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45. Execution of Definitive Agreements has, however, under Clause 7 of the Term Sheet, to be on the basis of "mutual agreement".

"Mutual agreement" is but a synonym for consensus ad idem. The learned Arbitrator has, in the arbitral Award, held, in so many terms, that consensus ad idem, between Zostel and Oravel, is wanting. As a party seeking reliefs predicated on the Award, Zostel cannot wish away this finding. The learned Arbitrator has, in fact, emphasised this position more than once in the Award.

46. Issue No. 5, as framed by the learned Arbitrator, was, specifically, whether there was consensus ad idem between the parties on the draft Definitive Agreements. The manner in which the learned Arbitrator has dealt with this issue is instructive. After reproducing rival contentions of learned Counsel, the learned Arbitrator relies on the passage, from the decision in Mayawanti4, reproduced in para 26.2.2 supra, on the requirement of consensus ad idem as a necessary condition for specific performance of the contract. In the said passage, the Supreme Court holds, in unequivocal terms, that "the stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem". The passage goes on to state, almost at the cost of repetition, that "if the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all". The reliance, by the learned Arbitrator, on this passage, from Mayawanti4, indicates, clearly, why the learned Arbitrator did not direct specific performance. The Supreme Court having held that, absent consensus ad idem, there could not be specific performance of a contract at all, and the learned Arbitrator having gone on to hold that, qua the Definitive Agreements, consensus ad idem between Zostel and Oravel was wanting, the reluctance, by the learned Arbitrator, to award the specific performance was but an inevitable sequitur. The way forward, in such cases, is also shown by the same passage from Mayawanti4, by the observation that "where there are negotiations, the court has to determine at what point, effect or, the parties have reached agreement". That, quite clearly, is a matter of trial.

51. I find myself unable to agree. It was to elicit a specific response from Mr. Sibal on this point that I posed a pointed query to him, as to whether Oravel was completely proscribed from suggesting any changes in the draft Definitive Agreements, as forwarded by Zostel to Oravel. His answer was in the affirmative, and he sought to rely, for this purpose, on the words "as envisaged", as contained in the concluding passage from the arbitral Award. Mr. Sibal himself acknowledges that the words "as envisaged" have to be understood as relating to the covenants of the Term Sheet; in other words, as envisaged in the Term Sheet. The Term Sheet specifically envisages execution of the Definitive Agreements "as mutually agreed" between the parties. Mutual agreement or, in other words, consensus ad idem, was, therefore, the sine qua non for the Definitive Agreements to be executed. That consensus ad idem, even according to the arbitral Award, is lacking. It would not be far from the truth to state that, even as on date, said consensus is, if anything, still at an inchoate stage.

53. Unfortunately for Zostel, however, the arbitral Award does not say so. The learned Arbitrator has not opined, anywhere in the Award, that, with the exit of Venture Nursery, Oravel was mandatorily required to execute the draft Definitive Agreements, as there was complete consensus ad idem regarding all terms thereof. Nor does the arbitral Award make any particular distinction between the "key terms and conditions" and other terms and conditions. What is required, for any contract and, therefore, for a Court to direct specific performance of a contract, according to Mayawanti4, is consensus ad idem regarding all terms and conditions of the contract. That such consensus ad idem was lacking, is a specific finding of the learned Arbitrator, which binds Zostel.