Judgment : All the above three Original petitions are filed under Section 30 and 33 read with Section 31 of the Arbitration and Conciliation Act 1940 and Order 43 Rules 1, 2, 6 and 7 of O.S. Rules to set aside the award dated 210. 1997 passed by the Arbitrator Mr. Justice S. Sivasubramanian (Retd.) in O.P.No.44, 45 and 46 of 1998 respectively and for costs. 2. As the parties are one and the same and the issue involved is also the same, a common order is being passed to dispense of the above petitions and the applications. 3. Tamil Nadu Water Supply and Drainage Board (hereinafter called as “Board) have filed O.P.No.77, 78 and 79 of 1999 to set aside the three awards dated 210. 1997 passed by the arbitrator. 4. For the sake of convenience, I am referring to the facts in O.P.No.77 of 1999 and it is admitted by both the parties that the issue involved is one and the same in all the three petitions and only the amounts vary with regard to the tender price, the awarded amount, etc. 5. The Government of Tamilnadu decided to execute Water Supply projects to three cities viz., Coimbatore, Madurai and Salem with a loan assistance of the World Bank. Though the project involved a number of works, we are only concerned with three works viz., 1. Coimbatore Reach I: for manufacturing, supply, laying, jointing and testing of PSC pipes of a diameter 1500 mm for feeder and transmission main (turnkey basis) for an estimated value of Rs.4,82,85,179/-; 2. Coimbatore Reach II: for similar work in respect of PSC pipes ranging from 700-1500 mm for transmission main (turnkey basis), for an estimated value of Rs.4,51,30,263/-; and 3. Madurai Reach I: for similar work in respect of PSC pipes of diameter 1000-1100 MM for transmission main (turnkey basis), for an estimated value of Rs.6,02,71,368/- 6. The Board, after negotiations accepted the tender submitted by Pioneer Engineering Syndicate, Hyderabad, the respondent herein in all the three petitions and issued the work order on 4. 1998. Formal agreement between the parties was signed on 6. 1988 between the Board and the respondent. O.P.No.77 of 1999 deals with the disputes and differences between the parties relating to Coimbatore Range II agreement. 7. 1998. Formal agreement between the parties was signed on 6. 1988 between the Board and the respondent. O.P.No.77 of 1999 deals with the disputes and differences between the parties relating to Coimbatore Range II agreement. 7. In accordance with the terms of the agreement, the respondent undertook manufacturing, supplying, laying and jointing of PSC Pipeline work, at a tendered cost of Rs.4,51,30,263/- to be completed within a period of 24 calendar months. The said period was to commence on the date of handing over of the site, after concluding the agreement. According to the respondent, a part of the site was handed over on 19. 1988 and as such the stipulated time limit can be said to have commenced on 19. 1989 and expired on 19. 1991. The total number of pipes to be manufactured in 18 months was 2940 giving an average rate of 164 per month. The rate at which the pipes were to be laid in terms with the agreement was an average of 6 to 7 pipes per day, 8. According to the respondent, though they have a factory at Hyderabad, they were asked to set up a factory at the site of the work and they have made all the necessary preparations for executing the work. It is their case that inspite of their prepardness the Board committed breaches of contract conditions, like, delay in payment of initial advance by the board to the respondent, the failure of the board to make land for the factory, delay in according initial approval to the designs, manufacturing process of pipes etc. and the delay in giving possession of the site by the board. .9. The board on the other hand were complaining of slow progress of work on the part of the respondent. By letter dated 26. 1991, the board extended the time for completion of work by six months with effect from 6. 1991. Thereafter, the board issued a Show cause notice on 8. 1991, seeking reasons as to why action should not be taken under the provisions of the agreement, for which, a reply was sent by the respondent. Not satisfied with the reply, the Board chose to issue a notice under clause 44 of the General conditions of the contract, threatening termination of the contract if the target stated thereon was not made good within 14 days. Not satisfied with the reply, the Board chose to issue a notice under clause 44 of the General conditions of the contract, threatening termination of the contract if the target stated thereon was not made good within 14 days. A reply was sent by the respondent, but, the board terminated the contract in September 1991. Challenging the termination of the contract, the respondent approached this Court by filing a Writ petition and sought for an interim stay against encashment of Bank Guarantees, pending disposal of the writ petition. In the meantime, the respondent submitted an appeal to the Government on 9. 1991 and the Government directed the Board to extend the time upto December 1992. In view of this position, this Court passed an order on 111. 1991 and dismissed the writ petition, incorporating therein the order of the Government. Subsequently, a meeting was held at the Government level, in which, it was decided to cancel the earlier order of termination and to enter into a supplemental agreement. Accordingly, a supplemental agreement was entered into on 310. 1992. 10. As per the supplemental agreement, the respondent was to commence the civil work on 110. 1992 and a new rate of progress schedule was agreed upon. The Board extended certain concessions pursuant to the supplemental agreement. Three months time was also given by the Board to the respondent for showing appreciable progress. However, the respondent complained to the Board stating that the officials have failed to grant reliefs as per the decision of the Board. Therefore, a meeting was arranged with the Hon’ble Minister, in which, the respondent was asked to mobilize Rs.20 lakhs within a period of 10 days to demonstrate their willingness and ability to complete the work. Accordingly, the respondent mobilized over Rs.25 lakhs and informed the same to the Board on 5. 1993. 11. Later on, the respondent complained that the officials of the Board acted in open defiance of the direction of the Board and the Hon’ble Minister. The Board issued a notice on 15. 1993, for which, a reply was given by the respondent on 15. 1993 stating that the unilateral target fixed by the Board was arbitrary and impracticable. Ultimately, the Board terminated the contract on 26. 1993 and challenging the order of termination, the respondent moved this Court and filed a writ petition. The Board issued a notice on 15. 1993, for which, a reply was given by the respondent on 15. 1993 stating that the unilateral target fixed by the Board was arbitrary and impracticable. Ultimately, the Board terminated the contract on 26. 1993 and challenging the order of termination, the respondent moved this Court and filed a writ petition. This Court granted an interim stay restraining the Board from enforcing the Bank Guarantee. .12. The respondent wrote to the Board on 9. 1993, requesting them to have the dispute and differences adjudicated by referring the same to arbitration, for which, the Board by letter dated 29. 1993, indicated no objection to such a course. This Court allowed the writ petition in part and directed both the parties to file their claims, statements and other documents before the Arbitrator to be appointed under Section 20 of the Arbitration and Conciliation Act on the application of the respondent. The order of stay already granted was continued till the disposal of the arbitration proceedings were completed. The respondent, filed a statement under Section 20 of the Arbitration Act before this Court, and this Court appointed Mr. Justice S. Sivasubramaniam (Retd.) as the Sole Arbitrator to adjudicate and decide all the disputes and differences by its order dated 17. 1996 made in C.S. No.1916 to 1918 of 1994. 13. The learned Arbitrator entered reference on 8. 1996. 14. The respondent filed their claim statement on 18. 1996 and on 29. 1996, the respondent filed three petitions to amend the three claim petitions. The Board filed their counter statement to the claim petitions and it was represented on behalf of the Board that they are not filing any counter to the amended claim petitions. 15. Before the arbitrator, the respondent sought declaration that the termination of the contract by the Board was wrongful and illegal and therefore, the respondent is entitled to the reliefs claimed in the claim petition. In the claim petition, the respondent claimed compensation on the following heads, viz; 1. Claim No.1 is for compensation for losses suffered by the respondent totaling a sum of Rs.1,65,65,132/- 2. Claim No.2 is for loss on account of idle machinery and equipment and reduced productivity which to comes to Rs.3,17,04,332/-; 3. The third claim is based on final accounts refund of Bank Guarantees, hypothecation deeds, Security deposits, Retention money, etc. Claim No.1 is for compensation for losses suffered by the respondent totaling a sum of Rs.1,65,65,132/- 2. Claim No.2 is for loss on account of idle machinery and equipment and reduced productivity which to comes to Rs.3,17,04,332/-; 3. The third claim is based on final accounts refund of Bank Guarantees, hypothecation deeds, Security deposits, Retention money, etc. A sum of Rs.74,40,585/- was claimed under this head; 4. The 4th claim was for payment of interest @ 18% per annum; 5. The final claim is for the cost of arbitration proceedings. 16. Apart from filing the counter statement the Board filed a counter claim claiming the following amounts; 1. A sum of Rs.342.66 lakhs for the cost incurred for carrying out the balance work with M/s. Indian Humes Pipes Manufacturing Ltd., Bombay, which is to be made good by the respondent. 2. A sum of Rs.47.76 lakhs towards the loss of interest due to the delay in the encashment of Bank Guarantee monies. 3. A sum of Rs.20 lakhs towards the legal and other allied expenses. 4. Rs.1.10 lakhs towards the Modvat benefits availed by the respondent for the entire quantity of HT steel and cement purchased from the suppliers. 5. A sum of Rs.3.20 lakhs towards recovery for the HT steel issued for manufacturing of pipes; 6. A sum of Rs.3.63 lakhs being the excise duty remitted by the Board on behalf of the respondent herein. 7. A sum of Rs.10.12 lakhs towards the losses on account of non-collection of water tariff for a period of 1 ½ years from 26. 1993. 8. A sum of Rs.17.55 lakhs towards the expenditures incurred by the Coimbatore Municipal Corporation, on the transport of water through tankers to the public. Thus, a total sum of Rs.642.52 lakhs was claimed by the Board as counter claim. 17. By the impugned award the learned arbitrator awarded a sum of Rs.1,41,62,548/-towards the claim No.1 and rejected the claim No.2. The learned arbitrator further awarded a sum of Rs.1,09,42,385/- towards the claim No.3 and awarded interest @ 18% per annum on the total amount payable under claim No.1 and claim No.3. The learned arbitrator directed the Board to pay past interest on the value of Bank Guarantee amounts recovered by the Board at actual rates chargeable by the bank. The learned arbitrator further awarded a sum of Rs.1,09,42,385/- towards the claim No.3 and awarded interest @ 18% per annum on the total amount payable under claim No.1 and claim No.3. The learned arbitrator directed the Board to pay past interest on the value of Bank Guarantee amounts recovered by the Board at actual rates chargeable by the bank. The arbitrator further directed the Board to pay interest @ 18% per annum on the sum of Rs.1,00,000/- being the Earnest money forfeited by the Board. .18. Similarly, pendente lite interest and future interest at the same rates were also awarded by the arbitrator. The respondent was also awarded a sum of Rs.4 lakhs towards the cost of arbitration. 19. Similar awards were also passed by the learned arbitrator with regard to the other two contracts. The counter claims of the Board were rejected by the learned arbitrator. Aggrieved by the same, the Board filed O.P.No.77 to 79 of 1999 for the aforesaid reliefs. 20. The respondent filed counter affidavits in all the three petitions, for which, reply affidavits have been filed on behalf of the Board. 21. Heard the learned counsel for the Board and G. Masilamani, the learned senior counsel for the respondent. I have also gone through the documents and me judgments relied on by them in support of their submissions. .22. The learned counsel for the board, relying on the decision of the Hon’ble Supreme Court Jagadish Chandra Gupta AIR 1964 SC 1882 case submitted that the respondent is a partnership firm and the reconstituted partnership firm with its present partners was not registered under the partnership act and therefore, the entire proceedings starting from the application filed under Section 20 of the Arbitration Act to the culmination of the award are vitiated and therefore, the award cannot be enforced against the Board. She further contended that there is no valid arbitration agreement between the parties to refer the dispute in question to arbitration as Clauses 50 and 51 of the contract make it very clear that disputes could be referred to arbitration only when the claim is upto Rs.50,000/- to be made only before the Civil Court having jurisdiction. She strongly placed her reliance on the decision of this Court in Rajan Engineering Contractors v. State of Tamil Nadu and Others (2006) 2 TNLJ 231 (C) in support of the above submission. She strongly placed her reliance on the decision of this Court in Rajan Engineering Contractors v. State of Tamil Nadu and Others (2006) 2 TNLJ 231 (C) in support of the above submission. She further urged that no consent whatsoever was given by the board for the appointment of the Arbitrator. The Board only suggested the name for appointment of Arbitrator and it does not denote that the board accepted the existence of arbitration clause in the agreement. She relied on the decision of the Hon’ble Supreme Court in Waverly Jute Mills v. Raymond & Co. AIR 1963 SC 90 in this regard. She further pointed out that by filing a counter statement and making the counter claim, it cannot be said the Board has acquiesced to the jurisdiction of the arbitrator as held by the Hon’ble Supreme Court in UP Rajkiyan Nirman Nigam Ltd. v. Indus Pvt. Ltd. and Others (1996) 2 SCC 677. On merits, she submitted that the finding of the Arbitrator that the time is not the essence of the contract and the fastening the liability on the Board for breach of the contract are perverse and the same is contrary to the clauses contained in the supplemental agreement as well, as the original. She further contended that even assuming without admitting that the respondent is entitled to any compensation, the compensation awarded by the arbitrator is certainly on the excessive side considering the relevant facts of the contract. She further took exception to the exorbitant interest awarded by the Arbitrator. 23. Per contra, the learned senior counsel for the respondent submitted that having given consent before this Court for the appointment of Mr. Justice S. Sivasubramaniam (Retd.) as the Arbitrator and having filed a counter claim before him, the board cannot now challenge the jurisdiction of the arbitral Tribunal by taking shelter under Clause 51 of the general conditions of the contract. In support of the above submission, the learned senior counsel relied on the following decisions: 1. Municipal Corporation of Gr. Bombay and Another v. Kulkarni & Co. and Another (1993) 3 Arb. LR 452 (Bom.) 2. Charkop Priya Co-op. Housing Society Ltd. v. Trade Well Constructions (1999) Suppl Arb LR 397 (Bom) 3. Neelkantan and Bros. Construction v. Superintending Engineer, National Highways, Salem AIR 1988 SC 2045 4. Prasun Roy v. Calcutta Metropolitan Development Authority and Another AIR 1988 SC 2048 5. and Another (1993) 3 Arb. LR 452 (Bom.) 2. Charkop Priya Co-op. Housing Society Ltd. v. Trade Well Constructions (1999) Suppl Arb LR 397 (Bom) 3. Neelkantan and Bros. Construction v. Superintending Engineer, National Highways, Salem AIR 1988 SC 2045 4. Prasun Roy v. Calcutta Metropolitan Development Authority and Another AIR 1988 SC 2048 5. Tarapore and Company v. Cochin Shipyard Ltd., Cochin and Another AIR 1984 SC 1072 : (1984) 2 SCC 680 6. Board of Trustees of Paradeep Port and Another v. Natwar Iron and Steel Works and Co. and Another AIR 1993 Orissa 298 7. Inspat Engg. & Foundry Works B.S. City, Bokaro v. Steel Authority of India Ltd., B.S. City, Bokaro AIR 2001 SC 2516 : (2001) 6 SCC 347 : (2001) 3 MLJ 145 8. N. Chellappan v. Secretary, Kerala State Electricity Board and Another AIR 1975 SC 230 : (1975) 1 SCC 289 9. State of Rajasthan v. Nav Bharat Construction Co. AIR 2005 SC 2795 : (2005) 11 SCC 197 : (2005) 3 MLJ 85 24. With regard to the argument of the learned counsel for the Board that the respondent is not registered under the Partnership Act, the learned senior counsel submitted that this point was never raised before the Arbitrator and the same was raised for the first time before this Court. That apart, the learned senior counsel submitted that at the time of the original agreement on 6. 1988, the respondent was a registered partnership firm and only in the year 1992, one of the Managing partners died, and few other partners retired and a new deed was drawn. According to the learned senior counsel, mere non-compliance of Section 63(2) of the Indian Partnership Act 1932 will not amount to non-registration of the firm and therefore, there is no bar under Section 69(2) of the Act. He relied on the decision of the Supreme Court reported in: Gwalior Oil Mills v. Supreme Industries (1999) 9 SCC 113 Sharad Vasant Kotak and Others v. Ramniklal Mohan Lal Chawda and Another AIR 1998 SC 877 : (1998) 2 SCC 171 25. The learned senior counsel further contended that the argument of the board to the effect that in view of the supplemental agreement dated 30.10.1992 the arbitration clause contained in the original agreement perished does not have any merits. The learned senior counsel further contended that the argument of the board to the effect that in view of the supplemental agreement dated 30.10.1992 the arbitration clause contained in the original agreement perished does not have any merits. Supplemental agreement has not superseded the original agreement and it is only in addition to the original agreement. On merits, the learned senior counsel submitted that a reasoned award has been passed by the learned Arbitrator on the basis of entire evidence let in by the parties, that too after referring to all the relevant clause and the objections raised by the board. Therefore, there is little scope for this Court to interfere with the award under the provisions of the Act 1940. The learned senior counsel relying on the following judgments submitted that the Court while exercising the power under Section 30 of the Arbitration Act, 1940 cannot re-apprise the evidence or examine the correctness of the conclusion arrived at by the Arbitrator. According to the learned senior counsel, even if the award’s decision appears to be erroneous, the Court will not interfere with the award, if the decision is reached fairly after giving adequate opportunities to the parties. 1. Bhagawati Oxygen Ltd. v. Hindustan Copper Ltd. AIR 2005 SC 2071 : (2005) 6 SCC 462 2. U.P. State Electricity Board v. Searsole Chemicals Ltd. AIR 2001 SC 1171 : (2001) 3 SCC 397 3. Continental Construction Ltd. v. Food Corporation of India AIR 2003 Delhi 32 4. Indu Engg. And Textiles Ltd. v. Delhi Development Authority AIR 2001 SC 2668 : (2001) 5 SCC 691 : (2001) 3 MLJ 111 5. Engineer Syndicate v. State of Bihar and Others (2007) 2 Scale 224 26. To the contention of the Board that time is the essence of the contract, the learned senior counsel relying on the decisions of the Hon’ble Supreme Court in AIR 1979 SC 720 and AIR 1999 SC 3804 , submitted that whether the time is the essence of the contract or not, is based on the facts and circumstances of each case and therefore, a decision arrived at by the Arbitrator on the basis of the factual aspects cannot be assailed by the board before this Court. The learned senior counsel further submitted that no exception could be taken to the interest awarded by the learned Arbitrator by relying on the decision of the Hon’ble Supreme Court in Union of India v. Justice S.S. Sandhawalia (Retd) AIR 1994 SC 1377 : (1994) 2 SCC 240 : (1994) 2 MLJ 32 and Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa v. N.C. Budharaj (Deceased) by L.Rs. AIR 2001 SC 626 : (2001) 2 SCC 721 : (2001) 2 MLJ 128. He finally wound up his arguments by submitting that no grounds are made out by the board to interfere with the award and a decree in terms of the award is to be passed in favour of the respondent’s claims. 27. I have considered the rival submissions carefully with regard to facts and citations. 28. First, let me consider the first point raised by the learned counsel for the Board that the respondent is not registered under the Partnership Act and therefore, the entire award is vitiated and is to be set aside. 29. Admittedly, this point was not raised before the arbitral Tribunal and as rightly pointed out by the learned senior counsel for the respondent, points not raised before the arbitral Tribunal cannot be raised for the first time before the High Court in a petition for setting aside the award unless from the award itself the error of law becomes apparent. 30. In Charkop Priya Co-op. Housing Society Ltd. v. Trade Well Constructions (Supra), similar question was raised for the first time before the Bombay High Court while assailing the award under Arbitration Act 1940 and the Bombay High Court held that the question whether the respondents are registered partnership is a mixed question of fact and law and therefore, the same ought to have been raised before the arbitral Tribunal itself and the other side ought to have been given an opportunity of leading evidence on the said point to satisfy the Tribunal that they in fact were registered. 31. Still, I am inclined to consider whether the respondent is a registered firm or not, at the time of entering into the contract with the board. 32. It is not in dispute that on 6. 1998, when the original agreement was signed by the respondent, the respondent was a registered firm. 31. Still, I am inclined to consider whether the respondent is a registered firm or not, at the time of entering into the contract with the board. 32. It is not in dispute that on 6. 1998, when the original agreement was signed by the respondent, the respondent was a registered firm. It is also an admitted fact that only in the year 1992 some partners retired and one Managing Partner passed away and a new deed was drawn thereafter. It is the contention of the board that the partnership firm with its present partners was not registered under the Partnership Act and therefore the award becomes vitiated and is null and void. 33. The Board itself in the petition filed under O.P.No.77 of 1999 admitted that the respondent was registered as early as on 31. 1956, in the name of “The Associate & Engineering Syndicate and Pioneer Construction Company” with Registration No.121 of 1956 and the name has been changed as “The Pioneer Engineering Syndicate” with effect from 112. 1956. It is the contention of the Board that during the year 1992, one Managing Partner passed away and four other partners retired from the partnership firm and a fresh deed was executed on 9. 1992. These changes in the constitution of the firm have not been so far registered with the Registrar of firms, even though the change should have been notified to Registrar of Firms under Section 63(1) of the Partnership Act. It is the contention of the board that the supplemental agreement was signed in October 1992, and the fresh partnership deed was executed in September 1992, and therefore, the agreement itself is invalid and so is the consequent award. 34. I am unable to accept the above contention of the learned counsel for the board. 35. In Jagadish Chandra Gupta (supra), a five Judges Bench of the Hon’ble Supreme Court held that the power under Section 69(3) applies to all proceedings including one under Section 8(2) of the Arbitration Act. Therefore, there is no controversy with regard to the law laid down by the Hon’ble Supreme Court in the above case. The question that arises for consideration here is whether the bar under Section 69(3) of the Partnership Act gets attracted in the present case. Therefore, there is no controversy with regard to the law laid down by the Hon’ble Supreme Court in the above case. The question that arises for consideration here is whether the bar under Section 69(3) of the Partnership Act gets attracted in the present case. To answer this question, the decision of the Hon’ble Supreme Court in Sharad Vasant Kotak and Others v. Ramniklal Mohan Lal Chawda and Another (supra) would be usefully referred to. In this case, the Hon’ble Supreme Court held that if by virtue of non-compliance of certain mandatory provisions in not informing the Registrar of Firms about the change in the Constitution of the firm, certain penalties provided in the law alone are attracted and that will not lead to the conclusion that the registration of the firm ceased. The following observations of the Hon’ble Supreme Court are very irrelevant for the purpose in this case. “32. We are also not impressed by the arguments of the learned counsel for the appellants that if the definition of Section 4 is applied to Section 69(2-A) then unless the names of all the partners find a place in the Register of Firms, the suit filed by the plaintiff cannot be sustained. The fact that the firm was registered and the plaintiff’s name finds a place in the Register of Firms are not in dispute. The name of the newly introduced partner, of course, does not find a place in the Register of Firms. That means the person whose name does not find a place in the Register of Firms may incur certain disabilities and that will not disable the plaintiff to press the suit against the firm, which was registered against the persons whose names find a place in the Register of Firms. We are not called upon to decide what are the disabilities of the person, whose name does not find a place in the Register of Firms. For the purpose of Section 69(2A), the partnership firm will mean the firm as found in the certificate of registration and the partners as found in the Register of Firms maintained as per rule in Form ‘G’. The present suit being one for dissolution and accounts by one of the partners, whose name admittedly finds place in the Register of Firms along with the names of all the appellants, the requirements of Section 69(2-A) are satisfied. The present suit being one for dissolution and accounts by one of the partners, whose name admittedly finds place in the Register of Firms along with the names of all the appellants, the requirements of Section 69(2-A) are satisfied. Section 4 of the Act is also complied with for this limited purpose. 33. Our conclusion is that on the induction of the second respondent, the existing firm was only reconstituted on the facts of this case and, therefore, there is no necessity to get a fresh registration. If by virtue of non-compliance of certain mandatory provisions in not informing the Registrar of Firms about the change in the constitution of the firm, certain penalties provided in the Act alone are attracted and that will not lead to the conclusion that the registration of the firm ceased. This conclusion is based on a conjoint reading of Sections 58-63 and the forms prescribed thereunder. Further, this conclusion does not in any way militate the object of the Maharashtra Amendment introduced by Act 29 of 1984. 34. In the result, we hold that the suit in question is not hit by Section 69(2-A) of the Act and, therefore, the Division Bench is right in allowing the appeal. Consequently, the appeal is dismissed. However, there will be no order as to costs”. 36. In Gwalior Oil Mills v. Supreme Industries (supra), the Hon’ble Supreme Court following the decision in Sharad Vasant Kotak and Others v. Ramniklal Mohan Lal Chawda and Another (supra) held that by reconstitution of the firm, it cannot be said that partnership firm itself ceased to be the registered partnership firm. 37. In the light of the above decisions of the Hon’ble Supreme Court and the decision of the Bombay High Court in Charkop Priya Co-op. Housing Society Ltd. v. Trade Well Construction (supra), I have no hesitation in rejecting the argument of the learned counsel for the board that the award is vitiated on the ground that the respondent ceased to be a partnership firm. 38. The next contention of the learned counsel for the board is that there is no valid arbitration clause in the agreement and therefore, the arbitral dispute ought not to have been referred to arbitration at all. In particular, Clauses 50 and 51 were relied on by the board in support of the above contention. “50. 38. The next contention of the learned counsel for the board is that there is no valid arbitration clause in the agreement and therefore, the arbitral dispute ought not to have been referred to arbitration at all. In particular, Clauses 50 and 51 were relied on by the board in support of the above contention. “50. Settlement of Disputes The Contractor considers any work demanded of him to be outside the requirements of the contract, or considers any drawings, record or ruling of the Board on any matter in connection with or arising out of the contract or the carrying out of work to be unacceptable, he shall promptly request the Executive Engineer in writing, for written instructions or decision. Thereupon the Executive Engineer shall give his written instructions or decision within a period of fifteen days of such request. Upon receipt of the written instructions or decision, the Contractor shall promptly proceed without delay to comply with such instructions or decision. If the Executive Engineer fails to give his Instructions or decision in writing within a period of fifteen days after being requested or if the Contractor is dissatisfied with the instructions or decisions, the contractor may within thirty days after receiving the instruction or decision, appeal to the Superintending Engineer who shall afford an opportunity to the Contractor to be heard and to offer evidence in support of his appeal. This officer shall give a decision within a period of thirty days after the Contractor has given the said evidence. In support of this appeal. If the Contractor is dissatisfied within this decision the Contractor within a period of thirty days from receipt of the decision shall indicate his Intention to refer the dispute to the arbitration, failing which the said decision shall be final and conclusive. Officer designated shall be higher in rank than the Officer giving instructions or decision. Any dispute or difference shall in the first instance be referred by or through the Executive Engineer of the Circle in which the work lies and his decision thereon obtained before referring such dispute. 51. Arbitration: All the disputes or differences either during the progress or after completion or after termination of breach of contract in respect of which the decision has not been final and conclusive shall be referred for arbitration. 51. Arbitration: All the disputes or differences either during the progress or after completion or after termination of breach of contract in respect of which the decision has not been final and conclusive shall be referred for arbitration. The arbitrator for fulfilling the duties set forth in the arbitration clause of the preliminary specifications to the TNDSS shall be as follows: For claims upto Rs.50,000/- Chief Engineer, TWAD Board other than Chief Engineer, TWAD Board, World Bank Project, Coimbatore nominated by the Board. For claims above Rs.50,000/- Civil Court having local jurisdiction Any litigation arising out of this contract shall be settled only in the jurisdiction of the authority who have concluded the agreement. The arbitration shall be conducted in accordance with the provisions of the Indian Arbitration Act, 1940 or any statutory modification thereof. The decision of the Arbitrator shall be final and binding on the parties thereto. The arbitrator shall determine the amount of costs of arbitration to be awarded to either parties. The percentage of the amount of costs of arbitration referred to in the clause is 5% on any such monetary award which does not exceed Rs.10,000/- 3% on the next Rs.40,000/- or any part thereof. For the Pioneer Engineering Syndicate sd/ sd/ Contractor Chief Engineer (WBP) Performance under the contract shall continue during the arbitration proceedings and payments due to the contractor shall not be withheld unless they are the subject matter of the arbitration proceedings. Neither party is entitled to bring a claim to arbitration, if the arbitrator has not been appointed before the expiration of thirty days after defect liability period. 39. From the above, it is very clear that as per Clause 50, a decision is to be taken up by the Executive Engineer, if requested by the Contractor and if that decision is not to the satisfaction of the Contractor or if the Executive Engineer fails to give his decision, the Contractor can appeal to the Superintending Engineer who is to give his decision within a period of 30 days. Even if the Contractor is dissatisfied with the decision of the Superintending Engineer, the Contractor, within a period of 30 days from the date of receipt of the decision, shall refer the dispute to the arbitration. Even if the Contractor is dissatisfied with the decision of the Superintending Engineer, the Contractor, within a period of 30 days from the date of receipt of the decision, shall refer the dispute to the arbitration. If he does not indicate his intention to refer the dispute to the arbitrator, within a period of 30 days, the decision of the Superintending Engineer shall be final and conclusive. 40. Clause 51 contemplates that all the disputes or the differences either during or after completion or after termination of the period of contact in respect of which the decision has not become final, could be referred to arbitration. For the claims upto Rs.50,000/-, the Chief Engineer. TWAD Board other than the Chief Engineer, TWAD Board, World Bank Project, Coimbatore may be nominated as Arbitrator to the Board for the claims above Rs.50,000/-, the civil Court having local jurisdiction will take up the matter. 41. From the above, it is very clear that her claims upto Rs.50,000/- alone, the matter may be referred to arbitration and for the claims above Rs.50,000/-, the dispute has to be adjudicated only by the civil Court. .42. But, in the present case, right from the beginning, both the parties by their conduct understood Section 51, to read it to mean that if the claim is above Rs.50,000/-the Arbitrator has to be appointed by the civil Court having local jurisdiction. That is why the Board in the Writ proceedings, initiated by the respondent herein, challenging the termination of the contract, sought for the dismissal of the write petition on the ground that there is an effective alternative remedy of arbitration provided by Clause 50 and 51 of the contract and therefore, the writ petition is not maintainable. 43. Even in the Section 20 application filed by the respondent in C.S.No.1916 to 1918 of 1994, the contention of the board was that the High Court of Madras does not have the jurisdiction to entertain the application, as the contract related to execution of work in Coimbatore. It was not the contention of the Board that the arbitration clause itself is not attracted as the claim is for more than Rs.50,000/-nor such an interpretation of Clause 51 was taken before the arbitral Tribunal also. It was not the contention of the Board that the arbitration clause itself is not attracted as the claim is for more than Rs.50,000/-nor such an interpretation of Clause 51 was taken before the arbitral Tribunal also. No doubt, the jurisdiction of the Tribunal itself was questioned by the board before the arbitral Tribunal, but not on the ground that as the claim was more than Rs.50,000/-the dispute should be referred to the civil Court of local jurisdiction. The main contention of the Board before the arbitral Tribunal is that after executing the supplemental agreement, only the clauses contained in the supplemental agreement alone would hold the field and as the supplemental agreement does not have a arbitration clause, the disputes could not be referred to arbitration at all. Another objection with regard to the arbitral Tribunal put forward before the arbitrator is that there is no provision whatsoever in the statute permitting the board to enter into an arbitration agreement with any one and therefore, the arbitration clause itself is vitiated and it cannot be acted upon. Elaborate arguments were advanced on these two aspects only and they were all properly considered by the arbitral Tribunal and rejected on the ground that the supplemental agreement is only supplementary and the original agreement was still in force and the statute does not prohibit the board from entering into arbitral agreement. A perusal of the award in this regard will clearly show that the entire matter has been properly dealt with and correct findings have been arrived at by the arbitrator. That is why, instead of taking the very same stand before this Court (though these grounds were also raised in the grounds in the petition, the same were not argued by the learned counsel for the board), the new plea as stated above was raised by the board for the first time before this Court. 44. At the outset, I find that there are no merits in the above contention and the same is only to be rejected. .45. As early as on 9. 44. At the outset, I find that there are no merits in the above contention and the same is only to be rejected. .45. As early as on 9. 1993 itself, the respondent wrote a letter to the Chief Engineer of the Board, stating that they are constrained to call upon the Chief Engineer and give him notice indicating their intention to refer the disputes and differences which had arisen to arbitration under Clause 51 of the general conditions of the contract, by taking appropriate steps under the provisions of the Arbitration Agreement. To this letter dated 9. 1993, the Chief Engineer Coimbatore sent a reply dated 29. 1993 stating that; the respondent can take necessary steps to refer the matter to arbitration. Further in W.P.Nos.11668 to 11670 of 1993 filed by the respondent herein against the Board, it was contended by the board that the writ petitions are not maintainable since the respondent herein, has an effective remedy under the contract, i.e., arbitration proceedings. 46. When C.S.Nos.1916 to 1918 of 1994 were filed by the respondent herein, under Section 20 of the Arbitration Act, the same was resisted by the board by contending that the contracts were concluded at Coimbatore and therefore, only the Court in Coimbatore would have the local jurisdiction and not the High Court of Madras. It was never the contention of the Board in C.S.Nos.1916 to 1918 of 1994 that in view of Clause 51 of the general, conditions of contract, no arbitration could be initiated by the respondent. That is why the learned single Judge who dealt with the case considered the territorial jurisdiction point alone and overruled the objection of the board. Further, before the learned single Judge on 17. 1996, the learned counsel for the board agreed that Mr. Justice S. Sivasubramaniam, former Judge of this Court could be appointed as Arbitrator to arbitrate the disputes between the parties to the suits. 47. Even before the arbitral Tribunal, this point was not at all raised by the board in their counter statement. In fact, a counter claim of Rs.642.52 lakhs was claimed by the board before the arbitral Tribunal. Only at the time of argument, the maintainability of arbitration proceedings was raised by the board before the Arbitral Tribunal and that too not on the ground that only civil Court has got jurisdiction, as the claim was more than Rs.50,000/-. 48. In fact, a counter claim of Rs.642.52 lakhs was claimed by the board before the arbitral Tribunal. Only at the time of argument, the maintainability of arbitration proceedings was raised by the board before the Arbitral Tribunal and that too not on the ground that only civil Court has got jurisdiction, as the claim was more than Rs.50,000/-. 48. In Waverly Jute Mills v. Raymond & Co. (supra), a five Judges Bench of the Hon’ble Supreme Court held that the proceedings before the arbitral Tribunal are void, if there is want of initial jurisdiction of the arbitrator and the defect was not cured by the appearance of parties in the proceedings. 49. Relying on the above judgment, the learned counsel for the board contended that as the arbitral Tribunal is lacking initial jurisdiction, the mere participation of the board before the arbitrator cannot cure the defect. 50. I am of the considered view that the above judgment is not helpful to the case of the board in the light of the facts and circumstances of the case on hand. In fact, in the very same decision, it is stated by the Hon’ble Supreme Court that nothing prevents the parties from entering into a fresh agreement to refer the dispute to arbitration while it is pending adjudication before the arbitrators, which means, even if there is want of initial jurisdiction, if the parties consent to refer the matter to arbitration, then the proceedings are to be upheld. 51. In UP Rajkiyan Nirman Nigam Ltd. v. Indus Pvt. Ltd. and Others (supra), the Hon’ble Supreme Court that acquiescence by the parties may confer jurisdiction on the arbitral Tribunal and therefore estoppel would not bar the parties from challenging the jurisdiction. This judgment is also not helpful to the case put forward by the Board, as in the above decision it was observed by the Hon’ble Supreme Court, that there did not exist any concluded contract between the parties in that case. 52. In Municipal Corporation of Gr. Bombay and Another v. Kulkarni & Co. and Another (supra), the Bombay High Court held that though there is no arbitration clause in the agreement, the appointment of arbitrator by Court with the consent of the parties cannot be subsequently challenged on the ground that there is no provision of arbitration in the agreement. 153. In Municipal Corporation of Gr. Bombay and Another v. Kulkarni & Co. and Another (supra), the Bombay High Court held that though there is no arbitration clause in the agreement, the appointment of arbitrator by Court with the consent of the parties cannot be subsequently challenged on the ground that there is no provision of arbitration in the agreement. 153. In Prasun Roy v. Calcutta Metropolitan Development Authority (supra), the Hon’ble Supreme Court held as under: “2. Shri A.K. Sen, learned counsel for the petitioner urged before us that once an arbitrator had entered into reference, the next incumbent could not conclude the said arbitration proceeding without a fresh agreement. In the facts of this case, as the petitioner had knowledge of the alleged defect and had acquiesced in the proceedings before the successor, namely Thiru Cornelius, we are of the opinion, that this contention of Shri Sen cannot be entertained. It was contended that there was violation of the principles of natural justice. This objection cannot be entertained. If the parties to the reference either agree beforehand to the method of appointment or afterwards acquiesce in the appointment made, with full knowledge of all the circumstances, they will be precluded from objecting to such appointment as invalidating subsequent proceedings. Attending and taking part in the proceedings with full knowledge of the relevant fact will amount to such acquiescence, explains Russell On Arbitration, 18th edn. At page 105. This was stated by the Judicial Committee long ago in Chowdhury Murtaza Hossein v. Mussumat Bibi Bechunnissal See also the observations of P.B. Mukharji, J. in the decision of the Calcutta High Court in Jupiter General Insurance Co. Ltd. v. Corporation of Calcutta. This Court held in N. Chaliappan v. Secretary, Kerala State Electricity Board that acquiescence defeated the right of the appellant at later stage. See also the observations of this Court in Prasun Roy v. Calcutta Metropolitan Development Authority. See also Russell On Arbitration, 20th Edn., pp. 432-435. Shri Sen contended that no notice was issued after the appointment of the new arbitrator. This was factually incorrect, as mentioned before. Then, it was said that the award was bad as it did not consider ail the claims. This also cannot be entertained. It must be assumed that the arbitrator had considered all the evidence adduced before him. There was no disregard of any principle of law. This was factually incorrect, as mentioned before. Then, it was said that the award was bad as it did not consider ail the claims. This also cannot be entertained. It must be assumed that the arbitrator had considered all the evidence adduced before him. There was no disregard of any principle of law. There was nothing to indicate that the arbitrator had not considered all the evidence. Unless there was a patent mistake to law and gross misstatement of facts resulting in miscarriage of justice or of equity, the award remains unassailable. In this case the arbitrator gave no reason for the award. There is no legal proposition which is the basis of the award far less a legal proposition which is erroneous. There is no appeal from the verdict of the arbitrator. The Court cannot review, in such circumstances, the award and correct any mistake in the adjudication by the arbitrator. See Champsey Bhara & Company v. Jivray Baiioo Spinning and Weaving Company Ltd. and the observations of Bachawat, J. in Firm Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd. Indore of this Court”. 54. In the above decision, the Hon’ble Supreme Court held that if the parties to the reference either agree beforehand, to the method of appointment or afterwards acquiesced in the appointment made, with full knowledge of all the circumstances, they will be precluded from objecting to such appointment as invalidating the subsequent proceedings. 55. In Neelkantan and Bros. Construction v. Superintending Engineer (supra), the Hon’ble Supreme Court held that long participation and acquiescence in the proceedings preclude such a party from contending that the proceedings were without jurisdiction. The relevant portion reads as under. 5. Can a party be permitted to do that? In Jupiter General Insce. Co. Ltd. v. Corporation of Calcutta P.B. Mukharji, J. as the learned Chief Justice then was observed: “It is necessary to state at the outset that Court do not favour this kind of contention and conduct of an applicant who participates in arbitration proceedings without protest and fully avails of the entire arbitration proceedings and then when he sees that the award has gone against him he comes forward to challenge the whole of the arbitration proceedings as without jurisdiction on the ground of known disability of a party. That view of the Court is ably stated by the editor of the 15th edn. That view of the Court is ably stated by the editor of the 15th edn. Of Russell On Arbitration at page 295 in the following terms: “Although a party may by reason of some disability be legally incapable of submitting matters to arbitration that fact is not one that can be raised as a ground for disputing the award by other parties to a reference who were aware of the disability if one of the parties is incapable the objection should be taken to the submission. A party will not be permitted to lie by and pin in the submission and then if it suits its purpose attack the award on that ground, the presumption in the absence of proof to the contrary will be that the party complaining was aware of the disability when the submission was made”. 6. Mr. Kacker submitted that this principle could be invoked only in a situation where the challenge is made only after the making of an award, and not before. We are unable to accept this differentiation. The principle is that a party shall not be allowed to blow hot and cold simultaneously. Long participation and acquiescence in the proceeding preclude such a party from contending that the proceedings were without jurisdiction. 7. Russell On Arbitration, 18th edn page 195 – explains the position as follows: “If the parties to the reference either agree beforehand to the method of appointment, or afterwards acquiesce in the appointment made, with full knowledge of all the circumstances, they will be precluded from objecting to such appointment as invalidating subsequent proceedings: Attending and taking part in the proceedings with full knowledge of the relevant fact will amount to such acquiescence. 8. 8. The Judicial Committee in its decision in Chowdhri Murtaza Hossein v. Mussumat Bibi Bechunnissa observed at page 220: “On the whole, therefore, Their Lordships think that the appellant, having a clear knowledge of the circumstances on which he might have founded an objection to the arbitrators proceeding to make their awards, did submit to the arbitration going on; that he allowed the arbitrators to deal with the case as it stood before them, taking his chance of the decision being more or less favourable to himself; and that is too late for him, after the award has been made, and on the application to file the award, to insist on this objection to the filing of the award”. Relying on the aforesaid observations this Court in N. Chellappan v. Secretary, Kerala State Electricity Board acted upon the principle that acquiescence defeated the right of the applicant at a later stage, in that case the facts were similar. It was held by conduct there was acquiescence. Even in a case where initial order was not passed by consent of the parties a party by participation and acquiescence can preclude future challenges. 56. In Tarapore and Company v. Cochin Shipyard Ltd., Cochin and Another (Supra), the Hon’ble Supreme Court held that even the question of jurisdiction of an arbitrator can be the subject matter of a specific reference. If the parties agree to refer the specific question whether the disputes raised is covered by arbitration agreement, it becomes a specific question of law even if it involves the jurisdiction of the Arbitrator and if it is so, a decision of the Arbitrator on this specific question referred to him for decision, even if it appears to be erroneous to the Court it is binding on the parties. 57. In Board of Trustees of Paradeep Port and Another v. Natwar Iron and Steel Works and Co. and Another (supra), the Orissa High Court held that the question of absence of jurisdiction to the Arbitrator having not been taken up before the Arbitrator cannot be permitted to be raised before this Court by contending that the reference was bad in law on the ground of absence of arbitration clause in agreement. 58. In Inspat Engg. and Another (supra), the Orissa High Court held that the question of absence of jurisdiction to the Arbitrator having not been taken up before the Arbitrator cannot be permitted to be raised before this Court by contending that the reference was bad in law on the ground of absence of arbitration clause in agreement. 58. In Inspat Engg. & FoundryWorks B.S. City, Bokaro v. Steel Authority of India Ltd., B.S. City, Bokaro (supra), the Hon’ble Supreme Court held that since the parties chose their own arbitrators to adjudicated the disputes between them, the parties cannot object to such an adjudication or decision either upon the law or on the facts except however as envisaged in terms of Section 30 of the Act 1940. 59. In N. Chellappan v. Secretary, Kerala State Electricity Board and Another (supra), the Hon’ble Supreme Court held that the party acquiescing in proceedings before the Arbitrator is precluded from challenging the award on the ground of lack of jurisdiction. 60. In State of Rajasthan v. Nav Bharat Construction Co. (supra) the Hon’ble Supreme Court held that when the Arbitrator was appointed on consent of parties and the parties submitted to his jurisdiction without demur or protest and participation in proceedings, they are estopped on doctrine of acquiescence and waiver from raising objections to the competence of the appointed Arbitrator and the validity of the arbitration proceedings. 61. In the light of the above factual background and in the light of the above decisions, it is not open to the board to contend before this Court for the first time that the dispute itself is not arbitrable as the claim is more than Rs.50,000/-by relying on a judgment of this Court in Rajan Engineering Contractors v. State of Tamil Nadu and Others (supra). 62. As rightly submitted by the learned senior counsel for the respondent, this judgment was only relied on by the board as an afterthought as all along the Board has been taking a stand that the disputes could be referred to arbitration as per clause 50 and 51 of the general conditions of the contract. 63. Insofar as the merits of the award is concerned, a perusal of the award will make it very clear that the learned arbitrator on the basis of pleadings, claims, counter claims and the documents produced by the parties framed the following issues namely: .1. 63. Insofar as the merits of the award is concerned, a perusal of the award will make it very clear that the learned arbitrator on the basis of pleadings, claims, counter claims and the documents produced by the parties framed the following issues namely: .1. What were the causes for non-completion of work within the stipulated period and which party was responsible for delay, slow progress of the work and non-completion of the work within stipulated period? 2. Whether the termination of the contract by the respondents was justified by the facts and circumstances of the case as alleged by the respondents or wrongful and illegal as alleged by the claimants? .3. a) If answer to issue No.2 is in favour of the claimants, whether the claimants are entitled to compensation as claimed in claim No.1 and if yes, as to what relief? .b) If answer to issue No.2 is in favour of the respondents whether the respondents are entitled to counter claim and if yes, to what relief? 4. What is the amount each party is entitled to receive from the other as a result of finalization of accounts and the net sum, if any, due and payable by one party to other? 5. Whether interest is payable on the Award sum and if yes, for which party and at what rate? 6. Relief as regarding the cost of arbitration proceedings. 64. After framing the necessary issues, as above the learned Arbitrator considered the legal objections raised by the board, which are not raised in their counter and rejected those objections on merits. Further, the arbitrator after finding that issue No.1 was not properly worded, framed 9 sub issues under No.1 issue itself and after considering all the relevant clauses in the agreement, the materials made available, the evidence let in and also the arguments of both the learned counsel rendered his findings, which is reasonable, lucid, cogent and acceptable. Considering the limited scope of this Court, when the challenge is made to an award under the provisions of Arbitration Act 1940, I hardly find any scope to interfere with the same. 65. The following judgments could be usefully referred to find out the scope of the jurisdiction of this Court in a petition filed under Section 30 of the Arbitration Act, 1940. .66. 65. The following judgments could be usefully referred to find out the scope of the jurisdiction of this Court in a petition filed under Section 30 of the Arbitration Act, 1940. .66. In Bhagawati Oxygen Ltd. v. Hindustan Copper Ltd. (supra), the Hon’ble Supreme Court held that, a Court while exercising the power under Section 30, cannot re-apprise the evidence or examine the correctness of the conclusion arrived at by the Arbitrator as the jurisdiction is not appellate in nature and an award passed by the Arbitrator cannot be set aside on the ground that it was erroneous. It is not open to the Court to interfere with the award merely because in the hands of the Court another view is equally possible. 67. In U.P. State Electricity Board v. Searsole Chemicals Ltd. (supra) the Hon’ble Supreme Court held that when the arbitrators applied their minds to the pleadings, the evidence adduced before them and the terms of the act., it is not within the scope of the Supreme Court to re-apprise the matter, as if it was an appeal. Further, it is clear that where there are two views possible in a matter, the view taken by the arbitrators would always prevail. 68. In Continental Construction Ltd. v. Food Corporation of India (supra) the Delhi High Court held that High Court would be reluctant to re-apprise the evidence and if two views are possible then merely because if the Court thinks otherwise, it will not set aside the award passed by the Arbitrator. 69. In India Engg. and Textiles Ltd. v. Delhi Development Authority (supra), the Hon’ble Supreme Court held that an Arbitrator is a Judge appointed by the parties and as such the award passed by him itself is not likely to be interfered with. 70. In Engineer Syndicate v. State of Bihar and Others (supra), the Hon’ble Supreme Court held that the Court while dealing with an application for setting aside an award has no power to consider whether the view of the arbitrator on the evidence was justified. 71. If the above legal principles are applied to the facts of the present case, I find that the award under challenge has been passed by the Arbitrator after applying his mind to the pleadings and after considering the evidence adduced before him. 71. If the above legal principles are applied to the facts of the present case, I find that the award under challenge has been passed by the Arbitrator after applying his mind to the pleadings and after considering the evidence adduced before him. The award could not be interfered with by this Court by re-apprising the matter as if it was an appeal. I do not find, any patent illegality and it cannot be said that the Arbitrator acted, arbitrarily, irrationally, capriciously or beyond the terms of the agreement. 172. Therefore, it is not within the scope of this Court to re-apprise the matter as this Court is not sitting in its appellate jurisdiction. 173. However, the learned counsel for the board while making her submissions emphasized that the Arbitrator has committed an illegality while rendering his finding that the time is not the essence of the contract by relying on so many clauses in the original contract as well as in the supplemental agreement. She found fault with the Arbitrator for relying on the judgment of the Supreme Court in Hind Construction v. State of Maharashtra AIR 1979 SC 720 contending that as the clauses contained in the contract make it very clear that time is the essence of the contract, the contrary view taken by the Arbitrator is perverse. 174. In AIR 1999 SC 3804 (cited supra), the Hon’ble Supreme Court reiterated that in the event of the parties knowingly giving a go-by to the stipulation as regards time by naming a future specified date for delivery and agreeing to the abandonment of the contract, then the Courts are not left with any other conclusion but a finding that the parties themselves by their conduct have given a go-by to the original terms of the contract as regards the time being the essence of the contract. 175. The relevant part of the judgment reads as under: “12. These presumptions of the High Court in our view are wholly unwarranted in the contextual facts for the reasons detailed below but before so doing it is to be noted that in the event the time is the essence of the contract, question of their being any presumption or presumed extension or presumed acceptance of a renewed date would not arise. The extension if there be any should and ought to be categorical in nature rather than being vague or in the anvil of presumptions. In the event the parties knowingly give a go-by to the stipulation as regards the time the same may have two several effects: (a) parties name a future specific date for delivery and (b) parties, may also agree to the abandonment of the contract – as regards (a) above, there must be a specific date within which delivery has to be effected and in the event there is no such specific date available in the course of conduct of the parties, then and in that event the Courts are not left with any other conclusion but a finding that the parties themselves by their conduct have given a go-by to the original term of the contract as regards the time being the essence of the contract. Be it recorded that in the event the contract comes within the ambit of Section 55, the remedy is also provided therein. For convenience sake Section 55 reads as below: “55. When a party to a contract promises to do a, certain thing at or before a specified time, or certain things at or before specified times and fails to do any such thing at or before the specified time, the contract or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract. If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure. If, in case of a contract voidable on account of the promisor’s failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of such, acceptance, he gives notice to the promisor of his intention to do so”. 13. 13. Incidentally, the law is well settled on this score on which no further dilation is required in this judgment to the effect that when the contract itself provides for extension of time, the same cannot be termed to be the essence of the contract and default however, in such a case does not make the contract voidable either. It becomes voidable provided the matter in issue can be brought within the ambit of the first para of Section 55 and it is only in that event that the Government would be entitled to claim damages and not otherwise”. 76. From the above judgment, it is very clear that it is not the clauses contained in the contract, but the conduct and intention of the parties are to be gone into to find out whether time is the essence of the contract. Thus, it is purely a question of fact and on the basis of the evidence let in before him, the learned Arbitrator came to the conclusion that the time is not the essence of the contract and as such, such conclusion cannot be easily interfered with, even if it is erroneous. 77. Now, coming to the last contention of the learned counsel for the board with regard to the award of interest by the Arbitrator, it is now settled by the Supreme Court that the Arbitrator whether appointed with or without the intervention of the Court, has power to, grant interest in respect of the pre-reference period, provided there is no stipulation or prohibition in the Arbitration agreement excluding his jurisdiction (see Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa v. N.C. Budharaj (Deceased) by L.Rs. (supra). 78. Only when the interest awarded is highly excessive, this Court can interfere with the same. A perusal of the award will make it very clear that the Arbitrator has awarded 18% per annum and I do not think that is very excessive and needs to be modified. Hence, I am rejecting the argument of the learned counsel for the board with regard to the award of interest also by the arbitrator. 79. A perusal of the award will make it very clear that the Arbitrator has awarded 18% per annum and I do not think that is very excessive and needs to be modified. Hence, I am rejecting the argument of the learned counsel for the board with regard to the award of interest also by the arbitrator. 79. Further, in Union of India v. Justice S.S. Sandhawalia (Retd.) (1994) 2 MLJ 32 the Hon’ble Supreme Court in a service law case held that once it is established that an amount legally due to a party was not paid to it, the party responsible for withholding the same must pay interest at the rate considered reasonable by the Court. I have already held that the interest awarded by the Arbitrator is reasonable and therefore, the award is to be upheld in that aspect also. 80. Before concluding, I would like to place on record that the award under challenge has been passed by the learned Arbitrator after discussing all the issues relating to the argument of the counsel on both sides and his findings was also based on the documents produced and the clauses contained in the conditions of the contract. Lucid and cogent reasons were given by the Arbitrator while passing the award and I find hardly any scope to interfere with the same. In fact, right from the beginning, the attempt on the part of the learned counsel for the board is to argue the matter, as if it was an appeal and that is why the petitions filed by the board ran to 66 pages attacking and assailing each and every reason given by the Arbitrator for coming to his conclusion, as if the original petition was an appeal. 81. In the result, O.P.No.77 of 1999 is dismissed with no cost. Consequently, O.P.Nos.78 and 79 of 1999 are also dismissed with no costs. 82. As all the three Original petitions are dismissed, Application Nos.432 to 434 of 2000 are allowed and a decree is passed in terms of the award against the Board. 83. As I have dismissed the main Original petitions, no order is required in Appln. No.2834 of 2001 filed by the Board, to consider the issue relating to the maintainability of the petition filed by the respondent and the issues raised in O.P.No.77 to 79 of 1999 as preliminary issue and therefore the same is closed.