1. The facts in this case are sufficiently clear. The City Municipality of Poona, having determined to acquire a portion of the petitioner's house for the purpose of widening a road, served upon him a notice to that effect. In the course of correspondence the plaintiff manifested his willingness to allow the Municipality to acquire a part of the house but as the parties could not come to terms as to the price to be paid, it was agreed in accordance with Section 160 of the District Municipal Act that this question should be referred to arbitration. It was accordingly referred, and the arbitrators held certain proceedings. These proceedings were brought up on appeal to this Court in February 1906 when Sir Lawrence Jenkins and Mr. Justice Aston set aside the proceedings of the arbitrators. That being done, the petitioner then approached the District Judge under Sub-section (3) of Section 160 of the District Municipal Act requesting the District Judge himself to ascertain and determine the compensation payable. This the District Judge has done, and from his award the present appeal is preferred by the Municipality,
2. In the arguments addressed to us for the appellant only one substantial point is taken which calls for our decision, and that is whether the Municipality can now resile from the bargain which was made between them and the plaintiff. That is what the Municipality wishes to do on the ground that it no longer requires the plaintiff's premises: and the contention is that it has the power to do so inasmuch as there never was a completed contract with the plaintiff.
3. If there was no contract the Municipality may be rid of its bargain, but if there was a contract, it is plain that it cannot be repudiated.
4. It appears to us that there was a contract. The only point in which the agreement is alleged to fall short of a contract is in the matter of consideration which was left as we have said, to be estimated by the arbitrators. And no doubt there is authority for the view that as a general rule where the agreement is that the price of the estate shall be fixed by arbitrators and they do not fix it. there is no contract, as the price is of the essence of the contract of sale and the Court cannot make a contract where there is rone: Gourlay v. The Duke of Somerset (1815) 19 Ves. Jun. 429, But whether that doctrine is to be applied or not, will, we think, depend upon whether the fixing of the price is of the essence of the contract of sale; and in this case we are quite clear that it was not of the essence. There was a definite and a completed contract to give and take these premises upon terms to be settled thereafter. That being so, the rule ordinarily to be applied would be that if the valuation could not be made modo et forma, the Court would substitute itself for the arbitrators, as in Dinham v. Bradford (1869) 5 Ch, App. 519. That rule is of all the closer applicability in this particular instance inasmuch as the Municipal Act distinctly provides that in the event of the arbitrators failing to fix the compensation payable, the District Court shall fix that compensation.
5. This, therefore, we think, was a contract of sale at a fair valuation where the Court not only can provide, but under a special Statute is compelled to provide, the means of ascertaining the price; and of such a contract specific performance would be awardable : cf. Gregory v. Mighell (1811) 18 Yes, Jnn.328.
6. For these reasons we think that there is a contract from, which the Municipality cannot now resile. In this view of thecase it becomes unnecessary to consider Mr. Branson's argument that the District Judge was wrong in supposing that all the provisions of Sub-sections (2) to (5) of Section 40 of the Municipal Act had. been satisfied. The only other point mentioned was as to the amount of the compensation which the District Judge has fixed; and upon this point it will be enough to say that we have been shown no reason why we should differ from the conclusions at which the District Judge has arrived.
7. As these observations suffice to dispose of the appeal, we do not express any opinion upon the other point which the learned Advocate-General has taken, viz. whether under Section 160, Sub-section (3), of the Municipal Act. an appeal from the District Court is competent to this Court.
8. The result is that the appeal must be dismissed with costs.