JUDGMENT This Petition has been filed initially by the Maharashtra State Electricity Board (MSEB) (Petitioner No. 1) and in which later Maharashtra State Distribution Company Limited (MSDC) (Petitioner No. 2) came to be added pursuant to a transfer scheme under which the rights, liabilities, properties and interests of the former stood vested in the latter. The Petition is filed essentially against Respondent No. 1 Company, which has entered into a Work Contract with the Petitioner No. 1, the rights and liabilities under which stood transferred to Petitioner No. 2. The Petitioners shall be referred to as "the Petitioner". Respondent No. 1 Company shall be referred to as "the Respondent". The Respondent as the Lessee of the Petitioner, under the Work Order executed between these parties on 27th March 1997, had to install what is called a Low Tension Load Management System (LTLMS) for improving the rural distribution of electricity network of the State Electricity Boards in India. Several contract objects being certain panels were to be installed at some 47,987 locations called Distribution Transfer Centers all over Maharashtra. Aside from the Respondent No. 2 other parties, one Asian Electronics Ltd. and RMS Automation Systems Pvt. Ltd., were also Lessors of the Petitioner. The locations where the panels had to be fitted were therefore, required to be identified by the Petitioner so that the Respondent could fit them at the correct locales. The Respondent has installed 17294 panels. The Respondent further manufactured, got inspected and readied further 14206 panels for installation. The Respondent did not fully manufacture the remaining 16487 panels though it had got the raw material imported for that purpose during the period of subsistence of the contract between March 1997 to February 1999 when the Respondent terminated the contract for the panels which could not be fitted due to lack of support from the Petitioner, the Respondent having offered to continue to maintain the panels which were already fitted. Upon the Respondent's realisation that there is a total breach of the reciprocal promises on the part of the Petitioner, the Respondent terminated the contract on 21st April, 1999 and invoked arbitration as per the contract between the parties. In the Arbitration the parties led oral as well as documentary evidence inter alia and primarily upon the breach alleged to have been committed by the Petitioner. In the Arbitration the parties led oral as well as documentary evidence inter alia and primarily upon the breach alleged to have been committed by the Petitioner. Upon the Learned Arbitrators considering the evidence with regard to the readiness and willingness of the Respondent to perform its part of the contract, the breach committed by the Petitioner, the extent of the damages claimed by the Respondent upon the breach committed by the Petitioner and the abandonment of the contract and fraud, if any, committed by the Respondent and the deductions that were claimed by the Petitioner, an Award came to be passed in favour of the Respondent herein for Rs. 1,85,97,86,399/- with interest at the rate of 10% p.a. from the date of the Award till realisation upon giving credit to the Petitioner herein for the amount of Rs. 6,81,99,390/- paid by the Petitioner herein under the interim order passed in the Arbitration and the costs of the Arbitration fixed at Rs. 1 Crore. The award granted part amount claimed by the Respondent. The Respondent has not challenged the award. The Petitioner's counterclaim upon certain misrepresentation and fraud allegedly practiced by the Respondent has been held not proved and rejected. That rejection has also not been challenged. The Learned Arbitrators have proceeded essentially upon the two basic breaches claimed by the Respondent being: (a) Failure to supply the DTC locations where the panels were to be installed and (b) Failure to renew the letter of credit which was given under the suit contract after April 30, 1999. The Arbitrators have found the Petitioner in total breach of the requirement of giving the list of locations, but not in respect of the non - renewal of the letter of credit. The decision of the Learned Arbitrators with regard to the letter of credit has also not been challenged. In this Petition, therefore, the seminal aspect for consideration is the breach, if any, of giving the list of the DTC locations by the Petitioner to the Respondent, such as to constitute it such a fundamental breach, that the Respondent would not be able to perform its part of the contract enabling it to terminate the contract and claim damages. In this Petition, therefore, the seminal aspect for consideration is the breach, if any, of giving the list of the DTC locations by the Petitioner to the Respondent, such as to constitute it such a fundamental breach, that the Respondent would not be able to perform its part of the contract enabling it to terminate the contract and claim damages. It would, therefore, do well to see only whether there was any breach of the admitted contract between the parties as seen by the Arbitrators and upon such breach whether the damages awarded by the Arbitrators is in accordance with law. For that purpose the parameters under Section 34 of the Arbitration and Conciliation Act, 1996 (the Act) would have to be borne in mind. To that end the Petitioner would require to furnish proof that the Arbitral Award is based upon matters beyond the scope of Arbitration. It is contended by Mr. Rai on behalf of the Petitioner that the Arbitral Award is against the law governing the parties with regard to the breach, if any, committed under the contract and the damages, if any, which are awardable for such breach. It need hardly be mentioned that the scope of interference with such Award is extremely narrow and it is for the Petitioner to make out a case for setting aside the Arbitral Award under Section 34(2)(iv) of the Act. It will be fruitful to see the relevant and important clauses of the contract between the parties which have been considered by the Learned Arbitrators. Under Clause 5.1 of the Contract the supply and installation of the LTLMS was to commence within 4 months from the date of the contract or opening of the letter of credit or receipt of the complete list of locations of DTCs, whichever was later. Such supply and installation was to be completed within 20 months thereafter. Since there were as many as 47,987 DTC locations to be supplied, that would be expected to take much time. The 4 months period for commencement of the contract which would otherwise be from the date of the contract would, therefore, be after the DTC locations were supplied. Since supply of as many as 47,987 locations would take an inordinate amount of time, neither party would reasonably contemplate the commencement of the contract years after it was signed. The 4 months period for commencement of the contract which would otherwise be from the date of the contract would, therefore, be after the DTC locations were supplied. Since supply of as many as 47,987 locations would take an inordinate amount of time, neither party would reasonably contemplate the commencement of the contract years after it was signed. The term with regard to the receipt of the complete list of DTC locations would, therefore, have to be reasonably interpreted, understood and complied by the parties. If this was not done by the party who was to receive such lists, it would not stand the test of judicial reasonableness. Indeed the parties did comply with as well as enforce the said term reasonably. The admitted correspondence between the parties shows how from time to time lists of certain locations were provided by the Petitioner and upon such list being received, the panels were installed by the Respondent at various locales. It is the case of the Petitioner that though many more lists were provided to the Respondent than the ones in which panels have been installed by the Respondent, in several of them the Respondent has failed to install the panels and hence, abandoned the contract, an aspect which has been considered and negatived in the Arbitral Award and which has not been challenged. That part of the Petitioner's claim is, therefore, laid to rest. Consequently only whether or not, the list of all the DTC locations were provided by the Petitioner as per the terms of the contract reasonably understood and enforced by the parties would have to be seen. The Arbitral Award shows that admittedly 17294 installations have been made by the Respondent. For the remainder 30,693 the evidence between the parties has been appreciated by the Learned Arbitrators to conclude how the Respondent was prevented from performing its part of the reciprocal promises of installation of the panels, by the Petitioner not providing the lists of the DTC locations, so that the contract became voidable at the option of the Respondent who became entitled to be compensated for the losses suffered due to the Petitioner's nonperformance of its part of the contract under Section 53 of the Indian Contract Act. It has further been seen as to how the loss suffered by the Respondent could be compensated upon the breach of the contract by the Petitioner being the loss which naturally arose in the usual course of things from such breach which the parties knew, when they entered into the contract, to be a likely result of the breach as per the provision contained under Section 73 of the Indian Contract Act. Under clause 5.2 of the contract the Respondent was to commence installation of the panels indicated in the schedules contained in annexures B-I, B-II and B-III. The quantities indicated in annexure B-I was to be completed first followed by the quantities indicated in annexures B-II and B-III. The 3 zones in which the installations were to be made were Kolhapur, Nashik and Aurangabad in that sequence. Under Clause 5.3 of the contract the installation was to be put up at the site and commissioned within the stipulated time, the time being the essence of the contract for such purpose. This time was 20 months after the list of DTC locations was given. It was for the Respondent to adhere to such time upon the locations being provided during the pendency of the contract. Considering the mandate under clause 5.1 of the contract between the parties the requirement of providing the list of DTC locations was seminal. The annexure to the contract on the internal communication of the Petitioner shows that the list was to be provided within 15 days of the direction in that behalf to the Superintending Engineers. It was not so provided. Time was not of the essence for providing such list. The Respondent requested for the lists. In the Petitioner's letter dated 14th July 1997 the list of circle-wise allocation was enclosed. The list of locations on which the panels were to be installed was stated to be ready with the Circle Officers. The Respondent was requested to contact "the concerned" and collect the list for starting the installation. The annexure to the letter showed the various circles in the 3 zones of Kolhapur, Nashik and Aurangabad divided into various Districts having specified quantities for the installation. It did not show the precise locations. The Respondent was requested to contact "the concerned" and collect the list for starting the installation. The annexure to the letter showed the various circles in the 3 zones of Kolhapur, Nashik and Aurangabad divided into various Districts having specified quantities for the installation. It did not show the precise locations. There has been a lot of correspondence between the parties with regard to these locations all of which has been considered in the evidence before the Learned Arbitrators and which need not be considered again. However, certain internal communications between the Chief Engineer and the relevant Superintending Engineers of the Petitioner is the direct pointer to the fact that lists of locations in various Districts of each of the zones were not provided until atleast those letters were addressed. One such letter is dated 26th May 1998 which shows that the Lessors - not only the Respondent but also the 2 other Firms - were not given the lists of the locations causing delay in installation. The Circle Officers were asked to supply the list within 15 days of that letter. The consequence of failure was also stated. Hence, a year after the execution of the contract between the parties also certain lists admittedly remained to be given. It appears that parties entered into a novation in June 1998 under which they agreed that lists of whichever locations that could be given in any of the 3 zones would be provided so that the already manufactured panels could be installed speedily. A letter of the Chief Engineer to the relevant Superintending Engineer dated 13th July 1998 gives directions in that behalf. The letter of the Chief Engineer to the relevant Superintending Engineer dated 2nd September 1998 once again shows default in providing locations and gives directions to be scrupulously followed. Despite the instructions there were various road - blocks encountered by the Respondent from the field staff at the site inter alia for showing the locations. The letter of the Respondent dated 18th November 1998 makes a grievance in that behalf. However, during the period between June 1998 to December 1998, 17294 installations were made and were commissioned. On 21st December 1998 the specific terms of the contract between the parties were sought to be enforced by the Petitioner. The letter of the Respondent dated 18th November 1998 makes a grievance in that behalf. However, during the period between June 1998 to December 1998, 17294 installations were made and were commissioned. On 21st December 1998 the specific terms of the contract between the parties were sought to be enforced by the Petitioner. This was on the premise that commencing work simultaneously in all the zones as per the convenience of the Respondent created a chaos for identifying the locations. Consequently the requirement under clause 5.2 of the contract came to be imperatively extracted/enforced. Consequently, the locations in annexure B-I took precedence over those in annexures B-II and B-III; Kolhapur zone took precedence over Nashik and Aurangabad zones. It is interesting to note that the B-I list in Kolhapur zone was to be first listed for installation. It is contended by Mr. Dada on behalf of the Respondent that the B-I list having not been provided, it was impossible for the Respondent to install the panels in list B-II or B-III of Kolhapur or in any of the other locations in Nashik or Aurangabad zones. It is contended on behalf of the Petitioner that though the Respondent had manufactured panels and though they were stated to be lying at the site, they were not installed and the Respondent defaulted in carrying out its part of the reciprocal promises under the contract. This being the specific case of the Petitioner, it must be seen whether the list of locations in annexure B-I of Kolhapur were in fact provided. I called upon Mr. Rai to show me only that aspect. He was unable to do so. This is the ultimate test of the Petitioner's case against the Respondent's defaults, if any. It is contended by the Respondent that within 2 days of the receipt of the letter dated 21st December 1998 the Respondent responded to what would be the aftermath of that unilateral decision by its letter dated 23rd December 1998. This letter was followed by the letter dated 7th January 1999 of the Respondent showing confusion that was created at the field level amongst the Petitioner's staff so that the work had come to the stand still. This letter was followed by the letter dated 7th January 1999 of the Respondent showing confusion that was created at the field level amongst the Petitioner's staff so that the work had come to the stand still. The letter from the technical member of the T & D Network of the Petitioner dated 11th February 1999 addressed to the relevant Superintending Engineer as well as the Chief Engineer of the Petitioner shows how the Respondent as well as the other Lessors were not provided the lists of DTC locations so even the panels which were cleared by the Inspection Teams could not be installed. The letter shows that in Nashik circle where DTC locations were provided the scheme was successfully implemented. It is, therefore, seen that the complaint that was made was in respect of the zone in which there was an insistence of the Petitioner that the work should commence though the locations were not provided. This letter shows the sizing-up of the situation by an independent expert, albeit of the Petitioner itself. It is the case of the Respondent that this needless counter-productive direction triggered off the ultimate termination of the contract. The Respondent was prevented from performing its part of the reciprocal promises under the contract when the Respondent had not insisted upon strict compliance of clause 5.1 to commence the work only after receipt of complete list of locations, but had reasonably complied with the spirit of that clause by keeping the panels ready for installation and in fact installing the same as and when lists from various locations came pouring in. Since the novation between the parties for simultaneous execution at various locations was unilaterally altered, and since that caused tremendous confusion at site, the Respondent by its letter dated 19th February 1999 contended that the rent payable to the Respondent for a period of 10 years of the Lease became payable up-front while absolving the Respondent of all its obligations under the contract. Yet the Respondent offered to maintain the equipments already installed upon the Respondent receiving the rent for the same. The Respondent sought not to install any further panels. The Petitioner contends that that was the default of the Respondent. The Petitioner has not terminated the contract upon the breach, if any of the Respondent. Yet the Respondent offered to maintain the equipments already installed upon the Respondent receiving the rent for the same. The Respondent sought not to install any further panels. The Petitioner contends that that was the default of the Respondent. The Petitioner has not terminated the contract upon the breach, if any of the Respondent. The Petitioner contends that having committed default in further executing the contract by installing further panels as directed strictly as per clause 5.2 of the contract, the Respondent cannot terminate the contract as it has sought to do. Nevertheless the Petitioner paid rent for the quarter ending March 1999. The stalemate continued with regard to further installations. The Respondent finally terminated the contract on 21st April 1999 and claimed damages upon it being wrongfully prevented from performing its part of the contract and invoked the Arbitration clause under the contract. The Petitioner did not pay the rent for the next quarter ending June 1999 and thereafter. Upon such premise the Arbitration proceeded. The Learned Arbitrators had to essentially consider which was the contracting party at fault. Much would depend upon that decision. The Learned Arbitrators have considered the contract between the parties and more specially the clause relating to supply and installation. They have considered also how the parties have sought to reasonably interpret the contract so as to extract its enabling provision. They have appreciated the novation by the parties agreeing not to strictly adhere to the requirement of the locations in the lists in the 3 zones, but to work on each of them simultaneously for the mutual convenience as well as benefit of the parties. They have repelled the suggestion of the Petitioner that the Respondent should have waited until after all the lists of the 47,987 locations were supplied to commence execution of the contract. That unreasonable argument has been advanced even whilst challenging the Award. It is contended by Mr. Rai on behalf of the Respondent that the Respondent breached the contract. It is contended by Mr. Rai that since the Respondent waived the requirement of the receipt of "complete list of locations of DTCs" under clause 5.1 of the contract, the Respondent must thereafter perform the contract in its entirety, a submission made and repelled even by the Learned Arbitrators. The legal consequence of the waiver imputed upon the Respondent has also been argued. Rai that since the Respondent waived the requirement of the receipt of "complete list of locations of DTCs" under clause 5.1 of the contract, the Respondent must thereafter perform the contract in its entirety, a submission made and repelled even by the Learned Arbitrators. The legal consequence of the waiver imputed upon the Respondent has also been argued. Reliance is placed upon the decisions in the case of (i) Biru & Co. v. His Highness Thakur Sahib Shree Lukhdirji of Morvi State A. 1925 P.C. 188 @ 183; (ii) Union of India v. S. Kesar Singh 1978 Jammu & Kashmir 102; United Australia Ltd. v. Baralays Bank Ltd. 1940 AC 1 @ 30 (H.L.); (iii) Clande - Lila Parulekar v. Sakal Papers (1 - 2005) (2 - SCC 73); (iv) Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel (2006) 8 SCC 726 . Just how implausible such interpretation would be can be gauged from the expansive purview of the contract. If 47,987 locations were to be shown on a given day and if the Respondent was to wait until all of them are given and shown, he would then have to commence and complete the work within 20 months for each of those 47,987 locations. On a simple arithmetical calculations the Respondent would be required to install about 2400 panels per day ! It is required to be noted with despair that the most reasonable offer and act of the Respondent in taking lists, one at a time as and when provided to the mutual benefit of both the contracting parties has been attacked by the Petitioner and this is despite the fact that the Petitioner itself from time to time acceded to the same by providing lists and getting parts of the contract executed at those locations. It may be mentioned that though stricto - senso an Act which has not been insisted upon, but waived calls upon the other contracting party, then to honour its commitment upon the waiver, such a provision would prevail and be applicable to a single act of such party. It may be further extended and applied to a series of such acts provided those acts fall as a part of the reciprocal promises upon the act of waiver. It may be further extended and applied to a series of such acts provided those acts fall as a part of the reciprocal promises upon the act of waiver. It is impossible to accept the contention that a waiver once made would be applicable in respect of 47,987 different acts to be performed under different set of circumstances as would prevail during the pendency of the contract. The most essential factor to be appreciated is, therefore, the position of the parties at the time of the termination of the contract. It is easy to see that the Respondent was constrained and driven to terminate its own contract despite having manufactured, got inspected and kept ready several panels which were to be installed. The letter of the technical expert of the Petitioner gives a complete lie to the case of the Petitioner that it was the Respondent who defaulted in performance of his part of the contract and upholds the Respondent's contention that it was prevented by the acts of the officers of the Petitioner in performing its part. This aspect rings clear from a reading of the Award. Paragraph 7 of the Award shows the correspondence between the parties for the period between the execution of the contract and its termination. Paragraph 8 shows the oral evidence, (quantitative to the complete exclusion of qualitative) led by the Petitioner, and the sole evidence of the Respondent that has been considered for its qualitative worth. It may be mentioned that the aforesaid evidence shows the relevant Superintending Engineers who were informed, requested and directed to provide the lists have not been examined at all. (Only one Superintending Engineer from Sangli came to be examined where not a single panel was installed !). Paragraph 9 of the Award has considered the Respondent's case of it having been prevented from performing the contract by the Petitioner's officers deliberately withholding supply of the lists of DTC locations. It considers installation of 17294 panels though 31500 were already manufactured, inspected and cleared for installation. The narrowing down of the dispute in paragraph 9 shows how the Learned Arbitrators considered the two most important aspects which were the core contentions of the parties - failure to provide the locations and the failure to renew the letter of credit. It considers installation of 17294 panels though 31500 were already manufactured, inspected and cleared for installation. The narrowing down of the dispute in paragraph 9 shows how the Learned Arbitrators considered the two most important aspects which were the core contentions of the parties - failure to provide the locations and the failure to renew the letter of credit. After the failure to provide the locations is seen, which indeed is apparent from the admitted correspondence itself, the breach on the part of the Petitioner is clear and complete. The consequences under the Indian Contract Act must, therefore, follow. The reference to arbitration made by the Respondent is, therefore clearly justified. Not only the correspondence, but also the defences, flimsy as they are, have been considered by the Learned Arbitrators in paragraph 10 of the Award. The contention of the Petitioner that one Mr. Mathew of the Respondent was provided with the lists has been extensively considered. The oral evidence relating to the file which is stated to have been given to him and which was to be xeroxed by him was seen. The cross examination of the Petitioner's witness No. 1 with regard to giving the files to Mr. Mathew shows the sorry state of affairs with regard to the initial statement made by the witness in the examination-in-chief. Paragraph 111 of the examination recited in paragraph 19 of the Award shows how the file of Pune circle was not given in the list, the column of location was blank, certain other lists were not in accordance with the format, all the columns except 3 were missing and the files were given by the wrong Superintending Engineers to the witness which the witness did not check to ascertain whether the contents were properly furnished. This singular evidence, considered by the Arbitrators hits the nail in the head. No further evidence need be adverted to. The Learned Arbitrators have considered clause 5 along with clause 12 of the contract in paragraph 14 of the Award. The intrinsic requirement of clause 5 with regard to the commencement and completion of the contract which was for improving efficiency of the electricity distributions in the State was seen in terms of the period of time set out therein for commencement as well as completion. The intrinsic requirement of clause 5 with regard to the commencement and completion of the contract which was for improving efficiency of the electricity distributions in the State was seen in terms of the period of time set out therein for commencement as well as completion. Hence, though clause 5.1 provides for commencement upon the events happening, whichever was later, the intrinsic requirement of the time period has been seen by the Learned Arbitrators. In the normal course the commencement would be within 4 months of the execution of the contract itself. If however, the letter of credit was opened later, naturally the period of time required for obtaining the letter of credit would have to be allowed to the parties for commencing their respective obligations. Further since as many as 47,987 lists of locations of DTCs were to be provided an allowance for that provision was made by allowing the commencement of the contract after the lists were provided. The clause of commencement of the contract has to be reasonably interpreted. The clause relates to supply and installation as shown in the subtitle. The Arbitrators have considered that clause alongside clause 12 which is in respect of location and installation as reflected in that sub-title. Hence, whereas clause 5.1 shows the time of performance, clause 12 shows the acts done with regard to the place of performance. Whereas clause 5 shows what has to be done for commencement of the contract, clause 12 shows how that act would have to be performed and by whom. The lists were to be supplied under clause 5. The Superintending Engineers were to issue the instructions on the locations under clause 12. They were to provide supervision thereunder. The Respondent was to ultimately install the panels at the locations approved by the Superintending Engineers. It is in that light that the Arbitrators have considered the time period of 4 months for the commencement of the contract and the time period of 20 months for its completion from the date of the contract, with added time period as would be required upon opening the letter of credit or receiving the list of locations. It may be mentioned that if there had been an essentially manageable or enumeratable list of locations to be provided, it would have been annexed to the contract itself. It may be mentioned that if there had been an essentially manageable or enumeratable list of locations to be provided, it would have been annexed to the contract itself. It may have been supplied by a single authority of the Petitioner though after the execution of the contract. But this is a case where several lists of as many as 47,987 locations were to be provided in 3 zones having many districts. Keeping the yardstick of 4 months time for starting the execution - as no party would be expected to wait for years to collect all the lists - the performance of the obligations of the parties must also be viewed keeping in mind the demonstrable effect of the execution or non-execution of the contract over a long period of time. Mr. Rai, therefore, incorrectly commented that the interpretation put by the Learned Arbitrators is incorrect. Paragraph 15 of the Award considers also the field of the activity which would be occupied by the other Lessors with whom the Petitioner entered into similar contracts calling for greater supervision by provision of specific lists to the Lessors who are to specifically install panels at the specific locales provided. This requires appreciation of the fact that no Lessor could tread upon the toes of the others. Paragraphs 15 & 16 considers the correspondence between the parties and its interpretation including the internal communication of the Petitioner showing how the Senior Officers had to reprimand the relevant Junior Officers for not performing as directed. Paragraph 17 considers the evidence of the only witness of the Respondent. Indeed the essential evidence is contained in the correspondence between the parties that the witness was a party to. The oral evidence being excluded by documentary evidence, it matters little what a witness on behalf of the Respondent would be required to say - the admitted correspondence speaks for itself. It shows the acceptance of the breach of the obligations on the part of some of the officers of the Petitioner by justifiable reprimand contained in the letters of the Senior Officers to them writ large on its face. Once the breach is shown it has to be seen whether that is a fundamental breach as would prevent the party not at fault from performing the contract. This aspect has been considered in paragraph 18 of the Award. Once the breach is shown it has to be seen whether that is a fundamental breach as would prevent the party not at fault from performing the contract. This aspect has been considered in paragraph 18 of the Award. It is clear to see that if the lists of locations were not supplied and the locations were not pinpointed at site, no installation could be made. This is not a requirement of the contract which could be waived. The Respondent could never have installed without the list being given and the location being shown. The Respondent may have been reasonable, but only to the extent of the breakup of the lists of different locales such that when the list of a particular District is given he would commence work within 4 months at that place and complete it within 20 months thereat. In fact the aforesaid correspondence has shown the exception taken by the Petitioner that at certain locations the Respondent sought to install even without the presence of the required Officer. The observation in the Award that provision of the list was the fundamental requirement, cannot therefore, be faulted. Once that is seen, the default of the Petitioner's officers and the consequent breach of the Petitioner with the consequent right of the Respondent to terminate the contract upon such breach follows as a matter of corollary. The aspect of waiver has been considered in paragraph 18 of the Award. The unreasonable contention that the claimants were entitled (or were they bound ?) to wait till all the lists were supplied was rightly repelled. The very purpose of the contract would be frustrated, if that was done by the Respondent. In fact in that case the Petitioner would have been well within its rights and entitlements to enforce performance of that part of the contract requiring installation upon that particular list being furnished. The further contention that the Respondent never complained about the failure to supply the list brings out the character of the Petitioner as being highly ingrate aside from it being self - frustrating. It is rightly seen by the Learned Arbitrators as being devoid of merits. The insistence of the Petitioner that though lists were given the panels were not installed by the Respondent has also been falsified in the evidence and considered in the Award. It is rightly seen by the Learned Arbitrators as being devoid of merits. The insistence of the Petitioner that though lists were given the panels were not installed by the Respondent has also been falsified in the evidence and considered in the Award. Paragraph 19 of the Award shows various admissions of the Petitioner's star witness in paragraph 119 of his evidence during his cross examination. The admissions inter alia show that what were stated to be ready lists or complete lists was neither ready, nor complete. The evidence shows the assertions upon the assurances of the relevant Superintending Engineer who did not attend the relevant meeting. The Head Office did not make the necessary inquiries culminating in the admission of fact that the number of locations given was only 14,591. The Learned Arbitrators have rejected the credibility of the evidence of the witness who had so prevaricated. Consequently they have concluded that those lists could not have been given to the Respondent's officer Mr. Mathew and it mattered not that Mr. Mathew was not examined. Much has been said about the Superintending Engineers and their total lack of performance of duty from the admitted correspondence. None of them was examined. Only the irrelevant Superintending Engineer of Sangli where no installations were to be made by the Respondent was examined. The refrain of Mr. Rai that though as many as 26 witnesses were examined by the Petitioner no part of their evidence was heeded by the Arbitrators has to be considered in the light of the evidence of their star witness rejected upon appreciation. Paragraph 20 of the Award shows the novation between the parties pursuant to the meeting dated 24th June 1998 requiring the Respondent to install panels not insisting upon strict compliance of clause 5.2 of the contract. The letter which followed the said meeting dated 2nd September 1998 required the execution of that intent of the parties. Paragraph 21 of the Award considers the aspect of the assertion of the provision of the lists with the failure to collect the same on the part of the Petitioner's witness and the correspondence reflecting that the Respondent repeatedly asked for the lists which were not being supplied. Paragraph 21 of the Award considers the aspect of the assertion of the provision of the lists with the failure to collect the same on the part of the Petitioner's witness and the correspondence reflecting that the Respondent repeatedly asked for the lists which were not being supplied. The conclusion by the Learned Arbitrators that it was impossible for the Respondent to install the panels in the scenario provided by the Petitioner is, therefore, not only justified but could be the only conclusion. In that scenario the allowance for simultaneous installations being withdrawn and the insistence upon the strict performance of the contract being made has been held not to be "rational" in paragraph 22 of the Award. The Learned Arbitrators have considered how the Respondent could be expected to have installed panels as per the annexures B-I, B-II and B-III when the B-I list was for locations hitherto unknown to the Respondent and which had to be specifically provided and pinpointed was itself not provided. The proof of the pudding has been seen by the Arbitrators in paragraph 23, in which they have concluded that the list for Kolhapur zone which was to be shown to have been furnished to the Respondent. The Petitioner "had not done so" and consequently the Petitioner could not complain that there were enough lists of locations where the panels remained un-installed. This, it is argued, is a fundamental breach of the contract entitling the Respondent to rescind the contract and claim damages. It would do well to understand the concept of what is "fundamental". The Thesaurus would show the following synonymous: basic, key, crucial, primary, vital, central, major, principal, main, chief, central, integral, indispensable. Hence a "fundamental breach", as the term itself suggests is a breach of a basic, main term of the contract, so primary that upon such a breach the other reciprocal promises cannot be performed by the other party to the contract. Lord Reid has enunciated the ambit of this term in the case of Suisse Atlantique Societe d' armament Maritime S.A. v. N. V. Rotterdamsche Kolen Centrele 1966 AC 361 @ 397 (H.L.) to which my attention was drawn by Mr. Dada. Lord Reid has enunciated the ambit of this term in the case of Suisse Atlantique Societe d' armament Maritime S.A. v. N. V. Rotterdamsche Kolen Centrele 1966 AC 361 @ 397 (H.L.) to which my attention was drawn by Mr. Dada. In that case the charterer as the contracting party committed willful and deliberate (though not fraudulent or mala fide) breaches by delaying loading and discharging the cargo even upon the pain and result of paying demur rage charges for such cargo which was calculated to be of lower rate than to pay for freight of the coal which they would have had to use as fuel for more voyages that would have resulted. It was observed that in such a case the Charters would have committed a "fundamental or repudicatory breach" or a breach "going to the root of the contract". He further observed: "One way of looking at the matter would be to ask whether the party in breach has by his breach produced a situation fundamentally different from anything which the parties could as reasonable men have contemplated when the contract was made. ..." Lord Reid has thereafter held what would be the consequence or the aftermath of such breach at page 398 thus: "If fundamental breach is established the next question is what effect, if any, that has on the applicability of other terms of the contract. This question has often arisen with regard to clauses excluding liability, in whole or in part, of the party in breach. I do not think that there is generally much difficulty where the innocent party has elected to treat the breach as a repudiation, bring the contract to an end and sue for damages". Lord Reid further considered the case law dealing with the right of the party guilty of breach to rely upon the exclusion clause in the contract i.e., the clause excluding the liability of the party in breach upon rescission of the contract. Following, amongst others, Lord Denning's opinion in the case of Karsales (Harrow) Ltd. v. Wallis 1956 1 W.L.R. 936 he held that such party cannot use the umbrella of the exclusion clause if the breach "goes to the root of the contract" i.e., if it is a breach "of a fundamental term" thus : "It must mean that the law does not permit contracting out of common law liability for a fundamental breach". 2 principles, therefore, follow from the rule of law, (as His Lordship called) from earlier cases cited in that judgment. (a) A fundamental breach is a breach of the most basic and essential term of the contract, which goes to the root of the contract. (b) A breach of the fundamental term enables the aggrieved party to repudiate the contract and sue for damages. Hence in this case the Learned Arbitrators have accordingly, rightly held that there was fundamental breach of the terms of the contract by the Petitioner in paragraph 23 of the Award. Once that is seen to have been correctly concluded no further consideration arises. It, therefore, must be taken to be the fundamental breach that entitled the Respondent to terminate the contract. Mr. Dada's reliance is upon the case of Union of India v. K. H. Rao (1977) 1 SCC 583 in which the Plaintiff failed to supply the goods after an initial supply despite demands of the Defendants. They were held to have committed a breach of the contract entitling the Defendants to rescind the contract and claim damages for breach as also to forfeit the security deposit. Going further in the same direction is the case of Prakash Khandre v. Vijay Khandre 2002 5 SCC 568 @ 599 in paragraph 53 wherein the case of S. Munisharnappa v. B. Venkatrayappa 1981 3 SCC 260 @ 270 in paragraph 17 was referred to. It was held that if a contract is discharged by breach, the entire contract goes - together with the agreement for maintenance - leaving the party aggrieved to take steps to recover damages for such breach. Much has been argued upon whether the termination was under the letter dated 11th February 1999 or 21st April 1999 and whether the former constituted partial termination and the latter a final and complete termination. These academic differences matter little when the entitlement to terminate is seen and the contract has in any event been fully terminated at least in April 1999. It may be mentioned that the second of the 2 points for consideration being the non-renewal of the letter of credit has been justifiably held against the Respondent and which it has fairly accepted. It may be mentioned that the second of the 2 points for consideration being the non-renewal of the letter of credit has been justifiably held against the Respondent and which it has fairly accepted. Since the contract was terminated by the Respondent the letter of credit could not be renewed as it was not expected to perform any part of the contract itself which would entitle it to receive the rent under the terms of the contract, all that the Respondent could receive was the damages to the extent suffered by it for breach of the contract. The next contention of the Petitioner is upon the extent of the damages granted by the Learned Arbitrators. Mr. Rai contended that the Arbitrators have chosen a "rough and ready measure" to award damages. He would contend that damages can never be so quantified. He takes exception to the said jargon. The contract was for payment of rent for the lease period of 10 years. The rent payable was computed for monthly payment though payable at the end of each quarter. This was upon the corresponding obligation to maintain the panels. Had the contract subsisted, the Respondent would have had to satisfy the Petitioner's officers that the panels were functioning and in good working condition. For that purpose certain computer printouts were required to be maintained showing inspection and verification. Alas the contract did not continue. The Respondent became entitled to be paid off for the unexpired period of lease upon the breach seen to have been committed by the Petitioner. The compliance of that part of the contract which related to the maintenance of the installed panels, therefore, does not even come up for consideration. It need not be seen whether until the last year of the contract period the panels would have functioned well and would have been kept in a state of good repair. That aspect would come up for consideration after the panels were installed and maintained and if the Petitioner had not committed any breach with regard to the installation of all of the panels required to be installed under the contract. The breach having been committed and the contract having been terminated, the position as on the date of termination would alone be required to be seen. The breach having been committed and the contract having been terminated, the position as on the date of termination would alone be required to be seen. Since this is a contract requiring payments to be made in installments by way of rent or compensation for the panels which would work during the contract period, the measure of damages is the payment that is required to be made upon an earlier date, being the date of termination, the maintenance of the panels notwithstanding. In the case of the Proctor Endowment Loan and Annuity Company v. Grice 1879-80 5 Q.B.D. 592 (C.A.) the Court of Appeal considered a case of moneys lent upon a bond under which the principal was to be paid in 5 years by installments. Default having been made in the payment of one installment, the Plaintiffs claimed the entire balance of unpaid installments. It was held that that amount could be recovered as it was not a penalty. It was observed that when the payment is accelerated it would constitute default and when upon a default a sum otherwise payable at a future period becomes forthwith payable, it is no longer a penalty. In the case of Dunlop Pneumatic Tyre Company Limited v. New Garage And Motor Company Limited 1915 A.C. 79 a fair and reasonable sum was held payable as damages for breach of a contract when the damage likely to accrue to the Appellants was difficult or impossible to prove. In that case the breach of the contract was held proved. An inquiry as to damages was directed by the trial Judge. The inquiry was to be held by the Master. The consequence of the breach was such as to make precise pre-estimate of the damages almost an impossibility. The agreement between the parties was "Price Management Agreement". Damage from a single sale was impossible to forecast. It had to be seen whether the amount payable would be liquidated damages or penalty. The inquiry was to be held by the Master. The consequence of the breach was such as to make precise pre-estimate of the damages almost an impossibility. The agreement between the parties was "Price Management Agreement". Damage from a single sale was impossible to forecast. It had to be seen whether the amount payable would be liquidated damages or penalty. It was observed, from the judgment in the case of Kemble v. Farren, that though the presumption could be raised in favour of a penalty where a single lump sum is to be paid by way of compensation in respect of many different events, some serious, some trifling, the presumption could be rebutted even if the damage caused by the events, however varying in importance, may be of such an uncertain nature that it cannot be accurately ascertained. Hence where a party stipulated an amount as damages it was held that that amount could be paid even if there was practical impossibility of accurate assessment of damages. Such payment was, therefore, held not to be a penalty. It is based upon such a principle that the case was considered by the Arbitrators. The rents in the entire period of 10 years became due and payable upon the breach committed by the Petitioners. That would not amount to penalty if the contract has been correctly terminated. Nevertheless the Arbitrators fairly considered that though entire amount became due and payable it would require payment to be made by the Petitioners otherwise in advance of the contract period and hence, though that would not have tentamounted to penalty, they allowed only a part of that amount to the Respondent. Upon the case of Interoffice Telephones Ltd. v. Robert Freeman Co. Ltd., 1958 1 QB 190 (C.A.) relied upon by the Respondent it was argued that when the contract of hire over a period of years was repudiated, the measure of damages should be the same as in the case where a buyer refuses to accept goods sold to him. Placing reliance upon the case of In re. Vic Mill Ltd. (1913) 1 Ch. 465 the demand and supply relationship was considered. Placing reliance upon the case of In re. Vic Mill Ltd. (1913) 1 Ch. 465 the demand and supply relationship was considered. The Defendants argued about how the damages should be computed in case of loss of rent; the starting figure was argued to be the total of the last installment of rent, deducting therefrom an allowance for maintenance which the Plaintiffs would have had to carry out if the contract had run on and a further discount for receiving a lump sum of what would otherwise be receivable over the period of the contract and further deducting the depreciated value of the equipment and adding the cost of reconditioning the equipment so as to make it available for another hirer. It was further argued that rentals payable over a number of years was not equivalent to the price of the goods. Upon considering the principle of mitigation of the damages in the case of hiring out and installation, the loss suffered by the Plaintiffs (apart from incidental expenses) would be the rentals of some reasonable period to be allowed. Hence, the grant by the trial Judge allowing a period of 6 months with the addition of expenses and considering the cost of reconditioning the plant was upheld. The argument of the Plaintiffs in that case which was accepted was that damages suffered was the loss of rentals over the period which the contract had yet to run at the time when the Defendants repudiated the contract less the deductions for maintenance as well as discount. That was held to be the appropriate method of computation of damages. The case of In re. Vic Mill (Supra) was followed and the case of British Stamp and Ticket Automatic Delivery Co. Ltd. v. Haynes 1921 1 K.B. 377 was overruled. Hence the computation of damages on a reasonable basis for payment of rents for a part of the unexpired period of lease has been upheld. This principle was held to be a broad general principle applicable to the case of hiring as also sale of goods. In the case of Hyundai Heavy Industries Co. Ltd. v. Papadopoulos & Ors. 1980 (2) All E.R. 29 (H.L.) a contract of guarantee for purchase of a ship payable in 5 installments was held rescindable, if default of an installment was made upon which the buyer was liable for payment under the tender. In the case of Hyundai Heavy Industries Co. Ltd. v. Papadopoulos & Ors. 1980 (2) All E.R. 29 (H.L.) a contract of guarantee for purchase of a ship payable in 5 installments was held rescindable, if default of an installment was made upon which the buyer was liable for payment under the tender. The Ship-builder was held entitled to retain the money already paid and sell the ship. It was observed that the provision was indicative of the importance attached to the payments of installments on the due dates. Hudson on Building Contracts (10th Edition 1970) was referred to. Hence, the Contractor was held entitled to sue for damages. In the case of A. V. Joseph v. R. Shew Bux A.I.R. 1918 Privy Council it was held that even when damages with regard to all the items which were required to be deducted from the amount claimed were not proved, only nominal damages cannot be granted upon the breach which came to be proved. The Plaintiff auctioned the goods. The Plaintiff himself bought back the goods upon auction as there were no other auction purchasers. The Plaintiff had not given sufficient evidence to show the cost. The Plaintiff was to show the loading charge, custom duty, insurance and the freight. Freight was the largest item for deduction. Evidence showed that freight less rebate was rupees 16-8 annas per ton. The Plaintiff's notice asserted that freight actually incurred was 28 rupees. It was held by the Privy Council that that amount of freight could be deducted from the amount claimed as the loss upon breach, though the Plaintiff had failed to prove the exact freight incurred. Their Lordships observed this aspect as follows: "Then that leaves the one large item, the freight. As regards the freight, it is possible that plaintiff will suffer owing to his carelessness, but their Lordships think the safe thing to do is to take it at the largest figure which has been suggested here, namely, that figure which he threatened the other side with, in the letter to which their Lordships have referred. That would be at the rate of rupees 28 or, with a deduction of rupee 1 rebate, rupees 27. Making those deductions their Lordships bring out the figure of damages at rupees 18,502 and that, in their Lordships' opinion, is the sum for which judgment should be entered". That would be at the rate of rupees 28 or, with a deduction of rupee 1 rebate, rupees 27. Making those deductions their Lordships bring out the figure of damages at rupees 18,502 and that, in their Lordships' opinion, is the sum for which judgment should be entered". This case was followed in the case of Pani Bai v. Smt. Sire Kanwar, AIR 1981 Rajasthan, 184 which was a case for measure of damages, in which there was no evidence on record as to the price the goods would have fetched and hence, the damages could be correctly determined. Relying upon the case of A. V. Joseph (supra) the Court considered the fact of the Plaintiff not having led sufficient evidence to show the details of damages, despite which the Privy Council held that the Plaintiff cannot be granted only nominal damages. Hence, reasonable damages came to be granted after considering a number of judgments as well as texts on the law of contracts. Hence, it has been held in paragraph 13 @ page 187 of this judgment thus:- "13. The fact that damages are difficult to estimate or could not be assessed with certainty or precision cannot relieve the wrong doer of the necessity of paying the damages for the breach of his duty to abide the instructions of the principal and the lack of evidence in such matters would not be sufficient ground for awarding only nominal damages. ......... the other party should be accorded the benefit of every reasonable presumption for the loss suffered. Thus, when faced with such a situation that a precise quantum of damages could not be calculated because of insufficiency of material placed on the record, the Court may form its own conclusions on matters in respect of which there is no evidence, on a reasonable basis and the defendants must be paid reasonable compensation for the loss suffered by them. The Court, in such a situation, should try to place the principal in such a position in which he would have been placed if the agent would not have committed breach of the instructions of his principal". In this case the relevant text from Cheshire, Fifoot & Furmston's Law of Contracts came to be considered. The Court, in such a situation, should try to place the principal in such a position in which he would have been placed if the agent would not have committed breach of the instructions of his principal". In this case the relevant text from Cheshire, Fifoot & Furmston's Law of Contracts came to be considered. In the 15th Edition of the Law of Contract by Cheshire, Fifoot & Furmston's at page 769 is the best enunciation of a fair measure of damages as has been evolved from precedent to precedent: It is left to the good sense of the Court "to establish as best it can what it considers to be an adequate recompense for the loss suffered by the Plaintiff". It also allows for guesswork. Nevertheless a measure has to be made ...... "the fact that it cannot be made with mathematical accuracy is no reason for depriving the Plaintiff of compensation". In fact in this case the measure of damages upon all the rents having been payable upon the breach could have been better ascertained, yet the Respondent was allowed lesser compensation by way of damages since he would be entitled to recover the rents for the later period. The Learned Arbitrators therefore justly considered the measure of damages only of a reasonable amount from the amount which otherwise strictly became due and payable. In the case of State of Kerala v. K. Bhaskaran AIR 1985 Kerala 49 in a suit for damages for breach of Works Contract the grant of damages at 10% of the Government's estimate of the work was held to be the correct estimate of damages. It was observed that a 10% profit was taken as an element in the preparation of the estimate of contract and hence, the loss of Contractor at 10% of Government estimate of contract was allowed. So also in the case of Dwarkadas v. State of Madhya Pradesh (1999) 3 SCC 600 relied upon by Mr. Dada, the Supreme Court held that the Appellate Court was not justified in interfering with the finding of fact given by the trial Court (not even an arbitral tribunal) regarding quantification of damages even if it was based upon guesswork, (Cheshire supra). Dada, the Supreme Court held that the Appellate Court was not justified in interfering with the finding of fact given by the trial Court (not even an arbitral tribunal) regarding quantification of damages even if it was based upon guesswork, (Cheshire supra). Hence 10% the contract price granted as damages by the trial Court was held reasonable and permissible though in the other 2 cases cited therein 15% of the contract price was allowed on damages. Further in the case of McDermott International INC v. Burn Standard Co. Ltd. (2006) 11 SCC 181 @ 224 in para 106 it has been held that damages grantable in construction contracts based upon different formulae in different circumstances, having regard to the facts and circumstances of a particular case "would eminently fall within the domain of the arbitrator ". Hence the applicability of the 'Emdun formula' by the Arbitrators was upheld. For some quaint reason, Mr. Rai in the mass of authorities pushed into his arguments also relied upon cases under the Motor Vehicles Act, 1988, Land Acquisition Act, 1894 etc. which is best left uncited like several others. What is the measure of damages when there is an available market is well known. However, when there is no available market for the goods which in fact happens when goods are manufactured to order and are required essentially and only by the buyer, the measure of damages depends upon the loss suffered by the aggrieved party upon breach by the defaulting party. In Re Vic Mill Limited 1913 1 Ch. 465 the supplier had to supply certain machinery made to particular specification of the buyer. He had to alter the machinery, which was refused to be accepted by the buyer, to sell to another person. He was held entitled not only to nominal damages on the footing that if the buyer had honoured his contract the supplier could have sold machinery to the buyer as also to any other person and hence, the price that he received from that other person was not deductible for computing the damages that he was entitled upon the breach of the buyer. The case of Interoffice Telephones Ltd. v. Robert Freeman Co. Ltd., 1958 1 QB 190 (C.A.) has been relied upon by the Respondents to show the measure of damages. The case of Interoffice Telephones Ltd. v. Robert Freeman Co. Ltd., 1958 1 QB 190 (C.A.) has been relied upon by the Respondents to show the measure of damages. That was the case of a contract of hire when payments were required to be made in installments and upon the breach of the contract both the parties relied upon different modes of measure of damages. The case of In Re. Vic Mill Limited which was extensively considered and followed in the case of Interoffice Telephones Limited was a case where "there was no available market in which the goods could have been promptly sold". The observation in the last paragraph of the judgment is that the damages will vary according to the state of the market, including the questions of "supply and demand". In the case of W.L. Thompson Ltd. v. R. Robinson (Gunmakers) 1955 All England Law Reporter 154 it has been observed that there is a comparative absence of authority on the meaning of the phrase "Available market". The case of Marshall & Co. v. Nicoll & Son 1919 S.C. 244 (H.L.) was considered for ascertaining the position in law when there was no available market for the goods. It was held that available market was a situation where particular goods could freely be sold, and that there was a demand sufficient to absorb readily all the goods that were thrust on it, so that if a purchaser defaulted, the goods in question could readily be disposed of. The judgment had considered the situation of the market for motor cars in the recent past. In that case where there was demand for the motor cars, it was observed that whenever a car could be spared by the manufacturer it was "snatched ". If any purchaser fell out, many would take his place. In such cases the award for damages would have been purely nominal. The Court considered that the situation in that case was different and that there was, then no demand for the motor cars such that they could be readily absorbed whenever available for sale. Hence, it was held that if the purchaser defaulted, the sale was lost and there was no means of readily disposing of the car contracted to be sold, "so that there was not, even on the extended definition, an available market". Hence, it was held that if the purchaser defaulted, the sale was lost and there was no means of readily disposing of the car contracted to be sold, "so that there was not, even on the extended definition, an available market". It was held that the Plaintiffs were entitled to the compensation for the loss of their bargain to the extent of the profit. In the case of G.D. Gear and Company v. French Cigarettes Company Ltd. A.I.R. 1931 Lahore 742 an order for cigarette papers bearing the specific name of the Plaintiff with 18 carat gold tips was placed. Upon the goods being manufactured to that specification the buyer refused and neglected to take delivery. It was held that the nature of the goods ordered was such that they could not be of use to anybody but the Defendants. Papers marked with the name of the Defendant Firm are of no possible use to any and could not have been sold in the market. The case of In Re. Vic Mill Limited 1913 1 (Ch. D) 183 holding that a distinction was to be drawn between the goods which are marketable and which are not marketable was followed. Consequently it was held that the price of the goods was the measure of damages when there was no market for the goods. This case has been followed in the case of Punjab State Electricity Board, Patiala v. M/s. Abnash Textile Trading Agencies, Ambala City A.I.R. 1986 Punjab and Haryana 323 for considering the measure of damages for cloth. The consideration was the non-marketability of the goods. It was held that the goods in that case was not marketable cloth as it was specially made to order. It was, therefore, held that distinction had to be drawn between goods which were marketable and which were not as observed in the case of G.D. Gear (supra) following In Re. Vic Mill Limited. It is an admitted position that the panels were manufactured and commissioned specifically for the Petitioner. The panels did not have a ready market in which the Respondent could be expected to sell the panels, if they were not allowed to be installed by the Petitioner at their locations. The market value of the panels, therefore, could not be ascertained as considered in paragraph 55 of the Award. Mr. The panels did not have a ready market in which the Respondent could be expected to sell the panels, if they were not allowed to be installed by the Petitioner at their locations. The market value of the panels, therefore, could not be ascertained as considered in paragraph 55 of the Award. Mr. Rai's contention that the damages should have been mitigated takes his case no further. Reliance upon Hanchand & Co. v. Gosho Kabushik Kaisha A. 1925 Bom. 28, Murlidhar Chiranjilal v. Harischandra Dwarkadas 1962 1 SCR 653 ; is misplaced. Mitigation of the loss suffered by the Respondent for not being able to install the panels which were ready for installation and even inspected by the Petitioner's officers, cannot be made upon an arithmetical formula which would be applicable to goods which are saleable on the date of the termination of the contract. A reference to the various aspects of the Rule of Mitigation of Damages in Mc Gregor on Damages 17th Edition, 2003 @ 223 in paragraph (e) relating to the onus of proof on the issue of mitigation shows that such onus is on the Defendant thus : "If he fails to show that the claimant ought reasonably to have taken certain mitigating steps, then the normal measure will apply". It is in this purview with the measure of damages adopted by the Learned Arbitrators is required to be appreciated. Out of the 8 separate claims made by the Respondent, 3 of which were not pressed, and 1 was to be in another forum, the Learned Arbitrators granted only the claim for agglomerated rent. The claim for fair price of the installed panels as also the loss of depreciation under the Income Tax Act were rejected as remote loss and damage. The claim of costs being only discretionary was granted in part. The Respondent has not challenged the rejected claims. Hence only the claim for measure of damages by way the rents lost to the Respondent is to be seen. The claim of costs being only discretionary was granted in part. The Respondent has not challenged the rejected claims. Hence only the claim for measure of damages by way the rents lost to the Respondent is to be seen. Between the claim of the Respondent for payment of agglomerated rent to call the 47,987 panels to be installed for the entire period of 10 years and the contention of the Petitioner that the Respondent would be entitled only to the cost of the 17294 installed panels, the Learned Arbitrators have drawn a balance such as to put the Respondent, who was the aggrieved party in as near a portion as would be had the contract not been breached by the Petitioner. It may at once be mentioned that if the contention of the Petitioner that the Respondent is entitled to only the cost of the installed objects is at all heeded, it would mean that entire Law of Damages is given a go-by. The consequence of the very breach proved to have been committed by the Petitioner would be nullified. Yet if the entire agglomerated rent for the contract period of 10 years was granted, it may have been justified as the amount which become forthwith payable as damages and not as penalty upon the breach of the Petitioner as held in various cases since Proctor Endownment and Dunlop Pneumatic Tyre (supra). Yet the Learned Arbitrators followed the mean course. The result was expected to be challenged by the Respondent, which is not done. The challenge to the measure of damages by the Petitioner is essentially on the term "rough and ready measure" used by the Learned Arbitrators at 3 places. However this measure is on sound reasons culled from the various cases including the case of Interoffice Telephones (supra) which is largely followed. Hence, the measure of damages ascertained and awarded is neither arbitrary, not capricious. Upon the correct premise that the lease rent is one of the measures for ascertaining the damages in paragraph 51, the Learned Arbitrators have rejected that it could be for the entire period of the unexpired lease or for the entire of the 47298 panels to be fitted. They accepted the measure of damages to be only the loss of rentals for the unexpired period of lease less the appropriate deductions as held in Interoffice Telephones (supra). They accepted the measure of damages to be only the loss of rentals for the unexpired period of lease less the appropriate deductions as held in Interoffice Telephones (supra). Further they distinguished between the 17294 panels installed, the 14206 panels made ready and inspected but not installed upon the breach of the Petitioner and 16487 panels not manufactured until the date of termination of contract. They considered the expenses for installation already measured for the 17294 panels installed as also the cost of maintenance of those panels. They considered the expenses for installation and maintenance not measured for the 14206 panels readied but left stranded, thanks to the breach of the Petitioner. They considered the oral evidence of the cost of installation by the Respondent and left unled by the Petitioner. Yet instead of accepting the figure deposed by the Respondent in its entirety (though no evidence was led by the Petitioner on that score), they have taken only a fair figure as the cost of installation. The deposition of the Respondent about the maintenance cost @ 1% of the lease rent, not having been challenged in cross-examination is also not accepted at face value. The Learned Arbitrators have considered the cost of taking printouts, salary, wages, overhead costs and the costs of space parts to repair the panels also. Further they have heeded the further deductions required to be made to be discounted from the accelerated payments. Hence to determine the then value of lease rent its discounting by determination of the rate of interest is made. Consequently the Learned Arbitrators, following Interoffice Telephones (supra) and yet exercising restraint upon the damages to be awarded, have determined as damages payable by the Petitioner the lease rent for a duration of 7 less 1 = 6 years only for the installed 17294 panels. Since the cost of installation of the readied but stranded panels were not incurred by the Respondent, a further levy in terms of lease rent of 1 extra year to the end came to be granted for those 14206 panels. Consequently, the Learned Arbitrators awarded damages to the extent of the lease rent for 5 years for the readied, inspected, stranded uninstalled 14206 panels. The Learned Arbitrators further considered the claim in respect of the remaining 16487 unmanufactured panels differently and separately. They rejected the Respondent's claim for damages for those objects entirely. Consequently, the Learned Arbitrators awarded damages to the extent of the lease rent for 5 years for the readied, inspected, stranded uninstalled 14206 panels. The Learned Arbitrators further considered the claim in respect of the remaining 16487 unmanufactured panels differently and separately. They rejected the Respondent's claim for damages for those objects entirely. They however granted only a reasonable value of the raw material for acquiring those panels. Considering the deposition of the Respondent with regard to the import of the material contained in the purchase order and the Letters of Credit with regard thereto, being Exhibit - C-4, they further deducted import of material used for the installed and readied panels and granted only the net cost of the raw materials for the imported material for manufacture of further panels, hitherto unmanufactured. The contention of Mr. Rai on behalf of the Petitioner that the entire effort is worth little and is vitiated by "the law of the land" with regard to the measure of damages is not only unsound but egregiously unjust. His reliance upon a host of judgments with regard to a number of unrelated aspects of waiver, measure of damages etc. has not succeeded in a better analogy or arithmetical calculation which could have been adopted in the place and stead of the Learned Arbitrators' sound reasoning and exercise of conservativeness, balance and caution. Indeed, "there is a mighty big difference between good sound reasons and reasons that sound good" ! The exercise by the Learned Arbitrators in following the law of damages contained in Section 73 of the Indian Contract Act in a case of such fundamental breach of a contract as would prevent a party from performing his part claiming to be damnified under Section 53 of the said Act as enumerated in the aforesaid cases was both worthy and correct. Further, the contract being for panels commissioned specially for the Petitioner which had no market and hence the damages suffered could not be mitigated by sale in open market to a third party. The consideration of both the aspects does not call for interference under Section 34(2)(iv) of the Arbitration and Conciliation Act, 1996. Mr. Further, the contract being for panels commissioned specially for the Petitioner which had no market and hence the damages suffered could not be mitigated by sale in open market to a third party. The consideration of both the aspects does not call for interference under Section 34(2)(iv) of the Arbitration and Conciliation Act, 1996. Mr. Rai contended that the Learned Arbitrators erred from the inception in not appreciating that the Respondent had waived the requirement of lists and hence should have proceeded without such lists, (was he expected to go to the spot when the spot was not spotted ?), and consequently there was no breach which would allow repudiation of the contract or claim of damages and further the very measure of damages was seminally faulty being rough and ready and not precise and proper. Hence, relying upon the case of Delhi Development Authority v. M/s. R.S. Sharma & Co., New Delhi 2008 11 Scale 663 @ 672 in paragraph 12 he contended that under Section 34 of the Act, the Award was liable to be set aside. He contended that such an award was contrary to the substantive provisions of law (in this case the Indian Contract Act Sections 53 and 73) and patently illegal (being against those provisions of law). Though the principles would certainly govern the considerations of Arbitral Awards, this case does not lend itself to any illegality which would vitiate the award. Further cases referred by him, ONGC v. Saw Pipes Ltd. (2003) 5 SCC 705 , Mc. Dermott International INC v. Burn Standard Co. Ltd. (2006) 11 SCC 181 go the same way. Only one contention of Mr. Rai may deserve acceptance. As the consolidated figure of the award, conservative though it really is, runs into several crores of rupees, Mr. Rai contended that that would be the account payable by a public body and indirectly would be payable by the public, which according to him would be rather a strain on public funding. It is seen that the breach has been committed by the Officers of the Petitioner. The evidence led before the Learned Arbitrators as well as the reference in the Award point to the dirty malaise of corruption which has permeated into every fibre of our country and corroded its character to the core. It is seen that the breach has been committed by the Officers of the Petitioner. The evidence led before the Learned Arbitrators as well as the reference in the Award point to the dirty malaise of corruption which has permeated into every fibre of our country and corroded its character to the core. Indeed the letters of the Chief Engineer to the Superintending Engineers as also the letter of the independent Technical Expert of the Petitioner referred to above reflects a state of affairs that can point to nothing other than corruption at the relevant levels. It would do well for the Petitioner to recover the amount lost to the Petitioner by way of damages by the maleficent act of its officers from their earnings and benefits. Indeed the public need not pay for the actions of the officers of the Petitioner who may be found to be breach for reasons not within the course of their duty and for omissions despite specific directions. That, ofcourse, is not the reason not to grant damages to the Respondent who has been victimised precisely for that reason. Despite the strain on public resources which is pleaded, the Petitioners are seen to have challenged the Award without any justifiable ground and only to delay the inevitable payment under the Award. Under the circumstances the Petition is dismissed with costs fixed at Rs. 1 lakh.