JUDGMENT Amitava Roy, J. 1. This appeal carries a challenge to the judgment and order dated 07.11.2001, passed by the learned District Judge, Golaghat in Misc. Arbitration Case No. 01 of 2001, setting aside the arbitral award dated 23.09.2000, in Case No. 9644/OLG/ESR/TE, awarding inter alia an amount of Rs. 29.76 crores, in favour of the Appellant together with interest, pendentlite and post award, at the rates recorded therein. 2. We have heard Mr. A.K. Ganguly and Mr. G.N. Sahewalla Senior Advocates, assisted by Mr. A. Sagar, D. Rahul Roy, D. Senapati and Md. Aslam Advocates for the Appellant and Mr. S.S. Roy, Mr. G. Chakraborty and Mr. H. Roy, Senior Advocates assisted by Mr. K. Goswami and Ms. P. Khrimey Advocates for the Respondent. 3. The prefatory facts in brief would have to be stated. The Appellant, Daelim Industrial Company (hereinafter for short as 'DIC'), is a Company incorporated in Seoul, Korea, having its registered office there. The Respondent Numaligarh Refinery Limited (hereinafter for short as 'NRL') is a Govt. of India undertaking incorporated under the Indian Companies Act, 1956, having its registered office at Guwahati, in the State of Assam, India. It, through its consultant Engineers India Limited (hereinafter for short as 'EIL'), also a Govt, of India undertaking on 22.11.1993 invited global quotations for building of a Cogeneration Captive Power Plant for its Petroleum Refinery at Numaligarh in Assam, India. Daelim Engineering Company Limited, a Company incorporated in Seoul, Korea together with its consortium partner Turbotecnica SPA of Italy, contested the global bid and following the scrutiny on their bids and negotiation on 24.11.1994, the NRL by its Fax of Intent dated 31.01.1995, awarded the work to DEC. Three contract agreements were thereafter signed between NRL and DEC and Turbotecnica, the particulars whereof, are as follows: i) Contract dated 11.04.1995 for Overseas supplies and services with price consideration of US $ 14,400,000 and Deutsche Marc (DM) 22,990,000. ii) Contract dated 11.04.1995 for Indigenous supplies and services with price consideration of Rs. 681,000,000/-. iii) Consolidated contract dated 12.04.1995 integrating the aforementioned two contracts. 4. ii) Contract dated 11.04.1995 for Indigenous supplies and services with price consideration of Rs. 681,000,000/-. iii) Consolidated contract dated 12.04.1995 integrating the aforementioned two contracts. 4. The total contract price embodied in the above two contract agreements dated 11.04.1995 was on a Turnkey basis and the time schedule for completion of the works as per the consolidated contract was as follows: i) First train of Gas Turbine Generator (GHG), Heat Recovery Steam Generator (HRSG) and Utility Boiler (UB) within 21 months of the issue of Fax Intent i.e. by 31.10.1996 and ii) balance plant within 24 months of issue of the Fax Intent i.e. by 31.01.1997. 5. In course of the execution of the project disputes and differences arose between the parties whereafter in terms of Clause 9 (b) of the Consolidated Agreement, DEC referred the same on 07.08.1997 before the International Chamber of Commerce; International Court of Arbitration, Paris for resolution thereof In its statement of claim, which was accompanied by the Contract Agreements and Situation Reports pertaining to the progress of the works hindrances encountered and the resultant delays, DEC claimed an amount of Rs. 37.9 crores under different heads. NRL disputing the claim, submitted its written reply on 20.09.1997, to which DEC filed its rejoinder on 04.11.1997. 6. In terms of the International Chamber of Commerce's Arbitration Rules 1988 (hereinafter also referred to as the 'Rules'), the DEEC and NRL nominated their Arbitrator. The International Court of Arbitration following confirmation of the said appointments, nominated a third Arbitrator-cum-Chairman to constitute the Arbitral Tribunal. At that stage, DEC updated its total claim to be at Rs. 55.8 crores, to which NRL submitted its written reply. The DEC in response thereto, submitted its rejoinder, NRL, however, did not raise any counter claim. 7. On the basis of the documents placed before the Tribunal and after hearing the learned Counsel for the parties, it on 28.06.1998 drew up its Terms of Reference and framed the issues for determination under Article 13 of the Rules. The Arbitrators and the parties thereafter signed the Terms of Reference on the said date. The issues have not been set out at the stage and would be dealt with appropriately, later. 8. The Arbitrators and the parties thereafter signed the Terms of Reference on the said date. The issues have not been set out at the stage and would be dealt with appropriately, later. 8. The Tribunal embarked on the reference and on a consideration of the pleadings of the parties and the documentary evidence and the rival submissions, by the majority award dated 23.09.2000, held the Appellant to be entitled to a sum of Rs. 29.76 crores and further an amount of US $ 170,000 being 50 percent of the cost of arbitration paid by it, in addition to its share of total cost of US $ 340,000, NRL having refused to pay its portion thereof. Interest at the rate of 12 percent per annum pendentlite on Rs. 29.76 crores from 07.08.1997 till the date of the award was also sanctioned. In addition, NRL was saddled with the liability of post award interest at the rate of 18 percent per annum on the above awarded amounts in case of its failure to make the payments within 60 days of the receipt of the award. 9. In the majority award, NRL's Arbitrator Mr. Justice MM Dutt signed as the dissenting member. In a separate award rendered by him, DEC was held to be entitled to an amount of Rs. 13,74,55,272/- with interest at the rate of 10 percent thereon till realization, in case of the NRL's failure to disburse the sum. DEC was further awarded an amount of Rs. 1.65 crores to be recovered from the customs authorities exacted on goods not chargeable to duty. During the pendency of the arbitration proceedings, Daelim Engineering Company Limited (DEC) got merged with Daelim Industrial Company Limited (DIC), the Appellant, and, therefore, ceased to have its independent existence. This fact was duly brought to the notice of the International Court of Arbitration and the Arbitral Tribunal also having noted the same, recognized DIC to be the claimant for all intents and purposes. Reference to DEC and DIC would have thus to be construed in the above context. 10. Being aggrieved by the award dated 23.09.2000, NRL filed an application under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act'), in the Court of the District Judge at Golaghat, which was registered as Misc. Arbitration Case No. 01 of 2001. 10. Being aggrieved by the award dated 23.09.2000, NRL filed an application under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act'), in the Court of the District Judge at Golaghat, which was registered as Misc. Arbitration Case No. 01 of 2001. On receiving the notice of the case, the Appellant entered appearance. The learned Court below after hearing the learned Counsel for the parties and on a consideration of the materials on record, by the impugned judgment and order interfered with the award and set aside the same. 11. Before adverting to the competing arguments, it would be expedient to notice the claims of the parties and the related issues dealt with by the Arbitral Tribunal and the learned Court below. The claims have been itemized under heading A to L and so are the Corresponding issues. DEC registered its claims as hereunder: A. Transfer of US S 6 millon : Rs. 9.6 crores. B. Turbotecnica’s Contract Price : Included in item C. C. Countervailing Duty : Rs. 13.0 crores. D. Excess Customs Duty due to Fluctuation of Exchange Rate Included in item C. E. Liquidated damages for delay in approval of Design and Engineering : Rs. 8.9 crores. F. Excess expenses due to lack of infrastructure : Rs. 4.6 crores. G. Additional expenses cost by schedule delay : Rs. 12.0 crores. H. Interest for borrowed funds. Delayed opening of LC for Design : Rs. 0.5 crores. I. Escalation : Rs. 4.1 crores. J. Changer Order : No dispute. K. Extra tax burden as per AGST with effect from 1st May, 1997 : Rs. 3.1 crores. L. Indian statutory taxes included in item C. [Total claim of DEC] [Rs. 55.8 crores]. NRL did not record any claim or counter claim in the case. 12. A brief resume of the tender conditions and the Contract Agreements is considered necessary at this stage have a better insight of the rival cases. The Notice Inviting Tender (hereinafter for short 'NIT') was issued by EIL, the prime consultant to NRL for the aforementioned Plant to be installed at Numaligarh, Assam in India. 12. A brief resume of the tender conditions and the Contract Agreements is considered necessary at this stage have a better insight of the rival cases. The Notice Inviting Tender (hereinafter for short 'NIT') was issued by EIL, the prime consultant to NRL for the aforementioned Plant to be installed at Numaligarh, Assam in India. In terms of Clause 1.8 of Instructions to Bidders (hereinafter for short as 'ITB'), they were required to furnish the complete list of goods with itemized CIF prices for imported items indicating the currencies and the country of origin and itemized prices on site delivery basis for indigenous items. The scope of work as enumerated in Clause 3.3 of the NIT, comprised of design and detailed engineering, manufacturing/supply including shop testing, packaging, forwarding, transportation/shipment, customs clearance, insurance, storage etc. of all plant equipments and materials to and at project site, construction (including civil and structural work), installation, testing and commissioning etc. The bidders in addition to quoting their price for each of the heads constituting the scope of work were also required to mention amounts to be spent towards taxes and duties payable on components, sub-assemblies and raw materials to be included in their prices both in case of foreign and domestics bids. Sales tax, local tax and other levies in respect of the transactions between the owner and the contract were also required to be included in the bid price, separately, wherever applicable. Since the customs duties were payable in Rupees, the bidders were required to include such payment in their bids pertaining to the indigenous supplies. Under Clause 13 of the ITB, dealing with "price scope and basis", the bidders were required to quote in their proposals prices for the entire scope of work on divisible contract basis indicating inter alia, the following breakup schedule: a) Design and Engineering charges for the complete works. b) Lump-sum price on F.O.B. port of shipment basis for imported equipment and materials. c) Lump-sum ocean freight and insurance for the above imported goods. d) Lump-sum service charges towards documentation, handling, forwarding, payment of customs duty, inland transportation, transit insurance of all imported goods. e) Lump-sum charges on account of customs duty, port charges etc. for imported equipment and materials. f) Fees/charges payable, if owner/consultant opts for inspection by Lloyds Register or third party inspection for imported equipment. 13. d) Lump-sum service charges towards documentation, handling, forwarding, payment of customs duty, inland transportation, transit insurance of all imported goods. e) Lump-sum charges on account of customs duty, port charges etc. for imported equipment and materials. f) Fees/charges payable, if owner/consultant opts for inspection by Lloyds Register or third party inspection for imported equipment. 13. Clause 14.1 of the ITB specified that the prices quoted for the entire scope of work would remain firm and fixed till complete execution of the work. Clause 14.3 provided for an eventuality where an item quoted as imported in the bid was subsequently transferred to the Indian category. 14. The contractor inter alia, was further required under Clause 16 of the General Terms and Conditions of Contract (hereinafter for short as 'GTCC), to arrange secure and maintain insurance for protection of the works in progress from time to time and the interest of the owner against all risks as detailed therein. All costs on account of insurance liabilities including that of transit insurance of all items to be transported by the contractor to the site of work was to be in the contractors' account and to be included in the contract price. 15. DEC and its consortium partner TT though, submitted their joint bids, DEC in terms of the NIT, was acknowledged to be the prime bidder, undertaking the overall Turnkey responsibility. DEC submitted the bid in terms of the requirements of the bid form and the price schedule and offered to supply and deliver the complete Co-Generation Plant, including erection, testing and commissioning thereof. The original price bid of DEC submitted on 16.03.1994, was on the request of NRL revised by it on 23.11.1994. Though, in the original bid, DEC and TT had provided the price breakup towards System, Design and Engineering, such breakup by TT was not indicated in the revised bid. The amount payable to DEC for System, Design and Engineering was, however, specified by it in the revised price schedule. DEC claims that it however, transpired between the parties that under the contract, the System, Design and Engineering for the Gas Turbine Generator (GTG), would be carried out by TT and therefore, was to be paid as per the breakup given in the original bid, which remained the same. DEC claims that it however, transpired between the parties that under the contract, the System, Design and Engineering for the Gas Turbine Generator (GTG), would be carried out by TT and therefore, was to be paid as per the breakup given in the original bid, which remained the same. Thereafter in terms of Clause 11.4 of ITB, the prevailing conversion rates of foreign exchange for US $ and Deutsche Marc (as quoted by DEC and TT in their joint bid respectively) as on the date of opening and finalization of the bids were applied to facilitate evaluation of bids and to compare the offers in different currencies quoted by the bidders (which included both Indian and Foreign bidders) for determining the comparative offers in rupees. It was thereafter, that on 31.01.1995, the NRL issued the Fax of Intent accepting the offer of DEC incorporating the time schedule noted hereinabove. 16. This was followed by execution of the Contract Agreements. In terms of 17.1 of the ITB, which required formalization of the Letter/Telex of Intent by a contract to be signed by the parties two Contract Agreements were entered into on 11.04.1995, one each for Overseas and Indigenous supplies and services. A Consolidated Agreement incorporating the above was also executed on 12.04.1995. Under the Agreements executed on 11.04.1995, for System, Design and Engineering, DEC and TT were entitled to receive payments to 10% of the price quoted in their bid as advance, against Bank Guarantee for an equivalent amount, the balance 90 percent being payable on prorata basis within 30 days of the receipt of approved drawings and documents. For the supply portion the contract was to be paid at 10 percent as advance against Bank Guarantee for an equivalent, amount 80 percent on receipt of equipment and material at site and the balance 10 percent within 30 days of commissioning. The Contract Agreements envisaged that for initial advance payments in foreign currency, the remittances were to be made after completion of all necessary formalities like furnishing of Bank Guarantee etc. through direct payment to Daelim/Turbotecnica. For subsequent payments in foreign currency for supply and services, irrevocable letter/letters credit were to be established within three weeks: i) after signing of the Contract. ii) furnishing of Performance Bank Guarantee in the agreed form, whichever was later. 17. The price schedule for indigenous supplies and services disclosed that an amount of Rs. through direct payment to Daelim/Turbotecnica. For subsequent payments in foreign currency for supply and services, irrevocable letter/letters credit were to be established within three weeks: i) after signing of the Contract. ii) furnishing of Performance Bank Guarantee in the agreed form, whichever was later. 17. The price schedule for indigenous supplies and services disclosed that an amount of Rs. 165,600,000/- (Rs. 16.56 crores), was payable as customs duty, port charges etc. for all imports. DEC has maintained that importation of goods by NRL being project imports falling under heading 98.01 of the Customs Tariff Act, 1975, was governed by Project Import Regulations 1986, Regulation 5 whereof, deals with registration of such contracts. According to it, in terms of the said Regulations, it was the obligation of NRL as importer to apply in writing to the appropriate authority at the port, where the goods are to be imported, for availing concessional duties, DEC's version is that since customs duty was payable in rupees by the importer, the above clause in the Contract Agreement for indigenous supplies was incorporated. 18. During the execution of the works between 07.03.1996 and 14.07.1997, DEC, submitted four Situation Reports, inter alia, pointing out to NRL, the delays under several heads due to lapses of NRL and/or its agents in discharging their contractual obligations. DEC also submitted a Revision of Project Cost and Time during the said period. Eventually, the disputes and differences were referred by DEC to the International Court of Arbitration on 07.08.1997. DEC, however, continued to execute the works of the Co-Generation Plant. 19. A brief background of the Act and the provisions thereof relevant for the appeal is considered essential at this stage. The law on arbitration in India till the enactment of the Act was substantially contained in three enactments namely, the Arbitration Act, 1940, Arbitration (Protocol and Convention) Act, 1937 and the Foreign Award (Recognition and Enforcement) Act, 1961. 20. The statements of objects and reasons of the Act reveal that it having been widely felt that the provisions of the 1940 Act containing the general law of arbitration had become outdated, the Law Commission of India, several representative bodies of trade and industries and experts in the field of arbitration proposed amendments thereto, to make it more responsive to contemporary requirements. The United Nations Commission on International Trade Law (for short UNCITRAL) in the meantime had adopted in the year 1985, a model law on international commercial arbitration. 20. The General Assembly of the United Nations recommended that all countries extend due consideration to the said model law to fructify the desirability of uniformity of law of arbitral procedure and the specific need of an international commercial arbitral practice. The UNCITRAL also adopted a set of Conciliation Rules in the year 1980. The General Assembly of the United Nations recommended the use of this Rules in disputes arising in the context of international commercial relations and in situations where parties sought amicable settlement thereof by recourse to Conciliation. The UNCITRAL Model Law harmonized concepts on arbitration and conciliation of different legal systems of the world and incorporated provisions designed for universal application. Though intended to deal with international commercial arbitration and conciliation, the UNCITRAL Model Law and Rules with appropriate modifications were perceived to serve as a framework for legislations on domestic arbitration and conciliation as well. The Arbitration and Conciliation Bill, 1995 which preceded with the Act thus sought to consolidate and amend the law relating to domestic arbitration, international commercial arbitration, enforcement of foreign arbitral awards and define the law relating to conciliation drawing the beacon light from the UNCITRAL Model Law and the Rules. 21. The professed objects of the Statute inter alia are (a) To comprehensively cover international and commercial arbitration and conciliation as well as domestic arbitration and conciliation. (b) To make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration. (c) To ensure that the arbitral tribunal remains within the limits of its jurisdiction. (d) To minimize the supervisory role of Courts in the arbitral process. (e) To permit an arbitral tribunal to use mediation, conciliation or other procedures during the arbitral proceedings to encourage settlement of disputes. (f) To provide that every arbitral award is enforced in the same manner as if it was a decree of the Court. 22. The preamble of the Act demonstrates that it is a legislation of consolidate and amend the law relating to domestic and international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto. 23. 22. The preamble of the Act demonstrates that it is a legislation of consolidate and amend the law relating to domestic and international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto. 23. Following the definition section, the provision oftly referred to in the appeal is Section 5, which restricts the extent of judicial intervention except as provided in Part I of the Act. Section 12 requires a prospective arbitrator to disclose in writing any circumstance likely to give rise to justifiable doubts as to his independence or impartiality. He is obliged thereunder to disclose to the parties in writing any circumstance referred to hereinabove at any time after his appointment and throughout the arbitral proceedings. Sub-Section 3 of Section 12 enumerates the grounds on which an arbitrator may be challenged. The procedure of such challenge is outlined in Section 13. Section 16 of the Act empowers the arbitral tribunal to rule on its own jurisdiction and on any objection with respect to the existence or validity of the arbitration agreement. Section 19, which is of utmost significance in the instant appeal, prescribes the rule of procedure to be adopted by the arbitral tribunal. While providing that an arbitral tribunal shall not be bound by the Code of Civil Procedure or the Indian Evidence Act, 1872, the parties to the arbitral proceedings have been sanctioned the liberty to-agree on the procedure to be followed. Sub-section (3) permits the arbitral tribunal, in absence of any such agreement to conduct the proceedings in the manner it considers appropriate, however, subject to the provisions of Part I of the Act. Sub-section (4) clarifies that the tribunal's power to decide its procedure would include its authority to determine the admissibility, relevance, materiality and weight of any evidence. 24. Section 24 authorizes the arbitral tribunal, in absence of any agreement to the contrary to decide whether to hold oral hearing for the presentation of evidence or oral arguments or whether where the proceedings could be conducted on the basis of documents and other materials. It, however, is made obligatory for the tribunal to hold oral hearing at an appropriate stage of the proceedings on a request by a party unless the parties have agreed otherwise. It, however, is made obligatory for the tribunal to hold oral hearing at an appropriate stage of the proceedings on a request by a party unless the parties have agreed otherwise. While Sub-Section 2 thereof mandates that the parties should be given sufficient advance notice of the hearing and of any meeting of the arbitral tribunal for the purpose of inspection of documents, goods or other property under Sub-section (3), all statements, documents or other informations supplied to or applications made to the arbitral tribunal by a party has to be communicated to the other party and any expert report or evidentiary document on which the tribunal may rely in making its decision is to be communicated to the parties. Section 27 permits the arbitral tribunal or a party with its approval to apply to the Court for assistance in taking evidence. 25. The under lying objects of the Act have been succinctly synopsized by the Apex Court in Konkan Railway Corporation Limited v. M/s Mehul Construction Company (2000) 7 SCC 201 : 2002 (1) GLT (SC) 1 in the following terms. The Arbitration Act of 1996 provides not only for domestic arbitration but spreads its sweep to international commercial arbitration too. The Indian law relating to the enforcement of foreign arbitration awards provides for greater autonomy in the arbitral process and limits judicial intervention to a narrower circumference than under the previous law. To attract the confidence of the international mercantile community and the growing volume of India's trade and commercial relationship with the rest of the world after the new liberalization policy of the Government, Indian Parliament was persuaded to enact the Arbitration and Conciliation Act of 1996 on the UNCITRAL Model and, therefore, in interpreting any provisions of the 1996 Act. Courts must not ignore the objects and purpose of the enactment of the 1996 Act. A bare comparison of different provisions of the 1996 Act of 1940 with the provisions of the Arbitration and Conciliation Act, 1996, would unequivocally indicate that the 1996 Act limits intervention of Court with an arbitral process to the minimum and it is certainly not the legislative intent that each and every order passed by an authority under the Act would be a subject matter of judicial scrutiny of a Court of law. Under the new law the grounds on which an award of an arbitrator could be challenged before the court have been severely cut down and such challenge is now permitted on the basis of invalidity of the agreement, want of jurisdiction on the part of the arbitrator or want of proper notice to a party of the appointment of the arbitrator or of arbitral proceedings. The powers of the arbitrator have been amplified by insertion of specific provisions of several matters. .... When the United Nations established the Commission on International Trade Law it is on account of the fact that the General Assembly recognized that disparities in national laws governing international trade created obstacles to the flow of trade. The General Assembly regard the Commission on International Trade Law as a medium which could play a more active role in reducing or removing the obstacles. Such Commissioner, therefore, was given a mandate for progressive harmonization and unification of the Law of International Trade. .... The Statement of Objects and Reasons of the Act clearly enunciates that the main objective of the legislation was to minimize the supervisory role of Courts in the arbitral process. 26. In international commercial arbitration, in terms of Section 28, the arbitral tribunal has to decide the dispute in accordance with the rules of law designated by the parties as applicable to the substance of the dispute. Thereunder only if the parties expressly authorize the arbitral tribunal, it should decide the dispute ex aequo et bono or as amiable compositeur. Most importantly under Sub-section (3), the arbitral tribunal in all cases has to decide the dispute in accordance with the terms of the contract and by taking into account the usages of the trade applicable to the transaction. An arbitral award, as is provided by Section 34 of the Act, may be set aside by the Court only on one or more of the grounds recited in Sub-section (2) thereof. 27. The purpose of the Act being to enlarge the scope of arbitral adjudication with minimum judicial interference, provisions thereof are to be interpreted in the perspective of such legislative mandate. The present is instance of institutional arbitration with the intervention of the International Court of Arbitration, to ensure sanctity, credibility and finality to the arbitral process. 27. The purpose of the Act being to enlarge the scope of arbitral adjudication with minimum judicial interference, provisions thereof are to be interpreted in the perspective of such legislative mandate. The present is instance of institutional arbitration with the intervention of the International Court of Arbitration, to ensure sanctity, credibility and finality to the arbitral process. The underlying purpose of arbitration being to guarantee an informal and expeditious resolution of the disputes by a chosen arbiter of the parties, the exercise is essentially relieved of the procedural rigours inhibiting regular judicial trials. To import the essentials of procedural law with all rigidity would defeat the purpose thereof. Any endeavour as such would also be dissentient to the end purpose of the Act. 28. It being explicit from Section 34 of the Act that an award may be subjected to challenge only on the ground enumerated therein, the same are to be strictly bearing in mind, the statutory mandate curtailing the scope of judicial intervention. Having regard to the statements of objects and reasons of the legislation, constraints on the scope of interference with an award under the Arbitration Act, 1940, would thus apply, a fortiori in cases governed by the Act. The true purport of the limitation on judicial supervision enjoined in Section 5 was enunciated by the Apex Court in Union of India v. Popular Construction Co. (2001) 8 SCC 470 , while examining the power, if any, of the Court to extend the time limit prescribed under Section 34 to challenge the award, it held that the period ordained, having regard to the history and scheme of the Act is absolute and un-extendable under Section 5 of the Limitation Act. It declared that the objective to minimize the supervisory role of Courts in the arbitral process having found expression in Section 5 of the Act, applicability of Section 5 of the Limitation Act for enhancing the time allowed to register a challenge under Section 34 of the Act was impermissible. Understandably, therefore, the restrictive mandate on judicial interference would inform all adjudicative processes involving challenge to the arbitral proceedings more particularly as comprehended in Section 34 of the Act. 29. In the background of the above legislative scheme, Mr. Understandably, therefore, the restrictive mandate on judicial interference would inform all adjudicative processes involving challenge to the arbitral proceedings more particularly as comprehended in Section 34 of the Act. 29. In the background of the above legislative scheme, Mr. Ganguly has assertively urged that the enactment of the statute has been in view of the globalization of world commerce and removal of trade and fiscal barriers as well as increased competition in India with foreign products in circulation. The law has been ushered in to keep pace with the global challenges and resultant competition in international commercial enterprises. According to the learned Sr. Counsel, one of the main objectives of the legislation is to minimize the supervisory role of Courts in the arbitration process and that the norms applicable for the scrutiny of foreign awards ought to be adopted a fortiori in analyzing domestic awards in international arbitrations as in the present case. The challenge to an award under Section 34 of the Act being unmistakably restricted to the grounds depicted therein, the application before the learned Court below having failed to disclose any, the impugned judgment and order is patently illegal and without jurisdiction, he assertively urged. 30. Mr. Roy while generally endorsing the facts bearing on the evolution of the Act, however, has underlined that the arbitral tribunal under Part I of the Act is not authorized to act as a conciliator and is rather bound by the provisions thereunder more particularly laying down the legal principles and the procedure to mandatorily inform the arbitral process. According to the learned Sr. Counsel, though the Act ensures a fair, inexpensive and expeditious resolution of disputes, the process to be undertaken cannot be at the cost of the fundamental principles of law and procedure. Mr. Roy in this regard particularly referred to Section 24, 27 and 28 of the Act. He maintained that the learned Tribunal in the present case acted in breach of the contract agreement(s) involved and, therefore, contravened Section 28(3) of the Act. The arbitral procedure was also antagonistic to the agreements between the parties and therefore the award was rightly interfered, with by the learned Court below. 31. At this stage, some preliminary observations of the learned Court below on the issues framed by the learned Tribunal deserve attention. The arbitral procedure was also antagonistic to the agreements between the parties and therefore the award was rightly interfered, with by the learned Court below. 31. At this stage, some preliminary observations of the learned Court below on the issues framed by the learned Tribunal deserve attention. According to the learned lower Court, NRL, in the facts of the case could not be said to have opted for arbitration or submitted to the terms of reference and, therefore, it was not a case where the parties had agreed to refer their disputes to arbitration. It held the view that the issues were not framed being agreed to by the parties and therefore settlement of issues did not automatically signify that the parties had referred the same to arbitration. 32. The above observations having regard to the arbitration clause and the proceedings before the learned Tribunal are manifestly erroneous. Clause 9(b) of the consolidated agreement dated 12/4/1995, which represents the arbitration clause, reads as hereunder. Any dispute/difference etc arising out of this agreement shall first be endeavoured to be resolved by mutual discussions resulting in an amicable settlement between the parties. In case no such amicable settlement is arrived at, the disputes/differences etc. shall be referred to arbitration in accordance with the Rules of Conciliation and Arbitration of International Chamber of Commerce, Paris. The venue of such arbitration shall be in India. 33. Apart from the fact that the arbitration agreement contained in the aforementioned clause is wide and all comprehensive, it underlines that the arbitration ought to be in accordance with the Rules of Conciliation and Arbitration of International Chamber of Commerce, Paris (also referred to as the Rules). 34. Article 13 of the Rules enjoins that the arbitrator, before proceeding with the preparation of the case, shall draw up on the basis of the documents or in presence of parties and in the light of their most recent submissions, a document defining his Terms of Reference. This document, according to the Rules, is to include, amongst others 'definition of the issues to be determined'. This document has to be imperatively signed by the parties and the arbitrator. The said provision of the Rules also provides for the eventuality if one of the parties refuses to take part in the drawing up of the said document or to sign the same. This document has to be imperatively signed by the parties and the arbitrator. The said provision of the Rules also provides for the eventuality if one of the parties refuses to take part in the drawing up of the said document or to sign the same. Evidently bearing in mind, the language in which the arbitration clause is couched, the Rules including Article 13 do form an integral part of the contract between the parties. 35. The International Court of Arbitration by its communication dated 18/3/1998 while forwarding the records of the case to the tribunal highlighted the essentiality of establishing the terms of reference in accordance with Article 13 of the Rules as the first step in the process. It was indicated, that the Tribunal was required to communicate the terms of reference to the International Court of Arbitration within a period of two months. Following preliminary submissions of the parties, the learned Tribunal on conclusion thereof in its 5th sitting fixed 6th and 7th June 1998 to establish the terms of reference. After hearing the parties further and recording the names and particulars of the officers representing there to sign the terms of reference, it by its order dated 7/6/1998, fixed 27th and 28th June 1998 for finally establishing the terms of reference including the issues. On 28/6/1998, the terms of reference as required under the Rules were drawn up containing the issues for determination. The proceedings of arbitration reveal that the terms of reference were duly signed by the authorized representatives of the parties on 28/6/1998 whereafter the same was forwarded to the International Court of Arbitration, Paris by the Chairman of the tribunal by his communication dated 10/7/1998. The issues dealt with by the learned Tribunal are those as form an integral part of the terms of reference, which at no point of time was questioned by any of the parties either before the Tribunal or any other forum. The parties having apparently submitted themselves to the terms of reference as above, they are bound by the same. In this premise, the above observations of the learned Court below being without any reference to the Rules and the proceedings of the learned Tribunal are obviously unsustainable in law. 36. The Apex Court in PV Subba Naidu and Ors. v. Government of AP and Ors. In this premise, the above observations of the learned Court below being without any reference to the Rules and the proceedings of the learned Tribunal are obviously unsustainable in law. 36. The Apex Court in PV Subba Naidu and Ors. v. Government of AP and Ors. (1989) 9 SCC 407disapproved the approach of the High Court in examining the terms of the contract or interpreting them for the purpose of deciding whether the claims were covered by the terms of the contract. The Apex Court held that having regard to Clause 73 of the contract whereunder all disputes arising thereof were covered by the Arbitration clause, the High Court ought not to have taken upon itself the burden to ascertain that the claims involved were contrary to the contract and as such beyond the jurisdiction of the arbitrator. The same view echoed in Ram Nath International Construction (P) Ltd. v. State of UP (1997) 11 SCC 645 . 37. In Renusagar (1984) 4 SCC 679 , the Apex Court while dwelling on the scope and ambit amongst others of the expression "arising out of or "related to this contract" used in the arbitration clause involved ruled that the same are of widest amplitude and content and included the question as to the existence, validity and effect of the arbitration agreement. Elaborating on a claim of compensatory damage against a tort feasor, stack holder and/or a constructive trustee, the Apex Court observed that the same by itself did not justify a conclusion that the claim was not covered by the arbitration clause as the decisive test was whether it arose out of or was related to the contract even if located in the domain of tort. In the facts of the case, the Apex Court held that the claim was directly, closely and inextricably connected with the terms and conditions of the contract the payments to be made thereunder and the breach thereof and thus was recognized to be recorded as a claim "arising out of or "related to" the contract. In this regard, the Apex Court ruled that the determinative test is whether for the purpose of examining the claim recourse to the contract by which both the parties are bound, would be necessary. 38. In this regard, the Apex Court ruled that the determinative test is whether for the purpose of examining the claim recourse to the contract by which both the parties are bound, would be necessary. 38. It referred to the decision of the Court of Appeal in Woolf v. Collis Removal Service (1947) 2 All ER 260 to expound the proposition that even if a claim may not directly arise under a contract which contains an arbitration clause, if there is sufficient close connection between the claim and the transaction under the contract, it would be covered by the arbitration clause. 39. Having regard to the arbitration agreement/clause in hand, the terms of reference and the issues framed, we are of the opinion that the learned Court below fell in error in opining that the parties had not agreed to the issues and that the framing thereof per se did not signify reference of their disputes to arbitration. We are, therefore, inclined to hold that the decision of the learned Tribunal on the issues could not be assailed to be beyond "the terms of submission to arbitration" appearing in Section 34(2)(a)(iv) defined to be the terms of the arbitration clause in Olympus Superstructures Private Ltd. v. Meena Vijay Khetan and Ors. AIR 1999 SC 2102 relied upon on behalf of NRL. 40. With this background, we may turn to the issues. Issue A; i) Is the Claimant entitled to a sum of Rs. 9.6 crores as claimed under heading Transfer of US $ 6 Million? ii) What is the rate of exchange applicable regarding Transfer of US $ 6 Million? iii) Is the Defendant entitled to require the Claimant to disclose the unit rate price for the items under transferred category for determination of actuals? iv) Is the Defendant entitled to act upon such disclosure and if so, to what extent? 41. The pleaded case of DEC bearing on this issue is that the Overseas contract required supply by it of various imported items priced at US $ 8,750,000. Having ascertained the indigenous sourcing of a good number of such items to be satisfactory, DEC vide its letter dated 13.09.1995, requested NRL for substitution of such imported items worth US $ 6 million into indigenous category out of the aforementioned total value of US $ 8750,000. Having ascertained the indigenous sourcing of a good number of such items to be satisfactory, DEC vide its letter dated 13.09.1995, requested NRL for substitution of such imported items worth US $ 6 million into indigenous category out of the aforementioned total value of US $ 8750,000. This was in terms of Clause 1.7 of ITB requiring the bidder to bid "on the basis of indigenization scope to the maximum extent possible". The request was based on Clause 14.3 of the ITB, which prescribed that items quoted in the bid to be imported could be subsequently transferred to indigenous supply for which NRL would pay at "actuals" maximum whereof to be limited to the computed value on site delivery basis on the pricings quoted originally for that of the imported origin. As NRL on principle agreed to such substitution but delayed in taking a formal decision, DEC arranged procurement of the substituted indigenous materials by undertaking market survey, selecting Indian manufacturers, supplying of design and drawing to the manufacturer, ensuring product with quality control and supplies of finished project within a stipulated time frame for which it incurred cost and expenses to the tune of Rs. 25.3 crores, which included the cost borne by DEC towards procurement service charges, inspection and expediting charges, overhead expenses and profit. DEC asserted that NRL duly approved the indigenous manufacturers from whom the substituted items were procured and the products and permitted those to be incorporated in due execution of the contract. NRL extended its formal approval for the substitution eventually by its letter dated 13.03.1997. Though DEC had incurred a total cost of Rs. 25.3 crores, it limited its claim to Rs. 21.7 crores being the procurement cost of indigenous materials by applying the conversion rate of Rs. 36.28 per US $ as on 26.02.1996. As Rs. 12 crore had already been paid by NRL, DEC registered its claim under the above head to be Rs. 9.6 crores. According to DEC, the actual cost of Rs. 25.3 was computed on the following counts: i) Bare Cost. ii) Excise Duty. iii) Central Sales Tax. iv) Freight and Insurance. v) Procurement Service Charges. vi) Inspection and Expediting Charges. vii) Overhead Expenses. viii) Profit. ix) TDS. 42. 9.6 crores. According to DEC, the actual cost of Rs. 25.3 was computed on the following counts: i) Bare Cost. ii) Excise Duty. iii) Central Sales Tax. iv) Freight and Insurance. v) Procurement Service Charges. vi) Inspection and Expediting Charges. vii) Overhead Expenses. viii) Profit. ix) TDS. 42. It pleaded that expenses towards heads in v to ix were comprehended not only for the imported items but also for procuring indigenous ones and that the details of such procurement had been furnished by it to NRL. Besides, the indigenous items had been procured with the consent of NRL. 43. NRL's version, is that the DIC after protracted correspondences on the request of NRL only by its letter dated 20.03.1997, furnished the details of equipments/materials to be substituted, their source of procurement, costs, taxes and duties payable wherefrom it transpired that the bare cost of such items was Rs. 11,42,52,169. NRL agreed to the payment of the said amount together with excise duty, central sales tax and cost towards freight and insurance, totaling Rs. 14,19,20,735/-. It contended that expenditure towards procurement services, inspection and expediting charge, overhead charge and profit over and above the bare cost, was not includable in 'actuals'. It further contended that indigenous items were engineering goods manufactured by well known companies and that no bill and invoice was produced showing the amount paid to the suppliers. 44. The Tribunal rejected the contention of NRL that components of cost like procurement service, inspection and expediting and overhead charges as well as profit were beyond the scope of "actuals". While recording the said conclusion, the learned Tribunal noticed the pleaded stand of NRL in its reply dated 20.09.1997, admitting that detailed and complete instructions were given to the bidders for quoting the lump-sum price for the entire project considering the following aspects: a) The price of foreign materials and services as mentioned in the scope of work. b) The various taxes payable for the said job during the execution of work. c) Remuneration and/or profit expected by the bidders and d) Any other element, which the bidder considers necessary. 45. Referring to the "scope of work' as envisaged in the bid documents as well as the Overseas and the indigenous contracts, the learned Tribunal held the view that system design and layout, design and engineering, manufacture including shop testing, procurement, inspection, supervision etc. 45. Referring to the "scope of work' as envisaged in the bid documents as well as the Overseas and the indigenous contracts, the learned Tribunal held the view that system design and layout, design and engineering, manufacture including shop testing, procurement, inspection, supervision etc. of materials were to be taken note of by the bidders while submitting their bids. It held that DEC had supplied materials, which were not available as finished goods in the market but had to be manufactured as per the specifications and designs prescribed by NRL. The learned Tribunal therefore, concluded that "actuals" within the meaning of Clause 14.3 of ITB ought to include components of cost like procurement service, inspection and expediting and overhead as claimed by DEC. It also held in favour of the claim of profit observing that when profit is not specifically and separately disclosed in the bid, it is implied that the same is included in the bid value of different works. DEC's claim for TDS, however, was rejected. It also upheld the application of exchange rate of US $ 1 = Rs. 36.28 prevalent on 26.02.1996, as adopted by DEC observing that the rate of exchange as on 24.11.1994, applied only for the purpose of evaluation of bids under Clause 11.04 of the ITB and was not applicable for the transactions taking place after that date. 46. In deciding on the exact amount to which DEC was entitled for substitution of the imported items worth US $ 6 million by indigenous products it acted upon the letter dated 04.11.1996, by EIL to NRL to the effect that the total value of the transferred items was Rs. 17.68 crores excluding the profit margin of the contractor. Noticing that the EIL was the prime consultant of NRL for the execution of the project, the Tribunal held that when it (EIL) had confirmed the total value at Rs. 17.68 crores with due regard to the specifications of the goods furnished by the DEC with a clear indication that the contractors' profit ought to be added thereto, there should not be any hesitation to accept the said figure Rs. 17.68 crores together with the margin of profit as the actual cost of transferred items within the meaning of Clause 14.3. 17.68 crores together with the margin of profit as the actual cost of transferred items within the meaning of Clause 14.3. The Tribunal also noticed the initial hesitancy of NRL to disclose the existence of the above letter and its order dated 15.05.1999, directing the said document to be treated as evidence in the case. Observing that the NRL in the arbitration proceedings had not assigned any reason to demonstrate that EIL's cost confirmation was defective, the Tribunal concluded that the actual cost of transferred items was to be quantified at Rs. 17.68 crores together with margin of profit thereon. Having held so, it did not probe into the details of expenditure on procurement service, inspection and expediting overhead profit as claimed by DEC in its price breakup of US $ 6 million. The Tribunal sanctioned 15 percent profit amounting to Rs. 2.65 crores on the amount of Rs. 17.68 crores taking note of the observation of the Apex Court in Ms. Brij Paul and Ors. v. State of Gujrat AIR 1984 SC 1703 . It determined the total claim of DEC at Rs. 20.33 crores. Rs. 12.19 crores having been received by DEC, it awarded a sum of Rs. 8.14 crores (Rs. 20.33 - Rs. 12.19 crores) against its claim of Rs. 9.6 crores. 47. The learned court below disapproved the approach of the Tribunal holding that though, in deciding the issue, it (Tribunal) ought to have interpreted the word 'actuals' appearing in Clause 14.3, it omitted to do so and wrongly awarded Rs. 20.33 crores to DEC. According to it, by doing so, the learned Tribunal enlarged the scope of the agreement, thus rewriting the contract. Apart from the fact that the Tribunal was in error in acting on the letter dated 04.11.1996, which was not proved in accordance with law, it erred in awarding the above sum by ignoring the prescription of Clause 14.1 of ITB and Clause 8 of the Consolidated Agreement to the effect that the price quoted was to remain firm. In absence of any evidence that DEC had suffered loss or that while submitting its tender it had not taken account of the profit aspect, the learned Tribunal acted on guesswork in allowing profit at the rate of 15 percent. The price being agreed to be firm, it also acted beyond jurisdiction in accepting the exchange rate of US $ 1 = Rs. The price being agreed to be firm, it also acted beyond jurisdiction in accepting the exchange rate of US $ 1 = Rs. 36.28 as on 26.02.1996. 48. Mr. Ganguly, has argued that the learned Tribunal having interpreted the expression 'actuals' on the basis of the contractual provisions, more particularly, Clause 14.3 of the ITB and the evidence on record, it was beyond the scrutiny of the Court in exercise of its power under Section 34 of the Act. Referring to the relevant provisions of the bid documents requiring the bidders to quote their prices on the various components of the work including ocean freight and insurance, handling, forwarding and transit insurance of imported goods as well as the charges payable in case of third party inspection thereof, if desired by the owner/consultant as well as the contractual obligations of DEC and TT, which included overall system design and detailed engineering, procurement, manufacture, inspection and shipment of material, the learned Counsel urged that, it was within the contemplation of the parties that for all imports as well as indigenous supplies, DEC would be obliged to undertake market survey, select Indian manufacturers for production, supply design and drawing to manufacturers, ensure quality control and supplies of the finished product within a stipulated time frame involving not only overheads and inspection expenses but also an element of profit. That third party inspection charges were payable in respect of indigenous and imported supplies was sought to be demonstrated by referring to the schedule of lump-sum prices, more particularly, as indicated in Clause 2.12 and 7 thereof. The learned Senior counsel argued that in terms of the said contractual provisions NRL nominated its Inspector, Development Consultants International Limited to carry out inspection of all items to be procured by DEC including the substituted items and that following such, necessary charges therefore had to be paid by DEC for which it raised invoices on NRL for reimbursement thereof. Mr. Ganguly, also referred to the said invoices. Inviting the attention of the Court to the Fax of Intent 31.01.1995 and the Overseas and Indigenous Contracts, the learned Senior counsel emphasized that the contractual stipulations made it obligatory on the DEC to provide services, such as procurement, inspection and expediting etc. According to him, therefore, the expression "actuals" at project site delivery basis would include all costs incurred by DEC in providing the abovementioned services. Mr. According to him, therefore, the expression "actuals" at project site delivery basis would include all costs incurred by DEC in providing the abovementioned services. Mr. Ganguly, pointed out the inconsistency in the approach of NRL on the issue by referring to the letter dated 29.09.1997, whereby though it accepted that the total cost and expenses of the substituted materials procured by DEC was Rs. 25.3 crores, it applied the foreign exchange conversion rate as on 24.11.1994, limiting the amount to Rs. 18.9 crores and on the basis thereof, made payment of the first six R/A bills raised by the DEC. Application of the foreign exchange conversion rate as on 24.11.1994, acting on Clause 11.4 of the ITB has been criticized, contending that the said provision had no relevance vis-a-vis the eventuality contemplated under Clause 14.3. 49. While asserting that the learned Tribunal was perfectly justified in relying on the letter dated 04.11.1996 of the EIL in determining the total cost of procurement of the transferred items and the profit, Mr. Ganguly, submitted that it (Tribunal) had correctly construed the expression "actuals" appearing in Clause 14.3 in the light to the evidence on record. Considering the conduct of NRL in initially trying to withhold the said letter from the arbitral Proceedings and the order dated 15.05.1999 of the learned Tribunal, taking the same as evidence on record, the finding of the learned Court below to the contrary, is untenable, he urged. EIL, being the prime consultant of NRL and acting as an agent thereof, as is evident from the tender documents, the views expressed by it in the letter dated 04.11.1996, was binding on NRL. Moreover, the learned Court below misdirected itself in law, in questioning the authority of the learned Tribunal to act on the said letter in the teeth of Section 19(4) of the Act. Mr. Ganguly, has maintained that in view of the unambiguous stand of NRL in its reply on 20.09.1997, acknowledging the right of the bidders to quote lump-sum price for the entire project taking note inter alia of the price of various materials to be supplied and services to be rendered as well as remuneration and/or profit expected by the bidders, all administrative expenses and profit margin of the contractor in executing the work were logically comprehend in determining the 'actuals' engrafted in Clause 14.3 of the ITB. 50. Per contra, Mr. 50. Per contra, Mr. Roy, has argued that the learned Tribunal instead of deciding the issue by interpreting the word 'actuals' used in Clause 14.3 of the ITB, determined the entitlements of DEC acting on the letter dated 04.11.1996, of EIL, which in any view of the matter did not construe a decision by it (EIL), on such claim. EIL not having recorded any decision on the construction of 'actuals' as required under Clause 35.1 of GTCC, it was impermissible for the learned Tribunal under the contract to rely on the same in adjudicating the issue. The learned Senior counsel urged that the Tribunal without independently deciding on the total cost on project site delivery basis for the substituted items at 'actuals' acted contrary to the terms of the contract and the agreed arbitral procedure in concluding that the actual cost of indigenous material was Rs. 17.68 crores solely relying on the letter dated 04.11.1996 of EIL and awarding 15 percent profit margin thereon. 51. Mr. Roy, further contended that in any view of the matter, DEC having failed to adduce any evidence in the arbitration proceeding substantiating expenditures incurred by it for procurement service, inspection and expediting and overheads, its claim remained unproved and therefore, the learned Tribunal grossly erred in determining that DEC was entitled to an amount of Rs. 20.33 crores on the above count. NRL, having duly paid Rs. 14,19,20,735/- towards bare cost of the transferred items together with excise duty, CST, freight and insurance to which DEC was entitled under Clause 14.3, the learned Tribunal acted contrary to the contract in awarding any sum in excess thereof, DEC being obviously not entitled to a claim towards procurement services, inspection and expediting, overheads and profit. 52. To address the issue of "actuals" reference to the relevant provisions contained in the tender documents, contract agreements and other contemporaneous records evidencing the works executed is indispensable. In other words, the expression cannot be correctly construed divorced from the prescribed norms and stipulations meant for guiding the parties in the process. Actuals as comprehended in Clause 14.3 of the ITB therefore would derive colour from the setting in which it appears and understood in the backdrop of the tender covenants and contractual provisions. In other words, the expression cannot be correctly construed divorced from the prescribed norms and stipulations meant for guiding the parties in the process. Actuals as comprehended in Clause 14.3 of the ITB therefore would derive colour from the setting in which it appears and understood in the backdrop of the tender covenants and contractual provisions. A totally theoretical approach would be faulty and a practical and realistic outlook would have to be adopted to unravel the true meaning and purport of the expression. 53. "Works" defined in Clause 1.3 of the ITB is designed to cover the entire scope of the proposal which includes supplies and procurement of items, equipments, labour and services including the successful completion of performance and guarantee tests. Under Clause 3.7 of the General Terms and Conditions of the Contract (referred to also as GTCC) "Works" have been comprehended to mean and include the supply of equipment, labour and services as per the technical specifications and complete erection, testing and commissioning of the equipments including activities covered under Clause 2.0 of the Scope of proposal of Instructions to Bidders. Clause 2 of the ITB requires that the scope of the proposal shall be on the basis of the single bidder responsibility completely covering all the equipments, materials and services specified under the accompanying documents, including complete system design and layout, detailed design and engineering, complete manufacture including shops testing, providing engineering drawings, data operation manuals to the owner, payment of customs duty, port clearance charges and customs clearance at Indian Ports of entry, pre-assembly? if any, erection, testing and commissioning of complete works etc. Under Clause 2.3 of ITB, the party who is responsible for the "the process technology and hence the total system guarantee" shall undertake total responsibility for successful execution of the job/contract and would be the prime contractor. It provides that in case of a joint bid, the division of work between the prime contractor and the sub-contractor would amongst others require the foreign company/prime contractor to ensure supervision and approval of activities of the Indian counterpart/sub-contractor in the matters of design, engineering, manufacture etc. 54. "Service" under Clause 3.6 of the GTCC contract connotes system design and engineering, civil work, erection, commissioning, provision of technical assistance and training and such other obligations of the contractor under the contract. 54. "Service" under Clause 3.6 of the GTCC contract connotes system design and engineering, civil work, erection, commissioning, provision of technical assistance and training and such other obligations of the contractor under the contract. Clause 3.5 thereof explain "supply" to mean and include all equipment, machinery, spares and other materials to be provided by the contractor under the completeness of the contract. The Fax of Intent issued in favour of DEC outlined the scope of work to include system design, engineering, supply, third party inspection, transportation, eviction, testing, commissioning of cogeneration plant along with all associated facilities including civil/structural works at the price quoted by DEC and TT. The bidders in terms of Clause 13 of ITB were required to quote in their proposal, price for the entire scope of works indicating the break up schedule for design and engineering charges for the complete works, lumpsum price on FOB, port of shipment basis for all imported equipments and materials, lumpsum ocean freight and insurance, lumpsum service charges towards documentation handling, forwarding, payment of customs duty, inland transportations, transit insurance of all the imported goods, lumpsum charges towards clearance, handling, transportation (other ODCS), storage, preservation and service of all equipments at the project sites, fees charges payable if owner/consultant opts for inspection by Lloyds Register or third party inspection for imported equipments etc. While Clause 14.1 of ITB prescribed that the price quoted for the entire scope of work would have to remain firm and fixed till completion of the works Clause 14.3, the hub of the present adjudication read as follows. 14.3 In case any item quoted as imported in the bid but is subsequently transferred to the Indian category, the total cost on project site delivery basis for such item will be payable by the owner at actuals but maximum limited to the computed value on site delivery basis based on the pricing quoted originally for that of imported origin. 55. Clause 3.11 of the GTCC describes "Inspector" to mean the "consultant/owner or any person nominated by the consultant/owner from time to time to inspect the equipments, stores or work under the contract and/or the duly authorized representative of the consultant owner. 56. 55. Clause 3.11 of the GTCC describes "Inspector" to mean the "consultant/owner or any person nominated by the consultant/owner from time to time to inspect the equipments, stores or work under the contract and/or the duly authorized representative of the consultant owner. 56. The schedule of prices submitted by the DEC and TT evinces a break up of the quoted lumpsum price for various items of works essentially for effecting progressive payments during the execution of work, review and acceptance thereof as embodied in the preamble thereto. The schedule clearly envisages third party inspection charges for all items of overseas supplies. The same also comprehends service charges for activities relating to documentation, handling, clearance, payment of customs duty, inland transportation of imported supplies as well as storage preservation and conservation of all imported and indigenous supplies. The oversees and indigenous contract agreements executed on 11/4/1995 clearly provide for third party inspection charges in the respective price schedules. The above provision is wholly acknowledged in the consolidated agreement of 12/4/2005. 57. NRL in its reply dated 20/9/1997 in response to the DEC's claims in the arbitral proceedings, admitted in para 1 B that detailed and complete instructions were given to the bidders to enable them to quote their lumpsum fixed price for the entire project after considering: (a) The price of the various materials and services as mentioned in the scope of work. (b) The various taxes payable for the said job during the execution of the job. (c) Remuneration and/or profit, if any, the bidder was expecting and (d) Any other element, which the bidder considered necessary. 58. A cumulative reading of the above tender conditions and the contractual provisions along with the pleaded stand of NRL, unequivocally demonstrates that the bidders after being acquainted with the scope of the work were required to quote their price for the entire project bearing in mind all conceivable activities to be undertaken with the price break up therefor. This was to facilitate quoting of prices for design, supply and services pertaining to the project as well as for the expenses to be incurred towards payment of taxes and other investments. The bidders were logically permitted to include in the price structure their expected remuneration and/or profit in addition to any other component considered relevant and necessary. This was to facilitate quoting of prices for design, supply and services pertaining to the project as well as for the expenses to be incurred towards payment of taxes and other investments. The bidders were logically permitted to include in the price structure their expected remuneration and/or profit in addition to any other component considered relevant and necessary. The whole gamut of the above considerations, therefore, was intended to design the price layout of the bidder. In other words, amongst others, considering the essential features of the different norms and the contractual provisions, inspection charges incurred by DEC at the instance of NRL/EIL, expenses incurred by it for other incidental activities bearing on the work as well as the profit element were envisaged to form the integral constituents of the price to be offered. 59. Clause 1.7 of ITB mandated that bids either from foreign or Indian bidders shall be made "on the basis of indigenisation of scope to the maximum extent possible subject to quality, performance and timely delivery/completion". To put it differently, the above clause emphasized on the desirability of indigenisation of the design supplies subject, however, to the quality, performance and timely completion of the works. DEC, being satisfied that imported items worth US $ 6.00 million, out of such items priced at US $ 8,750,000/- could be appropriately substituted by indigenous products, requested NRL on 13/9/1995 for approval of US $ 6.00 million worth imported items to be replaced by the indigenous category. NRL by its letter dated 3/3/1997, after considering the list of materials sought to be substituted, approved the proposal. Thereafter by letter dated 29/7/1997, NRL clarified that the request of DEC for substitution was accepted in terms of Clause 14.3 of ITB and that DEC would be entitled to the cost thereof on project site delivery, at actuals maximum whereof was to be limited to the computed value on the site delivery basis on the pricings quoted originally for that imported item. According to NRL, the ceiling was to be attained by applying the conversion rate of US $ 1 equivalent to Rs. 31.61 prevalent as on 24/11/1994. DEC, however, by its letter dated 20/3/1997 had provided the details of the substituted equipment/materials, source of procurement thereof etc. cost, taxes and duties payable and other charges claiming an amount of Rs. 253,292,000/-. The price break up was on the following counts. 31.61 prevalent as on 24/11/1994. DEC, however, by its letter dated 20/3/1997 had provided the details of the substituted equipment/materials, source of procurement thereof etc. cost, taxes and duties payable and other charges claiming an amount of Rs. 253,292,000/-. The price break up was on the following counts. A- Bare cost. B- Excise Duty C- Central as well as Tax D- Freight and Insurance E- Procurement Service F- Inspection and Expediting G- Over Heads H- Profit I- TDS 60. Noticeably it has not been argued before us on behalf of NRL that either the activities undertaken by DEC under the above heads and the expenditure incurred therefore was disputed. It is also not denied in course of the arguments that NRL after applying the conversion rate of US $ 1 =31.61 as on 24/11 /1994 had pegged the limit at Rs. 18.96 crores which works out to be 74.878% of Rs. 253,292,000/-claimed by DEC. The assertion that DEC's first six RA bills upto 1/7/1997 had been cleared by adhering to the above formula remains unrebutted. In other words, 74.878% of the amount of the above RA bills of the DEC was initially released. The plea that while dealing with the subsequent RA bills after reference of the dispute to arbitration on 7/8/1997, NRL for the first time by disputing its liability for the expenses under the items E to I as above made payments treating the actual cost of procurement of the substituted items to be Rs. 141,920,735/- catalogued under the items A-D has not been opposed. An apparent inconsistency in the stance of NRL therefore is noticeable. While dealing with the six RA bills of the DEC even after being in receipt of the letter dated 20/3/1997 providing the details of the substituted items together with the price breakup under different heads, it did not dispute its liability to meet the charges towards procurement services, inspection and expediting, over heads etc. It only limited the entitlement of DEC by applying the conversion rate as applicable on 24/11/1994. It positioned itself differently after the reference of the dispute to arbitration asserting that under the contract it was not required to make payment for the charges enumerated under the items E-I as above. It only limited the entitlement of DEC by applying the conversion rate as applicable on 24/11/1994. It positioned itself differently after the reference of the dispute to arbitration asserting that under the contract it was not required to make payment for the charges enumerated under the items E-I as above. As it is, even before this Court, NRL has not questioned the execution of the works under the heads E-I. The tenability of the entitlements of DEC therefore was only debated upon. 61. In course of the arguments, Mr. Ganguly has taken us through the running bills for the relevant periods and the payment particulars thereof. Attention has also been drawn amongst others to the invoices submitted by the Development Consultants International Limited nominated by NRL to carry out inspection of the items procured by DEC including the substituted items. These invoices record the charges of the said inspecting agency on the basis of which DEC raised bills on NRL for the reimbursement thereof. The contention that these documents were a part of the record before the learned Tribunal has also gone unrefuted. 62. A plain reading of the General Technical Conditions, General Erection Conditions and other items of the works to be executed namely project planning, scheduling and monitoring and other essentialities under the technical conditions of contract, packing, marking and shipping specification for imported and indigenous materials etc demonstratively suggest that every activity of the contractor pertaining to the contract was accounted for and minuted in the conteftiporaneous records. The materials on record also proclaim that progressive payments of RA bills of the DEC were made after scrutiny and certification by the EIL, which is an index of guarantee of the execution of the works for which bills have been raised and paid. In the above conspectus of facts, the conclusion of the learned Tribunal that "actuals" within the meaning of Clause 14.3 would include component of cost like procurement service, inspection and expediting, over heads and profits as claimed by DEC cannot be discarded as perverse or in defiance of logic. 63. Price schedule of the oversees contract demonstrates that the price for the supply portion included cost on account of ocean freight, marine charges, inspection charges etc. 63. Price schedule of the oversees contract demonstrates that the price for the supply portion included cost on account of ocean freight, marine charges, inspection charges etc. Logically, therefore, on the substitution of the imported items by the indigenous products, charges under the same heads were by the same analogy includable in the price for determination of actuals more so when the performance of the works under items E-I is not in dispute. 64. Invocation of Clause 11.4 in the matter of application of the conversion rate prevalent as on 24/11/1994 is on the face of the records,, unjustified inasmuch as the said clause was not relevant for the purpose of computation of any claim arising out of transaction(s) occurring subsequent to the opening and evaluation of the bids leading to the settlement of the contract. As it is, there is no unreasonableness in applying the conversion rate as on 26/2/1996, the date on which the imports commenced. 65. Though initially some hesitancy on the part of NRL to produce the letter dated 4/11/1996 written by EIL before the learned Tribunal is noticeable, eventually the same was produced on the direction of the Tribunal and by order dated 15/5/1999, it was directed to form a part of the documentary evidence. Admittedly, prior to the issuance of the said letter NRL by its communication dated 9/4/1996, had required DEC to correspond with EIL as in terms of the assessment of EIL, the total value of the substituted items was computed to be around Rs. 13.00 Crores which did not match with Rupee value of US $ 6.0 million by applying the conversion rate of Rs. 31.61 as on 24/11/1994. In reply thereto, DEC by its letter dated 13/4/1996 enquired of EIL as to whether in making its assessment, cost towards transport, insurance, taxes payable, packaging and handling costs together with administrative expenses had been taken note of. It was in that background that the letter dated 4/11/1996 was written by EIL to NRL to the effect that the amount assessed for transfer of US $ 6.0 million to Indian Rupees for the substituted items came to be Rs. 17.68 crores excluding the profit margin of the contractor. EIL suggested that the above computation ought to act as a good guide for NRL to take a decision. 66. 17.68 crores excluding the profit margin of the contractor. EIL suggested that the above computation ought to act as a good guide for NRL to take a decision. 66. Admittedly the letter is by EIL, which is the prime consultant of NRL for the project. Not only the request for quotation was floated by it on behalf of NRL, it received the bids as well. Clause 3.4 of the General Terms and Conditions defines Consulting Engineer/Consultant to mean EIL and its legal representatives, successors and permitted assigns to be construed to be acting in all circumstances for and on behalf of the owner i.e. NRL. EIL therefore was introduced to the bidders to be the alter ego of NRL. 67. Noticeably the execution of the letter dated 4/11/2006 is not in dispute. The document was produced from the custody of NRL. Considering the fact that EIL was acting as the agent of NRL for all intents and purposes and was vested with power to take a decision as contemplated in clause 35.1 of the General Terms and Conditions of Contract, its opinion expressed in the letter dated 4/11/1996 deserves due weight in resolving the controversy pertaining to the DECs claim on transfer of US $ 6.0 million for the substituted indigenous items. In construing the significance and relevance of the letter, its background and the correspondences on the subject between DEC, NRL and EIL on 9/4/1996 and 13/4/1996 cannot be ignored. As a mater of fact, the true purport of the opinion expressed by EIL on the issue is traceable thereto. DEC having been referred to EIL on the issue by NRL, the opinion expressed in the letter dated 4/11/1996 deserves due premium, more particularly NRL not having differed therefrom at any earlier point of time. In our view, having regard to the subsisting relationship between NRL and EIL qua DEC, the opinion expressed in the letter dated 4/11 /1996 is a decision by EIL as contemplated in Clause 35.1 of the General Terms and Condition of Contract. 68. There is no debate that the provisions of the Indian Evidence Act, 1872, are not applicable to a proceeding of arbitration conductable under the Act. 68. There is no debate that the provisions of the Indian Evidence Act, 1872, are not applicable to a proceeding of arbitration conductable under the Act. Apart from Section 1 of the Indian Evidence Act, 1872, which ex-facie excludes the provisions thereof from the proceedings before the arbitrator, Section 19(1) of the Act dictates that the arbitral tribunal shall not be bound by the Code of Civil Procedure or the Indian Evidence Act. As alluded hereinabove Section 24 of the Act empowers the arbitral tribunal to decide whether to hold oral hearing for the presentation of evidence or for oral arguments or if the proceedings ought to be conducted on the basis of documents or other materials. It is not the case of the parties before us that there was either any agreement between them prescribing a particular procedure to induct evidence in the proceedings or that at any stage thereof a request had been made by either of them requesting the tribunal to hold oral hearing or record oral evidence. This assumes importance in the context of Section 19, which vests the tribunal with the authority in absence of any agreement between the parties to conduct the proceedings in the manner it considers appropriate and determine the admissibility, relevance, materiality and weight of any evidence. The proceedings of the learned Tribunal disclose that by order dated 25/10/1998, it set out the procedural calendar to be adhered to by the parties. The order required the counsel of the parties to disclose, prior to conclusion of their respective submissions, whether they desired to adduce further evidence by examining witnesses. The order dated 25/10/1999 of the learned Tribunal recorded that innumerable documents/correspondences have been introduced by the parties as evidence to substantiate the issues. The letter dated 4/11/1996 of EIL to NRL after being produced was left by the learned Sr. Counsel for NRL at the discretion of the tribunal whether or not to permit DEC to consult the contents thereof. The learned Tribunal by order dated 15/5/1999 having regard to the said document was of the view that the same did not come within the purview of privileged documents and, therefore, directed a copy thereof to be furnished to DEC's learned Counsels. By the same order, the letter was ordered to form documentary evidence in the case. The learned Tribunal by order dated 15/5/1999 having regard to the said document was of the view that the same did not come within the purview of privileged documents and, therefore, directed a copy thereof to be furnished to DEC's learned Counsels. By the same order, the letter was ordered to form documentary evidence in the case. This order admittedly had remained unchallenged either before the tribunal itself or in any other forum. 69. The Apex Court in Ganges Water Proof Works Private Limited v. Union of India (1999) 4 SCC 33 , while rejecting the contention of non-application of mind of the arbitrator in referring to "evidence" in absence of any oral testimony of witnesses clarified that "evidence" does not necessarily mean oral evidence and that documents available on records before the arbitrator also constitute evidence and that the same was in his contemplation while passing the award. 70. Noticeably before the learned Tribunal, none of the parties adduced oral evidence nor made any request therefore but wholly relied on documents on record introduced by them. None of them at any point of time expressed any reservation about the procedure being followed but rather were agreed that the documents produced by them be treated as evidence in support of their respective stands. The parties, by their conduct, therefore, submitted to the procedure evolved by the learned Tribunal in proceeding on the basis of documentary evidence. The parties, as the records of the proceedings reveal, also did not demand observance of any procedure requiring formal proof of the documents adduced nor did they register any objection against receiving the same to be acted upon as evidence. As it is under Section 19(4) of the Act, the tribunal has the power to determine the admissibility, relevance, materiality and the weight of any evidence and, therefore, it cannot be legitimately be shackled with any particular mode of admission or evaluation of evidence introduced by the parties. 71. The Apex Court has time and again ruled against appraisal by a Court of evidence before the arbitrator. In Municipal Corporation of Delhi v. Jagan Nath Ashok Kumar and Anr. 71. The Apex Court has time and again ruled against appraisal by a Court of evidence before the arbitrator. In Municipal Corporation of Delhi v. Jagan Nath Ashok Kumar and Anr. (1987) 4 SCC 497 , reiterating the above, the Apex Court held that the arbitrator is the sole judge of the quality as well as the quantity of the evidence and that the possibility of the Court coming to a different conclusion on the same evidence cannot be a ground for setting aside the award. Affirming the same view in Sudarshan Trading Corporation v. State of Kerala (1989) 2 SCC 38 , the Apex Court observed that when the parties have selected their own forum, it must be conceded the power of appreciation of evidence before it. 72. NRL having failed or omitted to raise any objection with regard to the procedure adopted by the tribunal to admit evidence and more particularly its decision to take the letter dated 4/11/1996 as a part of the documentary evidence, we are persuaded to hold that it had consciously waived objections, if any, either to the admissibility of the documents and the correctness of its contents. Significantly, NRL did not question the genuineness of the documents produced before the Tribunal and also expressly agreed that the same be treated as evidence. An extract from Russel on Arbitration, 18th Edition, page 237 is considered indicatively expository. Objections to a decision of an arbitration as to whether or not to admit evidence may be waived, like other objections to the manner in which the proceedings are conducted. The party to an arbitration cannot be allowed to lie by and then if the award is unfavourable, seek to set it aside on the ground that during the proceedings the arbitrator gave a ruling or a decision contrary to the rules of evidence which the party during the proceedings took no steps to question. 73. There is yet another aspect of the matter. As the contract stipulations reveal, EIL was not only the prime consultant of NRL but was also conferred the exclusive authority to certify all payments to DEC. It discharged an all pervasive role in the execution of the contract and, therefore, was acting as NRL's agent for all intents and purposes. 73. There is yet another aspect of the matter. As the contract stipulations reveal, EIL was not only the prime consultant of NRL but was also conferred the exclusive authority to certify all payments to DEC. It discharged an all pervasive role in the execution of the contract and, therefore, was acting as NRL's agent for all intents and purposes. As the facts disclose, the letter dated 4/11/1996 issued by EIL to NRL was in response to the letter dated 13/4/1996 written by DEC to it, as advised by NRL by its letter dated 9/4/1996, for necessary clarifications from EIL with regard to the amount in Indian currency receivable by DEC for supply of substituted indigenous items. Having regard to the background of this letter and the issue on which EIL forwarded its recommendations, the contents of the letter dated 4/11/1996 embodied a decision inter se EIL and NRL on the DEC's claim for such substitution. We are, therefore, unable to decipher any illegality on the part of the Tribunal to act on the said letter as an evidence to decide issue A. Having regard to the role discharged by EIL qua NRL, we are inclined to sustain the contention that the opinion expressed by the consultant in the letter dated 4/11/1996 was that of an agent of NRL, admitting the DEC's claims to the extent of Rs. 17.68 Crores excluding the element of profit. NRL as it transpires from the records not having questioned the correctness of such determination by EIL is consequently bound by such admission. 74. Conclusiveness of an admission as evidence against the party making it was recognized by the Apex Court in Narayan Bhagwantrao Goswavi v. Gopal Vinayak Gosavi and Ors. AIR 1960 SC 100 , where it held that an admission is the best evidence that an opposite party can rely upon and is conclusive and decisive of the matter unless successfully withdrawn or proved erroneous. The view found reiteration in Awadh Kishan Das v. Ram Gopal Das AIR 1979 SC 861 . 75. On a consideration of the totality of the facts and the principles of law adumbrated hereinabove, we hold that the observations of the learned Court below against introduction of the letter dated 4/11/1996 and its evidentiary value are legally unsustainable and are hereby set aside. 75. On a consideration of the totality of the facts and the principles of law adumbrated hereinabove, we hold that the observations of the learned Court below against introduction of the letter dated 4/11/1996 and its evidentiary value are legally unsustainable and are hereby set aside. Its finding that DEC could not prove the expenditure incurred on account of inspection charges in belied by the documents on record. The learned Tribunal neither committed any error of law nor acted in contravention of the contract or arbitral procedure agreed to by the parties in relying on the letter dated 4/11/1996 in adjudicating the issue. 76. In any commercial pursuit in the realm of trade and business a seller would sale his goods and a contractor would undertake execution of the works awarded expecting a reasonable margin of profit. In absence of evidence of exceptional profit it would thus be justified for the Court to assume that the seller or the contractor had under taken the job for a reasonable profit. The Apex Court in M/s A.T. Brij Paul Singh and Ors. v. State of Gujarat, while dwelling on this aspect recognized the reasonable expectation of profit in a works contract so much so that the loss thereof was to be compensated by way of damages by the party guilty of breach of the contract occasioning such loss. It held that while remedying the loss of profit, it would be unnecessary to go into minutest details of the work and that a broad evaluation would be sufficient. The Apex Court approved the High Court's quantification of 15% of the value of the balance of the works contract involved in the case as damages for loss of profit. 77. Considering the wide varieties of activities to be undertaken by the DEC in connection with the works and in conformity with the commercial practice, a profit element understandably has to be a part of the cost structure. This amongst others has been recognized by the NRL in its reply dated 20/9/1997 noticed hereinabove. While construing the "actuals" under Clause 14.3 therefore in our view, DEC in addition to the charges for procurement services, inspection and expediting and overheads is also entitled to a reasonable margin of profits. Grant of 15% of the assessed amount of Rs. 17.68 crores does not appear to be illogical or arbitrary either. While construing the "actuals" under Clause 14.3 therefore in our view, DEC in addition to the charges for procurement services, inspection and expediting and overheads is also entitled to a reasonable margin of profits. Grant of 15% of the assessed amount of Rs. 17.68 crores does not appear to be illogical or arbitrary either. Reference to the decision of the Apex Court in Ms. A. T. Brijpal Singh and Ors. supra, is not out of place. According to us, the decision of the learned Tribunal on issue (A) is neither antithetical to the tender conditions and contractual provisions. We do not therefore find any good or sufficient reason to interfere therewith. The learned Court below failed not only to notice the relevant tender conditions and the contractual provisions and other contemporaneous documents on record but also acted beyond the parameters of section34 of the Act in superficially annulling the well reasoned conclusions of the learned Tribunal based on the materials on record. Issue B, 78. Did the claimant pay unnecessary customs duty due to default of the defendant on: i) Design, ii) Conservation and supervision for construction and iii) Commissioning, which would not have been other wise payable? 79. DEC's account of facts on the issue is that Turbotecnica of Italy (also being referred to as 'TT'), a consortium partner of DEC, was required to supply under the contract, the Gas Turbine Generator (for short 'GTG') for an amount of DM 22,990,000 and US $ 4,150,000. The Utility Boiler (for short 'UB') and the Heat Recovery Steam Generator (for short 'HRSG'), were to be supplied by DEC. It was necessary for both the suppliers under the contract to undertake the exercise of System Design and Engineering to suit the project requirement. Under the tender conditions, the cost of design had to be indicated separately from the price of the goods. Besides the bidders were to furnish the CIF value of goods to enable NRL, as the importer thereof to avail concessional rate of customs duty thereon, as it had obtained a licence for "Project Imports". Though, the parties were aware of the amounts representing the cost of System Design and Engineering in the revised price schedule, the amount payable for TT's portion, was not shown separately, though for the DEC's share therefore in respect of Utility Boiler and HRSG, an amount of US $ 1,500,000 was indicated. Though, the parties were aware of the amounts representing the cost of System Design and Engineering in the revised price schedule, the amount payable for TT's portion, was not shown separately, though for the DEC's share therefore in respect of Utility Boiler and HRSG, an amount of US $ 1,500,000 was indicated. DEC, therefore, requested NRL for a bifurcation in the quoted amount for TT into the CIF value of the GTG and System Design and Engineering therefor, so as to avoid unnecessary payment of customs duty on the amount marked for System Design and Engineering. NRL, however, declined to accede to the request offering many reasons, inter alia that it was not possible to amend the contract, which being registered with the Reserve Bank of India (hereinafter referred to as the 'RBI') and the Customs Authority, would lead to avoidable problems. 80. NRL's stand on records, is that by letter dated 23.11.1994, DEC forwarded a revised price schedule indicating that for supplies of all import items US $ 12,900,000 and DM 22,990,000 was payable. DEC also claimed US $ 1,500,000 as payable for System Design and Engineering. NRL admitted that for the amount US $ 1,500,000 for System Design and Engineering no customs duty was payable but it was so for the price of imported supplies. DEC in the said price schedule for indigenous supplies and services ascertained an amount of Rs. 165,600,000/- as total customs duty payable for all imported supplies. According to the NRL, therefore, this amount was quantified and recorded by DEC after taking into consideration the sum payable on all imported items by way of customs duty. NRL acting on the said revised price schedule finalized the contract and conveyed its acceptance of the contractors' offer by the Fax of Intent dated 31.01.1995. It was clarified therein that NRL had accepted the DEC's quotation of DM 22,990.000 as the amount payable to TT for the imported items. The Fax of Intent also clearly stated that the amounts mentioned therein, were inclusive of all taxes and duties on duly installed and commissioned basis. 81. The contract for Overseas supplies was thereafter entered into by the parties on 11.04.1995 and the price schedule thereof, also indicated the breakups as above. The Fax of Intent also clearly stated that the amounts mentioned therein, were inclusive of all taxes and duties on duly installed and commissioned basis. 81. The contract for Overseas supplies was thereafter entered into by the parties on 11.04.1995 and the price schedule thereof, also indicated the breakups as above. The price schedule disclosed that for System Design and Engineering for the combined Cycle, DEC only was to be paid US $ 1,500,000 and that TT was entitled to receive for the supply of imported items, DM 22,990,000 and US $ 4,150,000. For the supplies of imported items, DEC was to be paid US $ 8,750,000. The contract for indigenous supplies, which was also executed on 11.04.1995, in its price schedule disclosed as alluded hereinabove that NRL was to pay an amount of Rs. 1,65,600,000 towards customs duty, port charges etc. for the imported items. 82. According to the NRL, it being a Turnkey Contract, the price was firm and not variable as agreed to by the parties. By its letter dated13.09.1995, DEC requested NRL for apportionment an amount of the Overseas supply contract dated 11.04.1995 by bifurcating the CIF equipment cost from the service cost in the TT's portion of supply as reflected in the price schedule. DEC contended that unless, the said modification was made, TT would have to declare the entire amount as CIF value of imported goods before the customs authorities attracting the liability of payment of customs duty on the entire amount, though, the same was not payable on the service portion of the price. DEC requested NRL to transfer DM 2,800,000 out of DM 22,990,000 payable to TT against System Design and Engineering so that payment of customs duty thereon, v/ould not be necessary. Though, various correspondences were exchanged thereafter between the parties, NRL declined to meet the request, amongst others on the ground that the contract had been filed with the RBI and the Customs Authority. NRL's plea in substance, is that it being a Turnkey Contract and the liability of the bidders under the tender conditions for payment of customs duties and the taxes having been fixed, the request was untenable, more particularly, when under the price schedule for the indigenous contract, NRL was required to pay a sum of Rs. 16,56 crores as customs duty, port charges etc. 16,56 crores as customs duty, port charges etc. in addition to the other amounts towards supplies and System Design and Engineering. 83. The learned Tribunal decided the issue in favour of DEC acting on Note 1 and 2 of the price schedule to the Overseas contract. It held the view that the parties were bound thereby and as the same enabled DEC to avail concessions towards customs duty, NRL could have complied with the request for bifurcation of CIF value and amount of service portion of the price of the TT's segment of supply. It was of the opinion that such apportionment would not have resulted in any amendment or variation of the price schedule or the contract agreements. It noted that under the Customs Act, 1962, imported goods are subject to customs duty and that component of service charges and costs included in the value of goods, was not liable therefor. It upheld the claim of DEC for a sum of Rs. 1.65 crores, concluding that as the price mentioned against import items under Clause 2.1.1 included service charges as well, DEC had to unnecessarily pay customs duty on the service portion of the price due to NRL's technical view in the matter. It returned a finding that DEC had to pay customs duty of Rs. 1.65 crores unnecessarily for the fault of NRL. 84. The learned Court below, while reversing the decision though, did not deal specifically with the issue observed that as in view of Clause 14.1 of 1TB and Clause 8 of the Consolidated Agreement, the price quoted was to remain firm throughout the execution of the work, there was no scope for the Tribunal to award any extra amount by relaxing the clauses of the Agreement. It held that in view of the scope of work under Clause 2.1 and 2.3 of ITB, as well as, the Overseas and Indigenous Supply Contracts, the bidders were supposed to clearly indicate the price for System Design and Engineering supplies, manufacture, procurement, inspection etc. separately while submitting their bids. 85. Mr. Ganguly has argued that as the additional customs duty of Rs. separately while submitting their bids. 85. Mr. Ganguly has argued that as the additional customs duty of Rs. 1.65 crores on the component of System Design and Engineering of the TT's portion of supply, was not payable but for the adamant stand of the NRL, it being the importer of the goods, was thus bound to reimburse DEC for the excess payment of customs duty. The learned Senior counsel contended that the excuse that the modification suggested was non implementable, the contract having been registered with the RBI and Customs Authority, was per se untenable in view of Regulation 6 of the Project Import Regulations 1986, which permitted amendments even after the registration of the contract whereunder goods were to be imported on payment of concessional rate of custom duty as project imports. NRL being fully aware that customs duty was payable only on the CIF value of the imported goods, it required the bidders under the tender conditions to give a complete list of goods with itemized CIF prices for the imported items, so that it could avail the concessional duty as project imports. Referring to Notes 1 and 2 of the price schedule to the Overseas contract, which required DEC/TT to furnish documents to enable NRL to avail concessional rate of customs duty along with CIF value of goods imported, the learned Senior counsel urged that the DEC therefore, by claiming division of the TT's quoted price for the imported items into CIF value of goods and the service cost had acted truly to the letter and spirit of the contract. As inspite of the segregation, the price for System Design and Engineering and the supplies as suggested, the total quoted price would have remained the unaltered, the inexorable disposition of NRL in not yielding to the request therefor, was arbitrary and whimsical only to harass DEC, he argued. NRL being throughout aware that the TT's price portion for System Design and Engineering was not liable to customs duty as it did not form a part of the CIF value of imports, there was no acceptable justification for the obdurate and unreasonable stand of the NRL and therefore the learned Tribunal rightly burdened it with the liability of paying Rs. 1.65 crores paid by DEC as additional customs duty. Mr. 1.65 crores paid by DEC as additional customs duty. Mr. Ganguly, argued that NRL's plea of inability on the ground of registration of the contract with the custom authorities, is belied by the fact that the registration, was effected much after DEC had approached NRL with the above proposal. According to the learned Senior counsel, it being apparent from the NRL's understanding on the issue that customs duty was not payable on the service component of the price, it was contractually obliged to indemnify DEC of the loss or damage consequent to its autocratic rejection of the proposal and therefore, the decision of the learned Tribunal on the issue is unassailable. 86. As against this, Mr. Roy, has submitted that the decision of the Arbitral Tribunal was not only in derogation of the terms of the contract but amounted to rewriting the same. The verdict being in total violation of the terms and conditions of the contract, it was clearly opposed thereto and therefore the learned Court below was justified in superseding the same. The learned Senior counsel urged that in recording its finding, the learned Tribunal also left out of consideration the fact that in terms of the price schedule to the contract for indigenous supplies, NRL was liable to pay an amount of Rs. 16.56 crores as customs duty payable by TT on its quoted price of DM 22,990,000 and US $ 4,150,000. As NRL had paid the entire amount, there was no scope to award any extra payment and in doing so, the learned Tribunal contravened Section 34(2)(v) of the Act. Note 1 and 2 appearing at the bottom of the price schedule for Overseas supply permitting production of necessary documents essential for availing concessional rate of customs duty did not authorize any demand for amendment of the contract and therefore the learned Tribunal completely misdirected itself in deciding the issue in favour of DEC by providing a construction to the notes not perceived by the parties. Apart from the fact that the amendment as proposed had the potential of visiting NRL with serious adverse consequences, the contract having been registered with RBI and the customs authorities, Mr. Apart from the fact that the amendment as proposed had the potential of visiting NRL with serious adverse consequences, the contract having been registered with RBI and the customs authorities, Mr. Roy argued that it being an international contract with foreign exchange commitments, NRL in any view of the matter was not bound to accept the DEC's request in the face of the contractual provisions and the learned Arbitral Tribunal was obliged to decide the controversy, according to the contract as it is. It having strayed beyond the contract, its decision being not countenanced thereby, the learned Court below validly interfered with its determination on the issue. 87. We have extended out thoughtful consideration to the rival submissions. To decide the controversy, it is essential to appreciate the true import of the DEC's request to reflect separately the TT's price for the CIF value of its imports and design and engineering together with other service components. The bidders obviously were obliged to make their offer in terms of the tender stipulations. Clause 1.8 of ITB necessitated that a bidder clearly gives the complete list of goods with itemized CIF prices for the imported items, indicating the currencies and the country of origin and itemized prices on site delivery basis for indigenous items. Clause 13 of the ITB, which outlined the mode of quoting the price mandated the same to be cited for the entire scope of work on divisible contract basis indicating the amounts separately for design and engineering, cost of imported equipments and materials, ocean freight insurance and other service charges enumerated therein. Like wise, while submitting the proposal, the bidder under Clause 2.1 of ITB, was to submit its proposal covering all equipments, materials and services relatable to different heads, inter alia detailed design and engineering, payment of customs duty, port clearance charges, pre assembly if any erection, testing and commissioning of the complete works etc., packaging, forwarding and transportation/transhipment from manufacturer's works to the project site for consignment other than ODCS. The prime contractor, inter alia was also required under Clause 2.3 of the ITB to supervise erection, testing and commissioning, including deputation of experts in any area of site work, if required. The prime contractor, inter alia was also required under Clause 2.3 of the ITB to supervise erection, testing and commissioning, including deputation of experts in any area of site work, if required. Clause 48.7.1 of the General Terms and Conditions of Contract evinces the obligation of the owner, incase of payment to foreign vendors, to establish an irrevocable letter of credit in favour of the contractor through the owners Bank in India, so that payments due on completion of various activities from the CIF point (Indian port of entry upto and including handing over the plant/system to the owner) can be progressively made direct to the contractor by the owner. 88. The above tender norms therefore, make it obligatory on the part of a bidder to provide a comprehensive spectrum of its proposal touching all facets of the works and to quote its price separately therefor. While, providing the list of goods, the bidder was required to furnish the itemized CIF prices for the imported items indicating the currencies and the country of origin. For the present purpose, suffice it to mention that under Clause 13, the bidder was required to indicate its price separately for design and engineering supply of imported equipment and materials and for other services. There is no dispute that the price quoted for design and engineering and other services is not exigible to customs duty. There is no wrangle either that in the original bid for Overseas supplies and service, charges for services and the CIF value of goods to be imported by NRL, through DEC and TT had been showed separately. In the revised price schedule submitted on 23.11.1994, however, though the amounts remained the same, the bifurcation of the service charges and the CIF value of goods for TT was not indicated. Noticeably, the bid submitted had been processed demonstrating thereby that the same originally submitted, was in compliance of the tender conditions and was therefore not rejectable under Clause 2.2 of ITB enjoining that incomplete bids not covering the complete scope of work would be liable for rejection. 89. A relevant extract of the price schedule to the contract for Overseas supplies and services as hereinbelow is pertinent: DESCRIPTION QTY VALUE PAYABLE TO 1.0 System Design and Engineering for the combined cycle. 89. A relevant extract of the price schedule to the contract for Overseas supplies and services as hereinbelow is pertinent: DESCRIPTION QTY VALUE PAYABLE TO 1.0 System Design and Engineering for the combined cycle. LS US S 1,500,000 Daelim US S 1,500,000 Turbotecnica NIL 2.00 Supplies : 2.1 SUPPLY OF FOB PORT OF SHIPMENT BASIS of all imported items including commissioning spares. LS US S 12,900,000 DM 22,990,000 Daelim 8,750,000 NIL Turbotecnica 4,150,000 22,990,000 90. The price schedule further indicated under Clauses 2.1.2, 2.1.3,3.00 that third party inspection charges and ocean freight for all items under 2.1.1 and marine insurance charges for all imported supplies were included in the price quoted. 91. Note 1 thereto, required Daelim/Turbotecnica to furnish requisite documents required (if any) for availing concessional rate of customs duty including list of goods along with CIF value. Note 2 clarified that third party inspection charges were included in the above price. 92. In the price schedule to the contract for indigenous supplies and services an amount of Rs. 165,600,000/- was quoted against customs duties, port charges etc. for all items under Clause 2.1.1 of the price schedule for Overseas supplies. The parties understood that CIF value of imported goods comprised of the price of the goods, ocean freight and marine insurance, as is apparent from the price schedule for Overseas supplies and services. The consolidated value of the items to be imported by TT together with the cost of design and engineering of the imported items to be supplied, ocean freight, marine insurance and third party inspection charges, was shown to be DM 22,990,000 and US $ 4,150,000. DEC made the request for segregation of the CIF value of goods from the cost of services to the tune of DM 2,800,000 out of DM 22,990,000. 93. The requirement to furnish CIF value of the imported items was to facilitate payment under the contract for imported items directly to the contractor by the owner in terms of Clause 48.7.1 of the GTCC. This request evidently, was made by DEC to NRL on 13.09.1995, suggesting separation of pure CIF equipment cost from the service cost, as otherwise it (DEC) would have to pay import duty on the service portion of the price for the imported items as well. This request evidently, was made by DEC to NRL on 13.09.1995, suggesting separation of pure CIF equipment cost from the service cost, as otherwise it (DEC) would have to pay import duty on the service portion of the price for the imported items as well. By letter dated 26.09.1995, NRL refused to accede to the request contending that the Contract Agreement had been signed following a detailed discussion and negotiations. DEC, persuaded by its letter dated 25.11.1995, pointing out to NRL that the contract price for the TT's portion thereof, consisted of CIF value, cost of design and engineering, supervision and other incidental costs and requested for apportionment of the CIF value of goods and charges for the service segment, so that DEC was not required to pay customs duty on the total contract price when such duty was payable only on the CIF value of the imported items. DEC followed up by its letter dated 09.01.1996, furnishing therewith detailed breakup of the price components of TT indicating, inter alia the followings: DESCRIPTION QTY VALUE 1.00 Design, Engineering and project management. LS DM 1,500,000-(a) 2.0.0 Supplies : 2.1.1- SUPPLY OF F.O.B PORT OF SHIPMENT BASIS of all imported items including commissioning spares. LS DM 19,200,000 US S 4,150,000 2.1.2 Third party Inspection charges for all items under 2.1.1 LS DM 100,000-(b) 2.1.3 Ocean freight for all items under 2.1.1 LS DM 850,000,3.00 Insurance 3.1.1 Marine insurance charges of all imported supplies LS DM 140,000 4.00 Special Tools and Tackles : 4.1.1 Special Tools and tackles LS Included DM 1,200,000 (C) DM 22,990,000 US S 4,150,000 94. The service components of the TT's price schedule as above are (a), (b) and (c) totaling DM 2,800,000. Dec requested NRL to post this amount against Clause 1.00 i.e. System Design and Engineering in the price schedule for the contract for Overseas supplies for TT, so as to relieve it of the liability to pay customs duty therefor, being otherwise not payable, as it represented the price for the services rendered offshore beyond the territorial limits of India. 95. 95. By its letter dated 16.02.1996, DEC referring to the same topic pleaded that though under the Agreement(s), it was ready to pay custom tariff and CVD on reasonable amount, it was not prepared to pay import duty on exempted price portion of the value for import items and reiterated its request to the NRL to effect the changes suggested in the TT's quoted price or to incur the liability to compensate DEC for the additional amount payable by it as Customs/Countervailing Duty because of the indifference and inaction on its part. In its reply on 21.03.1996, NRL, while, adhering to its earlier stand that the facts and figures in the agreement were incorporated based on the particulars submitted by DEC contended that the offered justification for the proposed changes not having been concurred with by EIL, it was not possible to offer comments and therefore, no final decision was possible. 96. The letter dated 17.06.1996 from NRL to the Assistant Commissioner of Customs, Calcutta, indicates that the project in hand had been registered with the Customs Authority on 17.04.1996, that is after DEC's request for apportionment of TT's quote price, NRL had mentioned therein that the price schedule for imported materials is divided into two major heads pertaining to Turbotecnica and DEC with activity wise breakup. NRL clarified that the cost/price quoted for System Design and Engineering by Dec did not constitute a part of the import price and was an amount paid for an activity done outside India relating to the project. This letter to say the least, demonstrates the clarity of NRL's view in distinguishing the CIF value of the imported goods from the service segment of the price quoted. This is further clear from the letter dated 16.07.1997 of NRL to DEC requesting the latter to certify that the payment for System Design and Engineering for Overseas supplies in the project was only for the services rendered and not for any transfer of materials/drawings etc. so as to facilitate direct remittance of the balance amount payable instead of routing such payment through a letter of credit. NRL, however, did not relent and by its letter dated 03.10.1996, refused to yield to DEC's request contending that it was not possible at such a belated stage. so as to facilitate direct remittance of the balance amount payable instead of routing such payment through a letter of credit. NRL, however, did not relent and by its letter dated 03.10.1996, refused to yield to DEC's request contending that it was not possible at such a belated stage. Further, the amendment as proposed, if effected, the same would result in complication with RBI and Customs Authorities with whom the agreement had already been filed and recorded. 97. Had NRL been the importer for the Overseas supplies in the contract? The Foreign Trade (Development and Regulation Act, 1982) (for short 'Regulation Act, 1992') was enacted to provide for the development and regulation of trade by facilitating imports into and augmenting exports from India, repealing the Imports and Exports (Control) Act, 1947 and the Foreign Trade (Development and Regulation) Ordinance, 1992. "Import" and "Export" defined in Section 2(c) connote bringing into or taking out of, India any goods by land, sea or air. "Importer Exporter Code Number" has been described under Section 2(f) to mean the code number granted under Section 7. "Licence" within the meaning of Section 2(g) denotes a licence to import or export and includes a customs clearance permit and any other permission issued or granted under the Act. Section 3 empowers the Central Govt, by order published in the Official Gazette to make provision for the development and regulation of foreign trade by facilitating imports and increasing exports. It is equipped it with the authority to make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, the import or export of goods. Section 7 debars a person from making any import or export except under a importer exporter code number granted by the Director General or the Officer authorized by the Director General on his behalf in accordance with the procedure specified in this regard by the said authority. Section 8 and 9 empower the authorities specified therein, to suspend and cancel the importer and exporter code number and the licence issued under the said Act, in the eventualities referred to therein. Section 8 and 9 empower the authorities specified therein, to suspend and cancel the importer and exporter code number and the licence issued under the said Act, in the eventualities referred to therein. Section 11, while enjoins that no export or import would be made by any person except in accordance with the provisions of the Act, Rules and the Order made thereunder and the export and import policy in force, enumerates the penal actions consequent upon the contravention of any provision of the Act, Rules or Orders. Rule 6 of the Foreign Trade (Regulation) Rules, 1993 prescribes a condition in the licence prohibiting transfer or acquisition thereof, by any person except in accordance with the provisions of the export and import policy formulated and announced by the Central Government. 98. In the teeth of the scheme of the Regulation Act, 1992, and the Rules framed thereunder, we are unable to persuade ourselves to hold that an importer under the aforesaid statute holding a licence and importer exporter code number can permissibly lend either its licence or the importer exporter code number to some one else by shedding his status role and responsibility as an importer. Even assuming that under Regulation Act, 1992 and the Rules framed thereunder, an importer can permit his importer and exporter code to be used by a third party to facilitate import, it is inconceivable, having regard to the legislative framework as noticed hereinabove that thereby he would cease to be the importer in law. Any other interpretation would be wholly incompatible with and mutilative of the above legal provisions. 99. The documents relied upon to by the parties, arguendo in this regard deserve a reference. By a letter dated 19.10.1994, issued by the Deputy Director General of Foreign Trade, Guwahati, NRL was informed about the allotment of its Importer Exporter code No. 1494001012 with the instruction to intimate the authority concerned about any change in the name, address or constitution of the firm. The letter carried with it the document reflecting the importer exporter code number. The letter dated 18.10.1995 by NRL to DEC, discloses the arrangement made to enable it (DEC) to use the Import Export code number for customs clearance at Calcutta and any other Indian port. By the continuity bond executed by NRL on 15.12.1995, it bound itself to a sum of Rs. 6 crores CIF value of imports. The letter dated 18.10.1995 by NRL to DEC, discloses the arrangement made to enable it (DEC) to use the Import Export code number for customs clearance at Calcutta and any other Indian port. By the continuity bond executed by NRL on 15.12.1995, it bound itself to a sum of Rs. 6 crores CIF value of imports. The stipulations contained therein, amply establish NRL to be the importer of the raw materials to be utilized for the execution of the works in question. The author of the letter dated 18.10.1995 and the representative of NRL for the continuity bond are one and the same being the Deputy Manager (Commercial) NRL. In the application submitted by NRL on 15.12.1995 for the registration of the contract under heading 98.01 of the Customs Tariff Act, 1975, amongst others', the particulars of its import licence and the CIF value of goods to be imported to the tune of Rs. 6 crores have been recorded. The application discloses a request by NRL in terms of Clause 2 of the Project Imports Regulation, 1986 for assessment and clearance of the goods relating to the project under heading No. 98.01 of the Customs Tariff Act, 1975 with the exemptions granted thereunder. This application noticeably was also signed by the same representative of NRL. The letter dated 08.03.1996 of the Govt, of India, Ministry of Petroleum and Natural Gas addressed to the Collector of Customs, Calcutta also substantiated that NRL, was the importer in respect of the Overseas supplies utilizable for the works. By letter dated 17.04.1996, issued from the office of the Commissioner of Customs, Calcutta, NRL was informed about the registration of its contract as applied for under the file No. 8370 (G) PROJ - 62/96 A (6), Dated 16.04.1996. This was acknowledged by NRL by its letter dated 17.06.1996. Thus the request for registration of the contract made on 15.12.1995 was allowed and the contract was registered as above. 100. The Bills of Entry pertaining to the supplies as produced before this Court, not only depicts NRL to be the importer thereof, the same display its Importer Exporter Code number, the file number authorizing such imports, as well as the payment of the customs duty and the CVD. Significantly, the genuineness and/or the authenticity of the Bills of Entry had not been questioned by NRL. Significantly, the genuineness and/or the authenticity of the Bills of Entry had not been questioned by NRL. The documents produced before us disclosing the particulars of the customs duty and CVD paid negates the contention questioning such payment by DEC. 101. On a consideration of the totality of the revelations from the above contemporaneous documents, we have no hesitation to hold that NRL had been the importer of the overseas supply and that DEC had acted on its behalf, inter alia in making the payments of all taxes, duties and levies under the contract. 102. In the above conspectus of facts, the unyielding posture of NRL does not accord with the letter and spirit of the contract. It being fully conscious of the fact that customs duty is not payable for the services rendered without involving any transfer or supply of imported goods, its refusal to the DEC's request to apportion the TT's quoted price for supply and service segments on the grounds cited is too technical besides being unconvincing. Not only, the letter dated 17.06.1996 of the NRL discloses that the project was registered with the Customs Authorities much after the DEC's request for the above modification of 13.09.1995, it is obvious from Regulation 6 of the 'Project Import' Regulations, 1986 that a contract registered thereunder for Project Imports can be subjected to amendments before or after such registration on an application by the importer. 103. On a conjoint reading of the tender conditions and the contractual stipulations it is obvious that NRL as the importer of the goods of foreign origin to be utilized in the project was in a position to avail concessional rate of customs duty for procuring such goods as Project imports. Note 1 to the price schedule to the contract of Overseas supplies is clearly suggestive of the above. The contractual covenant requiring DEC to undertake liability of paying the custom duty and other taxes and levies, per se, does not detract from the above proposition. This is further reinforced by the letter dated 03.11.1995, of NRL addressed to DEC requesting the latter to ask its (DEC) foreign Sub-Contractor M/s. Termax to forward purchase order number and other details of procurement of imported raw materials so as to enable NRL to interact with the concerned Ministry for its endorsement for availing project concessional customs duty. 104. This is further reinforced by the letter dated 03.11.1995, of NRL addressed to DEC requesting the latter to ask its (DEC) foreign Sub-Contractor M/s. Termax to forward purchase order number and other details of procurement of imported raw materials so as to enable NRL to interact with the concerned Ministry for its endorsement for availing project concessional customs duty. 104. Indubitably, though, under the Contract, the price quoted was to remain firm throughout the execution of the works, we are of the view that DEC's suggestion for severing, the CIF value of goods from the service charges in the TT's quoted price without altering the total sum did not as such amount to amendment of the contract as visualized by NRL. A Contract has to be understood in the touchstone of the intention of the parties thereto, Contractus ad mentem partium verbis notatum intelligendus. We are inclined to agree with Mr. Ganguly that a contract has to be viewed as a whole and the obligations of the parties thereto, have to be necessarily discharged in the furtherance thereof and the contractual provisions would have to be construed in a realistic and pragmatic manner. In view of Regulation 6 of the Project Import Regulation, 1986, as well, we do not feel persuaded to uphold NRL's plea against implementing DEC's proposal. 105. In the above view of the matter, we find ourselves in agreement with the ultimate conclusion of the learned Tribunal albeit for the reasons recorded hereinabove. The argument on behalf of NRL that an amount of Rs. 165,000,000/- having been charged towards payment of customs duty and other taxes and levies, DEC is not entitled to any extra sum, does not appear to be convincing, as it is apparent that the said amount had been quoted with the understanding that DM 2,800,000 out of the TT's quoted price of DM 2,990,000 was identifiable as service charges and therefore not dutiable. NRL having refused to effect the necessary changes as suggested by DEC, it was required to pay an additional amount of Rs. 1.65 crores as customs duty. As payment of this amount is also not disputed before us, we are of the considered opinion that the decision of the learned Tribunal in favour of the DEC's entitlement for the said amount is legally sustainable. The decision of the learned Tribunal in awarding a sum of Rs. 1.65 crores as customs duty. As payment of this amount is also not disputed before us, we are of the considered opinion that the decision of the learned Tribunal in favour of the DEC's entitlement for the said amount is legally sustainable. The decision of the learned Tribunal in awarding a sum of Rs. 1.65 crores against NRL to offset the loss suffered by DEC on account of payment of the said amount towards additional customs duty does not appear to be incompatible with the contract agreements. The learned Court below did not as such deal with the issue as required and its conclusions do not reflect a consideration of the relevant contractual provisions and the contemporaneous documents on record. In the above premise the conclusion of the learned Court below on this issue being untenable, is hereby interfered with. 106. Issue C Is the claimant entitled to claim Rs. 13 crores, as Countervailing Duty, which also includes claim Items "B"; Turbotecnica's contract price: "D"; Excess Customs Duty due to fluctuation of Exchange Rate and "L": Indian Statutory Taxes'.'? 107. The pleaded case of the Appellant, DEC, is that a fresh duty styled as Countervailing Duty (hereinafter referred to as the 'CVD'), was levied subjecting the imported goods to an additional levy at 12.5%. This levy was not in the contemplation of the parties, when DEC had submitted its bid, its evaluation by NRL on 24.11.1994 and settlement of the contract by the Fax of Intent dated 31.01.1995. As NRL was the importer of the goods, DEC, who had to pay CVD as imposed, was entitled to be reimbursed by NRL. 108. To the contrary, the assertion of NRL, is that Countervailing Duty, which is kind of customs duty, was levied on subsidized articles imported into India by the Customs Tariff (Amendment) Ordinance, 1994 (hereinafter for short 'Ordinance') with effect from 01.01.1995. As the contract came into existence after that date, DEC was liable thereunder to pay such duty. This according to the NRL, is demonstrated by the Fax of Intent dated 31.01.1995, the Overseas and Indigenous supplies and services contract dated 11.04.1995 and also the Consolidated Contract dated 12.04.1995, whereunder it was the exclusive liability of the contractor to pay all taxes and duties including customs duties on foreign components of supply. This according to the NRL, is demonstrated by the Fax of Intent dated 31.01.1995, the Overseas and Indigenous supplies and services contract dated 11.04.1995 and also the Consolidated Contract dated 12.04.1995, whereunder it was the exclusive liability of the contractor to pay all taxes and duties including customs duties on foreign components of supply. NRL, has maintained that in terms of Clause 12.1 and 12.2 of ITB as well, every bidder was obliged to acquaint himself with all local conditions and factors and familiarize himself with the Income Tax Act, 1961, The Companies Act, 1956, The Customs Act, 1962 and other related Acts and laws prevalent in India and in the State of Assam. In terms of the said Clauses neither the owner was obliged to entertain any request for clarification from the bidders regarding such local conditions nor any claim for financial adjustment with the contract awarded was entertainable by the owner. 109. The learned Tribunal identified an amount of Rs. 9.33 crores, as the sum to be reimbursed by NRL being paid by DEC as Countervailing Duty on the imported items. However, as the above amount of Rs. 9.33 crores was a component of the total claim of 13.55 crores, (under ISSUES B.C.D.L) scaled down to Rs. 13 crores, while framing the issue, DEC's claim for Countervailing Duty was accordingly, curtailed to Rs. 8.75 crores for the purpose of adjudication. The Tribunal noticing that the bids were opened and finalized on 24.11.1994, prior to 01.01.1995, on which levy of CVD was made effective by the Ordinance followed by the Customs Tariff (Amendment) Act, 1995 and that DEC had submitted its original bid on 16.03.1994 and the final revised bid on 23.11.1994, concluded that for all this time, as well as on the date of issuance of Fax of Intent on 31.01.1995, the parties were ignorant about the levy and came to learn about it much after the contracts were signed by them. The learned Tribunal also referred to NRL's letter dated 21.02.1995, in response to a query made by DEC indicating, inter alia that import duty at the rate of 25 percent of CIF value of import was payable. It thus concluded that the amount of Rs. 16.56 crores ascertained to be payable by way of customs duty, port charges etc., in the price schedule did not include the sum paid for CVD. It thus concluded that the amount of Rs. 16.56 crores ascertained to be payable by way of customs duty, port charges etc., in the price schedule did not include the sum paid for CVD. It held that CVD was a levy not under the Customs Act, 1962, but under the Customs Tariff Act, 1975 and that NRL being unaware that CVD, was payable as on 21.02.1995, it would be iniquitous on its part to deprive its contractors from their legitimate dues. According to the learned Tribunal, the rejection of DEC's claim in the circumstances would amount to unjust enrichment of NRL. It also referred to Section 64A(I)(a) of the Sale of Goods Act, 1930 and Section 69 of the Contract Act, 1982 to uphold the claim of DEC. Referring to various documents including the Bills of Entry, evidencing registration of the contract with the Customs authorities and recognizing NRL to be the importer of goods, the learned Tribunal concluded that NRL was the importer of Overseas supplies and therefore, it was not open for to it to deny its liability as such. DEC was thus held to be entitled to an amount of Rs. 8.78 crores by way of reimbursement of payment of CVD by NRL. 110. The learned Court below, while, annulling the above determination observed that not only the direction issued for payment of CVD was in absence of any proof of such payment by DEC, the same was beyond the scope of the contract in face of the clear and unambiguous stipulations in the contract agreements saddling the contractor to bear the liability of all taxes and duties payable. In view of the said stipulation there was no scope for the Tribunal to consider the issue of payment of CVD or other taxes otherwise. It held that the imposition of CVD having come in to effect from 01.01.1995 i.e. before the issuance of the Fax of Intent on 31.01.1995, the conclusion that the parties were not aware of CVD as on that date, is untenable, more particularly, in absence of any admission of NRL to the said effect. As the bidders were supposed to get familiarized with all taxes, duties etc. payable and DEC having not raised any objection bearing on its liability to pay CVD, the conclusions to the contrary were flawed. 111. Assailing the deductions of the learned Court below, Mr. As the bidders were supposed to get familiarized with all taxes, duties etc. payable and DEC having not raised any objection bearing on its liability to pay CVD, the conclusions to the contrary were flawed. 111. Assailing the deductions of the learned Court below, Mr. Ganguly, has urged that none of those was construable to be a ground to interfere with the findings of the learned Tribunal as contemplated under Section 34(2) of the Act. The learned Senior counsel maintained that the Tribunal, having referred to the relevant documents in support of payment of CVD by DEC in upholding its claim, the observation to the contrary made by the learned Court is perverse. He contended that as the levy of CVD was not in existence at the time of the submission of DEC's bid, evaluation thereof and the Fax of Intent, the issue with regard to reimbursement of CVD paid by DEC on behalf of NRL for its imports was well within the purview of the contract, which the learned Tribunal had the jurisdiction to decide. Mr. Ganguly, in this connection has placed reliance on Section 64A of the Sales Tax of Goods Act, 1930. According to him, the conclusion drawn by the learned Tribunal amongst others from the letter dated 21.02.1995 of NRL that it had no knowledge of the levy of CVD as on that date being based on an evaluation of the materials available on record, the learned Court below acted beyond its jurisdiction to interfere with the same, in purported exercise of powers under Section 34 of the Act it not being a court of appeal. Referring to Clause 13.1 and 15.3 of ITB, the learned Senior counsel submitted that the bidders logically were required to indicate in their bids taxes and duties as were leviable on such date and DEC accordingly submitted its revised bid on 23.11.1994, which was finalized on 24.11.1994, being unaware of the levy of CVD and its was only in course of its first import much later that it was obliged to release the imported goods on payment of CVD on 21.02.1996. Mr. Mr. Ganguly emphasized that NRL being the importer of goods at all relevant times and DEC having paid the duties and taxes for the imports acting plainly as its agent, NRL being liable in law to make such payments, was required to reimburse DEC in terms of Section 69 of the Contract Act, 1872 as well. The learned Senior counsel, in course of the arguments clarified that CVD in the instant case came to be levied, vis-a-vis the imports involved only with effect from 16.03.1995 vide notification No. 48/95-CUS, dated 16.03.1995 and that reference to Section 9 and 9A of the Customs Tariff Act, 1975 and the starting premise that CVD was introduced with effect from 01.01.1995 as recorded in the arbitration proceeding, is erroneous. As Section 9 and 9A of the Customs Tariff Act, 1975 deal with levy of antidumping duty etc. those are not attracted in case of the imports by NRL under the present contract and thus the assumption that levy of CVD was with effect from 01.01.1995, is incorrect. The impost thus being obviously after the issuance of the Fax of Intent dated 31.01.1995, NRL was bound in law to reimburse DEC of the amounts paid by it by way of CVD. 112. In reply Mr. Roy, has argued that payment of CVD was enforced with effect from 01.01.1995 and therefore, following the sequence of events leading to the execution of the Contract Agreements on 11.04.1995 and 12.04.1995, it was the exclusive liability of Dec to make payment of the said duty. DEC under the various terms and conditions of the Contract Agreements having without any reservation taken upon itself, the obligation to pay all taxes and duties including the customs duties on imported items and the levy having come into force before the issuance of the Fax of Intent and the execution of the Contract Agreement, the question of reimbursing Dec for the amount payable as CVD does not arise, he urged. Mr. Roy, further contended that in the facts of the case CVD having been levied before the contract had been settled with DEC, Section 64 of the Sales of Goods Act, 1930, has no application and therefore the finding of the learned Tribunal is not only contrary to the terms of the contract but also is in contravention of the law of the country. 113. 113. The learned Senior counsel contended that NRL's letter dated 21.02.1995, is not of any decisive relevance, it not having conceded therein that CVD was not payable by DEC. The learned Senior counsel endeavoured to impress upon this Court that Dec having failed to obtain any licence for importing the goods necessary for execution of the contract, NRL lent its licence to it (DEC) and permitted the use of its (NRL) export import code number for customs clearance at Calcutta and any other Indian port and logically therefore in the Bills of Entry and other relevant documents the name of NRL appeared as the importer. He contended that thereby, NRL did not acquire the ownership of the goods, which continued to be with DEC till the same reached the site at Numaligarh. According to the learned Senior counsel, no embargo could be read in Section 7 of the Foreign Trade (Development and Regulation) Act, 1992, permitting utilization of the Import Export Code number of NRL by DEC and merely because NRL had lent its Import Export Code number to DEC for facilitating the imports, it could thus not be determinatively concluded that it (NRL) was the importer. Bearing in mind, the unmistakable and outright stipulations in the tender conditions and the Contract Agreements demonstrating DEC's solely responsibility for the payment of all duties and taxes including customs duty and DEC having quantified the total amount payable at Rs. 16.56 crores assimilated in the contract price, it was impermissible for it (DEC) to claim reimbursement of the amount paid by way of CVD on the imports. Mr. Roy, therefore emphasized that the learned Tribunal in deciding the issue in favour of DEC had acted against the Contract, as well as the prevalent law and therefore, the finding of the learned Court below on the issue is unassailable. 114. The rival submissions have received the due consideration of this Court. As the controversy has its roots in the statutory provisions referred to hereinabove, it would be apt to deal with those at the threshold. 114. The rival submissions have received the due consideration of this Court. As the controversy has its roots in the statutory provisions referred to hereinabove, it would be apt to deal with those at the threshold. Section 12 of the Customs Act, 1962 ordains that except as provided by the Act or any other law for the time being in force duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975 or in any other law for the time being in force on goods imported into or exported from India. Customs Tariff Act, 1975 had been enacted to consolidate and amend the law relating to customs duties. The Customs Tariff (Amendment) Ordinance, 1994, promulgated by the President on 31.12.1994 and published in the Gazette of India, Extraordinary Part II also on the same date, inter alia substituted Section 9 of the Customs Tariff Act, 1975. The substituted Section 9 provided for Countervailing Duty on subsidized articles upon importation thereof into India. Section 9 A dealt with antidumping duty on dumped articles. The Ordinance was declared to come into force with effect from 01.01.1995. Section 3 and 3A of the Customs Tariff Act, 1975 mandates imposition of additional duty and special duty on any article imported into India at the rates specified therein. 115. A conjoint reading of Section 3 and 3A, 9 and 9A of the Legislation, proclaims that each contemplates a distinctly different impost Countervailing Duty being envisaged in Section 9 of the Customs Tariff Act, 1975. Thus, in terms of the Ordinance, which subsequently got crystallized as the Customs Tariff (Amendment) Act, 1995 CVD was leviable on the imported articles specified therein with effect from 01.01.1995. 116. In course of the arguments, Mr. Ganguly, had produced two notifications bearing No. 91 /94-CUS, dated 01.03.1994 and No. 48/95-CUS, dated 16.03.1995. Whereas by the former "projects for refining of crude petroleum" alike the one involved, were exempted from payment of additional duty leviable under Section 3 of the Customs Tariff Act, 1975, by the latter the exemption was withdrawn, meaning thereby, that such duty relatable to the said projects become payable for that date. The notifications evidently refer to additional duty under the Section 3 of the Custom Tariff Act, 1975, and not the Countervailing Duty comprehended under Section 9 thereof. The notifications evidently refer to additional duty under the Section 3 of the Custom Tariff Act, 1975, and not the Countervailing Duty comprehended under Section 9 thereof. As the issue under consideration pertains to the liability of paying the Countervailing Duty, the aforementioned two notifications, according to us, are therefore of no assistance to the appellant-DEC. The levies additional duty, special additional duty, Countervailing duty and antidumping duty being different from each other with varying rates of impost, one cannot be identified with the other. The above narration thus proclaims that Countervailing Duty under Section 9 of the Customs Tariff (Amendment) Act, 1975, was leviable with effect from 01.01.1995. No notification has been produced before us to establish that the project involved was exempted from payment of CVD, the above legislative edict notwithstanding. We thus have to proceed on the basis that CVD in question, was payable for imported items for projects akin to one of NRL in the eventualities conceptualized in Section 9 of the Customs Tariff (Amendment) Act, 1975 with effect from 01.01.1995. 117. Reverting to the facts, the chronological march of events is not in dispute. DEC submitted its original bid on 16.03.1994, followed by its revised bid on 23.11.1994. Till then the Ordinance had not been promulgated. The Fax of Intent was thereafter issued on 31.01.1995. By then, however CVD had been levied by the Ordinance with effect from 01.01.1995. The Fax of Intent, inter alia disclosed the contract price with its components in Indian and foreign currencies. The effective date of contract in terms of Clause 3.1.3 of the GTCC was to be the date on which the notice of award of contract/letter of Intent was issued to the successful bidder i.e. on 31.01.1995 for the case in hand. This is, substantiated also by Clause 7.1 of the GTCC. Clause 17.1 of ITB required notification of award of contract to be made in writing to the successful bidder in the form of letter/telex of Intent to be formalized by a contract to be signed by both owner and the bidder. It was on 11.04.1995 that two Contract Agreements for the Overseas supplies and services and Indigenous supplies and services were executed. The Consolidated Agreement amalgamating the above two agreements was entered into on 12.04.1995. 118. It was on 11.04.1995 that two Contract Agreements for the Overseas supplies and services and Indigenous supplies and services were executed. The Consolidated Agreement amalgamating the above two agreements was entered into on 12.04.1995. 118. Irrefutably, the contractor under the tender and contractual stipulations was exclusively liable to pay all taxes, duties etc., including customs duties, as is evidenced amongst others by Clause 45 of the GTCC and Clause 2 (b) of the Consolidated Agreement dated 12.04.1995. The price schedule and agreed deviations and stipulations, as well as the bid documents along with technical specifications, inter alia were agreed to form a part of the contract agreements for Overseas and Indigenous supplies and services. These two agreements as observed hereinabove, had been integrated into the Consolidated Agreement dated 12.04.1995. Though, both the agreements dated 11.04.1995 catalogued items of modifications of some clauses of the GTCC, the provisions bearing on the tax liability of the Contractor remained untouched. Admittedly, DEC had quoted an amount of Rs. 1,65,600,000/- towards customs duty, port charges etc. for all items of import within the purview of Overseas supplies. None of these contract agreements evinced any reservation on the part of DEC to discharge its liability towards payment of taxes and duties. This assumes importance as in the meantime, with effect from 01.01.1995, CVD had been imposed by the Ordinance. As a matter of fact, in the Consolidated Agreement executed on 12.04.1995, Dec acknowledged its sole responsibility of paying taxes and duties in respect of works entrusted to it. No modification whatsoever was suggested by it regarding its above liability, though the parties had consented to some relating to other aspects of the contract. 119. Clause 12.1 and 12.2 of ITB, read together disclose that it was made imperative for the bidders to fully inform themselves of all local conditions and factors, which may have a bearing on the execution of the works. They were asked to get familiarized with the Income Tax Act, 1961, The Companies Act, 1956, Customs Act, 1962 and other related Acts and laws prevalent in India and also in the State of Assam. It was clarified that the owner would not entertain any claim for financial adjustment to the contract awarded presuming that such factors had been properly investigated and considered while submitting the bids. It was clarified that the owner would not entertain any claim for financial adjustment to the contract awarded presuming that such factors had been properly investigated and considered while submitting the bids. It was, while, quoting the price, the bidder was required to indicate amongst others lump-sum charges on account of customs duty, port charges etc. for imported equipments and materials. 120. Clause 15 of ITB made it obligatory for the contractor to pay all customs duties and levies including the stamp duty and import licence fees levied on the imported equipments by the Govt, of India or the concerned State Government. All such customs duties and levies payable on components, sub-assemblies and raw materials were to be included in the price. Both in the case of foreign and domestics bids, sales tax, local tax and other levies in respect of transaction between the owner and the contractor under the contract, if any, was to be included in the bid price and indicated separately wherever applicable. 121. Clause 4 of GTCC, required the contractor to carefully examine all contract documents to his entire satisfaction. Clause 12 defined "contract" price as the total of the prices quoted by the contractor in his bid with additions and deletions as may be agreed before signing of the contract for the entire scope of works. That the prices quoted in the entire scope of work would remain firm and fixed till completion of execution of the work is demonstrated by Clause 14.1. of ITB. 122. In the above background of the tender stipulations and contractual covenants in our view, DEC was necessarily required to be appropriately watchful and vigilant in undertaking its responsibilities thereunder. As alluded hereinabove, NRL, in reply to DEC's query about the duties, taxes and levies in force in the country by its letter dated 21.02.1995, while advising DEC to verify the existence of the levies/imposts conveyed amongst others that import duty at the rate of 25% of C1F value of import was payable. Though, much emphasis has been laid on this letter on behalf of DEC, considering the tenor thereof, we do not feel persuaded to attach much value thereto, in favour of the contractor. The contents of letter by no means suggest any concession on the part of the NRL that on that date CVD was not payable on the imports. Though, much emphasis has been laid on this letter on behalf of DEC, considering the tenor thereof, we do not feel persuaded to attach much value thereto, in favour of the contractor. The contents of letter by no means suggest any concession on the part of the NRL that on that date CVD was not payable on the imports. On the other hand, DEC by letter dated 16.02.1996, addressed to NRL had expressed its readiness to pay customs tariff and CVD on all reasonable amounts. 123. True it is that on the date of submission of its original and revised bids on 16.03.1994 and 23.11.1994 respectively and the evaluation thereof, 24.11.1994, the levy of CVD had not been made effective, but considering the dates of the Fax of Intent and the contract agreements together with the tender conditions, we consider it impermissible to discharge DEC from its liability to pay the CVD. As it is, ignorance of law ignorantia no excusat, is no excuse, CVD, having been levied with effect from 01.01.1995, before the effective date of contract i.e. 31.01.1995, we are of the considered opinion that in terms of the tender stipulations and the contractual undertakings, DEC is exclusively liable to pay the CVD along with all other taxes, duties and levies. In the above premise Section 64A of Sales of Goods Act, 1930 is of no avail to DEC. The levy being payable before the effective date of contract on an analogy of reasonings Section 69 of the Indian Contract Act, 1872 as well does not come to the rescue of Appellant. The learned Tribunal in our view, while, upholding the Appellant's claim, had acted in breach of the letter and spirit of the tender conditions and contractual provisions. The application of 64 A of the Sales of Goods Act, 1930 and Section 69 of the Indian Contract Act, 1872 to sustain the claim of DEC has been erroneous as well. The finding of the learned Court below, is therefore upheld for the reasons scripted hereinabove. Issue D 124. Is the claimant entitled to claim any amount of excess customs duty due to fluctuation in Exchange Rate in view of the express terms of the agreements entered into by and between the parties? 125. The finding of the learned Court below, is therefore upheld for the reasons scripted hereinabove. Issue D 124. Is the claimant entitled to claim any amount of excess customs duty due to fluctuation in Exchange Rate in view of the express terms of the agreements entered into by and between the parties? 125. The pleaded assertion of the Appellant-Dec, is that the bidders were required to separately indicate the customs duty component leviable on the items to be imported. The said duty component could be assessed at the time of bidding based on the CIF value of the imported items, which were also required to be separately indicated in the bid along with the prevailing rate of conversion of the foreign exchange to Indian rupee. Due to delay in imports for reason attributable to NRL and consequential variation in the conversion rate of the foreign exchange in Indian rupees, the import value of goods in Indian rupees stood enhanced and resultantly, the customs duty component also increased. In the Situation Report (I) dated 07.03.1996, DEC invited the attention of NRL to the above phenomena indicating the Exchange Rate of US $ 1 = Rs. 36.28 and DM 1 = Rs. 25.16 as prevalent on 26.02.1996 compared to the value of US $ 1 = Rs. 31.61 and DM 1 = Rs. 20.36 as on the date of evaluation of the bid on 24.11.1994. DEC contended that as a result though, customs duty in terms of the prevailing Exchange Rate as on 24.11.1994, was calculated to be Rs. 12,55,50,238/-, due to the fluctuation in the Exchange Rate an amount of Rs. 14,64,24,096/- was actually paid by it. DEC, sought reimbursement of the difference in amount of Rs. 2.09 crores. 126. NRL, has contested the claim by contending that being a Turnkey project, the price determined by the parties was agreed to remain firm and except a provision regarding increase in cost, no escalation clause was incorporated in the contract to entertain such claim. It maintained that as the parties were aware about the fluctuation in the conversion rate, DEC must have taken into consideration the above, while submitting its offer in respect of imported items and accordingly, a sum of Rs. 16.56 crores was determined to be the amount payable towards customs duty, port charges etc. which formed a part of the contract price. 16.56 crores was determined to be the amount payable towards customs duty, port charges etc. which formed a part of the contract price. Neither in the GTCC nor in the Overseas contracts dated 11.04.1995 or the Consolidated Agreement dated 12.04.1995 any provision was incorporated to deal with any fluctuation is the conversion rate. The liability to pay customs duty, fluctuation of conversion rate notwithstanding remained with the contractor. 127. The learned Tribunal being of the view that the fluctuation in Exchange Rates was a global event beyond the control of the contracting parties held that customs duty was payable at the rate as prevailing on the date of the actual importation. It held the view that NRL was the importer of the Overseas goods and that customs duty was paid by DEC on its behalf. It being the primary duty of NRL as the importer to pay the customs duty, it was required to bear the additional burden due to fluctuation in conversion rate. It therefore, upheld DEC's claim of Rs. 2.09 crores paid as excess customs duty on behalf of NRL. 128. The learned Court below did not deal with this issue in particular but observed in conformity with the NRL's assertion that the contract price being firm, the learned Tribunal could not have awarded any additional amount by enlarging the scope of the contract agreement. It having interfered with the award as a whole understandably also annulled the Tribunal's decision on the issue. 129. Mr. Ganguly, has argued that Dec having been required to pay an amount of Rs. 2.09 crores in excess consequent upon the fluctuation in the conversion rate, not in anticipation on the date of evaluation and finalization of its bid on 24.11.1994, the learned Tribunal had rightly sustained the claim. Referring to the decision of the Apex Court in Tarapur and Co. v. Cochin Shipyard Ltd. (1984) 2 SCC 680 , the learned Senior counsel urged that even in a fixed price contract involving large scale imports warranting payment in foreign exchange, the contractor is entitled to reimbursement of the expenses incurred due to escalation in conversion rate of foreign exchange involved. 130. In reply Mr. Chakraborty, has argued that the claim is not consonance with the terms of the contract involving a Turnkey project. 130. In reply Mr. Chakraborty, has argued that the claim is not consonance with the terms of the contract involving a Turnkey project. As Dec had agreed to execute the work at a lump-sum, in absence of any escalation clause in the contract agreements, entertainment of its claim founded on a fluctuation in the conversion rate would be destructive of the very concept of Turnkey project. Moreover, the same would be clearly opposed to Clause 14.1 of ITB underlining firmness of the price quoted during the execution of the works. To buttress his arguments, the learned Counsel led us through the tender's stipulations and relevant contractual provisions. Mr. Chakraborty was further critical about the Tribunal's determination holding NRL to be the importer. According to him, NRL had lent only Import Export Code number to facilitate the procurement of the Overseas supplies but the title therein, as evidenced by the contract continued to remain with DEC till the delivery thereof, at the project site at Numaligarh. The learned Tribunal having left out of consideration the relevant tender conditions and the contractual covenants in arriving at its conclusion, the learned Court below rightly interfered with same. DEC having been continued to be the owner of the goods imported till delivery at the project site at Numaligarh, the liability to pay the customs duty remained with it before such delivery and therefore by no means NRL could be held to be obliged to meet the claim ensuing from variation in the conversion rate, he urged. 131. We have lend our thoughtful consideration to the rival submissions. NRL in its reply to the DEC's statement of claim, though, denied its liability iterating that the amount of customs duty etc. having been fixed fluctuation in the conversion rate was immaterial, did not deny DEC's assertion of actually making the excess payment as claimed. NRL only maintained that the rates for customs duty, port charges etc. were quoted by DEC and the same having been accepted by NRL, it could not be made liable to pay any excess amount due to fluctuation in the foreign exchange rates, more particularly, in absence of any escalation clause in the contract agreements. It is, however, not in dispute that DEC, had determined the amount payable as customs duty, port charges etc. It is, however, not in dispute that DEC, had determined the amount payable as customs duty, port charges etc. on the basis of the conversion rates prevailing on or around 24.11.1994, when its bid was evaluated and finalized. 132. A brief reference of some clauses in the tender documents and the contract agreements would provide a better insight into the controversy. The parties are in agreement that the project in question is a Turnkey project and that except a provision relating to increase in cost neither the tender conditions nor the contractual provisions either contained any escalation clause or envision the same. Clause 4 of GTCC required the contractor to carefully examine all contract documents and obtain necessary clarifications from the consultant before signing the contract. Clause 15 of ITB enjoined that customs duties or levies including stamp duty and import licence fee levied on the imported equipments would be paid by the Contractor and all such duties and levies payable would be included in the price. Clause 13 of ITB, required the bidders to quote their price for the entire scope of work on divisible contract basis indicating the breakups detailed therein to facilitate quoting of lumpsum charges on account of customs duty, port charges for imported equipments and materials. The contractor under Clause 16 of GTCC was to arrange secure and maintain insurance as may be necessary to its full value for all such amounts to protect the work in progress from time to time and the interest of the owner against all risks. It provided that any loss or damage to the equipments, during ocean transportation, port/customs clearance, inland and port handling, inland transportation etc. till such time such work is taken over by the owner shall be in the account of the contractor. All cost on account of insurance liabilities covered under the contract was to be in the contractors' account and included in the contract price. The cost of transit insurance of all items to be transported to the contractor to the site of work was to be borne by him and the quoted price was to be included in the cost. All cost on account of insurance liabilities covered under the contract was to be in the contractors' account and included in the contract price. The cost of transit insurance of all items to be transported to the contractor to the site of work was to be borne by him and the quoted price was to be included in the cost. Clause 30.1 of GTCC predicated that the title of ownership of supplies furnished by the contractor would pass on to the owner on receipt of equipment/materials at site and that the contractor would remain the sole custodian on behalf of the owner for all supplies till the equipments were finally accepted by the owner after the successful completion of performance and guarantee test and issuance of final acceptance certificate. 133. Apart from Clause 14.1 of ITB, which prescribed that the price quoted for the entire scope of work would remain firm and fixed till the completion of the work, the said diktat was reiterated in the Fax of Intent dated 31.01.1995. Clause 3 (viii) of the Consolidated Agreement reaffirmed the same. The provisions of the said agreement were construed to be supreme having an overriding effect in case of any conflict with any provision contained in the documents annexed thereto. 134. A cumulative reading of the above provisions makes it apparent that the bidders were required to quote their price indicating the charges for the different heads for different items of work with the clear understanding that the same would remain firm for the period of execution thereof subject to any stipulation otherwise, as categorically countenanced by the tender conditions and the contractual provisions. 135. In Pure Helium India v. ONGC 2003 (8) Scale 553 , the parties had entered into a contract for supply of Helium Diving Gas. The Appellant's bid, which was found to be the lowest at Rs. 150 per cubic meter, had a foreign exchange component of US $ 5. After negotiations, the Appellant lowered its offer to Rs. 149/- per cubic meter out of which US $ 4.60 was foreign exchange component. Consequent upon increase in the price of US $ the Appellant claimed the difference of price of US$ as on the date of the contract and the date of supply. The claim was rejected by the Respondent whereafter the arbitration agreement was invoked. 149/- per cubic meter out of which US $ 4.60 was foreign exchange component. Consequent upon increase in the price of US $ the Appellant claimed the difference of price of US$ as on the date of the contract and the date of supply. The claim was rejected by the Respondent whereafter the arbitration agreement was invoked. The arbitrators held the Respondent to be liable to compensate the Appellant for the exchange rate fluctuation together with interest on the sum assured. It was inter alia contended on behalf of the Respondent before the Apex Court that the bid price for supply of Helium Gas being firm in terms of the contract, the Appellant was not entitled to any escalation in the price and, therefore, its claim if accepted would be opposed to the clause in the contract prohibiting such escalation. Admittedly the price was agreed upon to remain firm under the contract. 136. The Apex Court observed that the terms of the contract can be expressed or implied and that the conduct of the parties would be a relevant factor in the matter of construction thereof. On the competence of the arbitrator to interpret the contract, it ruled that the construction of a contract agreement is within the jurisdiction of the learned arbitrator. Having regard to the nature, scope and ambit of the arbitration agreement, the arbitrator could not be said to have misdirected themselves in passing the award by taking into consideration the conduct of the parties as also the circumstantial evidence. 137. The Apex Court in the contextual facts held that the Appellant in making the claim did not seek any enhancement in the price and only demanded the difference in sum that had ensued owing to the fluctuation in the rate of dollar. It held the view that the Appellant had quoted the foreign exchange component in its bid in terms of the notice inviting tender being asked for by the Respondents for a definite purpose. The contract between the parties therefore must be construed keeping in view the fact that the fluctuation rate in response to dollar was required to be kept in mind by the Respondents having regard to the fact that the tender was global in nature and that in case the Respondents were required to pay in foreign currency the same would have an impact on the cost factor. The Apex Court concluded that the Appellant's claim did not in the facts of the case violate Clause 2.6, which prohibited escalation. Noticing that the arbitrators had decided the issue on their interpretation of the contract, the Apex Court also disapproved the approach of the High Court in interfering with the decision on a re-appreciation of the provisions thereof. 138. In Tarapur and Co. v. Cochin Shipping yard limited, Cochin and Anr. (1984) 2 SCC 680 , the Respondents invited tenders for Building Dock and Repair, Dock at Cochin. The value of the works to be executed was over Rs. 24/-Crores. The Appellant submitted its tender for Building Dock and also for the Repair. The tender committee awarded the work to the Appellant which was expected to invest Rs. 21- crores for importing pile driving equipments and technical know how fees. The parties accepted the arrangement that the contractor would import the same on the fundamental assumption that the investment would be to the tune of Rs. 21-crores. Due to variations in the rate of exchange, the cost equipment, customs duty and technical know how fees rose for which the Appellant had to incur extra expenditure. The Respondent rejected the claim for compensation registered by the Appellant on that count. The dispute being referred to arbitration, the arbitrator held that the claim was within the purview of the arbitration clause and that the Appellant was entitled to the compensation claimed. 139. The High Court while entertaining the Respondents appeal held that even though the arbitration clause was very wide, the dispute as to the compensation for increase in the cost of imported pile driven equipment and the technical know how fees was not covered by the arbitration clause inter alia on the ground that by Clause 26 of the general conditions of contract, every plant, machinery and equipment had to be provided by the contractor and any rise in the escalation of the price on such equipment or machinery could not be the subject matter of compensation by the Respondents. The High Court, therefore, construed Clause 26 to be a bar on the Appellant's claim. The Apex Court on an appreciation of the attendant facts was of the view that the Appellant whose tender was accepted after negotiations and scrutiny by the tender committee was expected to invest Rs. The High Court, therefore, construed Clause 26 to be a bar on the Appellant's claim. The Apex Court on an appreciation of the attendant facts was of the view that the Appellant whose tender was accepted after negotiations and scrutiny by the tender committee was expected to invest Rs. 2.0 crores for importing pile driving equipments and technical know how fees and if in the final written contract, there is something contrary to the basic understanding during the formative stage of the contract, the written contract would prevail. It observed that if the contract, however, do not indicate anything to the contrary and the basic assumption appear to be the foundation of the contract then obviously that aspect cannot be overlooked while determining the obligations undertaken under the formal contract. It held that the primary foundation of the contract i.e. the assumption of investment of Rupees two crores by the Appellant was not left to guess work and it was clearly understood by the parties that the Appellant would have to invest the above amount in the foreign exchange for the import without which neither the work would have been entrusted to him nor permitted to be undertaken. The Apex Court observed that the Appellant when it quoted its terms must obviously have made appropriate calculations inter alia that it would have to invest Rs. 2.0 crores in foreign exchange and, therefore, rates quoted by it were obviously inter related to this basic assumption. 140. Negating the Respondent's contention based on the relevant clauses of the contract to emphasize that the Appellants claim for compensation for additional expenditure on the imported plant and machinery and technical know how was untenable, the Apex Court held that the same would signify over simplification of the said clause involving works of such magnitude. It ruled that the whole gamut of discussions, negotiations and correspondences ought to be taken into consideration to arrive at a true meaning of what was agreed to between the parties. As the parties had agreed that the investment of the contractor under this head would be Rs. 2. crores and the tender rates were predicated upon and correlated to this understanding, on the cessation on the said agreed fact situation, the agreement to that extent became irrelevant or otiose. As the parties had agreed that the investment of the contractor under this head would be Rs. 2. crores and the tender rates were predicated upon and correlated to this understanding, on the cessation on the said agreed fact situation, the agreement to that extent became irrelevant or otiose. The rates having thus become irrelevant on account of such circumstances beyond control of the contractor, it was open for it to make a claim for compensation, it ruled. 141. This decision is an authority on the point that if the fundamental foundation of a contract to which the parties thereto have consciously acted upon gets altered or extinct due to developments unforeseen and beyond the control of the parties, the agreement bearing on the related covenant looses its binding effect and on establishment of the justification of resultant claim the same would be tenable in law. 142. Noticeably there is no express provision in the bid documents or the contract agreements debarring escalation of the cost price or price of any component thereof under any circumstance. Unmistakably DEC and TT had quoted their rates for various items of work as prevalent on the date of their offer. Likewise, the amount payable by way of customs duty, port charges and other taxes payable for the project was quantified on the basis of the rates thereof and the foreign exchange conversion rates in force on that date. The figure Rs. 165,600,000/- was thus worked out on the basis thereof. DEC and TT having decided to participate in a global tender, they could not have afforded to inflate their offer which essentially had to be competitive. The sum earmarked for taxes, levies and duties including customs duty form an integral part of the contract price. That the conversion rate of US $ 1= Rs. 31.61 and DM 1= Rs. 20.36 as on 24/11/1994 had mounted to US $ 1= Rs. 36.28 and DM 1= Rs. 25.16 on 26/2/1996 is not denied. Unmistakably the escalation was beyond the control of the contractors. As determined by us, NRL was the importer of the overseas items and, therefore, under the law, it was its primary liability to pay the customs duty thereon. Such a duty being statutorily levied and compulsorily payable, no option was available to the parties to avoid the same. 143. Unmistakably the escalation was beyond the control of the contractors. As determined by us, NRL was the importer of the overseas items and, therefore, under the law, it was its primary liability to pay the customs duty thereon. Such a duty being statutorily levied and compulsorily payable, no option was available to the parties to avoid the same. 143. The facts are similar to those in Helium Diving Gas, supra, where inspite of a clause debarring escalation, the claim of the Appellant therein for the difference in the price due to increase in the $ price was sustained. We see no reason, in the face of the resounding determination of the Apex Court therein to take a different view. DEC and TT had quoted their price on the basis of rates prevalent as on date of offer. The same was accepted and finalized. As with the passage of time, the fact situation on which the contract founded ceased to exist, they cannot be inflexibly held to the stipulations thereof. The covenant of a firm price would thus loose significance once the situation existent on the date of offer and during the execution of the contract undergo a change. In our view, therefore, the Tribunal's decision on the issue is based on a correct appreciation of the facts and cannot be dismissed as illogical or preposterous. Its deductions cannot be dismissed in view of the judicial expositions as above to be either illegal or against the contract. 144. Issue E (i) Was there any delay regarding approval of any Engineering Design? (ii) Is the "status of delayed approval" annexed to the Rejoinder of the claimant correct? (iii) Is the purported claim for delay of 929 days (as stated in the claimants letter dated 26/6/1996 and replied by the Defendant in its letter dated 23/10/1996) correct? (iv) Did the claimant submit incomplete drawings to Engineers India Limited, which were returned for resubmission with necessary corrections? (v) Is the claimant entitled to a sum of Rs. 8.9 crores as liquidated damages? If not, to what extent? 145. The Appellant DEC has pleaded that the contract was a time bound one which provided that the party responsible for the delay would be liable to pay damages to compensate the other party. (v) Is the claimant entitled to a sum of Rs. 8.9 crores as liquidated damages? If not, to what extent? 145. The Appellant DEC has pleaded that the contract was a time bound one which provided that the party responsible for the delay would be liable to pay damages to compensate the other party. The contract required the performance of respective obligations by the parties within the time frame and NRL having failed to do so, DEC became entitled to payment of damages on account of delay on several counts. The Appellant preferred its claim under six heads in its Revision of Project and Time (for short also as RPCT) dated 31/5/1996 for Rs. 8.9 crores. It referred to its letter dated 15/5/1996 providing a summary of delayed approval of design and engineering upto 31/3/1996 together with a chart of item wise delay. Relying on Clause 18 and 22 of GTCC and Clause 3(h) of the consolidated agreement, DEC restricted its claim to 5% of the contract price and by applying the conversion rates for US $ and DM quantified its claim to be 8.9 crores. In its said claim, DEC also referred to delays caused due to lack of infrastructure and schedule delay. It in its Situation Report IV dated 14/7/1997 submitted a summary of delay caused in Quality Assurance Plan (for short also QAP) approval as on 31/3/1997. DEC in its statement of claim before the International Court of Arbitration registered a claim for the aforementioned amount referring to the above delays. 146. NRL in its reply dated 20/9/1997 in the arbitral proceedings denied and disputed the allegation of delay in drawings and QAP approvals by its consultant. It asserted that DEC had submitted incomplete drawings due to which EIL had to return the same for resubmission and, therefore, delay, if any, was on account of DEC. According to NRL, application of Clause 18 of GTCC meant for working out liquidated damages on account of contractor's delay was ex-facie wrong. In view of Clause 10 of the consolidated agreement dated 12/4/1995 ordaining the same to be supreme with overriding effect, DEC's claim was not entertainable as it had failed to demonstrate that there was a delay on the part of NRL and that the same had resulted in the increase in the cost of the project. 147. In view of Clause 10 of the consolidated agreement dated 12/4/1995 ordaining the same to be supreme with overriding effect, DEC's claim was not entertainable as it had failed to demonstrate that there was a delay on the part of NRL and that the same had resulted in the increase in the cost of the project. 147. The learned Tribunal while dealing with the issue took notice of the DEC's contention that delay had occurred amongst others due to delay in opening of Letter of Credit, approval of design and drawing and Quality Assurance Plan as well as in making progressive payment of running bills etc. Though under the oversees agreement, NRL was required to open the LC within three weeks of the signing of the contract or furnishing of bank guarantee in the agreed form, it not only procrastinated in providing the agreed form for such guarantee, the LC established on or about 22/11/1995 belatedly was also found to be ineffective and non-negotiable. NRL eventually got the same amended on 24/8/1996 by removing the deficiency. Therefore bearing in mind the date of the contract agreement i.e. 12/4/1995 there was a delay of eleven months in the matter of opening of LC. The learned Tribunal also noticed DEC's grievance with regard to NRL's delays in opening LC in respect of T Ts supply portion for 11.5 months and TT's service portion for 27.5 months. It referred to the evidence on record to take into account DECs contention of ten months delay in opening of LC for its (DEC) system design and engineering portion and 30 months delay for its service portion. It also referred to DEC's letter dated 15/5/1996 and Situation Report IV dated 14/7/1997 setting out the delay in approval of design and engineering and Quality Assurance Plan. Delay in making progressive payments of running bills with reference to Clause 48.4 of GTCC was also taken note of. It also referred to the documents produced recording delayed payment in respect of off-shore portion and onshore portion totaling 1267 days. Delay under the following broad heads was considered. 1. 9 months delay in transporting gas turbine transporters. 2. Delay in payment of RA bills. 3. Delay in approval of drawings. 4. Delay in opening/amending LC. 5. Delay in taking decision as to transfer of US $ 6 m. 6. Delay in Quality Assurance Plan approval. 148. Delay under the following broad heads was considered. 1. 9 months delay in transporting gas turbine transporters. 2. Delay in payment of RA bills. 3. Delay in approval of drawings. 4. Delay in opening/amending LC. 5. Delay in taking decision as to transfer of US $ 6 m. 6. Delay in Quality Assurance Plan approval. 148. NRL's contention that DEC had failed to produce any evidence of delay and that the same had led to the increase in the cost thus disentitling it from claiming any compensation was also considered. The learned Tribunal also noticed the DEC's denial of NRL's allegation of submission of incomplete drawings and the plea that correctness of the charts disclosing the delay had not been disputed by NRL at any point of time. It also recorded DEC's contention that the provision for liquidated damages contained in the contract had been invoked for the purpose of confining its claim to the upper ceiling limit. 149. The learned Tribunal was of the view that the contractual provisions having a bearing on the issue ought to be construed reasonably and that although a similar provision akin to Clause 3(ii) of the consolidated agreement applicable for the contractors delay was not available in the event of owners delay, such a clause could be presumed in law to exist in favour of the contractor as well. It accepted DEC's contention of NRL's delay of 11 months in opening the LC on 24/8/1996 for which it (DEC) had to suffer. It also accepted the item wise delay of 929 and 1961 days in approval of designs and Quality Assurance Plan respectively and on a verification of the overlapping period returned a finding that there was a total delay of 17 months under the above two heads. The learned Tribunal approved DEC's claim of delay of 1267 days in payment of its bills in contravention of Clause 48.4 and 48.5 of GTCC. It also recorded a finding that NRL had not been able to make out a case that the DEC's documents on the above claims were either incomplete or that the particulars of delay reflected therein were incorrect. The learned Tribunal took on record that the works, which were originally scheduled to be completed on 31/1/1997 had spilled over that date and that the project was eventually handed over in November, 1999, after a delay of two years and nine months. The learned Tribunal took on record that the works, which were originally scheduled to be completed on 31/1/1997 had spilled over that date and that the project was eventually handed over in November, 1999, after a delay of two years and nine months. It, however, for the purpose of deciding the issue restricted the delay upto 31/3/1998. 150. In other words, the learned Tribunal held the view that because of the delay under the above heads, the execution of the project got deferred by 14 months beyond 31/1/1997. While rejecting the NRL's contention that DEC had failed to prove its case, the learned Tribunal concluded that the particulars of delay furnished by DEC had not been specifically denied by NRL. It rejected NRL's contentions in face * of the documentary evidence on record and held that NRL had not been able to controvert the period of delay disclosed thereby. Considering the delay on different counts as above, the learned Tribunal held that by applying Clause 18 of the GTCC read with Clause 3(ii) of the consolidated agreement, the contractor for the period of 56 weeks i.e. 14 months would be entitled to 28% of the contract price which would far exceed the amount claimed by DEC. While rejecting the NRL's contention that DEC had submitted incomplete drawings necessitating resubmission thereof with essential corrections, it awarded Rs. 8.9 crores as damages to the Appellant. 151. The learned Court below overturned the decision of the learned Tribunal on the issue observing that the ascertainment of delay of 929 days was per se wrong as even if counted from the date of the Fax of Intent i.e. 31/1/1995 till the date of claim i.e. 26/6/1996, the number of days in between would be less. According to it, the demonstrable and reasonable compensation could not have been construed to be 5% of the contract price and that in sustaining DEC's claim, the learned Tribunal had acted in contravention of the consolidated agreement and the GTCC. Further in absence of any evidence in support of the claim or any loss suffered by DEC, the issue ought to have been decided against it (DEC). 152. Mr. Further in absence of any evidence in support of the claim or any loss suffered by DEC, the issue ought to have been decided against it (DEC). 152. Mr. Ganguly has assertively urged that the conclusions recorded by the learned Tribunal being based on the materials on record which manifestly establish that NRL had never questioned either the delay in the execution of several items of work for its or its consultant's fault and that the cost of the project had increased thereby, the finding of the learned Court below to the contrary is per se unsustainable in law. The learned Court below having failed to notice that the learned Tribunal while upholding the Appellant's claim had taken note of the overlapping periods vis-a-vis delay of NRL under several heads, its observations qua delay of 929 days in the approval of the engineering and design is erroneous, he urged. The learned Sr. Counsel contended that having regard to the materials on record, it was apparent that the execution of the project was delayed by two years and nine months and, therefore, the learned Tribunal's decision to restrict DEC's claims for a delay of only 14 months cannot be faulted with. The parties having given to themselves a formula prescribed by Clause 18 of GTCC read with Clause 3(ii) of the consolidated contract, considering the same to be reasonable on account of the contractors delay, the learned Tribunal's view that the same furnished an equally acceptable basis for awarding compensation in favour of the Contractor for delay on the part of the owner is in accord with the fundamental principles, of interpretation of the contracts and, therefore, is unassailable. The learned Tribunal having found that by applying the said norm, considering the delay, the amount of compensation worked out would be much higher than that claimed by DEC, it confined the relief claimed by the Appellant. 153. The learned Sr. The learned Tribunal having found that by applying the said norm, considering the delay, the amount of compensation worked out would be much higher than that claimed by DEC, it confined the relief claimed by the Appellant. 153. The learned Sr. Counsel in course of the arguments copiously referred to the documents pertaining to opening of LC for design and engineering and the procurement for DEC and TT, conversion of US $ 6 m, QAP approval, engineering and design approval and progressive payments of R/A bills to contend that the same demonstrably established that the delay reflected thereby have been occasioned by the indifference and inaction of NRL resulting in rise in cost of the project for which the Appellant DEC was legitimately entitled to the amount claimed by it. Referring to the decisions of the Apex Court in Union of India v. Raman Iron Foundry (1974) 2 SCC 321 and KM. Kamaluddin Hansari v. Union of India (1983) 4 SCC 471, the learned Sr. Counsel urged that in terms of the Indian Law even if there is a stipulation in the contract for payment of liquidated damages, a party complaining breach of such contract by the other party can recover only reasonable compensation, the stipulated amount being the outer limit thereof. No difference therefore exists in a given case if the aggrieved party claims liquidated or unliquidated damages for breach of contract by the other party. According to him, in every case of breach of contract, the person aggrieved thereby is not required to prove actual loss or damage to claim compensation and a court would be competent to grant the same even if no actual damage have been proved to have been suffered in consequence of such breach. Mr. Ganguly to reinforce this contention pressed into service the decision of the Apex Court in Maula Bux v. Union of India (1969) 2 SCC 554 . 154. Adequate materials have been brought on record in the arbitral proceedings to establish that by reason of inordinate delay in the performance of contractual obligations by NRL, the execution of the project got delayed and that the cost thereof got inflated, he argued. Mr. 154. Adequate materials have been brought on record in the arbitral proceedings to establish that by reason of inordinate delay in the performance of contractual obligations by NRL, the execution of the project got delayed and that the cost thereof got inflated, he argued. Mr. Ganguly urged that DEC having brought to the notice of NRL, the particulars of the delay and the reason therefore from time to time resulting in escalation of project cost and the learned Tribunal being satisfied on the basis thereof that DEC was entitled to compensation therefor, it was permissible for it to adopt the course as done, the parties to the contract having provided the yardstick therefore for the delay by contractor though, considering the same to be just. The learned Tribunal having selected to adopt the formula prescribed for assessing liquidated damages to restrict DEC's claim to rational limits, it acted in consonance with law being fully alive to the contractual stipulations, he asserted. 155. Mr. Ganguly contended that the decision of the Apex Court in ONGC v. Saw Pipes (2003) 5 SCC 705 , had no application in the instant case, the contextual facts being different. In the reported decision, the arbitral tribunal ignored the contractual term for payment of liquidated damages which the parties had agreed would be payable to the aggrieved party in the event of the breach of contract by the other party. As the learned Tribunal in that case had acted contrary to the well settled law that the aggrieved party who was otherwise entitled to an award of the said liquidated damages was not required to prove the actual loss or damage, the award was interfered with as it suffered from a jurisdictional error. The ratio of ONGC, supra, therefore, according to the learned Sr. Counsel, could not be invoked to assail the present award. 156. Mr. Roy in reply while contending that the Appellant, DEC had miserably failed to establish that there had been any delay as alleged, and that the same if at all was on account of NRL resulting in an increase of cost, the learned Tribunal acted in breach of the relevant contract stipulations rendering its decision on the issue nonest in law. Roy in reply while contending that the Appellant, DEC had miserably failed to establish that there had been any delay as alleged, and that the same if at all was on account of NRL resulting in an increase of cost, the learned Tribunal acted in breach of the relevant contract stipulations rendering its decision on the issue nonest in law. The parties having agreed to a particular mode of computation of compensation in case of delay on account of the owner as is envisaged in Clause 22.1 and 22.2 of GTCC, the learned Tribunal acted in contravention of the letter and spirit of the tender conditions more particularly Clause 18 of the GTCC and Clause 3(ii) of the consolidated agreement dated 12/4/1995 in sustaining the claim of DEC. There being no reference of increase in the project cost either in the issues or in the pleadings or the documents relied upon by DEC, the essential pre-condition for invoking Clause 22.2 of the GTCC to examine DEC's claim for compensation being nonexistent, the learned Tribunal in awarding the contractor's claim acted in transgression of the fundamental principles of adjudication. As the arbitration procedure has to be in accordance with the contract agreement, the award in breach thereof is unsustainable in law, he urged. This is more particularly in view of Clause 10 of the consolidated agreement which proclaim the same to be supreme with overriding effect. 157. Mr. Roy contended that the documents produced in support of the DEC's claim being disputed and having regard to the categorical denial thereof by the NRL in its written statement, the findings of the learned Tribunal in favour of the claim in absence of any evidence of increase in cost of the project is perverse. The assumption by the learned Tribunal that even in absence of any provision similar to Clause 18 of the GTCC and Clause 3(ii) of the consolidated agreement to deal with claims arising out of delays on account of the owner, the existence thereof could be presumed therefore has no basis, he urged. As the same has the potential of rewriting the contract, the decision of the learned Tribunal on the issue based thereon, is illogical and perverse and, therefore, was rightly interfered with by the learned Court below. As the same has the potential of rewriting the contract, the decision of the learned Tribunal on the issue based thereon, is illogical and perverse and, therefore, was rightly interfered with by the learned Court below. The decision of the learned Tribunal on the issue being based on an unsound proposition of law, the learned Court below rightly held the same to be contrary to the provisions of the contract envisaged under Section 28(3) of the Act. The following decisions of the Apex Court were relied upon by the learned Sr. Counsel: Associated Engineering Co. v. Government of AP AIR 1992 SC 232 , Sikkim Subba Associates v. State of Sikkim (2001) 5 SCC 629 , ONGC v. Saw Pipes Ltd. (2003) 5 SCC 705 . 158. Before evaluating the competing arguments, a brief reference of the relevant tender stipulations and the contractual terms at the threshold would be apt. The consolidated agreement amongst others prescribed a time schedule of 24 months from the date of issue of the Fax of Intent for the completion of the works. In terms thereof, the work was to culminate by 31/1/1997. According to the modified Clause 48 of the GTCC drawings/documents submitted by the Contractor for approval were required to be approved by the consultant/owner within four weeks of submission to the consultant/owner. This condition being an integral part of the contract agreements for oversees and indigenous supplies and service as well as the consolidated agreement was therefore binding on the parties. It was categorically provided in the contract agreement for oversees supplies and services that both for design and engineering and supplies, for initial advance payment in foreign currencies, the remittances would be made after completion of all necessary formalities like furnishing of bank guarantees etc. through direct payment to DEC and TT and for subsequent payment in foreign currency, irrevocable Letter or Letters of Credit would be established within three weeks (i) after signing of the contract (ii) furnishing of performance bank guarantee in agreed form which ever was later. The general notes appearing under Clause 48.8.5 of GTCC prescribe that all foreign payment to contractors would be released through an irrevocable letter credit and that all payments would be released within 30 days after receipt of relevant documents complete in all respects. The general notes appearing under Clause 48.8.5 of GTCC prescribe that all foreign payment to contractors would be released through an irrevocable letter credit and that all payments would be released within 30 days after receipt of relevant documents complete in all respects. Clause 48.4 of the GTC Cman-dates that the owner would make progressive payment as and when the payment is due as per the terms of the payment set forth in the contract and that payments other than that under the letter of credit would become due and payable by the owner within 30 days from the date of receipt of the contractors bill invoice/debit note by the owner, provided the documents submitted are complete in all respects. As per Clause 48.7.1 of GTCC, in case of foreign vendors, the owner was to establish an irrevocable letter of credit in favour of the contractor through the owner's bank in India valid for completion period agreed to between the contractor and the owner. The payment due on completion of various activities from the CIF point was to be progressively made direct to the contractor by the owner. 159. The contract agreements) with the tender conditions incorporated into them, therefore provided the time and manner of payment by the owner to the contractor in unmistakable terms. The contract provisions were also unambiguous vis-a-vis the time limits for establishment of the LC for payment for oversees supplies and services and approval of the design and drawings. These are understandably of utmost significance in the context of the time frame fixed for completion of the works and logically the cost of execution of the project. 160. The parties therefore consciously provided for the consequences for the delay in the completion of the project on account of the contractor as well as the owner. Under Clause 18 of the GTCC, it was agreed that if the contractor failed to successfully commission the complete system, the contract price would be reduced @ 1% per week of delay or part thereof subject to the maximum of 15% of the contract value. Under Clause 18 of the GTCC, it was agreed that if the contractor failed to successfully commission the complete system, the contract price would be reduced @ 1% per week of delay or part thereof subject to the maximum of 15% of the contract value. This clause underwent amendment whereafter in terms of Clause 3(11) of the consolidated agreement dated 12/4/1995, it was provided that on the contractors failure to comply with the time schedule, the contract price would be reduced by 1/2% of the contract price per week of delay or part thereof subject to maximum of 5% of the total value. 161. Clause 22 of GTCC dealing with delay by owner or its authorized agents laid down in Clause 22.1 that in case, the contractor's performance was delayed due to an act or omission on the part of the owner or its authorized agents, the contractor would be given due extension of time for the completion of the works to the extent, such omission on the part of the owner had caused the delay in such performance. Clause 22.2 mandated that in addition, the contractor would be entitled to claim demonstrable and reasonable compensation if such delay had resulted in any increase in cost. In such an eventuality, the owner was to examine the justification for the request for such claim and if satisfied the extent of compensation was to be mutually agreed depending upon prevalent circumstances. 162. The correspondences between NRL, DEC and TT between 20/4/1995 and 31/10/1995 referred to in course of the arguments on behalf of the Appellant, highlights the delay in opening of LC by NRL and the concern expressed by DEC therefore in the context of timely execution of the contract. In the Situation Report II submitted by DEC on 25/3/1996 underlining the difficulties faced by it (DEC) in furthering the project, it was inter alia pointed out that though 11 months from the date of signing of the contract and 7 months from the date of furnishing of the performance bank guarantee had elapsed the agreed letter of credit had not been opened compelling the DEC in the interest of the project to invest its own funds lest the implementation suffered a set back. DEC indicated that the default of NRL had the potential of escalating the project cost. DEC indicated that the default of NRL had the potential of escalating the project cost. In its Revision of Project Cost and Time submitted in May, 1996, DEC while reiterating the above background facts, emphasized that the same had led to rise in the project cost besides entailing delay in implementation of the works. While providing a summary of the cost and damage likely to be suffered by it for the various lapses of NRL as mentioned therein, DEC demanded a revision in the contract price as well as extension of the time for execution of the project. In the said document it referred to the delay of NRL or its consultant in approving the design and engineering to the tune of 929 days which according to DEC had affected the progress of work besides resulting in wastage of manpower and incurrence of additional costs by way of administrative overheads and registered a claim of Rs. 8.9 crores on that count. It also referred to extra expenses incurred due to lack of infrastructure and schedule delay. DEC contended thereby that itemwise, there was a total delay of 929 days. 163. By its letter dated 15/5/1996 addressed to EIL, DEC drew the attention of the former to the delay in approval for design and engineering and furnished detailed particulars of the instances between 13/8/1995 and 27/3/1996 under the heading "Status of Delayed Approval". This was followed by a letter dated 26/6/1996. While reiterating its concern therein for such delay, DEC underlined that for such delayed approval, the execution of the project had suffered dislocation. It was also pointed out that the letter of credit had not till then been opened in blatant breach of the contract conditions prescribing a time limit therefor. In this communication, DEC pointed out that the LC for the TT's supply portion opened as on 24/11/1995 had remained ineffective and non-operational and that the LC for system design and engineering portion established on 27/3/1996 was far behind schedule as a result whereof timely execution of the project would not be possible. A request for extension of the execution period was made. Reiterating the above impediments, DEC by its letter dated 3/9/1996 held NRL to be solely responsible therefore due to its non-performance of the contractual obligations. DEC even expressed its mind of ceasing work if the situation continued to persist. 164. A request for extension of the execution period was made. Reiterating the above impediments, DEC by its letter dated 3/9/1996 held NRL to be solely responsible therefore due to its non-performance of the contractual obligations. DEC even expressed its mind of ceasing work if the situation continued to persist. 164. NRL replied by its letter dated 3/10/1996, negating interalia the claim for liquidated damages for delay in approval of the design and engineering contended that the consolidated agreement having been signed on 12/4/1995, there could not have been a delay of 929 days in between. It alleged submission of incomplete drawings by DEC wherefor the same had to be returned by EIL for re-submission. According to it, the drawings submitted afresh were approved without undue delay. NRL, therefore, shifted the responsibility for the delay on account of approval of drawings and designs on DEC. The claim of Rs. 8.9 crores was denied. NRL thereafter by its letter dated 19/3/1997 approved DEC's proposal of substituting indigenous items for imported products to the tune of US $ 6 million as made by it as far back as on 13/9/1995. 165. DEC submitted its Situation Report IV on 14/7/1997, where, in addition to the various problems created due to the apathy and inaction of the NRL which had plagued the smooth execution of the works, it dealt with the administrative lapses pertaining to overseas supplies and services, delay in approving the proposal for substitution of imported items worth US $ 6 million, increase in project cost etc. DEC indicated that considering all the factors referred to in the report, NRL would have to pay an inflated price for all supplies and services made effective from 1/2/1997. Along with the report, DEC submitted the particulars of the delay in approval of Quality Assurance Plan under the caption of "QA Plan Approval Status" contending that taken item wise, there was a total delay of 1961 days as on 31/3/1997. DEC also furnished the essential particulars bearing on delay in payments titled "Status of Delayed Payment" disclosing delay on the part of the NRL in making payments for services and supplies for offshore and on-shore portions of the work totaling 1,267 days. 166. DEC also furnished the essential particulars bearing on delay in payments titled "Status of Delayed Payment" disclosing delay on the part of the NRL in making payments for services and supplies for offshore and on-shore portions of the work totaling 1,267 days. 166. In its statement of claim before the learned Tribunal, while asserting delay in approval of design, engineering and quality assurance plan and for the hindrances faced in the matter of water ways transportation of Over Dimensional Consignments (ODC) through Brahmaputra River, it, in addition to its request for extension of the execution time till end of February, 98, claimed reimbursement of its resultant additional costs assessing it to be Rs. 8.9 crores. 167. As alluded hereinabove, NRL in its written statement denied the allegation of delay on its part in approving the drawings and QA programme reiterating its stand of submission of incomplete drawings by DEC attributing to it the delay if any. The plea with regard to delay in transportation of the ODC was also dismissed contending that in terms of the ITB, bidders were required to get themselves fully informed of the local conditions and factors likely to have a bearing on the execution of the works. DEC's claim for reimbursement was denied. 168. The learned Sr. Counsel for the Appellant in support of DEC's claim of increase in project cost has invited our attention to the NRL Directors' second Annual Report as on 31/3/1995 indicating that the approved project cost of Rs. 1830/crores as proposed in January, 1992, would suffer revision due to inadequate infrastructural facilities at the project site during the initial stage and delay in finalization of foreign technology. In the third annual Directors' report of NRL for the financial year 1995 and 1996, it was disclosed that the completion of the project was scheduled to be by December, 1998, and that the revised cost as worked out by EIL was Rs. 2454.90 crores which updated as on May, 1996, was expected to be Rs. 2497.40 crores. We have also been led to a news item to the effect that the initial cost of the project at Rs. 1800/- crores in 1992 had been revised twice and that the new estimate of cost was between 4500/-crores and Rs. 5000/- crores. 169. 2454.90 crores which updated as on May, 1996, was expected to be Rs. 2497.40 crores. We have also been led to a news item to the effect that the initial cost of the project at Rs. 1800/- crores in 1992 had been revised twice and that the new estimate of cost was between 4500/-crores and Rs. 5000/- crores. 169. On a combined reading of the documents referred to hereinabove, we do not feel persuaded to hold that the DEC had failed to establish delay on the part of NRL in breach of the contract inter alia for issues such as opening of LC for payment for oversees services and supplies, approval of design/drawings and quality assurance plan/programme, progressive payments of running bills etc resulting in deferment of completion of the project and the consequential increase in project cost. These documents which are contemporaneous in nature highlighting from time to time DEC's grievances on this counts and its concern for the timely execution of the project and submitted before the Tribunal have not been questioned by NRL. Except its reply dated 3/10/1996, denying the delay as alleged and citing DEC's lapses in submitting incomplete drawings contributing to the delay, if any, and its written statement in the arbitral proceedings replicating the above, no other document has been referred to us to substantiate its defence. We are, therefore, inclined to hold, having regard to the overwhelming materials projected by the documents relied on behalf of DEC that it has been able to establish that the delay in execution of the project had been on account of NRL on the above issues resulting in stepping up of the project cost. NRL's assertion that DEC had submitted incomplete drawings has not been demonstrated before us by any supporting or co-existing document. Understandably in terms of the contract, DEC could not have executed the works in time in absence of the approval of design/engineering and QAR Further it being the fundamental requirement in international contracts that an irrevocable LC be established as a security for offshore supplies and that payments therefore be made through the same, the visible delay on the part of NRL in opening the required LC had impeded the project works as had been continually emphasized upon by DEC in its aforementioned correspondences and reports. Noticeably NRL in its written statement or even otherwise has not denied the delay in execution of the project which is apparent on the face of the records. Rise in project cost has also not been rightly denied being evident amongst others from its Director's report as above. DEC in its statement of claim and other correspondences referred to above had categorically averred about escalation of project cost because of the lapses on the part of NRL to comply with its contractual commitments. 170. The learned Tribunal appears to have considered the above documents forming a part of the evidence before it in concluding that there was a delay of 17 months in the matter of approval of designs, drawings and QAP in addition to a delay of 1267 days in payment of DEC's bills in contravention of Clause 48.4 and 48.8.5 of the GTCC. After noticing that there had been a delay of two years and nine months in the completion of the works, the learned Tribunal having regard to the various heads of delay contributing to the same restricted it to 14 months for computing the damages. 171. That even if an arbitrator's interpretation of any provision of the contract involved is erroneous, a Court would not be justified to interfere therewith only as another view may be possible on its construction of the contract in a different manner has been iterated umpteen times by the Apex Court amongst others in Himachal Pradesh State Electricity Board v. R.J. Shah and Co. (1999) 4 SCC 214 . The decision of the arbitrator on an erroneous view of the contract would not render the award vitiated by an error of jurisdiction. The arbitrator is within his jurisdiction to construe the terms of the contract, it held. 172. The oft quoted legal proposition that the Court cannot sit in appeal over the views of the arbitrator by reexamining and reassessing the materials on records was reiterated by the Apex Court in Puri Construction Co. v. Union of India (1989) 1 SCC 411 . This view was reaffirmed amongst others in FCI v. Joginder Pal Mohendra Pal (1989) 2 SCC 347 and B.V. Radhakrishna v. Sponge Iron India Ltd. (1997) 4 SCC 693 . 173. v. Union of India (1989) 1 SCC 411 . This view was reaffirmed amongst others in FCI v. Joginder Pal Mohendra Pal (1989) 2 SCC 347 and B.V. Radhakrishna v. Sponge Iron India Ltd. (1997) 4 SCC 693 . 173. Lord Denning M.R. in his rendering in GKN Centrax Gears Ltd. v. MATBRO Ltd, while dealing with the plea of insufficiency of evidence before the arbitrator to justify the high damages awarded commented that the weight of evidence and the inferences therefrom were essentially matters for the arbitrator and that the award ought not to be challenged or upset on the ground that there was no sufficient evidence or that it was to tenuous and the like. One of the very reasons for going to arbitration being to get rid of technical rules of evidence, the questions of evidence and discovery and so forth were matters essentially to be left to the arbitrator and not for the Court. 174. The Queen Bench in RE Allen and Matthews Arbitration while examining the contention that the award having failed to narrate relevant facts suffered from an error of law on the face thereof referred with approval to the observation of Tuker. J in James Clark (Brush Materials) Limited v. Carters (Merchants) Limited (1944) KB 566 in the following terms. It is my duty to look at the award in the way most favourable to its preservation and looking at it from that angle, I find it impossible to say, because the arbitrator has not set out these facts, that they have not been proved to his satisfaction. 175. The observation of Diplock LJ in Giacomo Costa Fu Andrea v. British Italian Trading Co. Ltd.(1962) 2 All ER 62 in this context and referred to in the reported decision looks very apt: The principle of reading contracts or other documents into the award is not, in my judgment one to be encouraged or extended and in my view we are not entitled in this Court, on an award where there is a purely general reference to 'the contract'-and a reference only in that part of the award which deals with the consequences of the finding of fact to look at the contract and search it in order to see whether there is an error of law.... I strongly deprecate...any suggestion that awards made by commercial arbitrators have to be examined with a toothcomb to make sure that they have used the exactly correct technical legal terms of Article 176. The Apex Court in General Manager, Northern Railway v. Saruesh Chopra (2002) 4 SCC 45 , identified the following situations whereunder a contractor inspite of his undertaking not to make any claim for delay in performance of the contract occasioned by the employer can still register one entertainable in law. (a) if the employer repudiates the contract exercising his right to do so under Section 55 of the Contract Act, 1872. (b) the employer gives an extension of time either by entering into supplementary agreement or by making it clear that escalation of rates or compensation for delay would be permissible. (c) if the contractor makes it clear that escalation of rates or compensation for delay shall have to be made by the employer and the employer accepts performance by the contractor inspite of delay on such notice by the contractor to be the employer on terms. 177. As the DEC, disclosed by the documents, referred to hereinabove had kept NRL fully posted of the delay on its (NRL) part the above counts for which DEC had to suffer but the works were permitted to be completed, the fact situation as it obtains as in the case in hand seems to be amply covered by clause C of the reported decision. On a consideration of the above materials on record and he enunciation of the legal principles applicable, we are unable to reject the Tribunal's finding on delay as preposterous and factually unfounded 178. Before adverting to the rival submissions on the permissibility of application of Clause 18 of GTCC for computing the compensation awarded to DEC, we feel it expedient to deal with the authorities cited at the bar. In Union of India v. Raman Iron Foundary (1974) 2 SCC 231 , the Apex Court with reference to the Indian law on damages held that there was no qualitative difference in the nature of the claim for liquidated or unliquidated damages. In Union of India v. Raman Iron Foundary (1974) 2 SCC 231 , the Apex Court with reference to the Indian law on damages held that there was no qualitative difference in the nature of the claim for liquidated or unliquidated damages. Referring to Section 74 of the Indian Contracts Act, 1872, it held that the Indian Legislature has enacted an uniform principle that even if there is a stipulation by way of liquidated damages, a party complaining of breach of contract can recover only reasonable compensation for the injury sustained by him, the stipulated amount being merely the outer limit. A claim for liquidated damage was therefore equated with one for unliquidated damages rendering a party entitled to recover only a reasonable compensation, a stipulation by way of damages notwithstanding, the same being relevant to provide the upper ceiling therefor. Though this decision was overturned in M/s H.M. Kamaluddin Ansari and Co. v. Union of India and Ors. (1983) 4 SCC 417 on the exposition of Clause 18, of the contract agreement involved for testing the order of injunction under scrutiny, the elucidation on the liquidated and unliquidated damages remained unscathed. 179. 1n Maula Bux v. Union of India (1969) 2 SCC 554 , the Apex Court ruled that it is not necessary for the person aggrieved by the breach of a contract to prove in every case actual loss or damage suffered by him before he can claim a decree and that the Court is competent to award reasonable compensation in case of such breach even if no actual damage is proved to have been suffered in consequence thereof. It expounded that where the Court is unable to asses the compensation, the sum named by the parties if it is regarded as the genuine pre-estimate may be taken into consideration as a measure of reasonable compensation but not if the same is in the nature of a penalty. It, however, held that where loss in terms of money can be determined, the party claiming compensation must prove the loss suffered by him. 180. While dwelling on the legally prescribed limitations on the arbitrator's powers to decide a dispute referred to him, the Apex Court in Associated Engineering Co., supra, reiterated the judicially evolved precept that an arbitrator cannot act arbitrarily, irrationally, capriciously or independent of the contract. 180. While dwelling on the legally prescribed limitations on the arbitrator's powers to decide a dispute referred to him, the Apex Court in Associated Engineering Co., supra, reiterated the judicially evolved precept that an arbitrator cannot act arbitrarily, irrationally, capriciously or independent of the contract. It held that if an arbitrator travels outside the bounds of the contract, he acts without jurisdiction. His award cannot be interfered with; if he remains within the parameters of the contract and construes the provisions thereof unless the reasons provided by him disclose an error apparent on the face of the award. While reiterating the same view, in Sikkim Subba Associates, supra, the Apex Court held that an arbitrator is not a conciliator and his duty is to decide the dispute submitted to him according to the legal rights of the parties and not in terms of what he may think to be fair and reasonable. While observing that it was legitimate for the arbitrator to accept one of the two equally possible or plausible views of interpretation of a provision in the contract, it held that if the award is shown to be based on a proposition of law which is unsound or if the findings recorded are absurd or so unreasonable or irrational that no reasonable or right thinking person could have reached the same on the basis of the materials on record, the award is liable to be interfered with. 181. In ONGC, supra, in response to a tender floated by the Appellant, the Respondent company offered to supply pipes of prescribed specifications. As per the terms and conditions, the goods were required to be supplied on or before 14/11/1996. As according to the Respondent, it could not make the supplies in time for reasons beyond its control, it sought for an extension of time which was allowed subject to the condition that an amount equivalent to liquidated damages for delay in supply of pipes would be recovered from it. Following the supplies, some amount was deducted by the Appellant by way of liquidated damages. The deduction being questioned, the dispute was referred to arbitration. 182. The arbitral tribunal considering the ground put forward in justification of the delay held that the amount of liquidated damage could not be said to be wrongly withheld by the Appellant. Following the supplies, some amount was deducted by the Appellant by way of liquidated damages. The deduction being questioned, the dispute was referred to arbitration. 182. The arbitral tribunal considering the ground put forward in justification of the delay held that the amount of liquidated damage could not be said to be wrongly withheld by the Appellant. The learned Tribunal was, however, of the opinion that it was for the Appellant to establish that it had suffered loss for not supplying the goods in time. On an evaluation of the evidence before it, the learned Tribunal determined that the Appellant had failed to establish that it had suffered any loss in terms of money because of the delay in supply of the goods under the contract. It, therefore, held that the amount of liquidated damages had been wrongly withheld and adjudged the Respondent to be entitled to recover the said amount with interest. The award was challenged inter alia on the ground that as under the contract, the Appellant was entitled to recover agreed liquidated damages i.e. a sum equivalent to 1 % of the contract price for whole unit per week of such delay or part thereof the decision was violative of the contract and, therefore, contrary to Section 28(3) of the Act. The award was also impeached to be illegal and erroneous for requiring the Appellant to prove the loss suffered by it before recovering the liquidated damages. 183. The Apex Court interfered with the award holding that when the terms of the contract were clear and unambiguous stipulating liquidated damages in case of breach of contract, the party committing the breach was required to pay such compensation unless it could be held that such estimate of damages/compensation was unreasonable or was by way of penalty. Having regard to the contractual term, the Apex Court adjudged the award to be erroneous and in violation thereof contravening Section 28(3) of the Act. 184. Elaborating on the ambit and scope of the Court's jurisdiction under section 34 of the Act while entertaining a challenge to the award passed by an Arbitral Tribunal, the Apex Court inter alia held that an award is indefensible if the same is not in accordance with the terms of the contract and the usages of trade applicable to the transaction as enjoined by Section 28(3) of the Act. The decision of the tribunal must be within the bounds of the jurisdiction conferred by the contract or the Act and that in exercise of such jurisdiction, the tribunal cannot act in breach of some provision of the substantive law or of the Act. If the arbitral tribunal ignores the term of the contract or usage applicable to the transaction, the award could be interfered with. If the tribunal does not follow the mandatory procedure prescribed by the Act it would signify that it had acted beyond its jurisdiction rendering the award patently illegal to be set aside under Section 34, it held. 185. While interpreting the expression "public policy" appearing in Section 34(2)(b)(ii), the Apex Court noticing its earlier decision in Renusagar Power Company Ltd. v. General Electric Co. Ltd. (1994) 1 SCC 644, recognized "patent illegality" to be an additional feature of public policy to render an award invalid if vitiated thereby. In conclusion, the Apex Court while referring to Section 73 and 74 of the Indian Contract Act, 1872, reiterated its view in Maula Bux, supra, that in every case of breach of contract, the person aggrieved thereby is not required to prove actual loss or damage suffered by him before he can claim a decree and the Court is competent to award reasonable compensation in case of such breach even if no actual damages is proved to have been suffered in consequence thereof. It opined that in some contracts, it would be impossible for the Court to asses the compensation arising from the breach complained and if the compensation concurred upon is not by way of penalty or unreasonable, the Court can award the same if it is a genuine preestimate of the parties as the measure of reasonable compensation. 186. The preponderant judicial opinion on liquidated and unliquidated damages therefore is that in the firmament of Indian law, no distinction between the two exists for all practical purposes and that a party complaining of breach of contract can recover only a reasonable compensation and any pre-estimated amount of compensation stipulated by the parties would provide only the outer limit therefor. The preponderant judicial opinion on liquidated and unliquidated damages therefore is that in the firmament of Indian law, no distinction between the two exists for all practical purposes and that a party complaining of breach of contract can recover only a reasonable compensation and any pre-estimated amount of compensation stipulated by the parties would provide only the outer limit therefor. It is not necessary for a party aggrieved in every case to prove the actual damage or loss suffered by him and it would be open for the Court or the concerned adjudicative authority to make an assessment of a reasonable amount of compensation for such breach. However, if the loss in terms of money is determinable, the party claiming breach would be required to prove the same. An arbitral tribunal while deciding a dispute referred to him under the Act has to conduct himself strictly in terms of the prescriptions thereof as well as the contract, the provision whereof, however, he is free to interpret for resolving the dispute by adopting one of the many plausible interpretations available. But if the award is vitiated by an unsound proposition of law or any absurd finding of fact so unreasonable, irrational or illogical that the same could not have been arrived at by a man of ordinary prudence on the basis of the materials available, the award is liable to be interfered with. 187. In the case in hand, a bare comparison of Clause 18 with Clause 22 makes it obvious that whereas in the former dealing with delay on account of the contractor, a readymade formula is available for reduction of the contract price which the contractor has to suffer, a heavy onus has been cast on the contractor to establish his claim for demonstrable and reasonable compensation if the delay on the part of the owner has resulted in the increase in the project cost. In other words, Clause 18 and 22 when placed in juxtaposition reveals that Clause 22 is heavily designed against the contractor being burdened with stringent pre-conditions to be satisfied to enable him to any compensation. In other words, Clause 18 and 22 when placed in juxtaposition reveals that Clause 22 is heavily designed against the contractor being burdened with stringent pre-conditions to be satisfied to enable him to any compensation. Looking at the nature of the transactions composing the work and the minute details of the ancillary activities, as adjuncts thereof, necessary to be noted to assess the impact of delay on the cost escalation, we are of the view, having regard to the records bearing on the claim, that the quantification of compensation with exactitude for such delay item wise was not feasible for DEC. As held hereinabove, the materials on record established delay on the part of NRL resulting in protraction of the project execution and increase in cost. The learned tribunal in the said premise adopted in principle the agreed mode of assessing the liability of the contractor as envisaged in Clause 18 to test the reasonableness and acceptability of DEC's claim under this head. The norm contemplated in Clause 18 being one prescribed by the parties, we are inclined to hold that the learned Tribunal's approach in the matter was practical and realistic. Obdurate adherence to Clause 22, having regard to the fact situation in face of proof of delay on the part of NRL and resultant escalation of project cost for no fault of DEC would have defeated a just and genuine claim. 188. In Ruxley Electronic and Construction Limited v. Forsyth and Laddingford Enclosures Limited v. Forsyth [1995] 3 All ER 268, the Defendant (owner) had contracted with the two Plaintiff Companies Ruxley and Laddingford (Builders) to build a swimming pool and a building with necessary specifications and at a price. After the work had been competed, the owner discovered that the pool did not conform to the measurements prescribed. In response to the builders' claim for the balance of the contract price that had remained outstanding, the owner counter claimed for breach of contract. The trial judge even accepting that the failure to comply with the specifications vis-a-vis the pool signified a breach of contract contended that the same had not decreased the value of the pool and awarded different amounts to the builders while sanctioning general damages in favour of the owner for loss of amenity on his counter claim. The trial judge even accepting that the failure to comply with the specifications vis-a-vis the pool signified a breach of contract contended that the same had not decreased the value of the pool and awarded different amounts to the builders while sanctioning general damages in favour of the owner for loss of amenity on his counter claim. In the appeal preferred by the owner claiming damages for the breach of contract, the Court of Appeal allowed the same holding that it was not unreasonable to award damages the cost of replacing the swimming pool in order to make good the breach of contract. In his judgment for the House of Lords, Lord Mustill held in the following terms: As my Lords have shown, the test of reasonableness plays a central part in determining the basis of recovery and will indeed be decisive in a case such as the present when the cost 6f reinstatement would be wholly dis-proportionate to the non monetary loss suffered by the employer. But it would be equally unreasonable to deny all recovery for such a loss. The amount may be small and since it cannot be quantified directly there may be room for difference of opinion about what it should be. But in several fields the judges are well accustomed to putting figures to intangibles, and I see no reason why the imprecision of the exercise should be a barrier, if that is what fairness demands. 189. The Apex Court in Dwaraka Das v. State of MP and Anr. held that as and when a breach of contract is held to have been proved being contrary to law and the terms of the agreement, the erring party is legally bound to compensate the other party to the agreement. In this regard it noticed its earlier decision in AT Brij Paul Singh, supra, that for estimating the amount of such damages, the Court should make a broad of evaluation instead of going into minute details. It was thus held in principle that a party to a contract committing breach is obliged to pay damages for the assessment of and it is not imperatively essential to examine the facts in minute details and that a general appraisal of the available datas would be enough. 190. It was thus held in principle that a party to a contract committing breach is obliged to pay damages for the assessment of and it is not imperatively essential to examine the facts in minute details and that a general appraisal of the available datas would be enough. 190. In How Engineering Services Limited v. Lindner Cielings Floor Partitions, PLC Dyson J speaking for the High Court of Justice, Queen's Bench Division etc while rejecting the plea raised on behalf of the Petitioner that the arbitrator's quantification of the Respondent's loss and expenses was erroneous, the evidence to that effect being wanting to support such claim, held that a judge or an arbitrator in ascertaining loss or expenses indeed should exercise judgment where the facts are not sufficiently clear and that there is no warrant for saying that his approach should differ from that which may properly be followed when assessing damages for breach of contract. It was held that an arbitrator should not readily use typical or hypothetical figures but it would be wrong to say that they could never be used. The learned Judge held the view that the Court in this domain should be slow with the arbitrator's ascertainment of loss. The observations of Steyn LJ in Baleares [1993] LLR 215in the following terms was taken note of. The power to review a finding of fact of a tribunal on the ground that there is no evidence to support it and that there is therefore an error of law, is a useful one in certain areas of the law notably in the administrative law field but in the limited appellate jurisdiction of the Court under Section 1 of the Arbitration Act, 1979, this concept has no useful role to play. 191. The Court of Appeal in Chaplin v. Hicks 1911 All 224 held that the mere fact that it is impossible to asses damages with precision and certainty does not relieve the jury of their duty to asses damages for breach of contract to the best of their ability. 192. Fletcher Moultpn L.J. in his judgment observed that where in the minds of reasonable man there has been a defacto loss, the jury have to do their best to estimate it and it is not necessary* that there should be an accepted measure of damage. 192. Fletcher Moultpn L.J. in his judgment observed that where in the minds of reasonable man there has been a defacto loss, the jury have to do their best to estimate it and it is not necessary* that there should be an accepted measure of damage. In most cases there is no recognized rule and the jury must asses what they think would be an adequate solatium, the learned Judge added. It was further observed that the jury must be entirely guided by their good sense. 193. In his supplementary judgment Farewell L.J. commented that the mere fact of difficulty of assessment cannot be used as an argument against leaving the question of assessment to the jury. It is for the jury to say whether they can or cannot asses the damages and if they arrive at a fair assessment, there is nothing more to be said. 194. The Petitioner in Deo Kr. Saraf v. Union of India 1989 (2) ALR 88 had entered into a contract with the Respondent for certain construction works. Disputes and differences having arisen out of the contract, the Petitioner had to stop construction works due to non-payment of his running bills as well as for other breach of the terms of the contract by the Respondent. The contract was thereafter rescinded by the Respondent and the security deposit was forfeited. The dispute was referred to arbitration in terms of the arbitration clause. The arbitrator though held against the rescission of the contract disallowed the Petitioner's claim for damages on account of loss of profit for want of sufficient evidence to substantiate the claim. The Calcutta High Court noticing the decision of the Apex Court in M/s AT Brij Paul Singh, (supra), and of the same High Court in Gambhir Mall Mahabir Prasad v. Indian Bank Ltd. AIR 1963 Cal 163 held that the above conclusion was vitiated by an error of law apparent on the face of the record. It was held that the arbitrator having concluded that the termination of contract was wrongful, the Petitioner was to be compensated for the loss of profit even on the basis of the arbitrator's pure guess work and that the omission to do so amounted to failure on the part of the arbitrator to exercise its jurisdiction resulting in miscarriage of justice. 195. 195. Dwelling on the constricted scope of Court's scrutiny of the reasons cited by an arbitrator, a Division Bench of the Bombay High Court in ONGC Ltd. v. Comex Services (2003) (3) LR 197, held that if on a view taken on a contract, the decision of an arbitrator on certain amounts awarded is a plausible one though perhaps not the only correct estimate, the award cannot be examined by the Court and the reasonableness of the reasons cited by the arbitrator cannot be analyzed. If the parties have selected their own forum, the deciding forum must be conceded the power of evaluation of evidence. The arbitrator is the sole judge of the quality as well as quantity of evidence and it would not be for the Court to take upon itself the task of being a judge on the evidence before the arbitrator, it observed. 196. The Privy Council in A.V. Joseph R. v. R. Shew Bux AIR 1918 Privy Council had already reaffirmed that in a suit for damages if the breach of contract is established, it would not be proper to grant only nominal damages to the Plaintiff simply because he had not adduced sufficient evidence to show certain details of the damages or had made one or two small misstatements as regard some of its expenses. 197. The central issue in ONGC, supra, was whether a party claiming liquidated damages was required to adduce evidence in support thereof when the parties had made a reasonable pre-estimate of damages in the event of a breach and had provided for the same in the contract. Further a defaulting party not having questioned the contractual provision whether could assail the claim for stipulated damages and insist on proof of actual damage, it having supplied the goods belatedly on the understanding that it would be subject to the stipulation of payment of such pre-estimated damages. 199. The Supreme Court decided against the defaulting party and interfered with the award as the arbitral tribunal had ignored not only the express provision of the original contract but also the subsequent contract between the parties as was evident from the letter dated 4/12/1996. 199. The Supreme Court decided against the defaulting party and interfered with the award as the arbitral tribunal had ignored not only the express provision of the original contract but also the subsequent contract between the parties as was evident from the letter dated 4/12/1996. It was in this factual premise that the Apex Court held that there had been a deliberate disregard of a specific provision of the contract by the arbitral tribunal in contravention of the provisions of Section 28 of the Act attracting Section 34(2)(a)(v) and 34(2)(b)(ii), the award being patently illegal. It held that an illegality that goes into the root of the matter and shocks the conscience of the Court being manifestly unfair and unreasonable is to be regarded as patently illegal. The learned Tribunal in the present case awarded reasonable damages on a due consideration of the relevant provision of the contract and the legal principles enunciated by the Apex Court in a catena of decisions discussed hereinabove. 200. The Bombay High Court in IOC Ltd. v. Langkawi Shipping Ltd. (2004) 3 LR 568, rejected the contention on behalf of the Respondent that the Apex Court in ONGC, (supra), had mandated that when an award is challenged on the ground that the arbitrators interpretation of a term of the contract is incorrect, the Court must construe the clause itself and then set aside the award if its interpretation of the term is different from that of the arbitrator even if the Court is of the view that the arbitrator's interpretation is plausible and had been arrived at after due consideration thereof. 201. It was held that the submission, if entertained would radically alter the statutorily and judicially circumscribed limits of the Court's jurisdiction to interfere with arbitration awards. Referring to the Act, it was held that not only the same did not indicate any such intention, the argument advanced was mutilative of the legislative intentment of minimizing the supervisory role of Courts in the arbitral process. 202. The observations of the Apex Court in ONGC, (supra), did not expressly or impliedly render the ratio decidendi on the issue contained in a plethora of judgments and the laid down principles therein non est. On a due consideration of the entire gamut of the provisions of the Act and the precedential law, we unhesitantly subscribe to the view expressed in IOC Ltd, (supra). On a due consideration of the entire gamut of the provisions of the Act and the precedential law, we unhesitantly subscribe to the view expressed in IOC Ltd, (supra). The decision in ONGC, (supra), does not depart from the judicially evolved precepts bearing on the authority and jurisdiction of an arbitrator in determining a dispute referred to him, the norms and measures to be applied for assessment of damages and the scope of Court's interference with his findings. It does not enounce that to prove unliquidated damages as well evidence to that effect is indispensable. The decision turns on its own facts, which are distinctly different from those with which this Court is seized of. In any view of the matter, the above decision does not intend, according to our construction, to efface the time tested legal propositions and judicial tenets on arbitration and thus ought not to be construed away from the well established trend set by a string of decisions preceding the same. 203. Considering the limited application of Clause 18 made by the tribunal for the purpose of verifying the genuineness of DEC's claim, we do not feel persuaded to uphold the contention that thereby it had acted in a manner unauthorized by the contract. Bearing in mind that the end purpose of the arbitral exercise is to resolve the dispute, application of the criteria in Clause 18 to assay DEC's claim for compensation, it being unable to furnish the detailed particulars constituting the same, we see no good or sufficient reason to interfere with the tribunals adjudication of the issue. We find that the determination has been inconformity with the judicially enunciated principle authorizing an arbitral tribunal to determine a reasonable amount of compensation in case a party complains a breach of contract but is unable in a given fact situation to prove the actual loss suffered by him. 204. If the factual framework on which the contract rests undergo a change, denial of payment of additional sum incurred as a consequence thereof only because the parties are involved in a lumpsum contract is thus legally unapprovable. The basic premise which engenders the consensus of the parties for the contract when gets nonexistent and that too for the default of one party thereto the party affected cannot be legitimately denied redress by rigorously holding him to the contractual undertakings. The basic premise which engenders the consensus of the parties for the contract when gets nonexistent and that too for the default of one party thereto the party affected cannot be legitimately denied redress by rigorously holding him to the contractual undertakings. The contract as a whole needs to be construed. The totality of the circumstances which prevailed at the time of signing of the contract, conduct of the parties and the changed factual situation during the execution of the works would have to be reckoned to freely interpret the provisions thereof. Mere incorporation of a clause demonstrative of firmness of the price would not be decisive. The grounds of challenge enumerated in Section 34 are much more limited than those under the 1940 Act and, therefore, calls for stringent interpretation in accord with the law established by the Apex Court to judge the sustainability of an award. The judicial principles as above proclaim that the Court has no jurisdiction to substitute its own views in the interpretation of the contract and interfere with the award on the ground that the arbitrator had provided a different interpretation to the contractual provisions. Having regard to the restrictive scope of judicial interference prescribed by the Act, the said proposition deserves meticulous observance to sub serve the above objective. The learned Tribunal in our view has not acted in deciding the issue in contravention of any law more particularly the Act and the letter and spirit of the contract. 205. Issue H i) Is the Defendant liable to pay Rs. 0.5 crores or any amount in respect of interest for borrowed funds by reason of delayed in opening of LC for designs? ii) Was there any delay in opening of LC by the Defendant? If so for what period? 206. The recorded plea of the Appellant DEC, is that for the failure on the part of NRL to open the required Letter of Credit (also referred to as 'LC'), in time and to release the necessary funds as agreed upon, it had to borrow money from its Head office as the working capital and therefore was entitled to an interest on the said amount to the tune of Rs. 0.5 crores. In its Revision of Project Cost and Time dated 31.05.1996, DEC disclosed to have received Rs. 3,133,000 and Rs. 0.5 crores. In its Revision of Project Cost and Time dated 31.05.1996, DEC disclosed to have received Rs. 3,133,000 and Rs. 2,86,00,000/- from its Head office in Korea on 31.07.1995 and 12.01.1996 respectively and the interest at the rate of 14 percent per annum thereon for a period of 10 months and 4 months respectively together came to be Rs. 0.2 crores. It was further asserted that expenses incurred by the Head office on the borrowed amount attracted an interest of Rs. 0.3 crores also computed at the rate of 14 per cent per annum. DEC, therefore, registered a claim of Rs. 0.5 crores under the said head. According to DEC, in terms of Clause 3(a) of the Overseas Contract dated 11.04.1995 read with Clause 2(f) of the Consolidated Contract, NRL was required to pay 10 per cent advance against bank guarantee and the balance on prorata basis within 30 days of the approved designs for Design and Engineering. While the advance payment was required to be made directly to DEC/TT, the sub sequent payments were to be made through irrevocable Letter of Credit which NRL was required to establish within three weeks of the signing of the contract or furnishing of performance bank guarantee in the agreed form, whichever was later. As NRL did not fulfill its contractual obligation, in this regard Dec, was compelled to borrow funds from its Head office in Korea, which led to avoidable cost and expenses, which according to it, NRL was liable to meet. 207. NRL, while, denying the claim in its written statement contended that there was no provision in the contract that it would be required to pay interest to DEC for funds procured by it for execution of the project. Apart from the fact that DEC was fully aware that for executing a project of such magnitude funds would be required, it was not in contemplation in the contract that NRL would be obliged to pay interest on any amount necessary to be borrowed by DEC either from its own Head office or from any other source for such purpose. NRL pleaded that no interest for delayed payment was payable by it in terms of Clause 48.8.5.6 of GTCC. 208. NRL pleaded that no interest for delayed payment was payable by it in terms of Clause 48.8.5.6 of GTCC. 208. The learned Tribunal acting on the documentary evidence, inter alia comprised of DEC's letters dated 10.04.1996, 03.09.1996 and 27.12.1997 together with the factum of delayed payment by NRL on 15.11.1996, though the same was due between 06.08.1995 and 27.01.1996, returned a finding that the delay in opening of LC by NRL was evident from the materials on record. It also noticed from the evidence adduced before it that the concerned Bank, ANZ Grindlays Bank had determined that the LC opened by NRL was defective as a result whereof, DEC had to borrow funds from its Head office. Being satisfied about the details of the amounts received, dates, period of utilisation and rate of interest furnished by DEC, its claim for interest to the tune of Rs. 0.2 crores on the borrowed funds was allowed. The learned Tribunal, however, rejected the claim of interest for Rs. 0.3 crores towards the expenses incurred by the Head office of DEC on borrowed amount as the same according to it, was not supported by any documentary evidence. The learned Tribunal held that there was a delay of 11 months on the part of NRL in opening the LC and that it was liable to pay Rs. 0.2 crores to DEC on account of interest on borrowed funds for such delay. 209. The learned Court below, however, held the view that the contract price being firm under Clause 14.1 of ITB, there was no scope for the Tribunal to award any extra amount by relaxing the clauses of the Arbitration Agreement. It observed that the finding of the Tribunal that funds were borrowed by Dec from its Head office, is also without any proof except some Xerox documents. It rejected the claim of DEC ruling that it was not the concern of the owner whether the contractor executed the works utilizing its own resources or by borrowing funds. 210. Mr. Ganguly, has argued that NRL having failed to discharge its contractual obligation to ensure payment of 90 percent of the price earmarked for System Design and Engineering by opening irrevocable LC within the time frame provided under Clause 3(a) of the Overseas contract, the learned Tribunal was perfectly justified in rejecting its plea against delay relying on the materials on record. The learned Senior counsel argued that the LC opened by NRL on 25.03.1996 being neither operative nor negotiable, DEC informed it about the same but as NRL remained indifferent in the matter, it (DEC) had to borrow funds from its Head office to fulfill its contractual commitments. DEC having posted NRL with the essential facts regarding the amount of funds borrowed with accrued interest thereon, the learned Tribunal rightly allowed the claim to the extent of Rs. 0.2 crores, noticing that NRL had not questioned the borrowings and the interest attracted thereby. According to Mr. Ganguly, it being established that NRL had failed to open the LC as required under the contract for which it made direct payment of the amount due between 06.08.1995 and 27.01.1996 after a delay of 9 months, the learned Tribunal's decision on the issue cannot be faulted with in any manner. 211. As against this Mr. Chakraborty has urged that the DEC's plea of borrowing funds from its Head office, having regard to the amplitude of the contract applied for by it, is inconceivable. He submitted that in terms of Clause 48.8.5.6 of GTCC, no interest on any delayed payment is contemplated and on that count alone DEC's claim ought to have been rejected by the learned Tribunal. In any view of the matter, the learned Senior counsel without prejudice to the above contended that the rate of interest awarded is high in the facts and circumstances of the case. 212. The rival submissions have received our due consideration. A plain reading of the written statement of NRL on the above claim discloses that it did not dispute DEC's assertion that it had to borrow funds from its Head office for the execution of the project. NRL categorically denied the allegation of delay on its part in opening the LC and that it was not concerned with the DEC's claim of borrowing money from its Head office. NRL also refuted the allegation of indifference denial or delay on its part in the matter. 213. In this background, relevant clauses of the contract agreements, correspondences between the parties and other documents now deserve attention. NRL also refuted the allegation of indifference denial or delay on its part in the matter. 213. In this background, relevant clauses of the contract agreements, correspondences between the parties and other documents now deserve attention. Under Clause 3(a) of the Overseas Contract, NRL was required to make payment of 10 percent advance against Bank Guarantee for an equivalent amount and the balance 90 percent was to be paid on prorata basis within 30 days of the receipt of approved drawings and documents. Thereunder for initial advance payment in foreign currencies, the remittances were to be made after completion of all necessary formalities (like furnishing Bank Guarantee etc.), through direct payment to DEC/TT and for subsequent payments in foreign currency for supplies and services irrevocable Letter or Letters of Credit were to be established within 3 weeks (a) after signing of the contract (b) furnishing of performance of Bank Guarantee in the credit form whichever was later. By its letter dated 10.04.1996, DEC informed NRL that the LC for System and Design opened by it (NRL) through ANZ Grindlays Bank, PSC had been determined by the bank to be a non-negotiable documentary credit, not in conformity with and not synchronizing with the terms of the contract. By the said communication, NRL was requested to expedite amendment of LC to avoid further delay and to ensure timely completion of the project. DEC in the said letter also indicated about its fund crunch requesting the NRL to expedite amendment of LC. NRL by its letter dated 15.05.1996, to the aforementioned Bank requested for amendment of LC favouring the contractor. DEC, in the meantime, submitted Revision of Project Cost and Time, contending that it had to borrow funds from its Head office for uninterrupted implementation of the project and in all claimed interest of Rs. 0.5 crores in connection therewith. This was followed up by a letter dated 03.09.1996, by the DEC to NRL highlighting the delay on the part of the latter in opening the LC related to service and supplies under the Overseas contract. While, indicating that it had to invest in the project, funds borrowed by it, DEC with reference to the documents claimed to have been already submitted with NRL, emphasized on the consequential difficulties faced by it due to NRL's non-compliance of the provisions of the contract. NRL was requested to take a quick decision on the issue. While, indicating that it had to invest in the project, funds borrowed by it, DEC with reference to the documents claimed to have been already submitted with NRL, emphasized on the consequential difficulties faced by it due to NRL's non-compliance of the provisions of the contract. NRL was requested to take a quick decision on the issue. DEC also by its letter dated 27.09.1997 reiterated the above to NRL. DEC's assertion that eventually on 15.11.1996, NRL made direct payment of the amounts due to DEC for the period of 06.08.1995 and 27.01.1996, i.e. after a delay of 9 months has remained unrebutted. In its letter dated 03; 10.1996, NRL denied its liability pleading against the allegation of delay on its part in opening the LC. 214. In view of the proved fact that the LC opened by it was found to be defective and in operative warranting a request by NRL to the Bank for amendment thereof, we are of the considered opinion, having regard to the sequence of events narrated hereinabove that NRL had failed to act in terms of letter and spirit of Clause 3(a) of the Overseas contract noticed hereinabove. The denial of its liability in face of the overwhelming materials on record noticed as above, is unsustainable in law. DEC's claim being not for interest on the delayed payment but on the funds claimed to have been borrowed from its Head office, the interdiction embodied in Clause 48.8.5.6 of GTCC, is of no avail to NRL. It being amply demonstrable from various tender conditions and the contractual stipulations, more particularly, Clause 3 (a) of the Overseas Contract and Clause 2 (f) of the Consolidated Contract that NRL for the purpose of payment in foreign currency for supplies and services, after the initial advance, was required to open irrevocable letter or letters of Credit within the time specified therein and the consistent stand taken by the DEC, underlining the failure of NRL to open valid LC in time for payments in foreign currency for supplies and services thus compelling it to borrow funds from its Head office in Korea, we find no good or sufficient reason to dismiss the conclusion of the learned Tribunal on the issue. Neither any tender condition nor any contractual stipulation has been contravened thereby. The condition does not suffer from any illegality envisaged in Section 34. Neither any tender condition nor any contractual stipulation has been contravened thereby. The condition does not suffer from any illegality envisaged in Section 34. NRL having failed to act in terms of express provisions of the Contract cannot permissibly contend against the claim taking shelter of the provision of firmness of price. As noticed hereinabove, NRL did not in categorical terms dispute DEC's claim of borrowing funds from its Head office. After considering the materials on record, we are persuaded to hold that DEC had succeeded in establishing the factum of delay on the part of NRL in opening valid LC in terms of its contractual undertaking for which it (DEC) had to borrow funds from its Head office to tide over its financial crisis and ensure, implementation of the project. To reject DEC's claim in the above conspectus of facts would be allowing NRL to take advantage of its own (sic) notice the relevant tender conditions and contractual provisions, as well as the materials on record in holding otherwise. Its decision on the issue is adjudged unsustainable. 215. BIAS Though neither of the parties had seriously contended on the aspect of bias, the same is being referred to for completing the narration. To say the least, the allegation of bias is not only far fetched and untenable, it had been raised for the first time before the learned Court below. The essence of the asseveration is that as Shri U. Bhuyan, son of Shri S.N. Bhuiyan, one of the arbitrators was at all relevant times "a junior and active associate" of Shri G.K. Joshi, Advocate, appearing for the DEC in the arbitration proceedings, the award is afflicted by bias. This plea found favour with the learned Court below which held that Mr. U. Bhuiyan, having appeared with Mr. Joshi in a number of cases as a junior Counsel, Mr. S.N. Bhuiyan ought to have disclosed the above fact in terms of section 12 of the Act and Article 9 and 10 of the Rules and his omission to do raises a reasonable doubt in the minds of the parties and also of the Court about his independence and impartiality rendering the award invalid. 216. Both the allegation as well as the reasons cited by the learned lower Court are in our judgment untenable. Mr. G.K. Joshi at the relevant time was the Sr. 216. Both the allegation as well as the reasons cited by the learned lower Court are in our judgment untenable. Mr. G.K. Joshi at the relevant time was the Sr. Counsel of the Income Tax Department having been duly appointed as such. Mr. U. Bhuiyan was one of the panel Advocates (sic) The assertion of bias founded on this fact alone is per se mis-conceived and fallacious. The professional relationship between the two counsels as above was too remote a fact to have any bearing on the concerned arbitrator's neutrality, independence and impartiality so as to impel him to disclose the same as required under Section 12 of the Rules. The imputation in our view, is frivolous and ought not to have been entertained. The learned Court below misdirected itself on facts and in law to hold otherwise. 217. We are reinforced in our determination in the decision of Division Bench of Bombay High Court in ONGC v. Offshore Enterprises Inc. 1995 (1) LR 432. In the case, one Shri Bhaba, a Sr. Advocate of the same High Court was appointed as the arbitrator for the Respondents. It was alleged by the Appellants that Mr. M.O. Chinnoy, learned Counsel for the Respondents before the arbitrators had started his professional career as a junior of Shri Bhaba. Noticing on facts that Mr. Chinoy had since thereafter left the chambers of Shri Bhaba and had build up his independent practice whereafter both the Counsels in course of their professional callings had been briefed also in a matter, the Court out rightly rejected the Appellant's allegation that Mr. Chinoy had received preferential treatment from Shri Bhaba in the conduct of the arbitration proceedings. The Court held that members of the bar while acting as arbitrators cannot be suspected of partiality towards a party merely because advocate arbitrators were often briefed in other litigations by the firm of solicitors/advocates who represent one of the parties in the reference or merely because one of the counsels appearing for a party in the reference was at one time associated with such advocate arbitrators. 218. The following extract from Russel on the Law of Arbitration, 16th Edition, pertains to "imputed bias" when Barristers from the same chamber participate in an arbitration in different capacities. 218. The following extract from Russel on the Law of Arbitration, 16th Edition, pertains to "imputed bias" when Barristers from the same chamber participate in an arbitration in different capacities. In international arbitrations, parties unfamiliar with the organization and traditions of English Barristers have questioned the participation in an arbitration of Barristers from the same chambers in different capacities: for instance one appearing as an arbitrator and another appearing as an Advocate. The English Courts have established that this practice is not sufficient evidence of 'imputed bias'. 219. We reject the plea as frivolous and unfounded. In the wake of the above, the impugned judgment and order is unsustainable so far as it relates to Issue A, B, D, E and H. The learned lower Court's determination vis-a-vis Issue C is sustained. The impugned award of the learned Tribunal except so far as it relates to Issue D is upheld. The appeal is thus partly allowed. The parties would bear their own costs.