JUDGMENT Shiv Narayan Dhingra, J. By this order, I shall dispose of the above petition under Section 34 of Arbitration and Conciliation Act, 1996 (for short "the Act"), by which the petitioner has assailed an award dated 28th December, 2002 passed by the learned arbitral tribunal on various grounds which shall be dealt with at the relevant place hereinbelow. Brief Facts Puri Construction Limited (for short "PCL") and few other sister companies and persons were in possession of certain lands in District Gurgaon, Haryana for which they had obtained licences from the Director, Town and City Planning, Haryana (for short "DTCP") for developing the same into a residential group housing scheme. PCL initially entered into an agreement with ITCREF and formed a joint venture company as "Florentine India Limited" in order to carry on the development of this land into a residential group housing project. Under this joint venture, ITCREF gave funding to PCL for purchase of other land and acquiring licences, etc. However, subsequently ITCREF took a decision to exit from the business of property development and entered into negotiations with PCL. As facts reveal, ITCREF introduced Larsen and Toubro Ltd. (for short "L&T") into the project. The claims of ITCREF against PCL were still unsettled and in order to secure its claim against PCL, ITCREF made it mandatory that its interests in the project should find mention in the agreement between PCL and L&T. L&T and PCL along with its associate companies entered into an agreement for development dated 10th March, 1998 (signed on 19th January, 1998). Subsequent to this agreement for development, a supplementary agreement was also entered into between them on 30th December, 1999. In consequence of supplementary development agreement, a tripartite agreement was entered into between PCL, L&T and Lord Krishna Bank (for short "LKB") on 10th January, 2000. In the agreement dated 10th March, 1998, it was agreed that the development of the entire area shall be done by the L&T at its own costs and expenses for construction thereof and the developer L&T shall be entitled to 75% of the built-up area together with proportionate interest in the land. Similarly, PCL and others would be entitled to 25% of the area (Clause 7). However, the agreement specifically provided that PCL had another agreement with ITCREF dated 30th July, 1997 and as per that agreement PCL was to hand over 1,45,000 sq. ft. Similarly, PCL and others would be entitled to 25% of the area (Clause 7). However, the agreement specifically provided that PCL had another agreement with ITCREF dated 30th July, 1997 and as per that agreement PCL was to hand over 1,45,000 sq. ft. of built-up area to ITCREF within a period of 5 years. The option to choose the built-up area was with ITCREF. After mentioning about this agreement, it was provided in the "agreement for development" that the understanding of PCL with ITCREF has been further modified and PCL declared that an area of 2,20,416 sq. ft. shall be given to ITCREF to satisfy the claim of ITCREF against PCL and this area shall be out of PCL's share of built-up area. Thus, the agreement provided that out of 25% share of PCL, an area of 2,20,416 sq. ft. was already committed by the PCL to ITCREF against PCL's liabilities [Clause 3(c)(i) of the agreement]. The agreement dated 10.03.1998 provided that though the total land to be developed was 40.661 acres as mentioned in Schedule "A" of the agreement but L&T was to undertake and complete construction initially at Schedule "B" of the property within a period of 60 months or such mutually extended period from the date of sanction of the building plan or clearance obtained under Section 37(i), whichever was later (Clause 26). Clause 26(a) of the said agreement provided that the construction of first phase, i.e. at Schedule "B" would involve 3,00,000 sq. ft. of area and the total development of the area shall be done in 5 years. After completion of first phase, L&T, in consultation with PCL, shall have the option and liberty to review and revise the specifications, mandates and the built-up area of the plan development and extend the period of completion by further period of 12 months depending upon the market conditions. The agreement provided for development of the area in phased manner in following terms : "As part of Phase I Development, the Developer shall commence developing a portion of the Schedule 'A' Property more fully described in Schedule 'B' written hereunder and delineated in GREEN colour in the Sketch appended hereto, and referred to as "Schedule 'B' Property", i.e. for an area of 18.025 acres and complete within 60 months (five years). The balance of the construction in the Schedule 'A' Property will be taken up in terms of the licence as per a Schedule of Construction mutually acceptable to the OWNER and DEVELOPER, taking cognizance of the sales of developed Schedule 'B' Property and the prevailing real estate market conditions." After approval of the plans and before commencement of the construction PCL and L&T were to determine and demarcate on the building/floor plans the respective areas to be allotted proportionately in each block or each tower and specify the same by separate agreements or by exchanging of letters within 30 days of commencement of bookings for each place. PCL was to inform the developer about the built-up area to be allotted to ITCREF within 15 days thereof. The sale policy was to be finalised mutually after consultation between PCL and L&T. The agreement provided that the opening sale would be in the region of approximately Rs. 2,000 per sq. ft. [Clause 18(c) and (h)]. Clause 20 of the agreement provided that PCL was to identify the built-up area to be retained by the owners within 30 days of commencement of each phase. Clause 26 of the agreement provided that L&T was to complete construction of the building at Schedule 'B' Property within a period of 60 months or such mutually extended period from the date of the sanction of building plan. Clause 34 of the agreement reads as under : "The DEVELOPER shall not be deemed to be in default if the performance of its obligations hereunder is delayed or prevented by conditions constituting force majeure which shall include but not be limited to any law, order, bye-law, rule or direction of any government or municipal or statutory agency or other authority, restrains, injunctions from any court of law, withdrawal of permissions, non-availability of construction materials, strikes, fire or any act of God, as also the prevailing real estate market conditions or any other reason or cause whatsoever beyond the reasonable control of the DEVELOPER. All periods hereunder fixed shall be deemed to have been extended by the periods equal to the periods of delay on account of the conditions constituting force majeure." The schedule attached to the property gave the area of Schedule "B" Properties as 18.025 acres and this was the area which was to be developed initially by L&T within a period of 5 years. This area was spread over on two sides of the road shown in the sketch attached with the agreement and was delineated in green colour. Along with this agreement was annexed an agreement entered into between PCL and ITCREF. This agreement provided that PCL had to pay to ITCREF an amount of Rs. 39.59 crores. As a result of the understanding between the parties to resolve the disputes, it was agreed that PCL shall discharge the said debt liabilities by selling, conveying and transferring to ITCREF built-up area out of the project. The extent of built-up space as mentioned in the agreement with ITCREF was 1,95,000 sq. ft. out of which 1,51,250 sq. ft. was to be given in Block 'A' and the remaining was to be given in Block B. Paragraph 4 of this agreement provided that the price or consideration for the built-up area would be Rs. 2,000 per sq. ft., including for the car parking space, in the high rise buildings and Rs. 2,250 per sq. ft. in the low rise buildings. Thus, it is clear that by way of this agreement, PCL had already sold 1,95,000 sq. ft. of the area partly @ Rs. 2,000 and partly @ Rs. 2,250 per sq. ft. to ITCREF in the buildings to be constructed under the agreement by L&T, for consideration received in advance. The development agreement specified that the agreement of PCL with ITCREF was further modified and it mentions that PCL had committed 2,20,416 sq. ft. of the built-up area to ITCREF and had already committed that out of this an area of 1,53,500 sq. ft. shall be given in buildings over Schedule B Property and remaining area was to be given in phases in rest of the area shown in Schedule 'A' of Properties. After execution of this agreement between the parties, correspondence took place between the parties which shows that the development agreement had teething troubles. The real estate market had fallen down and L&T had serious doubts about the financial viability of the project. However, PCL was sure about the project being not only viable but profitable as well. After execution of this agreement between the parties, correspondence took place between the parties which shows that the development agreement had teething troubles. The real estate market had fallen down and L&T had serious doubts about the financial viability of the project. However, PCL was sure about the project being not only viable but profitable as well. After lengthy correspondence and considering market situation, PCL and L&T entered into a subsequent agreement dated 30.12.1999, recitals of which read as under : "WHEREAS the OWNER and the DEVELOPER had entered into an agreement for development dated 10th March, 1998 (hereinafter referred to as "Development Agreement") for development of the properties mentioned in the schedule written thereunder, into a multi-storied residential complex, as per the terms and conditions contained in the said Development Agreement; WHEREAS the OWNER obtained the development plan's sanction from the DTCP on 19th February, 1999, by which time, in the opinion of the DEVELOPER, the adverse real estate market condition made the project financially unviable causing delay in launching of the project contemplated under the Development Agreement as provided under Clause 26 of the Agreement for Development; WHEREAS after execution of Development Agreement the onus of paying EDC vested with the Developer. The Developer in part compliance of the said conditions has paid Rs. 25 lakhs as EDC to the DTCP, Haryana; WHEREAS the Developer has till date not furnished the Bank Guarantee(s) or paid the EDC, except for the sum of Rs. 25 lakhs as stated above. The DEVELOPER took the stand that in view of the adverse market conditions the project had become unviable and sought further time from the OWNER to allow the prevailing real estate market condition to improve; WHEREAS the parties to the Development Agreement have discussed impact of continued adverse real estate market conditions on the project as also on the Development Agreement vis-a-vis non-payment of EDC to the DTCP and consequent issue of the Show Cause Notice from DTCP, Haryana, dated 02.11.1999; WHEREAS the DEVELOPER is of the opinion that the project is not financially viable due to adverse real estate market conditions, but the OWNER is confident in generating sales, for the project through a network of brokers and securing bookings for 75% of the constructed area of 3.84 lakhs sq. ft. ft. to be launched in the first phase within 3 to 6 months of the launch of sales; WHEREAS on the assurance as aforesaid of the OWNER, the DEVELOPER has agreed to enter into a tripartite agreement with Lord Krishna Bank having its registered office at Indian Express Building, Kaloor, Kochi who has agreed to pay Rs. 6 crores to DTCP, Haryana as EDC as term loan to the OWNER; WHEREAS it is agreed between the parties to decide about the continuation/determination/re-negotiation of the said Development Agreement depending upon the market response to the 1st Phase of the project involving construction of 3.84 lakhs sq. ft. as provided herein;" This supplementary agreement provided that the development agreement will continue to bind the parties unless otherwise agreed differently in the supplementary agreement. The supplementary agreement was to come into effect on happening of certain events mentioned therein which included L&T replacing or taking over the bank guarantees furnished by PCL to DTCP in terms of the tripartite agreement to be entered into between the parties, reimbursement of the expenditure incurred by PCL, compliance of the terms and conditions of the tripartite agreement entered into between the parties and L&T paying Rs. 1.5 crores to LKB on behalf of PCL. The bank guarantees were to be furnished by L&T after final approval of the term loan by LKB and the bank guarantees were to remain valid till the receipt of completion certificate for Phase I of the project. In the supplementary agreement, the area of first phase was given as 3.84 lakhs sq. ft. whereas in the development agreement the area was given as 3 lakhs sq. ft. The supplementary agreement provided that L&T shall commence construction in first phase of development subject to achieving confirmed bookings and selling targets undertaken by PCL as per the details given in Annexure II. Clauses IV and V of the supplementary agreement provided as under : "IV. The DEVELOPER and OWNER have agreed to launch the first phase of development and start construction work for 3.84 lakhs sq. ft. as the OWNER has expressed his confidence in generating sales for the project through a network of brokers and securing confirmed booking/sale of 75% of the area to be launched in the first phase within 3 to 6 months of the launch of sales. ft. as the OWNER has expressed his confidence in generating sales for the project through a network of brokers and securing confirmed booking/sale of 75% of the area to be launched in the first phase within 3 to 6 months of the launch of sales. V. That the DEVELOPER shall only commence construction in 1st Phase of development subject to achieving confirmed booking/selling targets undertaken by the OWNER as detailed in Annexure II to this agreement at the location shown in the sketch annexed hereto with revised plans and specifications mutually agreed between the parties hereto." In pursuance of this agreement, a tripartite agreement was entered into between PCL, L&T and LKB. Recitals of this tripartite agreement mention about the development agreement, supplementary agreement and about the adverse real estate market conditions and postponement of the completion time due to this. The tripartite agreement provided that LKB was to pay Rs. 6 crores to DTCP, Haryana against External Development Charges (hereinafter "EDC") on behalf of the PCL on or before 21st January, 2000. The amount was to be treated as a term loan by LKB to PCL and Rs. 15 crore property already mortgaged by PCL was to be continued as a security. LKB was to continue another bank guarantee for a sum of Rs. 466.175 lakhs in favour of DTCP against the indemnity bond to be executed by L&T and the LKB was to release in favour of PCL the counter guarantees outstanding for the bank guarantee for Rs. 466.175 lakhs and refund to PCL the margin money with accrued interest. L&T was to pay to the LKB a sum of Rs. 5.19 crores on behalf of PCL towards discharge of loan availed by PCL for payment of EDC on or before 19th January, 2000. PCL and L&T had also undertaken to launch sale of apartments by 15th February, 2000. The sale was to be completed within a period of 30 months from the date of commencement of construction and all sale proceeds collected by L&T were to be deposited in the escrow account to be opened with LKB. As is evident, the project did not take off. PCL initially gave a notice dated 27th September, 2000 to L&T alleging that L&T had completely withdrawn from the site of construction after an open public notice by CREF Finance Limited and had withdrawn all advertisements and driven away the customers. As is evident, the project did not take off. PCL initially gave a notice dated 27th September, 2000 to L&T alleging that L&T had completely withdrawn from the site of construction after an open public notice by CREF Finance Limited and had withdrawn all advertisements and driven away the customers. It removed even the tents put up at the site to entertain the potential purchasers. It was stated in the notice that publication of notice by CREF was consequent to L&T's letter dated 21st June, 2000, addressed to CREF Finance Limited. PCL vide another notice dated 18th December, 2000 made allegations of non-performance and breach of the terms of the agreement and took the stand that L&T had abandoned the site of development without notice to PCL. It had also committed breach of the conditions governing the licences and it launched sales on 6th April, 2000 behind the back of PCL and accepted various cheques and money from prospective purchasers without their being a sanction plan from the competent authority. It sought complete and true accounts from L&T, return of valuable papers and assets and informed L&T to mitigate the damages. PCL also informed that for commencement of development work forthwith, it had entered into another agreement for development, with another developer who had agreed to take up development work and has commenced development activities and also entered the site so that PCL was able to honour its obligations towards ITCREF as well as its obligations under the licence. It also informed L&T that it has taken steps to protect the licence issued by DTCP, Haryana and to pay EDC before expiry as directed by DTCP, Haryana and to take up the external development work of the land situated at site. It called upon L&T not to interfere directly or indirectly to the rights of the PCL to develop the property and it called upon L&T to submit the accounts and take a joint survey of the site. L&T was informed that in view of rescinding of the development agreement, the scope of dispute to be referred to arbitration will be narrowed and it will no longer be open to either party to require specific performance of the agreements. So, the disputes relating to damages and other reliefs will be pressed. L&T was informed that in view of rescinding of the development agreement, the scope of dispute to be referred to arbitration will be narrowed and it will no longer be open to either party to require specific performance of the agreements. So, the disputes relating to damages and other reliefs will be pressed. After the two parties got estranged and the agreement between them coming to an end, the dispute was taken up to the court and on the basis of arbitration clause, matter was referred to the sole arbitrator by Delhi High Court. The claimant (PCL) prayed to the arbitrator to pass an award to the following effect : (i) Direct the L&T to satisfy the loan availed from LKB and to obtain the release of title deeds of 15 acres of land placed with LKB as security by PCL. (ii) Direct the L&T to return title deeds of the rest of the land to PCL. (iii) Direct L&T to return sanctioned development plans and other documents including licences, permits, permissions and to issue a permanent injunction against L&T restraining them from interfering with any of the PCL's rights to develop the property. (iv) To award compensation and damages to PCL to the tune of Rs. 300 crores. (v) To award damages against L&T to the tune of Rs. 100 crores. L&T also made counter-claim seeking declaration that PCL had no right to rescind the contract and L&T was entitled to damages for the wrongful rescinding of the agreement by PCL. The L&T claimed that its estimated profit would have been Rs. 280 crores. The total built-up area was to be 40 lakhs sq. ft. If realized @ Rs. 2,000, the revenue would have been Rs. 800 crores, the cost of construction would have been Rs. 320 crores. The L&T also claimed reimbursement of Rs. 8,31,53,969, the amount spent by it towards fulfilling the obligations of this venture. It resisted the claim of PCL saying that PCL had no right to claim damages as it was the party in breach. It was contended by PCL in its claim that from the very beginning, L&T had apprehension about the real estate position in the market and at no point of time it intended to fulfil its obligations under the agreement dated 10th March, 1998. It was contended by PCL in its claim that from the very beginning, L&T had apprehension about the real estate position in the market and at no point of time it intended to fulfil its obligations under the agreement dated 10th March, 1998. L&T did not take steps for proper funding of a big project as contemplated under the agreement. It only took some peripheral action. It did not employ suitable personnel for a project of this magnitude and it failed to honour its commitment under the agreement, i.e. to pay the EDC, as a result of which PCL suffered serious financial problems and the licences granted by DTCP were threatened to be cancelled. L&T created a situation which resulted in gross duress being suffered by the claimant. L&T obtained various reports from a number of consultancy agencies and was advised to downsize the real estate activities. Thus, L&T had systemically stayed away from planning activities and resiled from the agreement. L&T got a supplementary agreement signed from Mr. Mohinder Puri on 30th December, 1999 under these circumstances. The agreement was signed by Mr. Mohinder Puri alone and other associate companies of Mr. Mohinder Puri were not party to the supplementary agreement. The conditions precedent under the supplementary agreement were not fulfilled by L&T. The supplementary agreement, therefore, did not become operative and binding on PCL. PCL also contended that Mr. Mohinder Puri of PCL was not competent to sign tripartite agreement with L&T and the EDC payment should be realized from L&T. It was further contended by PCL that L&T took serious exceptions to the commitment of PCL about allotment of specific area made to ITCREF and L&T illegally tried to make an issue of such commitment of allotment of built-up space to ITCREF and L&T by withdrawing from the site unilaterally repudiated the contract. L&T also failed to make proper security arrangement at the site from the very beginning and valuable land belonging to PCL had been encroached upon by the trespassers causing serious financial loss and prejudice. PCL was, therefore, compelled to terminate the agreement between the parties and pursuant to the arbitration clause, the reference for arbitration was made. L&T, on the other hand, had taken the stand that pursuant to the development agreement dated 10th March, 1998, it had taken various steps for commencement of developmental activities with right earnest. PCL was, therefore, compelled to terminate the agreement between the parties and pursuant to the arbitration clause, the reference for arbitration was made. L&T, on the other hand, had taken the stand that pursuant to the development agreement dated 10th March, 1998, it had taken various steps for commencement of developmental activities with right earnest. After signing of the development agreement on 19th January, 1998 [dated 10th March, 1998], L&T addressed a letter to M/s. S.K. Jain seeking confirmation of its appointment as broker for the flats to be constructed. At the place of site, landscaping of the area to be developed had been undertaken. L&T verified the area from the land records and it also forwarded a draft working order to Belt Collins for landscaping and appointed BNB Investments & Properties as authorized selling agents. L&T also appointed Arora and Associates as its brokers. L&T forwarded planning of the project to the claimant. It paid Rs. 25,00,000 on 23rd January, 1999 towards EDC. So, it cannot be held guilty of inaction on its part. L&T also pointed out that it had to give a bank guarantee to DTCP and for that purpose original title deeds of the land were required but PCL was delaying in sending the title deeds. PCL handed over the title deeds for 12.875 acres and 15.31 acres on 15th and 16th October, 1998 only. PCL also informed L&T that the documents of 4 acres would be sent later on. PCL did not pay EDC instalment in time and DTCP issued notice to PCL that payment of EDC had not been made and renewal of licence had not been applied for. L&T also submitted that it had faced various obstructions in the execution of the project. Such obstructions came from local persons who obstructed the work of construction. One Mr. Hari Singh obstructed the project by raising a claim of title in respect of a part of land and obtained an injunction order from the court. PCL was informed about an order of status quo made by the court on 10th November, 1998. There were other litigations commenced by one Mr. Ratan Singh who raised a dispute to the title of PCL over some land, and one Mr. Ranvir Singh had committed trespass and damaged the property of L&T on the work site. PCL was informed about an order of status quo made by the court on 10th November, 1998. There were other litigations commenced by one Mr. Ratan Singh who raised a dispute to the title of PCL over some land, and one Mr. Ranvir Singh had committed trespass and damaged the property of L&T on the work site. L&T also took the stand that PCL had made claims which were contrary to the agreement dated 10.03.1998 and sought damages for entire Schedule A and Schedule B Properties which was contrary to the development agreement. PCL also had sought a payment of Rs. 13,05,805 towards official fees for plan approval from L&T and requested for an advance of Rs. 50,00,000 for the payment of the balance 4th instalment of EDC even though 4th instalment was the liability of PCL. PCL asked L&T to make payment of Rs. 20,000 to one Mr. Arun Dhir in order to have the drawings cleared by SDO, Chandigarh. PCL also sought another payment of Rs. 4,50,625 by way of licence fees and Rs. 5,73,440 towards renewal of the licence charges even though it was not the liability of the L&T. L&T also contended that PCL had committed breach of the development agreement by not making the payment of EDC instalments. On 10th November, 1998, PCL acknowledged that the outstanding EDC dues were to the tune of Rs. 446.85 lakhs on 25th June, 1998. PCL asked L&T for payment of 5th instalment of EDC thereby implying that prior payments were the responsibility of the PCL. So, such demand for the payment from L&T was contrary to the development agreement because the liability of paying EDC was upon the L&T only after obtaining NOC from the appropriate authority. The 5th instalment was due on 2nd May, 1998, i.e. well before the receipt of NOC on 1st July, 1998. On 9th December, 1998, PCL submitted a chart of EDC payments made by it and it revealed that Rs. 329.93 lakhs were outstanding towards EDC. PCL demanded the interest for bank guarantee given by LKB even though such payment was not the responsibility of L&T. L&T further contended that the PCL was in arrears of EDC because of which the licences were in jeopardy, thus PCL breached the terms of the agreement. 329.93 lakhs were outstanding towards EDC. PCL demanded the interest for bank guarantee given by LKB even though such payment was not the responsibility of L&T. L&T further contended that the PCL was in arrears of EDC because of which the licences were in jeopardy, thus PCL breached the terms of the agreement. L&T specifically contended that due to fall in the land prices and adverse real estate scenario, it had become necessary for parties to enter into a supplementary agreement, effecting changes in the development agreement. For that purpose the supplementary agreement was entered into between the parties in December 1999. In view of this supplementary agreement, the development agreement dated 10th March, 1998 stood either novated completely or altered substantially. L&T also contended that in arbitration proceedings between PCL and ITCREF, PCL agreed that the whole of Blocks A-3 and A-4 approximately of 91,200 sq. ft. and 15,000 sq. ft. of built-up area would be allotted to ITCREF. Such an offer by PCL to ITCREF was far beyond the entitlement of PCL under the supplementary agreement or development agreement. The total area to be developed under Phase - I was 3,84,000 sq. ft. under supplementary agreement. Since the parties had agreed to a ratio of 77:23, under this agreement, PCL's entitlement of built-up area in Phase - I was to be 23% of 3,84,000 sq. ft., i.e. 88,320 sq. ft. If it was assumed that the supplementary agreement was invalid, the total built-up area was to be 3,00,000 sq. ft. and the PCL's entitlement being 25% of the same, the area in the share of the PCL would come to 75,000 sq. ft. Therefore, the PCL could not have agreed to hand over 1,06,200 sq. ft. to ITCREF. It was further submitted by L&T that the claim of damages is to be assessed by putting the PCL in the position as if the contract had been carried out. It is submitted that assuming that the entire project had been completed, 77% of the land and built-up area would have gone to L&T or to the purchasers of the flats and PCL's claim eventuality would have been only over 23% of area. The property would have been required to be transferred to the respective flat owners. The damages on account of loss of profits could not have arisen to PCL in the usual course of business. The property would have been required to be transferred to the respective flat owners. The damages on account of loss of profits could not have arisen to PCL in the usual course of business. The arbitral tribunal framed various issues and after framing of issues, it started discussion observing that the core issue which had arisen for determination before the tribunal was the interplay of the development agreement dated 10.03.1998 and supplementary agreement dated 30.12.1999 and tripartite agreement dated 10.01.2000 among L&T, PCL and LKB. The arbitral tribunal held that the supplementary agreement dated 30th December, 1999 was a result of economic coercions and this agreement was a non-starter. It was also null and void because of non-fulfilment of the preconditions and hence the supplementary agreement was not binding on PCL. However, the tribunal observed that L&T cannot be relieved of its obligations under the tripartite agreement dated 10th January, 2000 and the L&T was bound to pay to LKB in terms of tripartite agreement. The tribunal also held that the PCL sought large number of claims in respect of ITCREF whose interests were set out and safeguarded in the development agreement dated 10th March, 1998 with the consent of L&T. The tribunal observed that L&T was responsible for breach of contract. It also came to conclusion that L&T started booking of the flats unilaterally against express provisions of the agreement and without getting revised development plan sanctioned and without making allocation in favour of ITCREF. PCL was not obliged to make any sales on the basis of unsanctioned development plan as this would have been improper and illegal and would have entailed the risk of licences being forfeited by DTCP, Haryana. After holding L&T responsible for breach of the contract, the tribunal observed that in view of non-returning of the title deeds despite the direction given earlier in the arbitral proceedings, L&T had been seeking to exercise economic coercion on PCL and was also seeking to hold up the development project and causing consequential financial loss to PCL. The tribunal passed the award in favour of PCL directing the L&T to pay damages to the tune of Rs. 35 crores to PCL on account of breach of contract. It directed L&T to settle the claims of LKB within four weeks of the award by repayment of loan of Rs. The tribunal passed the award in favour of PCL directing the L&T to pay damages to the tune of Rs. 35 crores to PCL on account of breach of contract. It directed L&T to settle the claims of LKB within four weeks of the award by repayment of loan of Rs. 6 crores with such interest that may be due and payable to LKB and further directed L&T to secure the release of title deeds of 15 acres of land from the said bank and to reimburse the claimant's interest charges paid by PCL to LKB and in default thereof, it directed L&T to pay a sum of Rs. 75 crores for loss of saleable area in respect of 15 acres of land placed in mortgage with the LKB, within a period of 4 weeks. It also directed L&T to return licences, permits and permissions obtained by PCL from various statutory authorities in respect of the lands within a period of 4 weeks and obtain certificate of discharge to that effect or in lieu thereof L&T was to pay a sum of Rs. 5 crores by way of damages within a period of 4 weeks. It issued a permanent injunction against L&T restraining it from interfering in any manner with the rights of the PCL to develop the property. It also directed L&T to indemnify PCL in terms of Clauses 4(b) and 25 of the development agreement dated 10th March, 1998 for any action, or decree, or settlement that may be enforced by ITCREF against PCL or in lieu thereof to pay to PCL a sum of Rs. 50 crores as and when the claim of ITCREF against PCL gets crystallized. The tribunal also directed L&T to pay the cost of the arbitral proceedings to the tune of Rs. 30 lakhs. It also directed L&T to pay interest @ 12% per annum on the sums awarded commencing after four weeks from the date of award till actual payment made by L&T. The award has been challenged by L&T on the ground that the findings of the tribunal are contrary to the admitted documents and evidence and contrary to the contract between the parties. The arbitral tribunal's observation that the supplementary agreement was a non-starter as preconditions of Clauses I, II and III of the supplementary agreement were not fulfilled is contrary to the express words given in the supplementary agreement where only Clause I provided the terms and conditions for supplementary agreement to come into effect. It is submitted that it was statutorily mandatory for the arbitral tribunal to decide the disputes in terms of the agreement between the parties. The arbitral tribunal has decided the dispute without reference to and in disregard to the contract between the parties and, therefore, the award as a whole was without jurisdiction. The finding of arbitral tribunal that the supplementary agreement remained a non-starter was perverse since the evidence produced before the arbitral tribunal showed that the preconditions were satisfied and the petitioner in terms of this agreement paid a sum of Rs. 5 crores to LKB before 27th January, 2000 and LKB in turn tendered a payment of Rs. 6 crores to DTCP towards EDC so the conditions given in supplementary agreement were satisfied by the end of January 2000. In March 2000, the petitioner paid a sum of Rs. 46,30,692 to the respondent as agreed in the supplementary agreement. L&T also issued a letter to the bank that it was prepared to give counter guarantee to the bank and the existing bank guarantee given by the bank to DTCP should be continued, as replacement of bank guarantee was not acceptable to DTCP and this was an admitted position. It is further submitted that the finding of arbitral tribunal that Clauses II and III of the supplementary agreement were not satisfied and, therefore, the supplementary agreement did not come into effect was contrary to the materials on record. All the conditions precedent to bring into force the supplementary agreement were satisfied and the supplementary agreement was very much in force. The next ground of assailing the award is that the arbitral tribunal committed error of law by ignoring Clauses 26 and 34 of the development agreement which provided that L&T shall not be deemed to be in default if the project is delayed or prevented by conditions as stated therein including the condition of recession in the real estate market. The next ground of assailing the award is that the arbitral tribunal committed error of law by ignoring Clauses 26 and 34 of the development agreement which provided that L&T shall not be deemed to be in default if the project is delayed or prevented by conditions as stated therein including the condition of recession in the real estate market. The arbitral tribunal was to decide the dispute according to the legal rights of the parties and not according to what it considered to be fair and reasonable. The tribunal could not have ignored the contract between the parties. The documents proved on record of the tribunal showed that the prevalent market conditions did not encourage the development of the land and there was no default on the part of L&T in view of contractual positions. There is no finding in the award that the prevalent market conditions were encouraging or conducive to the development. The tribunal had no power to ignore the contract or re-write contract between the parties. The next ground taken is that the LKB was not a party to the development agreement but was a party to the tripartite agreement which does not have an arbitration clause. The LKB was not before the tribunal either to make any claim or to make any submissions. PCL, during the pendency of the arbitral proceedings, had taken a stand that any action taken by the bank or against the bank can be tried only by DRT and the arbitral tribunal had no power or jurisdiction to deal with the loan advance made by LKB, but the arbitral tribunal, contrary to all legal norms and procedures, directed L&T to settle the claims of LKB. The directions given by the arbitral tribunal were not based on the terms and conditions of the development agreement or supplementary agreement. The arbitral tribunal, on the one hand, had held that the supplementary agreement was a non-starter and void but on the other hand had referred to a tripartite agreement which was a consequence of the supplementary agreement and gave directions to L&T to fulfil its obligations under the supplementary and tripartite agreements. The award of the arbitral tribunal was self-contradictory and was liable to be set aside. The directions given by the arbitral tribunal were beyond the authority of the arbitral tribunal. The award of the arbitral tribunal was self-contradictory and was liable to be set aside. The directions given by the arbitral tribunal were beyond the authority of the arbitral tribunal. The other ground taken by L&T is that in the statement of claim, there was no claim made of indemnifying PCL against any action or decree or settlement qua ITCREF. No relief was sought in this respect, yet notwithstanding this, the arbitral tribunal passed award that L&T shall indemnify PCL against claims or any action, decree or settlement to be enforced by ITCREF against PCL. It is submitted that in alternative of indemnification, the damages awarded by the arbitral tribunal in respect of non-issuance of indemnity bonds and non-fulfilment of the obligations towards LKB has no rationale and basis. The award is also challenged on the ground that the directions given by the arbitral tribunal regarding return of licences, permissions, etc. obtained by L&T from statutory authorities were vague. In fact, L&T had no licences, permissions, etc. given by the statutory authorities in respect of the land covered by development agreement and no details of any such permissions, licences lying with L&T were even provided by PCL. No case was set up in this behalf. The arbitral tribunal awarded Rs. 5 crores on account of damages on this count without any basis, particulars or evidence. It is further submitted that PCL, in clear breach of the supplementary agreement, had offered to ITCREF an area of 1,06,000 sq. ft. out of the total area of 3,84,000 sq. ft., PCL had also failed to get the necessary bookings in terms of contract after which only L&T was obliged to commence development in terms of the supplementary agreement. Neither it was the case of PCL that it had completed its obligations under the supplementary agreement. The decision of the arbitral tribunal, therefore, was perverse. It is further submitted that the award given by the arbitral tribunal was not in conformity with the public policy. The arbitral tribunal overreached the authority of civil court where the proceedings were pending between LKB, PCL and L&T and also the arbitral award already passed between ITCREF and PCL. The basic principles under the law of damages were also ignored by the learned arbitrator. The damages, in case of breach of contract, are compensatory in nature and cannot be in the nature of windfall on the claimant. The basic principles under the law of damages were also ignored by the learned arbitrator. The damages, in case of breach of contract, are compensatory in nature and cannot be in the nature of windfall on the claimant. The damages can only be awarded if the claimant establishes the quantum of loss. The claimant in this case, i.e. PCL, had not adduced any evidence on the quantum of loss actually suffered. The arbitral tribunal had chosen to award damages on the basis of L&T's counter-claim. Law does not permit an award on account of damages on a hypothetical basis and the award of damages can only be made on the proof of loss or damages. L&T had demonstrated from the record that PCL was in breach of payment of the 5th instalment of EDC. Fifth instalment was not the responsibility of L&T. It was also admitted by PCL during oral evidence that licences were jeopardized and could be cancelled by DTCP due to non-payment of EDC which were due in the past. No claim for damages could have been entertained in favour of PCL and against L&T in respect of the breaches committed by PCL in the past and contrary to the obligations under the development agreement. The arbitral tribunal, therefore, acted contrary to the agreement. It is also submitted that the arbitral tribunal's observation that the claimant Nos. 2 to 6 [the associate companies of PCL] were not the signatories to the supplementary agreement shows a non-application of mind by the arbitral tribunal to the evidence on record because in the recitals of the supplementary agreement, it is stated that Mr. Mohinder Puri was signing the supplementary agreement on behalf of other parties namely 1, 2, 4 and 6 as well. It is settled preposition of law that this court while considering objections to an award does not and cannot sit as a court of appeal to re-appreciate the entire evidence to see whether the award as given by the arbitral tribunal was right on merits or not. It is settled preposition of law that this court while considering objections to an award does not and cannot sit as a court of appeal to re-appreciate the entire evidence to see whether the award as given by the arbitral tribunal was right on merits or not. The jurisdiction and the scope of scrutiny of this court is only limited and the award can be set aside if it is contrary to : (a) the fundamental policy of India Law; (b) interest of India; (c) justice or morality; (d) if it is patently illegal and the illegality must go to the root of the matter and should not be of a trivial nature; (e) if the award is so unfair and unreasonable that it shocks the conscience of the court. The Hon'ble Supreme Court in Oil & Natural Gas Corporation Ltd. vs. Saw Pipes Ltd., (2003) 5 SCC 705 = 2003 (2) Arb. LR 5 (SC), at page 744, after elaborate discussion gave the following conclusion : "74. In the result, it is held that : (A)(1) The court can set aside the arbitral award under Section 34(2) of the Act if the party making the application furnishes proof that : (i) a party was under some incapacity; or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration. (2) The court may set aside the award : (i)(a) if the composition of the arbitral tribunal was not in accordance with the agreement of the parties; (b) failing such agreement, the composition of the arbitral tribunal was not in accordance with Part I of the Act; (ii) if the arbitral procedure was not in accordance with : (a) the agreement of the parties; or (b) failing such agreement, the arbitral procedure was not in accordance with Part I of the Act. However, exception for setting aside the award on the ground of composition of arbitral tribunal or illegality of arbitral procedure is that the agreement should not be in conflict with the provisions of Part I of the Act from which parries cannot derogate; (c) if the award passed by the arbitral tribunal is in contravention of the provisions of the Act or any other substantive law governing the parties or is against the terms of the contract. (3) The award could be set aside if it is against the Public Policy of India, that is to say, if it is contrary to : (a) fundamental policy of Indian Law; or (b) the interest of India; or (c) justice or morality; or (d) if it is patently illegal. (4) It could be challenged : (a) as provided under Section 13(5); and (b) Section 16(6) of the Act." It is also settled preposition of law that the arbitral tribunal cannot act arbitrarily. He has to act judicially. He is bound by the terms of the contract entered into between the parties. He cannot write a new contract between the parties nor can ignore the terms and provisions of the contract between the parties on the ground that they were one-sided. With this scope and scrutiny in mind, I shall consider the arguments advanced by both sides. There is no denying of the fact that three agreements were entered into between the parties. The arbitral tribunal had come to conclusion that the second agreement was entered into by Mr. Mohinder Puri under coercion and this agreement was a non-starter agreement because of non-fulfilment of the conditions and after holding this, the arbitral tribunal proceeded further and did not consider the various clauses as agreed into between the parties in supplementary agreement dated 30th December, 1999. Before supplementary agreement, there was a correspondence between the parties. L&T had written to PCL a letter dated 8th December, 1998 regarding prevalent market conditions, informing PCL that at the time of entering into the agreement, they had projected an estimated selling prices of Rs. 2,200 per sq. ft. to the management and out of this L&T would be getting Rs. 1,600 per sq. ft. which would have covered the construction costs including the cost of infrastructure for the entire project. 2,200 per sq. ft. to the management and out of this L&T would be getting Rs. 1,600 per sq. ft. which would have covered the construction costs including the cost of infrastructure for the entire project. It was informed that the infrastructure has to be built-up for the entire area although only 3 lakhs sq. ft. of Phase - I was to be developed. L&T informed PCL that it would not be possible to operate on funding lesser than Rs. 2,000 per sq. ft. as the minimum selling price but the prevalent market conditions show that L&T may be forced to sell on a lesser rate of Rs. 1,700 to 1,800 per sq. ft. It wanted assurance from PCL that L&T would get minimum of Rs. 1,500 per sq. ft. on the project, leaving balance to PCL, because otherwise it would not be able to operate [Letter dated 28th September, 1998 Vol. III of Tribunal Record page 257-58]. Another letter was written by L&T to Mr. Mohinder Puri after discussion wherein L&T again drew attention of PCL that if the property is sold at the rate below Rs. 2,000 per sq. ft., L&T should get Rs. 1500 per sq. ft. irrespective of the rates. L&T wanted PCL to confirm this in writing. This was imperative for L&T to take further action [Letter dated 20th October, 1998 Vol. III Pg. 285]. Vide another letter dated 29th December, 1998 again, L&T raised the issue of selling price. This letter also shows that DLF by that time had come into competition and offered flats at Rs. 1500 per sq. ft. in the market. The real estate prices thus had gone further down. L&T had all along been writing to PCL about the dwindling state of real estate market and the viability of the project and the stand taken by L&T is that whatever be the selling price, L&T should be getting a minimum of Rs. 1500 per sq. ft. for all constructed portions. A meeting had taken place between the parties on 6th April, 1999 (minutes of which are at pages 444 to 448 of Vol. III) which shows that Mr. Mohinder Puri had stated that the price difference between the competitor's prices and their prices should not be more than Rs. 50 or Rs. 100 per sq. ft. If the difference was in the range of Rs. III) which shows that Mr. Mohinder Puri had stated that the price difference between the competitor's prices and their prices should not be more than Rs. 50 or Rs. 100 per sq. ft. If the difference was in the range of Rs. 400 to 500, it may not attract customers. It would be seen from this correspondence that the price prevalent in the market and quoted by the competitors was around Rs. 1400 to 1500 per sq. ft. It was specifically recorded in the minutes that in view of the present market conditions, it might not be advisable to launch the project, which would cater only to the high-end users and it would be better to have apartments of 2-3 bedrooms like the one being sold in the market by DLF and other competitors. It was agreed that the parties should launch the project favourably for MIG class on one side of the road and in the meantime possibility of commencement of already approved upper MIG and HIG should be explored. Mr. Mohinder Puri vide his letter dated 5th May, 1999 [Vol. III Pg. 473-475] had shown his dismay at the pace of work and had informed L&T that he had already obtained permission for sample flat but the construction of the same has been abandoned without any reason. He also raised other issues. Thereafter, there was a long correspondence between the parties where both the parties made accusations against each other of irregularities. In its letter dated 7th May, 1999 [Vol. III page 473-475] L&T informed that DLF has launched their project @ Rs. 1,250 and Rs. 1,300 and the agents of the parties in this case, who were told to launch this project @ Rs. 1,850 per sq. ft., had given feedback that it was difficult to sell the property at this rate. L&T also informed that the launch of the project got cancelled and there had to be re-scheduling again and again due to various reasons including the litigations faced by PCL and L&T from certain landowners. It was also found that there were certain issues to be sorted out between PCL and DLF Universal Limited. L&T also accused Mr. Mohinder Puri of giving false information about 4-5 lakhs sq. ft. of space having been sold within a period of 3 months during that period, whereas this information was regarding the properties sold three years earlier. It was also found that there were certain issues to be sorted out between PCL and DLF Universal Limited. L&T also accused Mr. Mohinder Puri of giving false information about 4-5 lakhs sq. ft. of space having been sold within a period of 3 months during that period, whereas this information was regarding the properties sold three years earlier. Vide its letter dated 7th October, 1999, L&T specifically drew attention of PCL to Clause 26 and stated that the construction of the building was dependent upon the prevalent market conditions and it was in the overall interest of both the sides to wait for a better market conditions. L&T also informed Mr. Mohinder Puri that the report submitted by the consultant was not favourable to pursue project at this stage. A meeting was held between the parties and reference to that was also made in this letter. There was long correspondence between the parties right up to the date of entering into the supplementary agreement dated 30.12.1999 which shows that both PCL and L&T were aware of the market conditions and the recession in the market in respect of the real estate and that is why the construction work was re-scheduled and certain new terms and conditions were agreed upon between the parties in the supplementary agreement. The conditions under which the contract was signed are to be inferred from the facts and circumstances of the time when agreement was signed. In order to understand these conditions, the correspondence between the parties at the relevant time is of prime importance and the arbitral tribunal could not have ignored all this correspondence and evidence showing why the supplementary agreement was signed. For valid contract between the parties, it is essential that parties have given their free consent for it and a free consent is said to be free when it is not caused by coercion as defined in Section 15, undue influence as defined under Section 16, or fraud as defined in Section 17, or misrepresentation as defined in Section 18 of the Indian Contract Act, 1872. The arbitral tribunal concluded that because of non-payment of EDC charges by L&T, the PCL was under coercion to sign the second agreement. The first agreement was signed in January 1998 though it was dated 10th March, 1998. The arbitral tribunal concluded that because of non-payment of EDC charges by L&T, the PCL was under coercion to sign the second agreement. The first agreement was signed in January 1998 though it was dated 10th March, 1998. Thereafter, L&T though initially showed enthusiasm in the project but the moment L&T came to know that it was working under adverse market conditions and there was no scope that the developed area would to be sold at Rs. 2,000-2,200 per sq. ft., there was enough competition and it would be able to sell the area somewhere between Rs. 1500-1600 per sq. ft., it in unequivocal terms, wrote to PCL about the unviability of the project, and its unwillingness to proceed with the project unless it was assured of a minimum price of Rs. 1,500 per sq. ft. for its 75% share and that it was not prepared to construct and develop the entire land area unless built-up space could be sold at a price of Rs. 2,000 per sq. ft. In fact, PCL had already sold its own area to ITCREF at the rate of Rs. 2,000 and 2,250 per sq. ft. in high rise buildings and low rise buildings respectively by making a commitment to ITCREF for allotment of the area at this rate against the money it had already received. This price has to be considered as the prevalent price when the agreement dated 10th March, 1998 was signed between the parties. Clause 34 of the development agreement dated 10.03.1998 specifically provided about the impact of adverse and recessionary market conditions and the project could even be rescinded for this reason as in a case of force majeure. Due to this recessionary trend in the market, L&T which had taken up the project as a commercially viable project, was not interested in suffering losses and was, therefore, not prepared to part with huge money involved in the project. This scenario was not concealed from PCL. Letters written by L&T and minutes of meetings held between the parties make it clear. It was also evident that L&T was not prepared to waste or spend its money since it was unsure of positive returns. This scenario was not concealed from PCL. Letters written by L&T and minutes of meetings held between the parties make it clear. It was also evident that L&T was not prepared to waste or spend its money since it was unsure of positive returns. Under these conditions, an assurance was given by PCL that it would be able to market 75% of the area and took up the responsibility of marketing this area and entered into a supplementary agreement with L&T on 30th December, 1999. The circumstances under which the supplementary agreement was entered into between the parties are clearly written in the recitals of the agreement. The obligations to be fulfilled by L&T had also been provided and the obligations of PCL had also been provided. The PCL was at liberty not to enter into supplementary agreement and to rescind the contract at that very stage and enter into another development agreement with someone else as PCL ultimately did when it rescinded the contract. It only shows that PCL was very well aware of the recession and knew well that it would not get any other developer because of recession in the real estate market and had to stick to L&T. If there was any compulsion, it was compulsion of the market. Presuming that L&T was not willing to go ahead with the contract under agreement dated 10th March, 1998 and told PCL that unless it executes the supplementary agreement, L&T would not continue with the project, does this amount to coercion ? I consider that when two business entities interact with each other and are talking in respect of business transactions, the prime consideration in their minds is about the viability of the transaction and the profits. They have least regard for anything else. It is the right of a business entity to take care of its interests. All business persons enter into contracts with eyes open and their fingers on the pulse of the market. Same was the situation in case of PCL and L&T when the supplementary agreement was entered into between them. It cannot be said that L&T insisted upon the continuation of the contract and PCL had no option. All business persons enter into contracts with eyes open and their fingers on the pulse of the market. Same was the situation in case of PCL and L&T when the supplementary agreement was entered into between them. It cannot be said that L&T insisted upon the continuation of the contract and PCL had no option. Rather L&T was not willing to continue the project and on having assurance from PCL about taking responsibility of marketing 75% of the developed area, it agreed for continuing with the project and entered into supplementary agreement. Where was coercion on PCL and how can coercion be attributed to L&T ? This court in Classic Motors Ltd. vs. Maruti Udyog Limited, 65 (1997) DLT 166 observed in paragraphs 31 and 32 as under : "31. The plea of the plaintiff that Clause 21 is invalid because of unequal bargaining power and duress and coercion also needs to be examined at this stage. My attention is drawn to a decision of this court in Unikol Bottlers Ltd. vs. Dhillon Kool Drinks reported in 1994 (28) DRJ 483. Paragraph 32 of the said judgment being relevant for my purpose is extracted below : 'For a valid contract it is essential that the parties have given their free consent for it. Section 10 of the Contract Act statutorily recognises the requirement of free consent for a valid contract. Section 13 of the Contract Act defines consent as follows - 'two or more persons are said to consent when they agree upon the same thing in the same sense'. Section 14 of the said Act defines 'free consent' as 'consent is said to be free when it is not caused by - (1) coercion, as defined in Section 15; (2) undue influence, as defined in Section 16; or (3) fraud, as defined in Section 17; or (4) misrepresentation, as defined in Section 18; or (5) mistake, subject to the provisions of Sections 20, 21 and 22. Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake, Sections 15 and 16 define coercion and undue influence. What follows from these statutory provisions is that an agreement to be valid should be the result of free consent apart from other requirements. Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake, Sections 15 and 16 define coercion and undue influence. What follows from these statutory provisions is that an agreement to be valid should be the result of free consent apart from other requirements. While dealing with the question of duress/coercion and unequal bargaining power one is really concerned with the question of free will, i.e. did the parties enter into the agreement with a free will ? It is the plaintiff who has raised the question of its will being dominated by the defendants and, therefore, not being a free agent, therefore, the plaintiff is on test. It has to be ascertained whether the plaintiff exercised a free will or not while entering into the supplemental agreement.' For this purpose there are several factors which need to be looked into. They are - (1) Did the plaintiff protest before or soon after the agreement ? (2) Did the plaintiff take any steps to avoid the contract ? (3) Did the plaintiff have an alternative course of action or remedy ? If so, did the plaintiff pursue or attempt to pursue the same ? (4) Did the plaintiff convey benefit of independent advice ?' 32. Let me now examine and apply the principle of the aforesaid factors in order to test the plea of the plaintiff. The plaintiff admittedly did not make any protest before entering into the agreement but on the other hand, went ahead with its performance. The validity of a clause of the agreement is now being sought to be challenged when it was terminated. Even in the earlier two petitions filed by the plaintiff under Section 20 of the Arbitration Act, the plaintiff did not challenge the validity of the agreement. Thus, the plaintiff has taken full advantage under the agreement and reaped benefits from it and now when the same was terminated, the plaintiff immediately rushes to this court challenging the validity of the agreement. Therefore, the first two questions are to be answered in the negative, i.e. the plaintiff did not raise any protest before entering into or soon after entering into the agreement and also did not take any steps to avoid the agreement. Therefore, the first two questions are to be answered in the negative, i.e. the plaintiff did not raise any protest before entering into or soon after entering into the agreement and also did not take any steps to avoid the agreement. Rather, it affirmed the agreement and reaped all the benefits of the agreement from 1983 onwards till it was terminated. After having done so, the plaintiff is not entitled to challenge the agreement. In North Ocean Shipping Co. Ltd. vs. Hyundai Construction Co. Ltd. reported in 1978 (3) All ER 170 it has been held that if the party complaining of an unfair contract, does not do anything to avoid it and accepts it, then the complaining party cannot make a grievance of the contract, therefore, the third factor also stands answered. So far the question of independent advice is concerned, from the facts delineated above, it is apparent that PW 1, the Chairman and Managing Director of plaintiff is a rich and flourishing businessman having number of properties and various businesses. He, therefore, had full knowledge as to the implication of the terms of the agreement and he also had access to the best of advices and suggestions. But in spite of being placed at such an advantageous position, PW 1 did not react in any manner to the terms of the agreement, rather continued to reap the benefits under the agreement." In the present case, both the parties are business companies having paramount interest of making profits. Both had equal bargaining power. If PCL was unwilling to enter into contract of 30.12.1999, nobody could have forced it. The principle of adverse superior power does not apply where the bargaining power of the contracting parties is equal or almost equal. I, therefore, consider that arbitral tribunal's observation that the agreement dated 30th December, 1999 was entered into under coercion by PCL was contrary to the evidence on record and contrary to public policy and laws. The arbitral tribunal in this case performed a miraculous feat. PCL in its claim had taken up a stand that the supplementary agreement dated 30.12.1999 and the tripartite agreement dated 10.01.2000 both were entered into by PCL under coercion. Similar facts and circumstances were given by PCL in support of its contentions. The arbitral tribunal in this case performed a miraculous feat. PCL in its claim had taken up a stand that the supplementary agreement dated 30.12.1999 and the tripartite agreement dated 10.01.2000 both were entered into by PCL under coercion. Similar facts and circumstances were given by PCL in support of its contentions. However, the arbitral tribunal held that the agreement dated 30th December, 1999 was void and a non-starter and it was entered under coercion but did not say so in respect of tripartite agreement dated 10th January, 2000 under which L&T had incurred certain liabilities and given indemnity bonds and also paid money to LKB. In the recitals of tripartite agreement it was mentioned that it was a result of supplementary agreement between the parties and the liabilities were to be incurred under the tripartite agreement because of the supplementary agreement. If the supplementary agreement was a void agreement, non-starter agreement, the tripartite agreement had to go automatically. It could not be said that supplementary agreement, resulting entering into a tripartite agreement, was void but the tripartite agreement was a live and valid agreement. The arbitral tribunal while holding that PCL was not bound by the supplementary agreement, it being void and non-starter, held L&T bound by the tripartite agreement and also foisted liabilities on L&T under tripartite agreement. No reason whatsoever is given by the arbitral tribunal as to how and for what reasons the tripartite agreement was binding on L&T when the supplementary agreement providing execution of the tripartite agreement was not binding on the parties. The award of the tribunal is bound to be set aside on this sole ground. After holding supplementary agreement as void and not binding, it had no jurisdiction to give reliefs and pass award on the basis of tripartite agreement which in fact was part and parcel of supplementary agreement. After holding that L&T was liable and bound by tripartite agreement, the arbitral tribunal passed the award in favour of LKB giving directions to L&T to discharge the liabilities of LKB as if the tripartite agreement independently was the subject-matter of arbitration before the arbitral tribunal and the LKB was one of the claimants. Neither LKB was a party before tribunal, nor the tripartite agreement had an arbitration clause. Neither LKB was a party before tribunal, nor the tripartite agreement had an arbitration clause. It is evident that arbitral tribunal exceeded its jurisdiction and not only took contradictory views in respect of two agreements but assumed jurisdiction that it did not have. The award is vitiated on this ground alone. Another reason given by the arbitral tribunal is that the agreement dated 30th December, 1999 was an invalid agreement because three preconditions for the agreement coming into force were not satisfied. The learned arbitral tribunal has reproduced three conditions but has failed to observe how these were not satisfied. The very first condition provided that L&T was to replace or take over the bank guarantee furnished by PCL through their banks to DTCP, Haryana. It has come on record that DTCP, Haryana was not agreeable in replacing the guarantee and under these circumstances, L&T had given counter guarantee to LKB to continue the guarantees of DTCP. This was in fact a substantial fulfilment of the first condition. The second condition, as mentioned, was that EDC amount of Rs. 6 crores was to be paid by L&T to DTCP in terms of the tripartite agreement. The record shows that L&T addressed a letter tendering Rs. 6 crores in terms of this agreement to the bank for EDC payment. The L&T had also reimbursed the expenditure of Rs. 40,30,692 as agreed under this agreement to PCL. The other condition was also satisfied when L&T paid to LKB an amount of Rs. 5.19 crores on 21st January, 2000. The documents in this regard were on the record of the learned arbitral tribunal. The learned arbitral tribunal did not refer to any evidence while holding that the supplementary agreement was a non-starter due to non-fulfilment of conditions. The arbitral tribunal without giving any reasons gave a finding that the conditions precedents as specified in the supplementary agreement were not satisfied. In fact Condition Nos. II and III were not the preconditions to be satisfied. Different preconditions were mentioned only in Condition I. Conditions II and III referred to different aspects. The only Conditions (a) to (d) given in Condition No. I were to be fulfilled. All these were substantially fulfilled by L&T and the tripartite agreement was entered into with LKB in pursuant of this supplementary agreement. Different preconditions were mentioned only in Condition I. Conditions II and III referred to different aspects. The only Conditions (a) to (d) given in Condition No. I were to be fulfilled. All these were substantially fulfilled by L&T and the tripartite agreement was entered into with LKB in pursuant of this supplementary agreement. The correspondence subsequent to the tripartite agreement and the supplementary agreement made between the parties also shows that there was no dispute between the parties as far as performance of these preconditions was concerned. Thus, this part of the award of the learned arbitral tribunal that the supplementary agreement was a non-starter was contrary to the material on record and evidence. There is no doubt that L&T after learning about the risk in the real estate market had not been willing to develop the area as per the development agreement and had been asking PCL to wait for favourable market conditions. However, PCL was under an obligation to ITCREF as it had made commitment to ITCREF of giving built-up area within a period of 5 years from 1997, i.e. by 2002 and that was the reason that PCL and L&T had entered into the supplementary agreement. If there was a compulsion on PCL it was because of the commitment of the PCL with ITCREF. PCL had suggested to L&T, as can be seen from the correspondence, that L&T should dilute the standards and quality of flooring material, interior quality of electric switches, etc. to reduce the cost, as was being done by other builders. There is unequivocal acknowledgement in the correspondence that the market was in recession and a suggestion was given by PCL to make the project viable by diluting standards and selling at a low market price of flats. Therefore, under no circumstances, it can be said that PCL signed the supplementary agreement because of any coercive measures taken by L&T. Neither there is an iota of evidence that the said preconditions given in the supplementary agreement were not fulfilled. The learned arbitral tribunal awarded damages to the tune of Rs. 35 crores to PCL observing that this was a reasonable amount in view of the arbitral tribunal. There is no basis in the award how this amount was arrived at. The learned arbitral tribunal awarded damages to the tune of Rs. 35 crores to PCL observing that this was a reasonable amount in view of the arbitral tribunal. There is no basis in the award how this amount was arrived at. A careful perusal of the agreement between the parties would show that the parties had initially agreed to develop only a small portion of 18.02 acres as given in Schedule B. The total area to be initially constructed by L&T in the first phase was 3 lakhs sq. ft. as per the agreement dated 10th March, 1998 which was relied upon by the learned arbitral tribunal. PCL was to keep only 25% share in the area. The share of PCL in the area would have been 75,000 sq. ft. PCL had already made a commitment of giving more than 75,000 sq. ft. of area to ITCREF as per the agreement dated 10th March, 1998. L&T was to get 2,25,000 sq. ft. of area in the first phase of project. In fact, 1,53,500 sq. ft. was to be given by PCL to ITCREF in the property to be developed on Schedule B land to be developed by L&T within five years. If we go by the supplementary agreement, the total area to be developed in Schedule B Property was 3.84 lakhs sq. ft. and the share of PCL @ 23% would have been 88,320 sq. ft. Therefore, under no circumstances, PCL could have fulfilled the commitment of an area of 1,53,500 sq. ft. out of its own share. In order to fulfil its commitment to ITCREF, PCL would have to have purchased additional area from L&T because its own share fell short of the committed area. If entire 88,320 sq. ft. in the developed property was given to ITCREF, still it would have fallen short of 17,880 sq. ft. of the area (in terms of later agreement with ITCREF) which it ought to have purchased out of the share of developer. Since PCL had committed its entire area to ITCREF and had already received the price in lieu of this area, PCL was not to receive anything more, had first phase of the project been completed, PCL would have only got its share of area which it would have handed over to ITCREF against the price already received by it. Since PCL had committed its entire area to ITCREF and had already received the price in lieu of this area, PCL was not to receive anything more, had first phase of the project been completed, PCL would have only got its share of area which it would have handed over to ITCREF against the price already received by it. The price which PCL had received included its profits and everything. In fact, it included part of the development charges which it might have had to pay to L&T. The second phase of the project was to start only after successful completion of the first phase of the project. The first phase as well as the second phase of completion was subject to prevalent market conditions and recession. Though it is mentioned in the agreement that time was the essence of the contract, but it is also mentioned that the time period for completion of the first phase was extendable by another one year. It is also provided that recession in the market would have substantial effect, even to the extent of rescinding the contract. Under these circumstances, if any party could have suffered losses by breach of the contract, it was L&T and not PCL. In fact, PCL had already pocketed its part of profit of the first phase and on the basis of this pocketing of profit of the first phase only, it was able to have land of 40.661 acres in its own name. In the notice which PCL served upon L&T while finally rescinding the contract, PCL made it clear that it had already handed over the project to some other developer for keeping of its commitments. This subsequent agreement between PCL and the second developer was pivotal to determine if PCL suffered any losses and was entitled to damages or not. This evidence has not been even discussed by the arbitral tribunal. The whole agreement and the conduct only shows that PCL had received its profits and price in lieu of the area which was yet to be constructed from a third party, i.e. ITCREF and what it now wanted to see was that the profit which has already been received by it should not slip out of its hands by action on the part of ITCREF. There was no question of loss to PCL at least in the first phase of the project and second phase of the project was to be considered only after the first phase of the project was over. There is no mention about the total built-up area to be constructed in the entire agreement over Schedule A of the land. No sanctioned plans had been applied for 40.661 acres of land nor have been proved on record. Counsel for PCL argued that the arbitral tribunal can always enter into some kind of guess work in order to determine loss or profits. There is no doubt that the arbitral tribunal and the court can make some guess work in order to calculate the profits but this guess work can be done only after keeping the contract in mind. Where a person has already sold more than his part of the area and is having money with him and has only given commitment to the purchaser to give the constructed area in a time span, the question of loss caused to him does not arise unless and until the person to whom he has given commitment, files a suit for recovering certain damages from him because of non-fulfilment of the commitment within time. If ITCREF had claimed some damages from PCL because of non-fulfilment of the commitment of handing over committed area within time as agreed or because of non-construction of the area by L&T, PCL had to pay some amount of damages to ITCREF, then only PCL would have been able to claim losses otherwise PCL cannot claim that it suffered losses because of non-fulfilment of the project in time by L&T. Thus, the decision arrived at by the learned arbitral tribunal is not only arbitrary but is totally bereft of reasons and is contrary to law and rationality. Mr. Mohinder Puri in his evidence has stated that the rescinding of the contract had caused him a loss of Rs. 117 crores since this was the amount of projected profit as assessed by income tax authority. Learned arbitral tribunal made observations that it would not go by figure of Rs. 117 crores but it would make a conservative estimate and peg the share of profits of PCL at Rs. 93 crores and out of this PCL would have given Rs. 117 crores since this was the amount of projected profit as assessed by income tax authority. Learned arbitral tribunal made observations that it would not go by figure of Rs. 117 crores but it would make a conservative estimate and peg the share of profits of PCL at Rs. 93 crores and out of this PCL would have given Rs. 43.59 crores to ITCREF, therefore, the arbitral tribunal was of the view that it would allow damages to the tune of Rs. 35 crores to PCL. The arbitral tribunal committed factual error of not taking into account that L&T had initially to complete only a small part of the project and remaining project was to be taken up only if there was market viability. PCL would have earned no further profits, rather PCL would have to spend from its own pocket for purchase of extra area, which it had committed to ITCREF, from L&T. PCL had committed 1,06,200 sq. ft. of area to ITCREF. The total area to be constructed under the project in Phase I was 3,84,000 sq. ft. and the PCL's share would have been 88,320 sq. ft. Still PCL would have fallen short of 17,880 sq. ft. of the area which it ought to have purchased from L&T at the same price at which it has sold to ITCREF, i.e. Rs. 2,000-2,250 per sq. ft. Thus, the arbitral tribunal's passing an award in lieu of damages to the PCL was contrary to the factual situation as well as the terms and conditions given in the development agreement as well as in the supplementary agreement. Since the arbitral tribunal came to conclusion that the supplementary agreement was a non-starter, the learned arbitral tribunal had not taken into account the contractual obligations of PCL under the supplementary agreement. It had based its award on only a part of the contract and ignored the rest of the contract entered into between the parties. I consider that since the arbitral tribunal has ignored the rest of the contract which was a valid contract entered into between the parties, the award is liable to be set aside on this ground. The award is liable to be set aside because the damages granted by the learned arbitral tribunal amounted to unjust enrichment of PCL. I consider that since the arbitral tribunal has ignored the rest of the contract which was a valid contract entered into between the parties, the award is liable to be set aside on this ground. The award is liable to be set aside because the damages granted by the learned arbitral tribunal amounted to unjust enrichment of PCL. Moreover, the damages had been granted without taking into account the obligations of PCL as agreed into under the supplementary agreement dated 30th December, 1999. PCL had to perform its part of obligation under supplementary agreement and L&T's obligation was to start only once PCL had performed its part of contract. The arbitral tribunal not only wrongly ignored the supplementary agreement, but granted reliefs which were not prayed for and were beyond the scope of reference. It also decided the claim of LKB which was neither a party nor had made a claim before arbitrator and was pursuing its claim before DRT. The award is liable to be set aside on this ground as well. An argument has been raised by PCL that L&T had deliberately not placed on record a report of consultant under the advice of which L&T had decided to exit from real estate business and for this reason had not paid EDC and had not commenced development of the site. I consider that no importance can be attached to this report. The breach of contract has to be considered irrespective of the report. If L&T had committed breach, whether there was a report supporting the breach or not, is immaterial. As a business entity L&T had a right to consult any professional and it was not obligatory on L&T to produce before the tribunal such professional advice. What was material for the tribunal, and for that matter for the court, is to consider the actions of L&T and not to see what was the advice behind such actions. Therefore, whatever advice had been given to L&T, the court and the tribunal were only concerned with the actions of the L&T and not with the advice behind the actions. No adverse inference can be drawn against L&T for not producing the report. In view of the above stated reasons, the award passed by the learned arbitral tribunal is not sustainable in the eyes of law and is liable to be set aside and is hereby set aside. No adverse inference can be drawn against L&T for not producing the report. In view of the above stated reasons, the award passed by the learned arbitral tribunal is not sustainable in the eyes of law and is liable to be set aside and is hereby set aside. The petition is hereby allowed.