Fundamental breach and arbitral damages upheld where location lists were withheld and performance was prevented.

A contract dispute under arbitration law turned on alleged non-supply of DTC location lists, waiver, damages, and a belated amendment request. The court treated the finding that the appellant prevented performance by failing to furnish location lists as a factual finding not open to interference absent perversity, and upheld termination for fundamental breach. It rejected waiver, holding that commencement of work did not amount to abandonment of the contractual right to full location supply. The damages award was sustained as a compensation-based quantification within the arbitrators' domain and not contrary to public policy. The late chamber summons for amendment was also rejected.

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Issues: (i) whether the appellant committed a fundamental breach by failing to supply the DTC location lists and whether the respondent was justified in terminating the contract; (ii) whether the respondent had waived its right to insist on full supply of locations; (iii) whether the award of damages, including damages for installed, uninstalled and unmanufactured objects, was legally sustainable and contrary to public policy; and (iv) whether the belated chamber summons for amendment deserved acceptance.

Issue (i): whether the appellant committed a fundamental breach by failing to supply the DTC location lists and whether the respondent was justified in terminating the contract.

Analysis: The contract required commencement and completion of work on the basis of the location lists and the sequence of installation was repeatedly altered by the appellant. On the evidence, the location lists were not furnished in the manner and to the extent required for performance, and the respondent had invested substantial sums and was ready to perform. The finding that the appellant prevented performance was treated as a finding of fact supported by the record and not open to appellate interference in the absence of perversity.

Conclusion: The appellant was held to have committed a fundamental breach, and the respondent was held justified in terminating the contract.

Issue (ii): whether the respondent had waived its right to insist on full supply of locations.

Analysis: Waiver was rejected because commencement of work without insisting on strict sequence did not amount to abandonment of the contractual right to receive location lists. The conduct of the respondent was consistent with attempting performance under a changing schedule, not with relinquishment of a contractual entitlement. The concurrent factual findings below also negatived any plea of waiver or acquiescence.

Conclusion: No waiver was found against the respondent.

Issue (iii): whether the award of damages, including damages for installed, uninstalled and unmanufactured objects, was legally sustainable and contrary to public policy.

Analysis: The damages were assessed on the footing that the innocent party is to be placed, as far as money can do it, in the position it would have occupied had the contract been performed. The arbitral tribunal adopted lease rental as a measure of loss and separately valued installed objects, stranded objects and unused raw material. The tribunal also considered mitigation and found the goods to be custom-built and not readily marketable. The challenge that the contract could not be treated in this manner was rejected because the method of quantification lay within the arbitrators' domain and the award was neither perverse nor contrary to public policy.

Conclusion: The award of damages was upheld and no ground to interfere was made out.

Issue (iv): whether the belated chamber summons for amendment deserved acceptance.

Analysis: The proposed amendments were sought after inordinate delay and would have altered the proceedings at a highly belated stage. No sufficient basis was shown for permitting such changes at that stage of the litigation.

Conclusion: The chamber summons were rightly rejected.

Final Conclusion: The arbitral award and the High Court judgment were sustained in full, and the challenge to the award failed on all substantial grounds.

Ratio Decidendi: In an appeal under the arbitration law, concurrent factual findings that one party committed a fundamental breach and prevented performance will not be disturbed absent perversity, and the arbitrator's method of quantifying damages will be upheld if it is a plausible compensation-based measure not contrary to public policy.

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