JUDGMENT K.J. SENGUPTA, J. 1. THE above appeal has been preferred against the judgment and order dated 6th January, 2011 passed by the learned Single Judge of this Court by which challenge to the award of the learned Arbitral Tribunal dated 30th September, 2004 as corrected on 28th October, 2004 has been rejected. 2. THE short fact leading to taking action by the appellant before learned Trial Judge to challenge the award passed by the learned Arbitrators and its preferring the instant appeal is shortly put hereunder: THE respondent-claimant through an International Competitive Bidding secured the contract awarded by the appellant for execution of works of improvement of a portion of Panagarh - Moregram Road in West Bengal, viz. between Rampurhat - Moregram section 115 Km. to 150.048 Km. being contract package S-11. THE contract was awarded by letter of acceptance to the respondent, dated 30th of June, 1998 for the above job for a sum of Indian Rs.42,52,71,825/-. THE original claimant and contractor was Asia Foundations and Construction Limited now it is known as AFCONS Infrastructure Limited (the present claimant-respondent). THE works order was issued on 25th January, 1993, stipulating date of commencement of works on 29th January, 1993 and on 28th July, 1996 for completion. For various reasons the said works could not be completed within the time and as such on five occasions extension for completion of period of contract was granted. There is no dispute with regard to the bill for the works done. Thereafter, the claimant-respondent put forward claim on account of delay for construction of works and such claim was put forward on 8th January, 2000 though the contract was completed by 31st of December, 1999. The claimant made the following claims under various heads on account of the delay in completion of construction works. (a) Overhead expenses Rs. 58,499,036.00/- (b) Equipment charges Rs. 52,547,747.00/- (c) Additional POL expenses Rs. 7,413,980.00/- (d) Additional financing costs Rs. 4,074,306.00/- (e) Loss of opportunity cost Rs. 43,467,011.00/- (f) Additional expenses on labour Rs. 39,192,261.00./- 3. THE claimant's claim is founded on the allegation that because of the respondent's failure for not performing their part of the contract on various aspect of the matter there has been delay in completion of the works and at their instance there has been extension of contractual period. 43,467,011.00/- (f) Additional expenses on labour Rs. 39,192,261.00./- 3. THE claimant's claim is founded on the allegation that because of the respondent's failure for not performing their part of the contract on various aspect of the matter there has been delay in completion of the works and at their instance there has been extension of contractual period. We think that we need not elaborate each and every aspect of the matter minutely as it has been taken care of by the learned Arbitrators recording the fact accurately. Thus the aggregate claim on account of additional cost of damages to the extent of Rs.242,194,341 /- was made. THE said claim was however rejected by the Projecting Director (Engineer) of the respondent by letter dated 22nd November, 2000 on the plea that the claims submitted by the claimant do not appear to be admissible under the provision of contract and the said officer through memo dated 24th November, 2000 requested the claimants to propose for constitution of Arbitral Tribunal in terms of Clause 67.3 of the General Condition of Contract making nomination of Arbitrator. 4. THE respondent-State filed counter statement making a counter claim. In the counter statement preliminary point as to maintainability and admissibility of the claim was raised alleging that the Contractor at no point of time submitted claim for additional payment in terms of Clause 53.1 of the Contract Volume 1. THE claim for additional payment first arose on 29th July, 1996 though the claim was made on 8th January, 2001. It was alleged that claims also do not fall within provision of the contract executed between the claimant and the respondent. Respondent further alleged in the counter statement that because of respondents' inability of performing terms of the said contract in various ways and manner there has been delay and such delay is attributable to the claimant-respondent. Rather appellant has suffered loss and damages because of delay, and such loss and damages were made out as and by way of counter claim on various heads as follows: (a) Overhead charges Rs. 7,54,89,177.00 (b) Non-entitlement of obtaining profit Rs. 6,40,28,724.00 (c) Loss of profit benefit Rs. 18,54,60,000.00 (d) Liquidated damages Rs. 37,25,339.00 (e) Price adjustment Rs. Rather appellant has suffered loss and damages because of delay, and such loss and damages were made out as and by way of counter claim on various heads as follows: (a) Overhead charges Rs. 7,54,89,177.00 (b) Non-entitlement of obtaining profit Rs. 6,40,28,724.00 (c) Loss of profit benefit Rs. 18,54,60,000.00 (d) Liquidated damages Rs. 37,25,339.00 (e) Price adjustment Rs. 9,09,91,735.00 The Arbitral Tribunal consisting of three members upon hearing the parties on several days and after considering all the documents passed the award in favour of the claimant-respondent as against claimed amounts on various heads as follows: (a) Claim No. 1: Overhead expenses Claimed amount: Rs. 5,48,52,881.00 Awarded amount: Rs. 5,29,10,000.00 (b) Claim No.2: Equipment charges Claimed amount: Rs. 5,25,47,747.00 Awarded amount: Rs. 26,83,325.00 (c) Claim No.3: Additional POL expenses Claimed amount: Rs. 71,49,192.00 Awarded amount: NIL (d) Claim No.4: Additional Financing Costs Claimed amount: Rs. 4,10,73,667.00 Awarded amount: Rs. 77,32,000 (e) Claim No.5: Loss of opportunity cost due to extension of period of contract Claimed amount: Rs. 4,34,67,011.00 Awarded amount: Rs. 1,08,00,000 (f) Claim No.6: Additional expenses on account of increase in cost of labour Claimed amount: Rs. 3,59,48,574.00 Awarded amount: NIL. 5. THUS an aggregate sum of Rs.7,41,25,325.00 was awarded as against the claimed amount of Rs.242,194,341/-. By the same award counter claim made by the appellant, amounting to Rs.41,96,94,995.00 was totally rejected. The learned Arbitrator has awarded pendente lite interest at the rate of 12% per annum from 17th July, 2001 till 30th September, 2004 aggregating to Rs.2,81,97,273.00. Thus aggregate sum of Rs. 10,23,22,598.00 was awarded together with simple interest @ 12% per annum, in case of non payment of this amount within ninety days from the date of the award. 6. The learned Arbitrators after considering the contention and rival contention of the parties and considering several authorities have upheld the award. Mr. Joydeep Kar, learned counsel appearing for the appellant contends that the award in question upheld by learned Trial Judge is opposed to public policy being in contravention of sections 26(3) and 31(3) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said 'Act'). Learned Arbitral Tribunal has failed to adjudicate the dispute in terms of the contract between the parties with reference to Clauses 53.1 to 53.5 of FIDIC terms. Learned Arbitral Tribunal has failed to adjudicate the dispute in terms of the contract between the parties with reference to Clauses 53.1 to 53.5 of FIDIC terms. In effect no evidence nor any material was produced by the claimant hence, the adjudication of the dispute between the parties is based only upon the pleadings exchanged between the parties. No reason nor any basis has been indicated in the award for working out of the amount of the award as indicated in Annexure II to the award. The learned Arbitrators have really ignored the essential terms of the contract as regard time of completion of the construction works. While passing the award the learned Arbitral Tribunal has wrongly, and without any support of law has relied upon IS Code which is not part of the contract documents. Moreover, the said IS Code being 11590 : 1995 in support of claim No.2 is absolutely inappropriate and inapplicable in this case as the same relate to equipment used in River Valley Projects and not the roads and bridges. The learned Arbitral Tribunal without having any verification of the contemporaneous record has awarded the amount under claim Nos. 1, 2 and 4 namely overhead expenses, equipment charges and additional financing costs. The award as against claim No.1 has been awarded by the learned Tribunal on the basis of Auditor's Certificate not on any accounts. Learned Arbitrators cannot delegate their task to another or rely upon the certificate of the Auditor. The award as against the claim No.4 has been made without any basis and merely relying on the particulars mentioned in the statement of claims. In effect there was no proof of the said claim. As far as the award on account of damages being claim No.5 is concerned the same is not tenable in view of the fact that contract was not terminated preventing the Contractor from earning profit on the balance portion of the work. There was no case made out much less the proof thereof, that the claimant had other contracts to which he could not attend during extended period of instant contract. The learned Arbitral Tribunal should not have summarily dismissed the counter claim of the appellant. There was no case made out much less the proof thereof, that the claimant had other contracts to which he could not attend during extended period of instant contract. The learned Arbitral Tribunal should not have summarily dismissed the counter claim of the appellant. The aforesaid glaring and apparent legal mistake has been totally overlooked by the learned Arbitrator and the same ought to have been considered by the learned Trial Judge and the award should have been set aside. 7. MR. Jayanta Mitra, learned Senior Counsel appearing for the award- holder and the respondent contends that the award was rendered by learned Arbitral Tribunal consisting of three Arbitrators one nominated by the appellant who was the Chief Engineer, Public Works Department, West Bengal, the second was nominated by the respondent who is Consultant, Engineer, Contract and the third Arbitrator who was the Director General (Road Department), Ministry of Surface and Transport, Government of India who was appointed Chairman of the Tribunal of the Arbitration. Thus, the chosen forum for adjudication of dispute in the instant case was a panel of experts on road construction, who are consciously selected by the parties to decide the dispute concerning construction of the roads. 8. HE submits with the high authorities namely the decision of the Supreme Court reported in AIR 1987 SC 2316 at 2319 and that of English Court reported in 1948 (2) AELR 186, that the award of this sort ought not to be interfered with lightly. Mr. Mitra while countering the contention that the award does not reflect the reasons as required under section 31(4) of the Arbitration and Conciliation Act of 1996 as to why claim No. 1 on account of overhead expenses of 15% and under claim No.5 on account of loss of opportunity costs of 10% have been awarded, he has drawn our attention to the page 46 of the award and contends that the learned Arbitral Tribunal has meticulously, analysed entire gamut of evidence that was brought before it including the correspondences between the parties. On analysis of the various aspect delay in completing works was held to be attributable to respondent, as such extension of time applied for by the respondent and granted by the appellant. On analysis of the various aspect delay in completing works was held to be attributable to respondent, as such extension of time applied for by the respondent and granted by the appellant. The learned Arbitral Tribunal (hereinafter referred to as learned Tribunal) came to conclusion that the appellant had failed to perform the terms of the contract and thus there has been breach thereof. 9. HE submits that once it has been proved that there has been breach on the part of the respondent the claimant would be awarded damages for such breach, and the fact that the damages are difficult to estimate and cannot be assessed with certainty or precision would not relieve wrong doers from obligation to compensate damages. 10. HE further submits with the support of the following decisions of the Supreme Court and High Court that for estimating of the damages even the guess work by the learned Tribunal would not be disturbed by the Courts. In other words, he contends that it is legally permissible for the learned Arbitrators in such cases to pass award without any evidence. The learned Tribunal has relied on a certificate by the Chartered Accountant of the respondent based upon its books on records therefore, it cannot be said that there was no material to pass award. The decisions support of which are asked for, are as follows; AIR 1977 SC 1481 , AIR 1984 SC 1703 , AIR 1989 SC 1034 , AIR 1999 SC 1031 , AIR 1963 Cal 193 and (1988) 2 Cal LJ 325. He submits that entire work was done on the basis of the specification which was approved of by Ministry of Surface Transport, Government of India and the guidelines issued by them. In the Standard Data Book for analysis of rate issued by the said department in para 3.1 it has been prescribed that for the purpose of calculation of overhead charges in respect of category 1 that is, where cost is up to 50 crores rate of 10% has been accepted for calculation of the overhead charges and for minor bridges including road packages 20% has been prescribed for the purpose of calculation of overhead charges. Thus the award of the learned Tribunal 15% for overhead expenses should be justified on this basis also. 11. Thus the award of the learned Tribunal 15% for overhead expenses should be justified on this basis also. 11. HE supports the award in relation to claim No.5 on account of loss of opportunity cost on the ground that the same is basically a claim for loss of profit. The learned Tribunal is competent to proceed on the basis that in any construction-contract at least 10% profit is earned by the contractor. This legal principles could be found according to him in the decision of the Supreme Court reported in AIR 1977 SC 1481 . Above principle is also reiterated in the subsequent decisions of the Supreme Court reported in AIR 1984 SC 1703 , AIR 1989 SC 1034 and AIR 1999 SC 1031 . 12. IN this case he submits that admittedly the learned Tribunal has given both the parties adequate opportunity of hearing, and considered their submissions and arrived at its conclusion. No complaint has been made that any relevant material has not been considered or any irrelevant materials have been taken into consideration. Hence it cannot be said that there has been violation of principle of natural justice. Accordingly the challenge to the award cannot be entertained in view of the decision rendered by this Court reported in (2007) 2 Arb LR 508 and (2010) 11 SCC 296 . He submits that when the learned Tribunal has interpreted the clauses of the contract and such interpretation if found to be a possible or plausible one the Court cannot interfere with such findings as it is not legally permissible as laid down by the Supreme Court in a decision reported in (2010) 11 SCC 312. If the award is based on fact finding and appreciation of evidence, and found to be right in totality by the learned Tribunal, the Court shall not interfere with the same. Hence he submits that this appeal should be dismissed and the learned Trial Judge has correctly upheld the award. 13. WHILE considering the argument advanced before us we find the point for consideration in this appeal is whether the learned Arbitrator consequently the learned Trial Judge has committed any error in law while upholding the claim partially, of the respondent-claimant or not. 14. 13. WHILE considering the argument advanced before us we find the point for consideration in this appeal is whether the learned Arbitrator consequently the learned Trial Judge has committed any error in law while upholding the claim partially, of the respondent-claimant or not. 14. IT is contended before us that the learned Trial Judge and also the learned Arbitrators did not decide the preliminary issue as to entertainability and maintainability of claim in the context of the Clauses 53.1 to 53.5 of the FIDIC. We therefore set out the aforesaid Clauses at page 67 of the paper book. "53.1. Notwithstanding any other provision of the Contract, if the Contractor intends to claim any additional payment pursuant to any Clause of these Conditions or otherwise, he shall give notice of his intention to the Engineer, with a copy to the Employer, within 28 days after the event giving rise to the claim has first arisen. 53.2. Upon the happening of the event referred to in Sub-Clause 53.1, the Contractor shall keep such contemporary records as may reasonably be necessary to support any claim he may subsequently wish to make. Without necessarily admitting the Employer's liability, the Engineer shall, on receipt of a notice under Sub-Clause 53.1, inspect such contemporary records and may instruct the Contractor to keep any further contemporary records as are reasonable and may be material to the claim of which notice has been given. The Contractor shall permit the Engineer to inspect all records kept pursuant to this Sub-Clause and shall supply him with copies thereof as and when the Engineer so instructs. 53.3. Within 28 days, or such other reasonable time as may be agreed by the Engineer, of giving notice under Sub-Clause 53.1, the Contractor shall send to the Engineer an account giving detailed particulars of the amount claimed and the grounds upon which the claim is based. Where the event giving rise to the claim has a continuing effect, such account shall be considered to be an interim account and the Contractor shall, at such intervals as the Engineer may reasonably require, send further interim accounts giving the accumulated amount of the claim and any further grounds upon which it is based. In cases where interim accounts are sent to the Engineer, the Contractor shall send a final account within 28 days of the end of the effects resulting from the event. In cases where interim accounts are sent to the Engineer, the Contractor shall send a final account within 28 days of the end of the effects resulting from the event. The Contractor shall, if required by the Engineer so to do, copy to the Employer all accounts sent to the Engineer pursuant to this Sub-Clause. 53.4. If the Contractor fails to comply with any of the provisions of this Clause in respect of any claim which he seeks to make, his entitlement to payment in respect thereof shall not exceed such amount as the Engineer or any arbitrator or arbitrators appointed pursuant to Sub-Clause 67.3 assessing the claim considers to be verified by contemporary records (whether or not such records were brought to the Engineer's notice as required under Sub-Clauses 53.2 and 53.3). 53.5. The Contractor shall be entitled to have included in any interim payment certified by the Engineer pursuant to Clause 60 such amount in respect of any claim as the Engineer, after due consultation with the Employer and the Contractor, may consider due to the Contractor provided that the Contractor has supplied sufficient particulars to enable the Engineer to determine the amount due. If such particulars are insufficient to substantiate the whole of the claim, the Contractor shall be entitled to payment in respect of such part of the claim as such particulars may substantiate to the satisfaction of the Engineer. The Engineer shall notify the Contractor of any determination made under this Sub-Clause, with a copy to the Employer." It appears that learned Tribunal had discussed these clauses and so also the learned Trial Judge. On reading of all the clauses it appears to us that the aforesaid clauses on conjoint reading thereof do not appear to be a bar in entertaining the claim. Rather when the claim was made as it appears from the respective pleadings, and discussion thereof by the learned Tribunal the Project Director/ Engineer of the respondent not only rejected the claim but called upon the claimant to refer this dispute for Arbitration. Clause 53.4 has clearly stipulated that such claim can be adjudicated by the Arbitrators appointed pursuant to Sub-Clause 67.3 the learned Trial Judge has clearly recorded so. Thereafter, the claimant nominated their Arbitrators namely Mr. Tathagata Roy similarly the respondent-appellant nominated their retired Chief Engineer and the third Arbitrator being an independent Expert was appointed in this matter. Clause 53.4 has clearly stipulated that such claim can be adjudicated by the Arbitrators appointed pursuant to Sub-Clause 67.3 the learned Trial Judge has clearly recorded so. Thereafter, the claimant nominated their Arbitrators namely Mr. Tathagata Roy similarly the respondent-appellant nominated their retired Chief Engineer and the third Arbitrator being an independent Expert was appointed in this matter. On formation of the learned Tribunal both the parties have exchanged their pleadings contesting mutually claim and rival claim, hence aforesaid plea of entertain ability and arbitrability of the claim is no longer tenable under the law. The learned Tribunal in our view are quite within their authority in terms of the said agreement of the parties to entertain such claim and contention, hence adjudicated the disputes. Accordingly the aforesaid contention of Mr. Joydeep Kar, learned counsel for the appellant is not acceptable to this Court. 15. NOW while examining the merit of the case we think that as the learned Trial Judge found that the subject-matter of the contract was absolutely technical one and all the technical persons were engaged for adjudication, the scope of the enquiry of the Court in a mater of this nature as mentioned in Section 34 of the Arbitration and Conciliation Act, 1996 is very limited, as rightly argued by Mr. Mitra, learned counsel appearing for the claimant- respondent so also correctly noted by the learned Trial Judge. In the Supreme Court decision reported in AIR 2003 SC 2629 = (2003) 5 SCC 705 {Oil and Natural Gas Corporation Ltd. v. Saw pipes Limited) clearly mentioned to what extent the Court can examine the award. In paragraph 12 of above SCC report it is explained as follows: "12. Hence, the jurisdiction or the power of the Arbitral Tribunal is prescribed under the Act and if the award is de hors the said provisions, it would be, on the face of it, illegal. The decision of the Tribunal must be within the bounds of its jurisdiction conferred under the Act or the contract. In exercising jurisdiction, the Arbitral Tribunal cannot act in breach of some provision of substantive law or the provisions of the Act." 16. AGAIN in paragraph 31 of the same report the Court concluded on the phrase "public policy of India" as follows: "31. In exercising jurisdiction, the Arbitral Tribunal cannot act in breach of some provision of substantive law or the provisions of the Act." 16. AGAIN in paragraph 31 of the same report the Court concluded on the phrase "public policy of India" as follows: "31. Therefore, in our view, the phrase "public policy of India" used in section 34 in context is required to be given a wider meaning. It can be stated that the concept of public policy connotes some matter which concerns public good and the public interest. What is for public good or in public interest or what would be injurious or harmful to the public good or public interest has varied from time to time. However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/decision is likely to adversely affect the administration of justice. Hence, in our view in addition to narrower meaning given to the term "public policy" in Renusagar case it is required to be held that the award could be set aside if it is patently illegal. The result would be - award could be set aside if it is contrary to: (a) fundamental policy of Indian law; or (b) the interest of India; or (c) justice or morality, or (d) in addition, if it is patently illegal. Illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against the public policy. Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the Court. Such award is opposed to public policy and is required to be adjudged void." The aforesaid proposition of law is consistently and without any departure followed in a number of matters both by the Supreme Court and High Courts. Keeping in view of the aforesaid guidance of the Supreme Court now it is to examine whether the learned Tribunal or for that matter the learned Trial Judge, has committed any error in law. 17. WE have gone through impugned award and we are of the view that the learned Tribunal has considered the respective cases, and discussed in the award. On plain reading of the same it cannot be said that the learned Arbitrators did not apply their mind. 17. WE have gone through impugned award and we are of the view that the learned Tribunal has considered the respective cases, and discussed in the award. On plain reading of the same it cannot be said that the learned Arbitrators did not apply their mind. It is not a case of no evidence. 18. THE learned Trial Judge has correctly recorded as we notice from the reading of the award that indeed evidence and other material were placed before the learned Tribunal which did not overlook the same. We therefore are not prepared to accept the contention that there had been neither material nor any evidence to record arbitral award. It is not the duty of the Court to examine adequacy, quantity, sufficiency and further quality of evidence for scrutiny of Award under section 34 of the said Act. It appears from the award both the parties by consent dispensed with adducing oral evidence therefore documentary evidence were produced. Which documentary evidence would be admissible or not is also the decision to be taken exclusively by the learned Tribunal, as the provision of Evidence Act unless parties agree or the learned Tribunal decides to adopt, does not apply. Hence relevancy admissibility of the evidence as raised by the appellant is misplaced logic. In view of above discussion now we take into consideration of item-wise claim whether the award passed on different heads by the learned Tribunal is justified or not. 19. THE claim has arisen because of the delay in execution of the contract. Learned Trial Judge so also the learned Tribunal held that in this matter the time was not essence of the contract and we have no option but to accept the same as we found from the narration on fact by both the parties time is not essence of the contract because extension was granted by the respondent and, indeed claimant applied for. In this background it is settled position of law the loss or damages suffered by any of the parties has to be compensated on examining nature of respective claim on account of damage [see section 55 of Contract Act, (second Limb)]. THE appellant's claim was rejected by the learned Arbitral Tribunal and we feel that it has been done so rightly as no acceptable prima facie case has been made out in the counter statement for consideration of the claim. THE appellant's claim was rejected by the learned Arbitral Tribunal and we feel that it has been done so rightly as no acceptable prima facie case has been made out in the counter statement for consideration of the claim. We fail to understand how the appellant could suffer damages at all. Moreover there was no iota of evidence in support of the counter claim. Obviously the claim for damages because of delay on various heads suffered by the claimant/respondent owing to lapses and/or failure of the appellant is natural event and the same is entertainable. Under heading 'Overhead expenses' - claim No. 1 the learned Arbitrator found that because of the prolongation of the work the overhead expenses were incurred. We think that such claim is justified as it is based on fact and on interpretation of the law. Claim No.2 under the heading 'Equipment charges' in our view has rightly been awarded by the learned Tribunal. THE original claim was around Rs.55,25,37,747/- and as against it on scrutiny the learned Tribunal assessed Rs. 26,83,325/- only. This assessment of claim relates to the engineering contract and the same is different from ordinary one and within the field of special expertise. But the Court will not embark upon its enquiry unless it is patently absurd. 20. THE claim No.4 under the heading 'Additional Financing Costs' was scaled down to the Rs.77,32,000/- which is again a technical aspect and has been dealt with by the expert personalities and Court obviously under the law could not reexamine it under Section 34 of the said Act as it cannot be said to be on the fact and circumstances of this case, an absurd or ridiculous claim. The claim No.5 under the heading Loss of opportunity cost which is also termed as loss of profit, is discussed hereunder: We think that question of loss of profit in this case does not and cannot arise as it is not a case of repudiation or breach of contract for which there would be any occasion for suffering loss. Indeed extended period is obviously continuation of period of the contract therefore the contract subsisted. It is absurd and illogical to contend that during subsistence of one contract one can claim for loss of profit in respect of another contract which might have been secured. Indeed extended period is obviously continuation of period of the contract therefore the contract subsisted. It is absurd and illogical to contend that during subsistence of one contract one can claim for loss of profit in respect of another contract which might have been secured. Section 55 of Contract Act in our considered view does not contemplate to compensate any loss of profit which could have been earned in future contract. The language of second limb of this section merely provides for compensation for loss which had taken place owing to failure of promisor (here appellant), not which likely to take place in future time to come. It was the choice of claimant to remain or not to remain, with this contract. When the claimant/respondent had decided to remain with present contract accepting the extension of time without shifting its mind to go for another contract which was not in hand in future the appellant has to accept all legal consequences either beneficial and adverserial. According to us loss suffered in any form has already been compensated by awarding the aforesaid amount on various heads namely overhead expenses, equipment charges, additional financing costs etc. It is not a case that on execution of the present contract the claimant has suffered any loss or for that matter for any bill for any work done is remaining outstanding for payment and for which any loss has been suffered. We think that the award of the claim on account of loss of profit under heading claim No.5 is an unjust enrichment and is completely contrary to the provisions of the Indian Contract Act and therefore this claim' is not entertainable and can be interfered with by the Court under section 34 of the said Act as the Supreme Court quoted above, has explained the legal position. 21. THE decision cited in support of the aforesaid claim of loss of profit/ opportunity, in the case of Dwarka Das v. State of Madhya Pradesh and another reported in AIR 1999 SC 1031 is in our view not an authority in this case. In that case the Court awarded damages as there has been termination of the contract and on account of breach of such contract and which was held to be unlawful, the loss of profit was taken into consideration as a measure of damages. In that case the Court awarded damages as there has been termination of the contract and on account of breach of such contract and which was held to be unlawful, the loss of profit was taken into consideration as a measure of damages. Hence the standard of measuring loss of profit without any evidence as legal principle laid down therein is also misplaced in this case. It seems to us both the learned Trial Judge and the learned Tribunal have proceeded on the basis as if there has been a breach of contract. From the records as we notice there had been no breach of contract, rather contract was allowed to be subsisted and to be performed by both the parties. THE decision of the learned Single Judge in the case of Deo Kumar Saraf v. Union of India reported in 1988 (2) CLJ CLJ page 325 was rendered on the factual foundation that there has been breach of contract and as a measure of damages for loss of profit was taken one of the factors. 22. SIMILARLY, the decision of the learned Single Judge in case of Gambhirmull reported in AIR 1963 Calcutta 163 was rendered in relation to the breach of contract on fact and not in the premises of subsistence of the agreement on extension being granted. The judgment of the Supreme Court in case of P. M. Paul, appellant v. Union of India reported in AIR 1989 SC 1034 does not lend any support to award compensation for loss of opportunity or profit where there has been a delay in execution of contract. This judgment has decided that escalation of cost must be awarded where there has been delay. In this case it has been held amongst others that escalation is a normal occurrence arising out of gap of time in this inflationary age in performing of any contract. In this case the losses occurred due to increase in prices of materials and cost of labours and transport during the extended period of contract. Indeed, the claims of overhead expenses and etc. have been awarded in lieu of escalation of cost, the nomenclature is different though substance is the same. In this case the losses occurred due to increase in prices of materials and cost of labours and transport during the extended period of contract. Indeed, the claims of overhead expenses and etc. have been awarded in lieu of escalation of cost, the nomenclature is different though substance is the same. The case decided by the Supreme Court reported in AIR 1977 SC 1481 was a case for breach of contract and awarding damages suffered, and accordingly it was held that the estimated profit is one of the measure of quantifying of damages. In that case there was no subsistence of the agreement. The decision of the Supreme Court in case of Nuxnaligarh Refinery Ltd. v. Daelim Industrial Co. Ltd. reported in (2007) 8 SCC 466 has laid down that because of the delay in execution of the contract and resultant loss has to be compensated as provided in the agreement or by the learned Arbitrator by adopting suitable measure. According to us the suitable measure in this case has been adopted awarding the aforesaid head of claims. Therefore these two decisions are distinguishable in the facts and circumstances of this case. 23. FOR the foregoing discussion we hold that the said claim under the head 'loss of opportunity cost' amounting to Rs. 1,08,00,000/- is unjustified and absurd. The same is accordingly deleted from the award. Save this claim we uphold other claims awarded by the learned Arbitrators and upheld by the learned Trial Judge. Accordingly, the appeal is allowed partly. There will be no order as to costs. Appeal partly allowed.