Mahinder Narain, J.

1. This petition under Section 20 of the Arbitration Act has been filed for the purpose of enforcement of the agreement to sell dated 8.10.1989, executed the parties to the suit whereby the respondent is alleged to have agreed to sell plot bearing No. O-II/41, Lajpat Nagar, New Delhi, to the petitioner. It is stated in this petition that in the said agreement there is an arbitration agreement between the parties. The clause relating to arbitration is in the following terms:

That in the eventuality of any dispute in between the parties, on any matter concerning this agreement, or any matter incidental thereto, the same shall be referred to an Arbitrator appointed mutually, as per the Indian Arbitration Act, in force and the award of the Arbitrators so appointed, shall be final and binding on between the parties thereto.

3. I had put to Mr. R.K. Makhija, learned counsel for the petitioner, at the time when the matter came up for admission on 9.8.1990, that in view of the fact that the arbitration would ultimately result in specific performance of the alleged agreement to sell between the parties, whether it is permissible in law to refer the alleged dispute between the parties in connection with the allowed agreement to sell between the parties to arbitration, in view of, inter alia, the provisions of Section 10 and Section 20 of the Specific Relief Act. Section 10 of the Specific Relief Act, 1963 reads as under:

Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the Court be enforced

(a) when there exist no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done; or

(b) when the act agreed to be done in such that compensation in money for its non-performance would not afford adequate relief.

ExplanationUnless and until the contrary is proved, the Court shall presume

(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money ; and

(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:

(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;

(b) where the property is held by the defendant as the agent or trustee of the plaintiff.

It is, therefore, clear from the said Section that grant of specific performance is in the discretion of the Court.

4. Apart from this, there is Section 20 of the Specific Relief Act, which reads as follows:

20(1). The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal:

(2) The following are cases in which the Court may properly exercise discretion not to decree specific performance

(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not violable, gives the plaintiff an unfair advantage over the defendant; or

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee whereas its non-performance would involve no such hardship on the plaintiff;

(c) where the defendant entered into the contract under circumstances which though not rendering the contract violable, makes it inequitable to enforce specific performance.

Explanation 1.Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of Clause(a) or hardship within the meaning of Clause (d).

Explanation 2.The question whether the performance of a contract would involve hardship on the defendant within the meaning of Clause(b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

3. The Court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

4. The Court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party.

5. It appears to me that the jurisdiction to grant specific relief has been controlled by statute. In India, prior to Specific Relief Act, 1963, there was the Specific Relief Act, 1877 (Act No. 1 of 1877). The 1963 Act had repealed the earlier enactment. Therefore the power of the Court to grant specific relief in England is different from the power of the Court to grant specific relief in India. Whereas specific reliefs can be given by Courts in England on the basis of common law and precedents, and contractual obligations between the parties, grant of specific relief has been, and is controlled in India by the provisions of the aforementioned statutes.

6. I had put to Mr. R.K. Makhija that in view of the judgment of the Privy Council in Nazir Ahmad v. King Emperor, AIR 1936 Privy Council 253(2), the suit was not maintainable, as the Privy Council had stated that when a statute requires a thing to be done in a particular way, it must be done in that manner, or not at all. Every other method is forbidden. This proposition laid down by the Privy Council in a criminal case, has not been held to be confined to only criminal matters by the Supreme Court, which has followed this proposition in a large number of cases, both criminal and non-criminal, (See Rao Shiv Bahadur Singh and another v. State of Vindh-P, AIR 1954 Supreme Court 322; Ballabhdas Agarwala v. J.C. Chakravarty AIR 1960 Supreme Court 576; State of Uttar Pradesh v. Singhara Singh and Others. AIR 1964 Supreme Court 358; Gujarat Electricity Board v. Girdharlal Moti Lal and another, AIR 1969 Supreme Court 267; and Ramchandra Keshav Adke (Dead) by LRs. v. Govind Joti Ghavare and Others. In fact in 1975 Supreme Court 915, the Supreme Court stated that the aforesaid principle had been stated much earlier than 1936 PC 253 [LQ/PC/1936/58] . in Taylor v. Taylor, reported as (1875) 1 Ch. D. 426.

7. It is, therefore, not right for Mr. Makhija to contend that the dicta of the Privy Council is applicable only to criminal cases, and does not extend to civil cases.

8. It is then contended by Mr. Makhija that in view of the provisions of Section 9 of the Code of Civil Procedure, all suits of civil nature can be tried by Courts. Section 9 of the Code of Civil Procedure reads as under:

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation I. A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religions rites or ceremonies.

Explanation II. For the purposes of this Sections, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.

9. The express or implied bar to the cognisance of the civil suits would have to be found in statutes. The Specific Relief Act, 1963 is one such statute. The specific reliefs are controlled by special statutes which would govern all suits in which specific performance is sought, and specific performance cannot be granted by Courts otherwise than as provided in the aforesaid Specific Relief Acts.

10. Mr. Makhija refers to 1973 Bombay Law Reporter 335 (The Fertillizer Corporation of India v. Chemical Construction Corporation), a case decided by a Division Bench of the Bombay High Court. A perusal of that judgment indicates that the Honble Judges of the Division Bench of that Court, had gone on the principle of civil nature being determinable by Court. It was not urged before them that the Specific Relief Act is a special statute, and, therefore, will control the Courts jurisdiction to grant, or not to grant specific performance. Besides this, that matter related to the issue whether the arbitrator can or cannot grant an injunction. That matter is somewhat different from the issue involved in the instant case, that is to say, whether it is open to an arbitrator to award specific performance.

11. M. R.K, Makhija also relied upon AIR (43) 1956 Punjab 249 Laxmi Narain and Others v. Raghbir Singh and Ors, at page 250. This case was a post-award matter, and objections have been raised to the award, and the Honble Single Judge of the Punjab High Court had rejected the contentions of the counsel that suits in which granting of relief is entirely on discretion of the Court, cannot be referred to arbitration. A perusal of the judgment shows that the relevant provisions of the Specific Relief Act were not brought to the notice of the Honble Judge, nor was the judgment of Nazir Ahmeds case was brought to the notice of the Honble Judge.

12. In addition to the principle enunciated by the Privy Council in Nazir Ahmeds case, which principal has been approved by the Supreme Court in cases criminal in nature, and cases not criminal in nature, it is now well settled that when a statute requires a thing to be done in a particular manner, it can only be done in that manner, or not at all. All other methods are forbidden.

13. In this connection, one has also to take note of the provisions of Section 23 of the Contract Act, which reads as follows:

The consideration or object of an agreement is lawful, unless

it is forbidden by law; or

is of such a nature that, if permitted, it would defeat the provisions of any law; or

is fraudulent; or

involves or implies injury to the person or property of another; or

the Court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful, is void.

14. It is apparent from the provisions of Section 23 of the Contract Act, that when the consideration or the object of any agreement, if permitted, would defeat the provisions of any law, and Specific Relief Act, 1963 is law, then such a consideration or object is unlawful. Section 24 of the Contract Act says that, If any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void.

15. An agreement to refer a dispute to arbitration, the effect of which would be to have an award directing specific performance of an agreement to sell, would have for its object to defeat the provisions of the Specific Relief Act, especially Sections 10 and 20 thereof. It is clearly intended by the aforesaid provisions that it is only Courts, and Courts alone who would have jurisdiction to grant or refuse specific performance.

16. In view of the provisions of Sections 10 and 20 of the Specific Relief Act read with Sections 23 and 24 of the Contract Act, I am of the view that it is not permissible to any arbitrator to give an award, directing specific performance of an agreement to sell. Such an award would go contrary to the terms and spirit of the Specific Relief Act.

17. In this view of the matter, I am in respectful disagreement with the judgment of the Division Bench of the Bombay High Court, and the judgment of the Honble Single Judge of the Punjab High Court, before whom the aforesaid contentions were not raised, nor were they considered.

18. For the aforestated reasons, this petition under Section 20 of the Arbitration Act for enforcement of an agreement to sell is not maintainable. In this view of the matter, the petitioner has no cause of action against the respondent, and I, therefore, reject the petition under Order VII, Rule 11 of the Code of Civil Procedure.