A building contract cannot be specifically enforced, and the contractor's remedy for a wrongful termination of the contract is damages.

( 1 ) THIS is an application for injunction. The object is to restrain the Union of India from accepting a tender for works of any other Contractor in respect to which the petitioner alleges to have a subsisting contract with the Government The application is made under the Indian Arbitration Act. There is no arbitration fending, though it is alleged in the petition that there is a dispute which is covered by the arbitration clause and the petitioner has already claimed that the disputes should be adjusted by arbitration. The petitioner is a contractor, and the contract subsisting between him and the Government is evidenced by an A/t dated March 16, 1960. The subject matter of the contract is construction works at Bon Hooghly. The estimated cost of the works is Rs. 5, 88, 938/ -. The petitioner took up the construction works and from time to time Was paid on the running bills a total sum of Rs. 1,30,000/ -. The time within which the works were to be completed has long past. The petitioner's case is that the responsibility for the delay in completion is on the Union of India. It may be stated that the Government found fault with the construction of certain pillars, which according to the Government was not according to the specification and no payment was made on the running bills in respect to this work. The contractor further makes a grievance that by reason of the rising prices the contractor requested a revision of rates which request was unreasonably turned down by the Government. Attempt to iron out the differences between the parties having failed and the work not having been completed the petitioner Was notified by a letter of July 31, 1962 that he had not carried out the works with due diligence. He was called upon to show cause why action should not be taken against him under Clause 2 of the Conditions of the Contract. Steps indicated included the rescission of the contract under Clause 3 (a) and to get the balance of the work done by another agency. By a letter dated October 31, 1962, the Government rescinded the contract and gave notice that the unexecuted part of the work would be completed by some other agency. On November 21, 1962 advertisements were issued inviting tenders for the unexecuted works. On December 21, 1962 the present notice was taken out. Four days prior, by a letter addressed by the solicitor of the petitioner dated December 17, 1962, to the Development Commissioner, the petitioner called upon the Development Commissioner to appoint an arbitrator under the arbitration clause to adjust the disputes and differences between the parties. In default of compliance within 3 days from the receipt of the letter, legal proceedings were threatened. A copy of this letter

was sent to the Secretary, Ministry of Commerce and Industry.

( 2 ) IT is contended by Mr. Subimal Roy learned counsel appearing for the petitioner that the Development Commissioner on behalf of the President will only be entitled to rescind the contract and to take the unexecuted part of the works out of the hand of the contractor and give it to another contractor, provided the contractor has made himself liable to pay compensation for breach committed by him. In the case of admitted breach, the Government may be empowered to act in terms of Clause 3 of the Contract. But if the contractor denies to have committed the breach, then there is a dispute. Before adjudication of the dispute by arbitration, there is no power under the contract to take the unexecuted works out of the hand of the contractor and give it to another contractor for completion. This is exactly what the Government is wrongfully trying to do in the instant case. That is the simple and clear case of the contractor. Mr. Roy cited a decision of Farwell I. in the case of Foster and Dicksee v. Hastings Corporation, (1903) 87 LT 736. In this case a contractor was employed to sink certain wells. The work was to be performed to the satisfaction of the defendants'