Judgment :-

Lokeshwar Singh Panta, J.

1. Leave granted.

2. This appeal is directed against the judgment and order dated 19.04.2006 passed by the Division Bench of the High Court of Judicature at Bombay in Appeal No. 198 of 2006. The appellant-Society has filed the above-said appeal challenging the order dated 14.11.2005 of the learned Single Judge whereby the appellants Arbitration Petition No.423 of 2004 filed under Section 34 of the Arbitration and Conciliation Act, 1996 against the award of the Arbitral Tribunal was dismissed.

3. Briefly stated, the relevant facts are as follows:

The appellant is an educational society duly registered with the Charity Commissioner, Bombay under Bombay Public Trust Act, 1956. The appellant-Society is running an educational institution at Borli Panchatan, Taluk Shriwardhan, District Raigad, Maharashtra. The President of the appellant-Society is stated to be a renowned Surgeon and a gold medalist of University of Bombay, in Surgery and is affiliated to various well-known Hospitals in Bombay. The President of the appellant-Society hails from village Barli/Konkan and out of his emotional love to his native village and in order to educate his own village children; he took upon the responsibility to establish the school and institution at his ancestral land at Barli in Konkan area of Maharashtra. The appellant-Society is running English Medium School for the last about 20 years.

4. The appellant-Society desired to establish a womens college at Borli and, therefore, it invited tenders for construction of a building at Borli, Panchatan. The Society was depending upon magnanimous donors, who have agreed to donate the entire amounts for the Project.

5. The respondent-company is incorporated under the Companies Act. The Director of the respondent-company visited the site and in the presence of the donor, they agreed to construct the building at the proposed site. The respondent-company offered tender for constructing the building at a total cost of Rs.1,55,37,981.20 [Rupees one crore fifty five lacs thirty seven thousand nine hundred eighty one and twenty paise]. The college was named after the donor as ‘Kalsekar Institute of Science. It is the case of the appellant-Society that the tender of the respondent-company was accepted with the condition that the time was essence of the contract and the respondent-company by its letter dated 29.04.2000 assured to the appellant-Society that the company will complete the Project within the stipulated time. The standard agreement drafted by the Council of Architect was executed on 20.04.2000 and the entire Project was to be completed within 18 months on or before 01.11.2001. It was also agreed that the final measurement and valuation shall be done in the 17th month. The date of the commencement was agreed upon 01.05.2000. The procedure for payment was that the respondent-company would submit the bills to the appellants Architect and the same would be forwarded to the donor (President of the appellant-Society) and thereafter the cheque issued by the donor in the name of the appellant-Society and, in turn, the appellant-Society would pay the amount to the respondent-company.

6. The respondent-company allegedly failed to complete the Project as on 01.11.2001 and the appellant-Society did not give any extension of time to the respondent-company. The respondent-company paid a total sum of Rs.1,41,59,956/- as on 19.10.2001 for the cost of work done. The respondent-company abandoned the work in the midstream. The donor refused to give any amount beyond the agreed amount of Rs.1,55,37,981.20 when he found that the building was still incomplete and the contractors were demanding astronomical amount for completion of the entire building. The respondent-company removed their entire labour and machinery from the site and it left the building incomplete as an orphan without any care or maintenance to face the wrath of seasons. The building has no windows and doors on the upper