indian law" as explained in paras 18 and 27
of Associate Builders8 i.e. the fundamental policy of
Indian law would be relegated to "Renusagar"

understanding of this expression. This would
necessarily mean that Western Geco 10 expansion has
been done away with. In short, Western Geco10 , as
explained in paras 28 and 29 of Associate Builders8,
would no longer obtain, as under the guise of
interfering with an award on the ground that the
arbitrator has not adopted a judicial approach, the
Court's intervention would be on the merits of the
award, which cannot be permitted post amendment.
However, insofar as principles of natural justice are
concerned, as contained in
Sections 18
and

34(2)(a)(iii)
of the 1996 Act, these continue to be
grounds of challenge of an award, as is contained in
para 30 of Associate Builders8 .

3 5. It is important to notice that the ground for
interference insofar as it concerns "interest of India"

has since been deleted, and therefore, no longer
obtains. Equally, the ground for interference on the
basis that the award is in conflict with justice or
morality is now to be understood as a conflict with the
"most basic notions of morality or justice". This again
would be in line with paras 36 to 39 of Associate
Builders8 , as it is only such arbitral awards that shock
the conscience of the court that can be set aside on this
ground.

36. Thus, it is clear that public policy of India is now
constricted to mean firstly, that a domestic award is
contrary to the fundamental policy f Indian law, as
understood in paras 18 and 27 of Associate Builders8 ,

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or secondly, that such award is against basic notions
of justice or morality as understood in paras 36 to 39
of Associate Builders8. Explanation 2 to
Section
34(2)
(b )(ii) and Explanation 2 to
Section 48(2)
(b )(ii)
was added by the Amendment Act only so that Western
Geco10 , as understood in Associate Builders8, and
paras 28 and 29 in particular, is now done away with.

37. Insofar as domestic awards made in India are
concerned, an additional ground is now available
under sub-section (2-A), added by the Amendment Act,
2015, to
Section 34
. Here, there must be patent
illegality appearing on the face of the award, which
refers to such illegality as goes to the root of the
matter but which does not amount to mere erroneous
application of the law. In short, what is not subsumed
within "the fundamental policy of Indian law", namely,
the contravention of a statute not linked to public
policy or public interest, cannot be brought in by the
backdoor when it comes to setting aside an award on
the ground of patent illegality.

38. Secondly, it is also made clear that reappreciation
of evidence, which is what an appellate court is
permitted to do, cannot be permitted under the ground
of patent illegality appearing on the face of the award.

39. To elucidate, para 42.1 of Associate Builders8 ,
namely, a mere contravention of the substantive law
oflndia, by itself, is no longer a ground available to set
aside an arbitral award. Para 42.2 of Associate
Builders8, however, would remain, for if an arbitrator
gives no reasons for an award and contravenes
Section
31(3)
of the 1996 Act, that would certainly amount to a
patent illegality on the face of the award.

40. The change made in
Section 28
( 3) by the
Amendment Act really follows what is stated in paras
42.3 to 45 in Associate Builders8 , namely, that the
construction of the terms of a contract is primarily for
an arbitrator to decide, unless the arbitrator construes

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the contract in a manner that no fair-minded or
reasonable person would; in short, that the arbitrator's
view is not even a possible view to take. Also, if the
arbitrator wanders outside the contract and deals with
matters not allotted to him, he commits an error of
jurisdiction. This ground of challenge will now fall
within the new ground added under
Section 34
(2-A).

41. What is important to note is that a decision which
is perverse, as understood in paras 31 and 32 of
Associate Builders, while no longer being a ground for
challenge under "public policy of India", would
certainly amount to a patent illegality appearing on
the face of the award. Thus, a finding based on no
evidence at all or an award which ignores vital
evidence in arriving at its decision would be perverse
and liable to be set aside on the ground of patent
illegality. Additionally, a finding based on documents
taken behind the back of the parties by the arbitrator
would also qualify as a decision based on no evidence
inasmuch as such decision is not based on evidence led
by the parties, and therefore, would also have to be
characterised as perverse."

16. In Delhi Airport Metro Express (P) Ltd. referring to the
facets of patent illegality, this Court has held as under: (SCC
p. 150, para 29)
"29. Patent illegality should be illegality which goes to
the root of the matter. In other words, every error of
law committed by the Arbitral Tribunal would not fall
within the expression "patent illegality". Likewise,
erroneous application of law cannot be categorised as
patent illegality. In addition, contravention of law not
linked to public policy or public interest is beyond the
scope of the expression "patent illegality". What is
prohibited is for Courts to reappreciate evidence to
conclude that the award suffers from patent illegality
appearing on the face of the award, as Courts do not
sit in appeal against the arbitral award. The

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permissible grounds for interference with a domestic
award under
Section 34
(2-A) on the ground of patent
illegality is when the arbitrator takes a view which is
not even a possible one, or interprets a clause in the
contract in such a manner which no fair-minded or
reasonable person would, or if the arbitrator commits
an error of jurisdiction by wandering outside the
contract and dealing with matters not allotted to them.
An arbitral award stating no reasons for its :findings
would make itself susceptible to challenge on this
account. The conclusions of the arbitrator which are
based on no evidence or have been arrived at by
ignoring vital evidence are perverse and can be set
aside on the ground of patent illegality. Also,
consideration of documents which are not supplied to
the other party is a facet of perversity falling within the
expression ―patent illegality‖.‖

79. The abovementioned precedents have settled the position of a
challenge to an Arbitral Award. The facets under
Section 34
of the
Arbitration Act, specifically under Sub-
section 2
, provide the limited
purview of such a challenge.

80. In order to set aside an Award under
Section 34
the petitioner must
show that illegality which has been alleged goes to the root of the matter
and is not an illegality of trivial nature. In failure of the same the
impugned Award cannot be held to be against the public policy. Award
could also be set aside if it is so unfair and unreasonable that it shocks the
conscience of the court. Such award is opposed to public policy and is
required to be adjudged void.

81. To argue that the impugned Award before this Court is liable to set
aside in the instant petition it has been argued that the findings of the

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learned Arbitrator are patently illegal and against the fundamental policy
of India. As stipulated by the aforementioned precedents, the words are
not to be construed in their plain meaning, but the essence to be
appreciated while adjudicating a challenge under
Section 34
of the
Arbitration Act is that the illegalities or deficiencies are such that they are
apparent on the face of record and/or shock the conscience of the Court
and can in no manner be sustained. In the case at hand, the petitioner has
not been able to show that the impugned Award suffers from such
illegality that is apparent on the face of record and upholding the same
would be against the law.

82. Therefore, as regards to Issue No. III, this Court is of the
considered view that the petitioner has not been able to show that the
grounds laid under
Section 34
of the Arbitration Act for setting aside the
impugned Award are made out on behalf of the petitioner. None of the
finding of the learned Arbitrator is such that it shows that the impugned
Award is patently illegal to shock the conscience of the Court, against
public policy or fundamental policy of India or falls under the grounds
laid down in
Section 34
of the Arbitration Act.

CONCLUSION

83. The law settled by the Hon'ble Supreme Court with respect to

Section 34
of the Arbitration Act leaves no scope for doubt that the
enactment of the
Arbitration Act
and the amendments thereto have been
carried out with the aim to promote resolution by way of alternative
mechanisms and to limit interference of the Courts in the process of
promoting this alternative mechanism of dispute resolution.

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84. In the instant matter, the petitioner has failed to show that the
impugned Award suffers from any patent illegality on the face of the
record or that the grounds set out under
Section 34
of the Arbitration Act
are satisfied.

85. Therefore, after consideration of the material on record, including
the impugned Arbitral Award, submissions on behalf of the parties this
Court is of the view that there is no finding or conclusion reached by the
learned Arbitrator which warrants interference of this Court. The
petitioner has not been able to substantiate her case for setting aside of the
impugned Award.

86. Accordingly, the instant petition is dismissed since there is no
cogent reason to set aside the impugned Award.

87. Pending applications, if any, also stand dismissed.

88. The judgment be uploaded on the website forthwith.

(CHANDRA DHARI SINGH)
JUDGE
APRIL 26, 2023
gs/ms

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