Specific performance could not be granted as the parties did not agree to the same thing in the same sense, and the contract was not specifically enforceable.

1. The petitioner has challenged the award of the learned sole Arbitrator dated 8th December, 2010 in this petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 (the Act). The Award has not granted specific performance of the agreement between the parties. It grants various damages. The Award has also granted a part of the compensation charges payable to the respondent. The Award has made provision for the grant of part costs of the arbitration by the respondent to the claimant.

2. The parties entered into an MOU with regard to the grant of certain premises to the petitioner herein upon certain conditions on 3rd March, 1999. The respondent has thereafter issued a letter of allotment to the petitioner on 13th April, 1999 which has been refuted by the petitioner. The petitioner claimed specific performance of the MOU which was stated to be the only agreement between the parties relied upon by them in the correspondence after the agreement as also after the allotment letter. The petitioner also claimed declaration that the termination of the MOU by the respondent was wrongful and illegal, an aspect stated to have not been considered in the Award. In the alternative to the prayers of specific performance of the MOU dated 3rd March, 1999, the petitioner claimed specific performance of the modified MOU if it was held that the MOU was modified. The petitioner further claimed various sums as damages for various aspects set out in the claim.

3. The learned Arbitrator has considered the MOU between the parties upon the intention of the parties executing it. The learned Arbitrator has not exercised her discretion in granting specific performance of the MOU dated 3rd March, 1999 or any modified MOU but has granted certain damages. It may, at once, be stated that the relief of specific performance is wholly discretionary even if it were to be granted by the Court. The view taken by the learned Arbitrator in exercising her discretion in not granting the specific performance will require to be seen alongside the interpretation of the MOU itself by this Court to appreciate the intention of the parties thereto. It would also have to be seen whether the grant of only certain damages in place of higher damages claimed to the exclusion of specific performance can be interfered with by the Court in a petition under Section 34 of the Act upon the narrow jurisdiction that the Court has.

4. Mr. Diwan took me through the provision of the MOU extensively. The MOU must first be considered.

(i) Clause 1 of the MOU states that the grantor (MIDC/respondent herein) was to set up an industrial area known as Millennium Business Park comprising of several modules.

(ii) Clause 2 of the MOU states that a building in the park was to be licensed to the licensee (the petitioner).

(iii) Under Clause 3(a) of the MOU the lease of the building admeasuring 80,000 sq. ft and a basement admeasuring 20,000 sq. ft. in the aggregate land area of 7435 sq. mtrs. as shown in the plan annexed to the MOU was stated to be collectively the demised premises. No plan has been shown to be annexed.

(iv) The schedule that is referred to in Clause 3(a) of the MOU also shows the building in the land.

(v) Under Clause 3(b) of the MOU the respondent agreed that the petitioner would be entitled to the benefit of any additional FSI as per government policy and subject to MIDC policy.

(vi) Under Clause 5 of the MOU the lease was to be for the period of 95 years with yearly rent of Rs.100/-

(vii) Under Clause 7 the lease premium was to be paid in 4 installments of 5%, 5%, 10% and 80%. The first 5% being the earnest payable on the execution of the MOU itself was Rs.53 lacs.

(viii) Under Clause 6 of the MOU in addition to the yearly rent the petitioner had to pay lease premium of Rs.10.60 Cr.

(ix) Under Clause 9 of the MOU the respondent was to hand over possession of the demised premises to the petitioner within 8 months of the execution of the MOU after completing the