Holding

The Court held that the arbitrator misdirected himself by not considering the State’s objection, the contractor was not entitled to extra cost, and the award was not final, so the District Judge’s setting aside of the award was proper.

Summary

Continental Construction entered into a contract with the State of Madhya Pradesh for construction work and later claimed extra costs due to a rise in material and labour prices, alleging the State's delay in work allotment. The Superintending Engineer refused payment and declined to refer the dispute to arbitration, prompting the contractor to invoke Section 20 of the Arbitration Act, 1940. An arbitrator awarded the contractor partly, but the District Judge set aside the award, finding the arbitrator had not considered the State's objection and that the claim was barred by specific contract clauses. The High Court upheld the District Judge’s decision and the contractor’s Special Leave Petition was dismissed. The Supreme Court affirmed that the arbitrator’s award was not final on a general question of law and that the contractor was not entitled to extra cost, thereby dismissing the petition.

Issues considered

The contractor’s entitlement to claim extra cost for price escalation under the contract clauses.
Whether the arbitrator’s award on a general question of law is final and binding.
The scope of judicial interference under Section 30 of the Arbitration Act, 1940.
Whether the contract became ineffective under Section 56 of the Indian Contract Act, 1872 due to price escalation.

Legislation cited

Arbitration Act, 1940s. 20, s. 30, s. 33, s. 35(c)
Indian Contract Act, 1872s. 56

Subjects

ArbitrationExtra cost claimPrice escalationContract interpretationSection 20 Arbitration ActSection 30 Arbitration ActSection 56 Contract ActSpecial Leave Petition

Judgment

CONTINENTAL CONSTRUCTION CO. LTD.
A
v.
STAIB OF MAIJHYA PRADESH

MARCH 7, 1988

[SABYASACHI MUKHARJI AND S. RANGANATHAN, JJ.] B

Arbitration Act, 1940--Whether a contractor can claim extra cost
and compensation towards rise in prices of material and labour on
account of delay on the part of other party to contract in discharge of its
obligations and allotment of work under the contract and irivoke arbi-
tration clause in contract and ask for a reference to arbitrator under C
section 20--0f

The petitioner in this application under Article 136 of the Con-
stitution entered into a contract with the respondent State for construc-
tion work. The contract could not be completed within the stipulated
time because of alleged gross delay on the part of the State in allotment D
of work and discharge· of its obligations under the contract. The
petitioner incurred unforeseen expenditure and approached the
Superintending Engineer for payment. Upon refusal of the Superin-
, tending Engineer to pay and also to refer the matter to arbitration, the
-~ petitioner moved the District Judge under Section 20 of the Arbitration
Act, ('the Act') for the filing of the arbitration. agreement and for E
reference of the dispute to arbitration. The District Judge directed the
respondent State to file the agreement, and made a reference for
specific question to the arbitration. The High Court dismissed the
State's appeal against the Order of the District Judge. Thereafter, an
arbitrator was appointed, who made an award partly allowing the
petitioner's claim. The award was filed in the Court of the District F
Judge, who made the award a rule of the court. The respondent
.appealed to the High Court. The High Court remanded the matter to the
District Judge for a fresh decision. The District Judge accepted the
respondent's objections and set aside the award. The High Court dis-
missed the appeal of the petitioner. The petitioner then moved this
Court for relief by this petition for special leave. G

Dismissing the petition, the Court,

' HELD: The District Judge rightly found that the question
regarding extra-.:ost was a general question and not a specific legal
question and the decision of the arbitrator was not final. The arbitrator H
103
-104 SUPREME COURT REPORTS [1988] 3 S.C.R.

misconduCted himself in allowing the claim without deciding the objec-
A
tion of the State. In view of the specific clauses, the petitioner was not
legally entitled to claim for extra-cost. The decision of this Court in
Seth Thawardas v. Union of India, I1955] 2 SCR 48-was of no avail on
this point. If no specific question of law is referred, the decision of the
arbitrator on that question is not final however much it may be within
B his jurisdiction and indeed essential for him to decide the question
incidentally. The arbitrator is not a conciliator and cannot ignore the
law or mis-apply it in order to do what he thinks is just and reasonable.
The arbitrator is a Tribunal selected by the parties to decide their
disputes according to law and so he is hound to foJlow and apply the
law, and if he does not, he can be set right by the Court provided his
error appears on the face of the award. In this case, the contractor
c having contracted, could not go back to the agreement simply because it
did not suit him to abide by it. [IllC-F]

The petitioner had argued that since specific issues had been
framed and referred by the District Judge to the arbitrator, the same
D had been answered by a non-speaking award and there was no mistake
of law apparent on the face of the record, and the District Judge had
erred in setting aside the award by looking into the terms of the contract
which neither formed part of the award nor were appended to it. The
Court did not agree. This being a general question, the District Judge
rightly examined the question and found that the petitioner was not
E entitled to claim for extra cost in view of the terms of the contract, and
the arbitrator misdirected himself by not considering this objection of
the State before giving the award. [112B·C]

The limits of the jurisdiction of the Court to challenge the award
are well-settled. While considering the objection under section 30 of the
F Act, the Court does not act as an appellate Court; it can only interfere
with the award if the arbitrator misconducts himself or the proceedings
or if the award has been made after the issue of an order by the Court
superseding the arbitration or if the arbitration proceedings have be-
come invalid under section 3S(c) of the Act, or the award has been
improperly procured or is otherwise invalid. If, a specific question is
G submitted to the arbitrator and he answers it, the fact that the answer
involves an erroneous decision in point of law, does not make the award ~
bad on its face so as to permit it being set aside. [112E-F; I 13A] ( ·

The High Court was right that the District Judge was entitled to
examine the contract in order to find out the legality of the claim of the
H petitioner regarding extra cost towards rise in prices of material and
CONTINENTAL CONST. v. STATE OF M.P. [MUKHARJI, J.] 105

labour. Cfauses 2. 16 and 2.4 stipulated that the contractor had to com-
A
plete the work inspite of rise in prices of materials· and also rise in
labour charges at the rates stipulated in .the contract. There was a clear
finding of the arbitrator that the contract was not. rendered ineffective
in terms of section 56 of the Contract Act due to the abnormal rise in
prices of materials and ·1abour. This being so and the contractor having
completed the work, it was not open to him to claim extra cost towards B
rise in prices of material and labour. The arbitrator misdirected himself
in not deciding this specific objection raised by the State regarding the
legality of the extra clah)I of the petitioner. It has to be born 'in mind
that there were specific clauses which barred consideration of extra
claims in the event of price escalation. [1130-F; I 14B]

\ The award was properly set aside by the District Judge and the C
High Court was right in the view it took and there was no ground to
interfere. I ll3G]

Seth Thawardas v. Union of India, [1955] 2 SCR 48; M/s Alopi
Parshad v. Union of India, [1960] 2 SCR 793; Kapoor Nilokheri Co_ D
Operative Dairy Farm Society Ltd. v. Union of India, A.LR. 1973 S.C.
i338; Champsey Bhara and Co. v. Jivraj Balloo Spinning and Weaving
Co. Ltd., A.l.R. 1923 P.C. 66; Re. King and Duv~en, [1913] 2 K.B. 32;
Government of Kelantan v. Duff Development Co. Ltd., [19231 AC
___. 395; Bungo Steel Furniture v. lffnion of India, [1967] I SCR 633; Saleh
Mohd. v. Nathoo Mal, 54 I.A. 427; Abosalom Ltd. v. Great Western, E
[1933] A.C. 592; Allen Berry & Co. v. Union of India, [1971] 3 SCR
282 and Ta rap are and Company v. Cochin Shipyard Ltd., Cochin and
Anr., [1984] 2 S.C.C. 680, referred to.

CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) No. 13180of 1985. F

From the Judgment and Order dated 17.4.1985 of the Madhya
Pradesh High Court in Misc. F.A. No. 252of1981.

S.N. Kacker and R. Ramachandran for the Petitioner.
G
The Judgment of the Court was delivered by

SABYASACHI MUKHARJI, J. This is an application under
.• Article 136 of the Constitution for leave to appeal to this Court from
the judgment and order of the High Court of Madhya Pradesh dated
17th April, 1985. In order to appreciate the points involved, it is neces- H
106 SUPREME COURT REPORTS [19881 3 S.C.R.
-{
sary to state that the petitioner entered into a contract dated 3 Jst
A
March, 1970 with respondent, State of Madhya Pradesh for the
construction of Rip Rap on right bund of Masonary Dam of Tawa
Project. The contract could not be completed within the stipulated
time because of alleged gross delay on the part of the State, according
to the petitioner, in allotment of work and discharge of its obligations
B under the contract. The petition.er incurred unforeseen expenditure, it
is claimed, to the tune of Rs.5,29,812 and approached the Superin-
tending Engineer for payment. Upon refusal of the Superintending
Engineer to pay the claim and his refusal to refer the matter to arbitra-
tion, the petitioner moved the learned District Judge under section 20
of the Arbitration Act, 1940 (hereinafter called 'the Act') for filing of
the arbitration agreement and for reference of the disputes to the
c arbitration. On 24th April, 1976 the learned District Judge allowed the
petitioner's application and directed the respondent, State of Madhya
Pradesh to file the agreement in Court and made a reference for
specific question to the arbitration. The High Court on 22nd
September, 1976 dismissed the State's appeal against the order of the
D District Judge. Thereafter in March, 1977 Retired Engineer-in-Chief,
P.W.D. Bhopal was appointed arbitrator. There was an award dated
29th October, 1978 on all the issues referred, partly allowing the
petitioner's claim. The award was filed in the Court of the District
Judge and the respondent filed objections to the award under sections
30 and 33 of the Act and the petitioner filed replies. The District Judge
E made the award a rule of the Court. The respondent appealed to the
High Court. The High Court remanded the matter to the District
Judge for fresh decision. The District Judge accepted the objections
and set aside the award. The High Court by the impugned judgment
dismissed the appeal of the petitioner. It is from this judgment of the
High Court that the petitioner seeks leave to appeal to this Court.
F
As mentioned hereinbefore by the impugned judgment and
order of the High Court the award has been set aside. The agreement
contained an arbitration clause. The work. however, could not be
completed within the stipulated time, the period ot contract was
extended. The contractor attributed delay on the part of the State
G Government whereas the State Government blamed the contractor.
This was a disputed question. While the work was in progress, the
contractor was required to meet extra expenditure on labour charges /'-
and materials due to revision in wage scales and escalation of prices.
Alterations and substitutions of works also led to extra expenses.
There were certain items for which rates were not provided but all the
H samework had to be done. The contractor therefore, advanced claims
CONTINENTAL CONST. v. STATE OF M.P. IMUKHARJ!, J.J 107

'r for compensation. The Superintending Engineer dismissed the claims
A
on the ground that the claims were barred under clause 3.3.15. He also
held that some of the claims were not covered by the contract. The
contractor sought to invoke the arbitration clause but the State sought
to oppose on the ground that the dispute attracting the arbitration
clause had not arisen. It was contended that the claim was barred by
clause 3.3.15 and it had not been made within the time. It was con- B
tended further that there was only one contract and there being no
separate- agreement for extension of period of the contract the rate as
provided in the original contract alone was permissible. As there was
no separate contract and no reference under clause 3.3.29 could be
made for the enhanced period beyond the period of the contract.
Relevant clauses of the contract were as follow:
c
"3.3.15 Clause 15. Time limit for unforseen claims: Under
no circumstances whatever shall the contractor be entitled
to any compensation from Government on any account
unless the contractor shall have submitted claim in writing·
to the Engineer-in-Charge within one month of the cause D
of such claim occurring.

3.3.29 Clause 29.

Decision of Superintending Engineer, to be final
except where otherwise specified in the contract. The deci- E
sion of the Superintending Engineer of the Circle for the
time being shall be final, conclusive and binding. on all
parties to the contract upon. all question relating to the
meaning of the specification; design drawings and instruc-
tions hereinbefore mentioned and as to the quality of work-
-~' manship or material used on the work or as to any other F
question, claim, right matter or thing whatsoever, in any
way arising out of or relating to the contract, designs, draw-
ings, specifications, estimates, instructions, orders, or
those conditions or otherwise concerning the work of
execution or failure to execute the same, whether arising
during the progress of the work, or after the completion or G
abandonment thereof.
)
Provided that if the contractor is dissatisfied with the
final decision of the Superintending Engineer in respect of
any matter, he may within 28 days after receiving notice of
such decision give notice in writing to the Superintending H
108 SUPREME COURT REPORTS 119881 3 S.C.R.

A Engineer requiring that the matter may be referred to the
arbitration and furnishing detailed particulars of the dis-
pute or difference specifying clearly the point at issue. If
the contractor fails to give such notice within the period of
28 days as stipulated above the decision of the Superintend-
B ing Engineer already given shall be conclusive and bindi?g
on the contractor.

In case an arbitration is to be held it shall be effected
by an arbitrator to be appointed by the State Government
whose decision shall be final, conclusive and binding.

c If the work under the contract has not been completed
when a dispute 1s referred to arbitration work shall
continue during arbitration proceedings if it is reasonably
possible and no payment due to contractor should be with-
held on account of arbitration proceedings unless it is re-
D quired by the arbitrator

3.3.32 Clause 32. Action where no specification:

In case of any class of work for which there is no such
specification as is mentioned in Rules, such work shall be
carried out in accordance with the specification approved
E
by Superintending Engineer/Chief Engineer, or applica-
tion to works in the district and the event of there being no
such specification, then in such case the work shall be car-
ried out in all respect in accordance with the instructions
and requirements of the Engineer-in-Charge.
F
3.3.33 Clause 33. Definition of work:

The expression "works" or "work" where used in
these conditions shall, unless there by something either in
the subject or context repugnant to such construction be
constructed and taken to mean the works by or by virtue of
G
the contract contracted to be executed, whether temporary
or permanent, and whether original, altered, substituted or
) ..._
additional.

3.3.34 Clause 34. Claim for quantities entered in the tender
H or estimate:
CONTINENTAL CONST. v. STATE OF M.P. [MUKHARJI, J.] 109

Quantities shown in the tender are approximate and
A
no claim shall be entertained or work executed being either
more or less than those entered in the tender estimate."

The learned single Judge as mentioned hereinbefore of the High
Court after exhaustive discussion dismissed the appeal and upheld the
~·- order. Being aggrieved the petitioner went up in appeal before the
Division Bench and the Division Bench on consideration of the matter
B

dismissed the appeal. The Division Bench considered the following
issues raised before the District Judge:

1. Whether the contractor had incurred extra-costs towards wet-
ting and washing of stones used in masonry of Group-II Tawa
Masonry Dam? c

2. Was the petitioner entitled to payqient of this extra costs of
Rs. l,20,355?

3. Whether the petitioner contractor had to incur extra cost of D
material and labour to the tune of Rs.14,72,456 within the
contract period for executing work assigned to it?

4. Whether the contractor had incurred extra cost of
Rs.8,84,336 for the work beyond the contract period due to
unforeseen circumstances? E

5. Whether the petitioner's claim on both the counts was in
whole or in part of it was barred by time in terms· of clause
3.3.15?

6. Whether the contract was rendered ineffective in terms of F
section 56 of the Contract Act due to unexpected change in the
market rate of material and labour charges?

7. Was the claim not entertainable in accordance with the terms
of the contract under clause 3.3.32, 3.3.33 and 3.3.34 during the
extended period of contract? G

8. Was the work delayed because of the presence of shale-zone
in the· foundation which factor was not made known to. the
contract?

9. Whether the contractor was entitled to extra costs of damages H
110 SUPREME COURT REPORTS [1988] 3 S.C.R.

for the delay caused on account of shale-zone?
A
The Division Bench came to the findings as follows:

1. The contractor did incur expenditure on wetting and washing
of stones in Masonry Group-II, Tawa Masonry Dam but this
B was according to agreement.

2. The petitioner is not entitled to the payment of the extra
>.
costs of Rs.1,20,355. ,.-~
~·
3. The petitioner/contractor did incur an extra cost of '
Rs.14,72,456 within the contract period for executing the
c assigned work.

4. The petitioner/contractor did incur an extra cost of
Rs.6,81,796 for the work done beyond the contract period due
to unforseen circumstances.
D
5. The petitioner is entitled to the claim to the extent of
Rs.2,65,000 against Issue No. 3 and Rs.6,81,796 against Issue
No. 4 above and the same is not barred by time in terms of
clause 3.3.15.

E 6. The contract was not rendered ineffective in terms of section
56 of the Contract Act due to abnormal rise in the market rates
of materials and labour.

7. The claim under reference cannot be ruled out merely be-
cause of the provisions of clause 3.3.32, 3.3.33 and 3.3.34. ~
F
8. Yes, the work was delayed due to the presence of shale-zone
in the foundations, a factor which was unforeseen and was not
made known to the contractor.

9. The contractor is entitled to claim extra cost due to the delay
G caused on account of the shale-zone in foundations.

The Division Bench felt that the four factual issues decided by
the District Judge were more or less by the agreement and therefore,
the Division Bench did not deal with these. So far as three legal issues
which were referred to him, namely, whether the claim was barred
H under clause 3.3.15, the contract was rendered ineffective in terms of
CONTINENTAL CONST. v. STATE OF M.P. [MUKHARJI, J.J 111

section 56 of the Contract Act due to abnormal rise in the market rate A
of material and labour and ihe claim not entertainable under clause
3.3.32, 3.3.33 and 3.3.34. The High Court considered whether the
appellant was entitled to extra cost towards rise in prices of materials
and labour within and beyond the contract period. The Division Bench
noted that the learned District Judge held that since three lc;gal issues
were specifically referred to the arbitrator and therefore his decision B
had become final and binding on the parties and cannot be re-agitated
before the Court. Regarding the remaining issues, the'State had taken
objection while opposing the application under section 20 that the
appellant was not entitled to extra cost for material and labour in
terms of the contract but the Court directed that this matter had to be
agitated before the arbitrator and the application under section 20
could not be dismissed on the ground that the claim would not ulti-
c
mately succeed. The District Judge found and in our opinion rightly
that the question regarding extra-<:ost was a general question and not a
specific legal question and the decision of the arbitrator was not final
one. The arbitrator misconducted himself in allowing the claim with-
out deciding the objection of the State. In view of the specific clauses, D
the appellant was not legally entitled to claim for extra cost. The
decision of this Court in Seth Thawardas v, Union of India, I1955) 2
SCR 48 is of no avail on this point. If no specific question of law is
referred, the decision of the arbitrator on that question is not final
however much it may be within his jurisdiction and indeed essential for
him to decide the question incidentially. The arbitrator is not a con- E
ciliator and cannot ignore the law or misapply it in order to do what he
thinks is just and reasonable. The arbitrator is a tribunal selected by
the parties to decide their disputes according to law and so is bound to
follow and apply the law, and if he does not he can be set right by the
Court provided his error appears on the face of the award. In this case,
the contractor having contracted, he cannot go back to the agreement F
simply because he does not suit him to abide by it. The decision of this
Court in Mfs. Alopi Parshad v. Union of India, [1960) 2 SCR 793 may
be examined. There it was observed that a contract is not frustrated
merely because the circ.umstances in which the contract was made,
altered. The Contract Act do.es not enable a party to a contract to
ignore the express covenants thereof, and to. claim payment of consi- G
deration for performance of the contract at rates different from the
stipulated rates, on some vague plea of equity. The parties to an
executory contract are often faced, in the ·course of carrying it out,
with a turn of event which they did not at all anticipate, a wholly
abnormal rise or .fall in prices,'a sudden depreciation of currency, an
unexpected obstacle to executi.on, or the like. There is no general H
"
112 SUPREME COURT REPORTS I1988) 3 S.C.R.

liberty reserved to the courts to absolve a party from liability to
A
perform his part of the contract merely because on account of an
uncontemplated turn of events, the performance of the contract may
hecome onerous.

It was argued on behalf of the appellant that since specific issues
B were framed and referred by the District Judge to the arbitrator, the
same had been answered by a non-speaking award, there is no mistake
of law apparent on the face of record and the District Judge erred in
setting aside the award by looking into the terms of the contract which,.
it' was submitted, neither formed part of the award nor appended to it.
We are unable to agree. This being a general question, in our opinion,
the District Judge rightly examined the question and found that the
c appellant was not entitled to claim for extra cost in view of the terms of
the contract and the arbitrator misdirected himself by not considering
this objection of the State before giving the award.

In Kapoor Nilokheri Co_operative Dairy Farm Society Ltd. v.
D Union of India, A.LR. 1973 S.C. 1338, it was held that where an
arbitrator is called upon to decide the effect of the agreement, he has
really to decide a question of law, i.e. of interpreting the agreement,
and hence, his decision is not open to challenge. This was also a deci-
sion against a reasoned award but since the reference was to a specific
question of law, the decision of the arbitrator, it was held, was not
E open to challenge. The limits of the jurisdiction of the Court to
challenge the award are well--;;ettled. While considering objection
under section 30 of the Act, the Court does not act as an appellate
court, it can only interfere with the award if the arbitrator misconducts
himself or the proceedings or if the award has been made after the
issue of an order by the Court superseding the arbitration or if the
F arbitration proceedings have become invalid under section 35(c) of the
Act or the award has been improperly procured or is otherwise invalid.
The Judicial Committee in Champsey Bhara & Co. v. Jivraj Balloo
Spinning & Weaving Co. Ltd., A.LR. 1923 P.C. 66 has laid down the
.extent of the jurisdiction of the Court to set aside an award on the
ground of an error in making the award. It has been reiterated that the
G award of the arbitrator may be set aside on the ground of an error on
the face thereof only when in the award or in any document incor-
porated with it as for instance, a note appended by the arbitrator,
stating the reason for his decision, there is found some legal proposi-
tion which is the basis of the award and which is erroneous. See also in
this connection Re. King & Duveen, [1913] 2 K.B. 32 and Government
H of Kelantan v. Duff Development Co. Ltd., [1923] A.C. 395, if how-
CONTINENTAL CONST. v. STATE OF M.P. [MUKHARJI, J.] 113

ever, a specific question is submitted to the arbitrator and he answers
A
it, the fact that the answer involves an erroneous decision in point of
law, does not make the award bad on its face so as to permit of it being
set aside. See also the observations of this Court in Bungo Steel Furni-
ture v.Union of India, [1967] 1 SCR 633. It is well settled that the
contract remained part of the award. The Judicial Committee in Saleh
Mohd. v. Nathoo Mal, 54 LA. 427 considered an award in which the B
arbitrator recited a contract made between the parties and the dispute
arising under it. It was contended that the contract was incorporated in
the award by its reference and so the award disclosed an error of law in
construing the terms of the contract. But that contention was
negatived. It was held that the reference to the contract in the award
was to earmark the disputes between the parties and was not incor-
porated into the award. In Abosalom Ltd. v. Great Western, [19331 c
A.C., 592, it was held that if an award referred to the terms of a clause
in the contract, the clause though not set out in full must be taken to be
incorporated in it. This Court has reiterated in Allen Berry & Co. v.
Union of India, I1971 I 3 SCR 282 that mere reference to the contract in
the award is not to be held as incorporating it. ()

In the aforesaid light, we are of the opinion, the High Court was
right that the District Judge was entitled to examine the contract in
order to find out the legality of the claim of the appellant regarding
extra cost towards rise in prices of material and labour. As was pointed
out by the learned District Judge clauses 2.16 and 2.4 stipulated that E
the contractor had to complete the work inspite of rise in prices of
materials and also rise in labour charges at the rates stipulated in the
contract. There was a clear finding of the arbitrator that the contract
was not rendered ineffective in terms of section 56 of the Act due to
abnormal rise in prices of material and labour. This being so and the
--1· contractor having completed the work, it was not open to him to claim F
extra cost towards rise in prices of material and labour. The arbitrator
misconducted himself in not deciding this specific objection raised by
the State regarding the legality of extra claim of the appellant.

In that view of the matter, the award, in our opinion, was pro-
perly set aside by the learned District Judge and the High Court was G
right in not interfering with it.

The question about specific reference on a question of law was
examined by this Court recently in the case of Tarapore and Comapny
v. Cochin Shipyard Ltd., Cochin and another, [1984] 2 S.C.C. 680.
There it was observed that if the agreed fact situation, on the basis of H
114 SUPREME COURT REPORTS [1988] 3 S.C.R.

A which agreement was entered into, ceases to exist, the agreement to
that extent would become otiose. If nte initially quoted by the
contractor became irrelevant due to subsequent price escalation, it was
held in that case that contractor's claim for compensation for the
. excess expenditure incurred due to the price rise could not be turned
B down on ground of absence of price escalation clause in that regard in
the contract. Agreement as a whole has to be read. Reliance was
placed very heavily on this decision on behalf of the appellant before
us .. It has to be borne in mind that in the instant case there are specific
clauses r(}ferred to hereinbefore which barred consideration of extra
claims in the event of price escalation. That was not so in Tarapore and
Company's case. That made all the difference. The basis of bargain
c between the parties in both these two cases were entirely different.
In the aforesaid view of the matter we are of the opinion that the ~
High Court was right in the view it took and there is no ground to
interfere. The petition for special leave fails and is. accordingly
dismissed.
0
S.L. Petition dismissed.

-~.