JUDGMENT Kuldip Chand Sood, J.—Works "Remodeling of Sewerage Scheme to Manali Town (SH: C/O Treatment work near libetian Colony for right bank" was awarded to M/s. Khub Chand Tyagi, Engineers and Contractors, hereinafter referred to as the Contractor, by the State of Himachal Pradesh through its Executive Engineer, Irrigation and Public Health Division, Kullu and a formal agreement was executed between the parties on the standard contract form in terms of Agreement No. 1 of 1992-93. 2. Disputes, having arisen between the parties, in respect of certain claims by the Contractor and counter claims by the State, were referred to the sole arbitration of the Superintending Engineer, Arbitration, Himachal Pradesh Public Works Department, Solan, by the Chief Engineer (North, I.P.H. Dharamshala) in March 6, 1997 in terms of clause 65 of the contract agreement. The works were to commence on June 22, 1994 and completed by December 21, 1994. However, the date for the completion of the works was extended by the Department till December 31, 1996. 3. The Arbitrator made his award on November 27, 1997 allowing some of the claims of the Contractor as also some of the counter claims made by the Department. Against the various claims made by the Contractor, the following award was made: Sr. No. Description of Claim Amount Demanded Amount Awarded Remarks 1 2 3 4 5 1. Work done. Rs. 3484986 modified to Rs. 43,04679 Rs. 28,69757 2. Expenditure on infrastructure Rs. 2,52,087.50 3. Cost of material at site. Rs. 68250 Modified to Rs. 1,83,434 Rs. 55,030 4. Cost of plant and machinery. Rs. 1,60,000 Rs. 64,000 5. Cost of shuttering and scaffolding. Rs. 2,56,000 Rs. 76,800 6. &7 Escalation of labour and material under. Clause 60 of agreement. Rs. 3250463 Rs. 9,67,450 Rs. 6,86,676 8. In built profit on balance work. Rs. 16,55766 Nil 9. Security deposit. Rs. 1,50,000 Rs. 1,00,000 10. Infructuous exp. incurred. Rs. 1,80,000 Nill 11. Transportation of Staff and labour. Rs. 20,000 Nil. 12. Amount withheld. Rs. 4,97,231 Nil. 13. Interest 24%. 12% per annum simple interest on Rs. 33,35,833 for two years till date of award. 14. Arbitration cost. Amount not specified Nil. Total: Rs. 38,52,263. Similarly, the following award was made in favour of the State: Sr. No. Description of Claim Amount Demanded Amount Awarded Remarks Counter-claims; 1. Cement. 38,390.00 Considered and allowed under claim 1 as per admissibility. 2. Electrical and Mech. Equipment. 33,35,833 for two years till date of award. 14. Arbitration cost. Amount not specified Nil. Total: Rs. 38,52,263. Similarly, the following award was made in favour of the State: Sr. No. Description of Claim Amount Demanded Amount Awarded Remarks Counter-claims; 1. Cement. 38,390.00 Considered and allowed under claim 1 as per admissibility. 2. Electrical and Mech. Equipment. 15,03,415 Nil. 3. Recovery of material issued. 11,75,503 4,96,513 4. Hire charges of machinery (Truck). 12,181 12,181 5. Royality. 12,669 12669 6. Performance Bound. 4,73,625 25,000 to be remained for one year. 7. Rebate 0.1% 5062.00 5062.00 8. Sundries 1% On Rs. 50,62,228 50622.00 Nil. Total: Rs. 5,26,425. 4. The net amount payable to the contractor as awarded by the Arbitrator comes to rupees 33,35,838. Against the claimed interest of 24%, 12% simple interest was allowed to the Contractor. Dis-satisfied with the award of the Arbitrator, both the State and the Contractor filed objections under Section 34 of the Arbitration and Conciliation Act, 1996. Arbitration Act for short. The objections made by the Contractor are registered as O.M.R (M) No. 37 of 1998 and the objections laid by the State are registered as O.M.R (M) No. 46 of 1998. This judgment shall dispose of both these objections. 5. This is admitted position that unprecedented floods took place in the river Beas in September 1995 and all the executed and under execution works/structures, plant, machinery were washed away resulting in total destruction of the works completed or under completion by the Contractor. The objections of the State are: (a) That the costs of the works completed by the Contractor were rupees 31,70,041 plus rupees 21,34,605 on account of electrical and mechanical equipments but arbitrator allowed rupees 38,52,263 to the contractor alongwith interest at the rate of 12%. This amount allowed by the arbitrator was excessive taking into consideration the payments already made; (b) The award made by the Arbitrator is non-speaking though clause 65 of the contract agreement stipulated for a speaking award if the amount of the claim exceeds rupees 50,000; (c) The damages allowed by the arbitrator were not proved; (d) The award made by the arbitrator is contrary to the law and not sustainable. The State has also raised claim wise objections. 6. The State has also raised claim wise objections. 6. The objections raised by the contractor are to the following effect: (a) Escalation was not allowed by the arbitrator as claimed under Claim No. 6 and 7; (b) A lump sum award of rupees 6,86,676 w#s made whereas, the Executive Engineer respondent No. 2 on the directions of the arbitral Tribunal admitted the claim of the contractor to the extent of rupees 19,55,817 pegging the value of the works at rupees 50,62,228. 7. The issue settled on the objections made by the Department were settled in the following terms: VJ 1. Whether the impugned award is liable to be set-aside on the ground taken in the objection petition? OP-objector. 2. Relief. 8. On the objections of the parties, the following issues were settled on the objections of the contractor. 1. Whether the impugned award is liable to be remitted to the arbitrator on the grounds stated in the objection petition? OPO. 2. Relief. 9. Mr. J.S. Bhogal, learned Senior Counsel and Mr. Ashok Chaudhary Additional Advocate General alongwith Mr. P.M. Negi, Assistant Advocate General were heard for the Contractor and the Department, respectively. OMP (M) No. 46 of 1998. (Objections made by the Department) 10. The first and foremost objection of the Department under Claims No. 1 and 2 is that the works completed by the Contractor were only to the extent of rupees 31,70,041 and 21,34,605 on account of electric and machinery equipments and, therefore, the total amount payable to the contractor was rupees 54,04,646 out of which payment of rupees 27,28,647 were made to the Contractor after deducting the recoveries of material etc., amounting to rupees 8,43,298. Thus, the total payment made to the Contractor was rupees 35,71,945 and the balance amount payable to the Contractor was only 17,32,701. Out of this amount too the Department is to recover rupees 12,59,328 and, therefore, the Arbitrator was wrong in making an award of rupees 28,69,757. 11. It is noticed that the Contractor claimed amount of rupees 43,46,079 against the works done and rupees 2,52,087.50 paise for the expenditure on infrastructure. It is against this claim that the Arbitrator allowed rupees 28,69,757. This award has been made by the Contractor on the basis of best judgment. 12. 11. It is noticed that the Contractor claimed amount of rupees 43,46,079 against the works done and rupees 2,52,087.50 paise for the expenditure on infrastructure. It is against this claim that the Arbitrator allowed rupees 28,69,757. This award has been made by the Contractor on the basis of best judgment. 12. Learned Additional Advocate General contended that clause 69.2 of the Contract agreement stipulates that damage in respect of losses due to force majeure were is payable on the basis of prime co6t, as may be certified by the Engineer-in-charge to be reasonable, but the Arbitrator made the award on the basis of best judgment which was Against the express provisions of the contract agreement in terms of clause 69.2 and, therefore, the award being without jurisdiction is liable to be set aside. 13. True it is that the arbitrator was required to base his award for the damage to the contractor, on account of unprecedented floods, on prime cost basis. However, there is nothing in the record, nor any evidence has been led by the Department, which may show that the prime cost was assessed or certified by the Engineer-in-charge. In these circumstances, if the arbitrator assessed damage on best judgment basis, such assessment cannot be said to be without jurisdiction nor the award can be termed to be contrary to the provisions of the contract agreement. The arbitrator specifically noted that he made this award on the basis of best judgment and his experience to be "reasonable, fair and just to either of the parties". 14. The arbitrator in his reasons noted that the respondent Department claimant contractor admitted the execution of the works, which were measured but not paid. It was also not disputed that the Contractor had brought material on the site of the work, which was recorded and accounted for by the Department before everything washed away in the unprecedented floods. Various plants and machinery, centering and shuttering at the site was also washed away. The existence and stacking of all equipments on the work site as claimed by the Contractor was not disputed by the Department before the Arbitrator, though neither the contractor nor the Department was able to quantify such material and equipments in terms of costs or value before the arbitrator. 15. The existence and stacking of all equipments on the work site as claimed by the Contractor was not disputed by the Department before the Arbitrator, though neither the contractor nor the Department was able to quantify such material and equipments in terms of costs or value before the arbitrator. 15. In this view of the matter, the award made by the Arbitrator under the various claims cannot be said to be unjust or unfair or against the provisions of the contract agreement. Similarly, in respect of the awards made under claim No. 3, 4, 5, 6, 7 and 9 cannot be faulted with. The arbitrator did not allow any amount against the claims of the Contractor under claim No. 8 for inbuilt profits and claim No. 10 for infrastructure expenditure incurred by the Contractor, claim No. 11 for transportation of staff and labour and claim No. 12, the amount with-held by the Department. 16. So far the award made under claim No. 3 is concerned, it is noticed that the arbitrator allowed rupees 55,030 on account of cost of the material at site. The contention of the Department is that though the arbitrator noticed that the respondent-Department did not dispute the existence of this material but the Executive Engineer has in fact denied the existence of the material at site. It is not open to this Court to reappraise the evidence on record nor this question can be gone into by this Court under the limited scope of Section 34 of the Act. Under claim No. 4, the arbitrator has allowed rupees 64,000 on account of cost of plant and machinery at site against claim of rupees 1,60,000 made by the Contractor. The contention is that the Department is not liable to make good the loss on the account as the contract agreement stipulated that the contractor was to arrange the plant and machinery at his own expense which may be required for the execution of the works. There is no force in this objection. Clause 69.2 of the contract agreement reads: "69.2. There is no force in this objection. Clause 69.2 of the contract agreement reads: "69.2. Damage to works by Exceptional Risk:—If the works or temporary works or any material (whether for the former or the latter) brought to site shall sustain destruction or damage by reasons of any of the said Excepted Risk the Contractor shall be entitled to payment for any permanent or temporary works and for any materials so destroyed or damaged and shall be paid by the Department the cost of making good any such destruction or damage whether to the works or Temporary works and of replacing or making good such materials so far as may be necessary for the completion of the works on a prime costs basis as the Engineer-in-charge may certify to be reasonable/7 (Emphasis given) 17. A bare reading of this clause shows that the Department in case of excepted risk was required to compensate the Contractor for not only the works but also all the material brought to site, which sustain destruction or damage on account of the excepted risks. This material included everything, which was "necessary for the completion of the work". Indeed the plant and machinery were necessary to complete the works. The interpretation of the contract agreement is within the domain of the arbitrator and Court will not substitute its opinion about the interpretation of the expression "material". The objection raised is without any merit. The compensation awarded by the Arbitrator under this claim cannot be said to against the provisions of clause 69.2 of the contract agreement. 18. Under claim No. 5, an amount of rupees 76,800, against the claim of rupees 2,56,000, has been allowed by the arbitrator for the loss of shuttering and scaffolding made by the Contractor. The objection of the Department is that there is no proof of such loss. 19. As already noticed, the arbitrator in his reasoning has said that the shuttering and centering etc., alongwith other equipment admittedly existed on the spot which was washed away in floods. It is not open to the Department to say that there was no such evidence in view of the categorical admission before the Arbitrator. 20. Similarly, against Claims No. 6 and 7, under clause 60 of the agreement, for escalation of labour and material, the arbitrator has allowed rupees 6,86,674 against the contractors claim of rupees 32,50,463 and 9,67,460. It is not open to the Department to say that there was no such evidence in view of the categorical admission before the Arbitrator. 20. Similarly, against Claims No. 6 and 7, under clause 60 of the agreement, for escalation of labour and material, the arbitrator has allowed rupees 6,86,674 against the contractors claim of rupees 32,50,463 and 9,67,460. There is nothing on the record nor any evidence has been led by the Department to show that this amount is in excess. In any event, clause 60 of the contract agreement stipulated payments to the contractor for escalation in material and labour and arbitrator being chosen person of the Department and Contractor to determine this claim are bound to accept the award. It is not given to this Court to reappraise the evidence within its limited jurisdiction under Section 4 of the Act. The Department cannot be heard now to say that the amount is excessive. 21. So far claim No. 9 is concerned, the arbitrator has awarded rupees one lakh out of the security deposit of 1,50,000. The case of the Department is that the amount of security was adjusted by the Department on account of the recoveries due from the contractor. There is nothing in the evidence led by the Department to indicate as to what precisely were the recoveries due from the Contractor which were adjusted and for which counter claim was not made before the arbitrator. 22. Under claim No. 13, the arbitrator has allowed interest pf 12% per annum simple which is fair and reasonable and requires no interference more so, when Section 31(7)(b) provides for interest at the rate of 18% per annum from the date of the award to the date of the payment unless otherwise directed by the Arbitrator. Section 31(7)(a) provides that the arbitral Tribunal may include in the sum for which award is made interest at such rate as it deems reasonable on the whole or any part of the money. 23. An award, it is trite law, cannot be set-aside merely because a Court comes to the conclusion, on the basis of its assessment, that different amount could have been awarded. 23. An award, it is trite law, cannot be set-aside merely because a Court comes to the conclusion, on the basis of its assessment, that different amount could have been awarded. The Apex Court in State of Rajasthan v. Puri Construction Company Limited, 1994 (6) SCC 485, pointed out that an award made by an arbitrator, being Judge of the choice of the parties, can only be challenged within the limited scope of the provisions of the Arbitration Act. The Courts would not interfere with the award on account of error of law and fact on the ground that there has been misappreciation and misreading of the material on record. Their Lordships observed : "The appellant failed to demonstrate that the findings made by the arbitrators were without any basis whatsoever and were not referable to documents relied upon and such findings were so patently unjust or perverse that no reasonable man could have arrived at such findings. Hence, on the score of alleged misreading, misconstruction, misappreciation of the materials on record or failure to consider some of the materials in their proper perspective, the impugned award is not liable to be set aside" (Emphasis given). 24. In the present case, as noticed earlier, the arbitrator has specifically said in this reasoning that he came to the conclusion after "reading all the documents on record, data made available during the proceedings of the case.” 25. The contention of the learned Additional Advocate General that the arbitrator misappreciated or read the evidence out of context cannot be gone into in objection under Section 34 of the Act unless it is shown that award is not at all referable to material on record. 26. In Sudarsan Trading Co. v. Government of Kerala, AIR 1989 Supreme Court 890, it was held that there is a distinction between the dispute as to the jurisdiction of the arbitrator and dispute as to what way the jurisdiction should be exercised. Their Lordships observed: "The Court had no jurisdiction to do, namely, substitution of its own evaluation of the conclusion of law or fact to come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. Whether a particular amount was liable to be paid or damages liable to be sustained was a decision within the competency of the arbitrator....." (Emphasis given) 27. Whether a particular amount was liable to be paid or damages liable to be sustained was a decision within the competency of the arbitrator....." (Emphasis given) 27. In Sudersan Trading Company Their Lordships reiterated that appraisal of the evidence by the Arbitrator is a matter, which is never questioned by the Court. Their Lordships observed: If the parties have selecte4 their own forum, the deciding forum must be conceded the power of appraisement of the evidence. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the Court to take upon itself the task of being a judge on the evidence before the arbitrator". (Emphasis given) 28. In view of the settled position of law, this Court will not reappraise the evidence to come to different conclusion. 29. The next argument of the learned Additional Advocate General that the award made by the Contractor is contrary to law and not, therefore, sustainable has no substance. He could not point out how the award is contrary to law. 30. Another contention raised by the Department is that the award made by the Arbitrator is a non-speaking and, therefore liable to be set aside. The submission is without foundation. The arbitrator has given reasons for the award made by him in pages 5 to 8 of the award. He made the award taking into consideration the material placed before him on the basis of the best judgment in view of the peculiar facts of the case as the Department failed to lead any evidence and the Engineer-in-charge failed to quantify the losses in terms of money. 31. No other point was raised. 32. To conclude: 33. The award is not liable to be set-aside on the grounds taken in the objection petition. Issue is accordingly decided. 34. The objections.? are dismissed. No costs. OMP (M) No. 37 of 1998. (Objections of the contractor). 35. The plea of the contractor is that the award is liable to be remitted back to the arbitrator for reconsideration in respect of claim Nos. 6 and 7 on the ground that the arbitrator failed to explain the computation of the amount awarded against claims No. 6 and 7 though the contractor even after making of the award requested the arbitral Tribunal to give his interpretation. 6 and 7 on the ground that the arbitrator failed to explain the computation of the amount awarded against claims No. 6 and 7 though the contractor even after making of the award requested the arbitral Tribunal to give his interpretation. It is the case of the objector that the Department on the directions of the arbitral Tribunal checked the claims and found-an amount of rupees 19,58,817 due to the objector taking the value at 50,62,228 of the works but the arbitrator only allowed rupees 6,66,676. There is no foundation either in the evidence or on the record for the claim made by the Contractor. I have already said that the arbitrator having been chosen by the parties made his award on the basis of best judgment as per the record available and therefore, it is not open to the contractor, to say that more amount ought to have been awarded to him against these claims. 36. In any event this Court will not, as pointed out earlier, reappraise the evidence. 37. There is no merit in the objections. The award is not liable to be set aside on the grounds in the objection petition. The issue is accordingly decided. 38. In result, the objection petition fails and is dismissed with no order as to costs. -