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64. It is submitted that since the petitioner did not comply with its obligation by handing over the leasehold plots admeasuring 1034 hectares, and did not comply with its reciprocal obligation, the respondents were not required to pay the balance amount of down payment. There was thus, no breach on the part of the respondents in making down payment. The learned arbitrator has thus rightly scaled down the amount payable by the respondents to the petitioner as and by way of down payment in view of the petitioner not having submitted the lease documents in respect of the entire 1034 hectares of land. The learned arbitrator has proportionately reduced the down payment and has rightly rendered a finding that there was no breach on the part of the respondents to make balance down payment and that the termination of the agreements by the petitioner was accordingly illegal and unlawful. The learned counsel submits that this finding of fact rendered by the learned arbitrator cannot be interfered with by this court under section 34 of the Arbitration & Conciliation Act, 1996.

70. The learned counsel placed reliance on the judgment of the Supreme Court in the case of Dwarka Das vs. State of Madhya Pradesh, AIR 1999 SC 1031, and would submit that even if the respondents did not have any proof of any damages as canvassed by the petitioner, the learned arbitrator has ample power to allow the reasonable compensation.

71. Insofar as claim no.1 awarded by the learned arbitrator is concerned, the Kvm ARBP74.11 learned counsel submits that in view of the representation made by the petitioner that the petitioner had leasehold plots of 1034 hectares, respondent no.2 agreed to invest large amount in the joint venture project and acquired 74% shareholding of the joint venture company. Since the petitioner committed breaches, the joint venture company suffered huge losses and thus the claim of the respondents for the loss suffered by the respondents towards the share capital contribution was justified and the learned arbitrator having rendered a finding that the agreements were wrongfully terminated by the petitioners, has rightly allowed the said claim in favour of respondent no.1. The learned counsel submits that in the event if this court comes to the conclusion that the learned arbitrator could not have directed the petitioner to reimburse the share capital contribution made by the respondents, this court may modify that part of the award.

78. Mrs.Desai, learned counsel for the petitioner in rejoinder invited my attention to the tender conditions in support of her submission that even in tender document, it was made clear that all the assets of the petitioner mentioned therein were on 'as is where is basis'. The learned counsel also invited my attention to a letter addressed by the respondents themselves admitting that the leasehold plots referred in the agreements were on 'as is where is basis'. She submits that the investment amount of the petitioner in the joint venture company was mentioned at Rs.10.93 crores and the project estimated cost of the joint venture company was mentioned at Rs.42.00 crores. The licence was already given by the petitioner to the respondents for entering upon the land admeasuring 1034 hectares. The respondents had admitted the area of the land and possession thereof. The learned counsel invited my attention to a letter dated 18th June, 2003 addressed by the Kvm ARBP74.11 respondents through their advocates to the petitioner admitting that the petitioner had taken on lease about 700 hectares of land and was negotiating for 335 hectares of land. The petitioner had already given complete details of the lands admeasuring 1034 hectares. The respondents were fully aware of those details and the correctness thereof. There was no misrepresentation made by the petitioner to the respondents of any nature whatsoever.

87. A perusal of the record also indicates that it was the case of the respondents themselves that the joint venture company could not make any profit and the project could not be made successful due to loss suffered due to various other reasons which could not be attributed to the petitioner. Under the MOU, both parties were entitled to terminate the contract if other party would have failed to rectify the breaches inspite of notice given by one party. A perusal of the record clearly indicates that the respondents never called upon the petitioner to rectify any alleged breaches on the part of the petitioner such as to hand over the leasehold plots admeasuring 1034 hectares with the requisite lease document. On the contrary the record indicates that the respondents had failed to pay the agreed rent to the petitioner in respect of the land admeasuring 1034 hectares and had failed to pay the down payment completely and committed various other breaches. The petitioner had called upon the respondents to rectify those breaches however, the respondents failed to rectify breaches. The petitioner, in my view, thus was justified in terminating the MOU. The petitioner had to surrender the leasehold lands to the actual owners since the respondents had failed to pay the rent in respect of such lands to the petitioner. The learned arbitrator, in my view, thus has taken a perverse view by declaring that the termination of the MOU by the petitioner is illegal.