CHANDRA DHARI SINGH, J.

1. The present petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, seeks to challenge the impugned Award dated 4 th October 2018 to the extent that the registered Agreement dated 23rd March 2001 for sale of immovable property has been held to be determinable in nature and therefore not enforceable. The petitioner has also contended that the impugned Award is beyond the scope of reference and jurisdiction of the Learned Arbitrator. It has been prayed as under:

2. The background of the case is that on 3rd June 1997, the respondent was allotted land in Plot No. 1, Sector 18, Electronic City, Gurgaon, Haryana admeasuring 1000 sq. meters by Haryana Urban Development Authority (HUDA) and the petitioner on 17th March 1999 issued a letter offering the plot on lease to the petitioner. Between 20 th February 1999 to 6th December 1999 various letters/mails were sent by the respondent to the petitioner for letting out the plot with entitlement to the petitioner to construct a building thereon, and with an option to purchase the plot subject to permission of law and on 14th February 2000, Power of Attorney was granted by the respondent to the petitioner and the Lease Deed was executed between the parties for a period of 20 years.

3. On 28th August 2000, the respondent obtained a Conveyance Deed dated 28th August 2000 from HUDA for 1000 sq. metres plot and later obtained a Conveyance Deed dated 24th March 2003 for an additional area of 200 sq. metres and on 10th December 2000, the respondent secured possession of the said plot measuring 1200 sq. metres from HUDA. The parties entered into an Agreement dated 23rd March 2001 as per the terms offered by the respondent and became effective from 1 st June 2000.

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4. In year 2002, the petitioner, having taken possession of the plot, constructed and completed building over the said plot and HUDA upon inspection of building in the year 2003 and after raising the receipt of demand with respect to compounding for deviation from sanctioned plans and FAR, granted and issued Occupation Certificate dated 1 st September 2003.

5. On 27th July, 2006, upon expiry of six years of the term, the petitioner in writing elected and exercised the option vested and granted to it to purchase the property and offered to pay the agreed pre- determined sale consideration.

6. The petitioner on 2nd January 2007, asked the respondent to discharge its obligation to convey the title. The same was asked by the petitioner again vide e-mails dated 29th March 2007, 3rd April 2007, 15th May 2007 and subsequently vide Notice dated 21st December 2007, notified that upon failure to discharge its obligation, Arbitration shall be invoked.

7. On 8th February 2008, the petitioner invoked Arbitration and called upon the named Arbitrator. The named Arbitrator, on 3 rd April 2008, entered upon reference and first Arbitral hearing was held on 28 th April 2008 wherein schedule for filing of pleadings and other directions were issued by the Learned Arbitrator.

8. On 28th May 2008, the petitioner filed a Statement of Claim seeking specific performance and enforcement of Agreement to Sell to which the respondent on 11th July 2009, filed its Statement of Defence and subsequently, rejoinder was filed by the petitioner on 24 th September 2008.

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9. The respondent on 19th July 2011 filed an application before the Learned ADJ, Gurgaon for termination of the mandate of the Learned Arbitrator under Section 14 of the Arbitration and Conciliation Act, 1996 which was dismissed by the Learned ADJ vide Order dated 2 nd December 2011. The Order of the Learned ADJ was set aside by the High Court of Punjab and Haryana in Civil Revision Petition no. 7687/2011. The Hon'ble Supreme Court vide Order dated 14th December 2012 in SLP (C) no. 36603/2012 appointed a new arbitrator. The Learned Sole Arbitrator vide Order dated 4th August 2018 made and published the impugned Award. Aggrieved by the same, the instant petition has been filed. SUBMISSIONS (On behalf of the petitioner)

10. Learned counsel for the petitioner submitted that the Learned Sole Arbitrator went beyond the scope of reference and the jurisdiction while ascertaining that the agreement is determinable in nature and therefore not enforceable.

11. Learned counsel for the petitioner submitted that the Learned Sole Arbitrator rejected the claim of the petitioner for specific performance of sale of immovable property by applying Section 14(1)(c) of Specific Relief Act, 1963 and concept of per se determinability of the Contract. It is further submitted that the dispute was not even referred to the Arbitration in the Statement of Defence and that the Learned Sole Arbitrator committed error of jurisdiction by going beyond the scope of Contract.

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12. Learned counsel for the petitioner submitted that the impugned Award suffers from patent illegality and is liable to be set aside to the extent it has been challenged for being in clear contravention of Section 28(3) of the Arbitration and Conciliation, 1996. Learned counsel for the petitioner submitted that option to terminate was only with the petitioner under Clause 9 but the Contract was neither terminated by the petitioner and nor by the respondent either before or after the Contract was put to enforcement.

13. Learned counsel for the petitioner submitted that impugned Award suffers from inherent contradictions because on one hand it was held that on exercise of option to purchase the agreement transforms into an agreement to sell, which as per Clause 6 is enforceable and on the other hand even upon an option vested with the petitioner to terminate having not being exercised in terms of clause 9, on hypothetical and academic basis it has been held that contract is determinable therefore not enforceable.

14. Learned counsel for the petitioner submitted that Section 14(1)(c) of the Specific Relief Act, 1963 is not applicable in the facts of the case and instead Section 10 is applicable. It is further submitted that all the judgments relied upon by the Learned Arbitrator to hold that Section 14(1) (c) is applicable pertained to movable goods or contract of services in which the contract had been terminated and party aggrieved was seeking injunction or performance. Thus, in these circumstances it was held that determinable contracts cannot be enforced. These are inapplicable to the terms of contract in present case and facts of present case.

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15. In view of the aforesaid, the impugned Award dated 4th October 2018 to the extent that the registered Agreement dated 23rd March 2001 for sale of immovable property has been held to be determinable in nature and therefore not enforceable, be set aside.

(On behalf of the respondent)

16. Learned counsel for the respondent submitted that the respondent through various communications had categorically intimated the petitioner that the property could not be transferred. It further submitted that the Contract became unenforceable and determinable due to various breaches committed by the petitioner. Moreover, it is submitted that the Learned Sole Arbitrator went beyond the terms of the Contract by granting compensation which was never sought by the petitioner.

17. Learned counsel for the respondent submitted that the Lease Deed became revocable and determinable under the law as well as Section 28(3) of the Arbitration and Conciliation Act, 1996 and by violating the terms of the Deed, the petitioner cannot seek recourse to the Clauses of the Deed. Learned counsel for the respondent submitted that the impugned Award is completely based on the interpretation of the Lease Deed.

18. Learned counsel for the respondent submitted that the Award to the extent it has been impugned in question, is neither patently illegal or in contravention of fundamental policy of India because it has held the Deed to be determinable, revocable and unenforceable. Moreover, it is also submitted that the same is well reasoned on substantive law. Learned counsel for the respondent submitted that if compensation is the remedy available for breach of a Contract, then the same should be availed before Signature Not Verified O.M.P.(COMM) 28/2019 Page 6 of 41 Digitally Signed By:DAMINI YADAV Signing Date:26.04.2023 19:14:42 NEUTRAL CITATION NO. 2023:DHC:2814 the remedy becomes unavailable under Section 21 of the Specific Relief Act, 1963.

19. Learned counsel for the respondent submitted that the judgments relied by the Learned Sole Arbitrator are relevant to the case at hand and that every judgment is different but the ratio is what is to be gathered from the judgment.

20. Learned counsel for the respondent submitted that the whole of the Specific Relief Act is applicable to the case and that the Deed was determinable and unenforceable from inception.

21. Learned counsel for the respondent submitted that no rights or interest could have vested in the petitioner and the building can be bought back by the respondent under the buyback Clause in the Deed and the respondent is ready and willing to do so.

22. Learned counsel for the respondent submitted that the respondent had the right to terminate the Agreement and the same was rightly done so and no right could have been vested in favour of petitioner as no right could be transferred under the prevailing and current HUDA laws.

23. Learned counsel for the respondent submitted that no Agreement can be irrevocable, non-determinable even if either party commits a breach of the Contract, and such a Contract would itself be void ab initio.

24. Learned counsel for respondent submitted that the Lease Deed has been terminated by the respondent and struck down by the Learned Arbitral Tribunal. It is also submitted that the Lease Deed has not become Agreement to Sell due to illegal acts and ill deeds of the petitioner.

25. Learned counsel for respondent submitted that the compensation was never sought by the petitioner and therefore, that part of the Signature Not Verified O.M.P.(COMM) 28/2019 Page 7 of 41 Digitally Signed By:DAMINI YADAV Signing Date:26.04.2023 19:14:42 NEUTRAL CITATION NO. 2023:DHC:2814 impugned Award is bad in law and the respondent has filed a petition under Section 34 of the Act of 1996 to that effect.

26. Therefore, in view of the aforesaid it is submitted that the instant petition being devoid of merits is liable to be dismissed.

QUESTION FOR ADJUDICATION

27. Heard learned counsels for the parties and perused the record.

28. The present petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, seeks to challenge the impugned Award dated 4 th October 2018 to the extent that registered agreement dated 23.03.2001 for sale of immovable property has been held to be "determinable in nature therefore not enforceable". It is the petitioner's averment that only on that basis the claim of the petitioner for specific enforcement of agreement of sale of immovable property has been rejected.

29. Therefore, the only question before this Court is to adjudicate that whether the registered agreement dated 23.03.2001 for sale of immovable property has rightly been held to be "determinable in nature therefore not enforceable", and hence the dismissal of claim of the petitioner for specific enforcement of agreement of sale of immovable property was just and proper.

Spirit of the Arbitration Act

30. 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 Act to understand the implications the provisions therein have on the powers and jurisdiction of this Court.

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31. 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.

32. 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:-

33. 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.

34. 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:-

[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,--

Explanation 2.--For the avoidance of doubt, the test as Signature Not Verified O.M.P.(COMM) 28/2019 Page 11 of 41 Digitally Signed By:DAMINI YADAV Signing Date:26.04.2023 19:14:42 NEUTRAL CITATION NO. 2023:DHC:2814 to whether there is a contravention with the 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:

35. 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.

36. 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:-

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

38. 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.

39. 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

40. 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.

41. An Arbitrator has wide powers while adjudicating arbitration proceedings. There is, undoubtedly, a scrutiny on the Arbitrator and the Signature Not Verified O.M.P.(COMM) 28/2019 Page 14 of 41 Digitally Signed By:DAMINI YADAV Signing Date:26.04.2023 19:14:42 NEUTRAL CITATION NO. 2023:DHC:2814 Awards passed by him, which has been stipulated under the Arbitration Act . However, there is a deemed privilege of limited intervention from the Courts which the Arbitrators have. The same has been reiterated by the Hon'ble Supreme Court time and again.

42. 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:-

NEUTRAL CITATION NO. 2023:DHC:2814 (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. ...‖

43. 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.

44. 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:-

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....‖

45. 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 Signature Not Verified O.M.P.(COMM) 28/2019 Page 19 of 41 Digitally Signed By:DAMINI YADAV Signing Date:26.04.2023 19:14:42 NEUTRAL CITATION NO. 2023:DHC:2814 in this respect is limited to examining whether the Award and the conclusion drawn therein is supported by findings and not whether the findings themselves are erroneous or sound.

46. 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.

47. 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:-

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.‖

48. 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:-

49. 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:-

50. 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. 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.

51. Upon perusal of the pleadings and hearing the parties at length, this Court opines that the controversy between the parties qua the impugned Award may be narrowed down to adjudicate the following issues:

52. The impugned findings of Arbitrator on the question of agreement being determinable while declaring the Arbitral Award are enclosed below:

The Lessee shall not be liable to pay or incur any charges, costs or expenses or for any incidental, consequential, direct. or indirect damages including loss of opportunity or anticipated profits.

9.2 Termination due to default of Lessor The Lessee may terminate this agreement by a 30 day written notice due to failure of the Lessor to adhere to any of its obligations under this Agreement. In such an event the Lessee shall not be liable to pay or incur any payment; compensation charges, costs of expenses or for any incidental, consequential, direct or indirect damages including loss of opportunity of anticipated profits.

In the event this Agreement is terminated in terms of either clauses 9.1. or 9.2 the Lessor undertakes to buyback the Building at the book value from the Lessee.

49. As is evident from the aforesaid clauses the agreement is terminable at the option of the Lessee. Question that arises for consideration is whether such an agreement which is determinable can be enforced. The answer to the question lies in Section 14 of the Act...

50. According to sub- section 1 of Section 14 , agreements that fall within the ambit of any of its sub-clauses cannot be Signature Not Verified O.M.P.(COMM) 28/2019 Page 24 of 41 Digitally Signed By:DAMINI YADAV Signing Date:26.04.2023 19:14:42 NEUTRAL CITATION NO. 2023:DHC:2814 enforced. In the instant proceeding the Claimant seeks an award in its favour and against the Respondent for specific performance of the agreement to sell land admeasuring 1200 Sq. Meters and a three storied Building standing thereon shorn of details the Claimant seeks specific performance of a determinable contract. Since the agreement is determinable it attracts clause c of sub section 1 of section 14 . This being so, as per the mandate of the provision, the agreement cannot be specifically enforced.‖

53. Upon a bare perusal of the impugned Arbitral Award, this Court is of the opinion that the Learned Sole Arbitrator has correctly deduced its findings while passing the Arbitral Award and has correctly interpreted the terms of Agreement dated 23rd March 2001.

54. In any case, Section 14(1) of the Act prior to amendment and as applicable to the instant case, clearly delineates the contracts which cannot be specifically enforced, and under Section 14(1)(c) , specific performance cannot be granted in a contract which is determinable in nature.

55. As rightly observed by the Learned Arbitrator and in view of clauses 9.1 and 9.2 of the Agreement, the same is determinable at the option of the lessee. Therefore, the findings of the learned arbitrator on the question of agreement being determinable do not suffer from any illegality whatsoever.

56. Issue No. 1 stands adjudicated accordingly.

57. The ground taken by the petitioner while assailing the Arbitral Award is that the impugned Arbitral Award is ex-facie erroneous and Signature Not Verified O.M.P.(COMM) 28/2019 Page 25 of 41 Digitally Signed By:DAMINI YADAV Signing Date:26.04.2023 19:14:42 NEUTRAL CITATION NO. 2023:DHC:2814 suffers from patent illegality, contrary to the fundamental policy of Indian Law. The law regarding patent illegality and public policy of India is no more res integra and has been authoritatively clarified by the Hon'ble Supreme Court in a number of judicial pronouncements.

58. 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.

59. 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.

60. The petitioner has raised the ground of patent illegality as well as contravention to public policy while impugning the Award dated 4th October 2018.

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

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 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"

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 Signature Not Verified O.M.P.(COMM) 28/2019 Page 29 of 41 Digitally Signed By:DAMINI YADAV Signing Date:26.04.2023 19:14:42 NEUTRAL CITATION NO. 2023:DHC:2814 "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:

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 Signature Not Verified O.M.P.(COMM) 28/2019 Page 30 of 41 Digitally Signed By:DAMINI YADAV Signing Date:26.04.2023 19:14:42 NEUTRAL CITATION NO. 2023:DHC:2814 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 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 Signature Not Verified O.M.P.(COMM) 28/2019 Page 31 of 41 Digitally Signed By:DAMINI YADAV Signing Date:26.04.2023 19:14:42 NEUTRAL CITATION NO. 2023:DHC:2814 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 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.‖ Signature Not Verified O.M.P.(COMM) 28/2019 Page 32 of 41 Digitally Signed By:DAMINI YADAV Signing Date:26.04.2023 19:14:42 NEUTRAL CITATION NO. 2023:DHC:2814

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. ....‖

62. 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:-

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:

understanding of this expression. This would necessarily mean that Western Geco expansion has been done away with. In short, Western Geco, as explained in paras 28 and 29 of Associate Builders, 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 Builders.

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

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 of Indian law, as understood in paras 18 and 27 of Associate Builders, 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 Geco, as understood in Associate Builders8, and paras 28 and 29 in particular, is now done away with.

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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 Builders, namely, a mere contravention of the substantive law of India, 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 Builders, namely, that the construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitrator construes 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).

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41. What is important to note is that a decision which is perverse, as understood in paras 31 and 32 of Associate Builders8, 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 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.

NEUTRAL CITATION NO. 2023:DHC:2814 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".‖

63. 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.

64. 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.

65. 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 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 Signature Not Verified O.M.P.(COMM) 28/2019 Page 38 of 41 Digitally Signed By:DAMINI YADAV Signing Date:26.04.2023 19:14:42 NEUTRAL CITATION NO. 2023:DHC:2814 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.

66. A clear reading of the precedents cited proves that under the limited scope of Section 34 , the present case does not warrant the interference of this Court, as the grounds stated by the petitioner in the instant petition do not meet the scope of this section. Accordingly, with reference to the aforesaid judgments and the impugned Arbitral Award, the Petitioner cannot have the benefit of the "ground of patent illegality"

67. Reiterating as previously observed, "patent illegality" is an illegality that goes to the root of the matter but excludes the erroneous application of the law by an arbitral tribunal or re-appreciation of evidence by an appellate court. In this instant case, the Arbitral Award was a well-reasoned award, with the findings being clearly arrived at based on all the documents/evidence on record.

68. The learned Arbitrator has clearly considered Statement of Claim relevant Clauses of the Terms of the Agreement to Sell dated 23 rd March 2001 and the ground that the Learned Sole Arbitrator has passed the Arbitral Award which is beyond the scope of its jurisdiction does not stand validated as per the submissions of the Petitioner and under the observation of the Court. The impugned Award is in no way in contravention of the Arbitration and Conciliation Act, 1996 , to reason that the Award is patently illegal.

69. Therefore, as regards to Issue No. II, this Court is of the considered view that the petitioner has not been able to show that the grounds laid Signature Not Verified O.M.P.(COMM) 28/2019 Page 39 of 41 Digitally Signed By:DAMINI YADAV Signing Date:26.04.2023 19:14:42 NEUTRAL CITATION NO. 2023:DHC:2814 under Section 34 of the Arbitration Act for setting aside the impugned Award are made out on behalf of the petitioner. None of the impugned findings 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

70. In the lights of facts, submissions and contentions in the pleadings, this Court find that the petitioner has failed to substantiate its grounds for setting aside the impugned Arbitral Award on the ground that the Learned Sole Arbitrator went beyond its jurisdiction by holding that the Agreement is a Determinable Agreement and is patently illegal. The Court is of the view that the Learned Sole Arbitrator was well within its jurisdiction to declare the Agreement dated 23rd March 2001 as Determinable Agreement in the view of Statement of Claim of the respondent and Terms of the said Agreement.

71. It is settled law that the ground of Patent illegality gives way to setting aside an Arbitral Award with a very minimal scope of intervention. A party cannot simply raise an objection on the ground of patent illegality if the Award is simply against them. Patent illegality requires a distinct transgression of law, the clear lack of which thereof makes the petition simply a pointless effort of objection towards an Award made by a competent Arbitral Tribunal. Further, the petitioner has not been able to prove that the impugned Arbitral Award is patently illegal, and contrary to the fundamental policy of Indian Law, and hence is liable to be set aside.

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72. 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.

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

74. Pending applications, if any, also stand disposed of.

75. The judgment be uploaded on the website forthwith.

(CHANDRA DHARI SINGH) JUDGE APRIL 26, 2023 Sv/AK Signature Not Verified O.M.P.(COMM) 28/2019 Page 41 of 41 Digitally Signed By:DAMINI YADAV Signing Date:26.04.2023 19:14:42