SARVAJANIK SHIKSHAN SANSTHA Vs. ALFRED ASHTAMKAR

JUDGEMENT

(1.) This appeal is directed against the order dated 22 nd July, 2011 of the learned single Judge in Arbitration Petition No. 38 of 2011 in Suit No. 3231 of 2001. By the impugned order, the learned single Judge dismissed the Arbitration Petition which was filed by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act") challenging the Award dated 23 rd day of June, 2010, of the learned Sole Arbitrator. The learned single Judge found that the agreement in question was regarding transfer of the running school and since the School is already closed, it is impossible to grant decree of specific performance. The learned single Judge also found that considering the limited jurisdiction conferred under Section 34 of the Act, the order of the learned Arbitrator was not required to be interfered with and accordingly the learned single Judge rejected the Arbitration Petition which was filed under Section 34 of the Act challenging the Award of the sole Arbitrator.

(2.) The appellant herein entered into an agreement with one Alfred Ashtamkar, who is no more now. As per the agreement, the appellant, which is a Public Trust registered under the provisions of the Bombay Public Trusts Act, 1950, agreed to run and manage the school viz. Sampson English High School which was run by Alfred Ashtamkar. The agreement for sale between the parties was entered into on 25 th March, 1999. As per the said agreement, the appellant was to obtain power of attorney from the original owner of the school viz. Alfred Ashtamkar for the purpose of running the School and thereafter within a stipulated period the sale document was to be executed. According to the appellant, respondent failed to carry out the obligations as per the said agreement and, therefore, the appellant filed a suit being Suit No. 3231 of 2001 on the Original Side of this Court. During the pendency of the aforesaid suit, both the sides agreed that the dispute may be referred to the sole Arbitrator and accordingly a retired Judge of the Supreme Court, Mrs. Justice Sujata Manohar was appointed as the sole Arbitrator for deciding the disputes between the parties. The learned Arbitrator, after hearing both the sides and after considering the evidence on record, came to the conclusion that the appellant was never ready and willing to perform their part of the contract as they had never taken any steps to run the school by taking over the management. The learned Arbitrator also found that even subsequently the appellant was not vigilant in taking further steps to see that the agreement of sale is executed and considering the said aspect, the learned Arbitrator came to the conclusion that no specific performance can be granted. However, the learned Arbitrator directed the respondents to pay Rs. 3 lakhs along with 12 per cent interest from 25 th March, 1999 till payment.

(3.) The appellant thereafter preferred an application under Section 34 of the Act challenging the said Award on the ground that the learned Arbitrator has not considered appropriate evidence on record and that the learned Arbitrator has committed an error in rejecting the prayer for specific performance of the agreement. The learned single Judge found that in its limited jurisdiction under Section 34 of the Act, the Award of the learned Arbitrator is not required to be interfered with as it cannot be said that the learned Arbitrator has committed any error of law or of jurisdiction which is required to be corrected by interfering the said Award in an arbitration petition under Section 34 of the Act. It is the aforesaid order of the learned single judge which is impugned at the instance of the appellant in this appeal.