Judgment :- 1. This petition is filed under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, “the Act”) for setting aside the award passed by the Arbitrators insofar as it relates to Claim Nos.1, 2, 4, 6 and 8 made by the first respondent (hereinafter referred to as "the Contractor"). The particulars regarding the claim and the award are as under: The petitioner (hereinafter referred to as “the Employer”) has filed the present original petition in respect of the grant of the above said awards. BACKGROUND FACTS 2.1. The brief facts giving rise to the dispute as well as the passing of the award are as follows: The Contractor was awarded a contract by way of an agreement entered between the Employer and the Contractor on 25.6.2007 for Improvement, Widening and Strengthening of Existing Roads, Construction of storm water drains and cross masonry work inside Thiru Vi-Ka Industrial Estate, Guindy. The contract price, as per the agreement for the work, was ` 9,19,46,759/-. The date of signing of the agreement, as stated above, was 25.6.2007 and the date of commencing of work was 15.6.2007 and as per the terms of agreement, the period fixed for completion of the work was seven months, namely on or before 14.1.2008. The period of contract for completion of the work was extended up to 31.3.2008 and second extension was granted up to 30.6.2008. It is also stated that the Contractor purported to terminate the contract on the ground of breach by the Employer, but as the time was extended from 31.3.2008 to 30.6.2008, the Contractor continued the work and ultimately, the Employer has terminated the contract on 30.3.2009 on the ground of default stated to have been committed by the Contractor. 2.2. As per the terms of agreement, the Contractor has raised number of disputes and nominated the third respondent as Arbitrator and the Employer has nominated the fourth respondent as its nominee and respondents 3 and 4 (Arbitrators) have appointed the second 2.3. The Arbitral Tribunal while rejecting Claim No.5, 7 and 9, has also rejected part of Claim No.6 in respect of loss due to idle machinery. The Contractor has not challenged the rejection of the said claims by the Arbitral Tribunal. On the other hand, in respect of Claim Nos.1, 2, 3, 4, 6 (Part) and 8, the following amounts were awarded, namely: 2.4. The Contractor has not challenged the rejection of the said claims by the Arbitral Tribunal. On the other hand, in respect of Claim Nos.1, 2, 3, 4, 6 (Part) and 8, the following amounts were awarded, namely: 2.4. Neither the Contractor nor the Employer has challenged the claim awarded in respect of Claim No.3. Except Claim No.3, in respect of other claims, namely Claim Nos.1, 2, 4, 6 (Part) and 8, in respect of which award has been made, the Employer has filed the petition to set respondent as a Presiding Arbitrator. The Contractor has made the following nine claims: aside the same. CONTENTIONS 3.1. The main contention pertains to the award granted in respect of revision of rates on the basis that the agreement does not provide a clause for revision of rates. It is contended that as per the clause in the agreement, the rate quoted by the bidder shall be fixed for the duration of contract and is not subjected to any adjustment on any account. Moreover, there is no application of price adjustment under the contract and therefore, the question of revision of rates as claimed by the Contractor is opposed to the terms of the contract and ought to have been rejected by the Arbitral Tribunal. 3.2. It is further contended that as per the terms of agreement, which contemplates the procedure for initiation of arbitration, the arbitration can be commenced only as per Clause 23.2 of the Conditions of Contract, which contemplates issuance of notice in respect of a dispute by a party and giving of reply thereafter within fourteen days and if no reply is received or the reply is not acceptable, the affected party can suggest for arbitration, and, according to the Employer, in the present case, the Contractor has appointed Arbitrator even before the dispute or claim was rejected and, therefore, the proposal for appointment of arbitrator by the Contractor becomes invalid. 3.3. It is also contended that while granting extension, the Employer has categorically mentioned that the extension is subject to the condition that the balance work under the agreement is to be executed at the existing contract rates and conditions, which was never objected to by the Contractor and that being so, the grant of revision of rates by the Arbitral Tribunal is without jurisdiction. The learned counsel would also rely upon the judgments in EnnorePort Limited v. Skanska Cementation India Limited, (2008) 1 MLJ 1147 and Rajasthan State Mines and Minerals Limited v. Estra Engineering Enterprises, AIR 1999 SC 3927. Therefore, according to the learned counsel for the Employer, the second claim should have been rejected at the outset as a preliminary issue. 3.4. It is the further contention that the view taken by the Arbitral Tribunal that the Employer has not raised any objection to various statements filed and marked as Ex.C42 in the form of revised rates claiming a revised rate of ` 87,98,572/-is unsustainable, as such change of claim has been made by the Contractor without permission from the Employer or the Arbitrators as required under the Act and thereby the Contractor made an unlawful insertion correcting the claim and, therefore, the original claim made in Claim No.2 becomes non est in law. It is also stated that the modified and corrected statement marked as Ex.C42 is unauthorized and the same is without any date and signature, and the same is not certified by the auditors or the Contractor and, therefore, according to the Employer, the Arbitrators without even referring to the same, especially in the absence of any pleading to that effect, modified the claim of the Contractor to ` 68,37,575/- instead of ` 87,98,572/-and, therefore, such insertion makes the award null and void. It is the submission of the learned counsel for the Employer that consequent to the said unlawful insertion, the change in respect of the revised claim to the extent of ` 1,32,56,362/- without any pleadings or amendment to the claim as required under Section 23(3) of the Act is not bona fide and illegal. It is also further stated that such revised claim has been awarded by the Arbitral Tribunal without any evidence. 3.5. As far as the Claim Nos.1 and 8 are concerned, it is the contention raised on behalf of the Employer that in the absence of notice of dispute before referring to arbitration, the Arbitrators ought to have refused to grant such relief without commencing the arbitration. It is his submission that the counter defence made by the Employer in this regard before the Arbitrators has not been considered by the Arbitrators. 4.1. It is his submission that the counter defence made by the Employer in this regard before the Arbitrators has not been considered by the Arbitrators. 4.1. On the other hand, it is the contention of Mr.G.Masilamani, learned Senior Counsel appearing for the Contractor that the Arbitrators have given cogent reasoning. It is his further submission that as far as the price fixation is concerned, the same is applicable only during the tenure of contract and when the terms of contract and time for performance have been extended by the Employer, the price variation clause goes. 4.2. It is further contended that, on the facts of the present case, the handing over of the site itself was delayed by the Employer and, therefore, the fixed price rate will not be valid. The rate has been claimed as per the terms of the contract. On the part of the Contractor, the work has been commenced immediately after the site was handed over and everything was done with the consent of the Employer and at every stage the work has been monitored by the Employer and therefore, the contract and performance is bilateral. 4.3. It is his contention that the documents were filed before the Arbitrators and the Arbitrators object is not to non suit the parties, and the Arbitrators are entitled to adjust or amend the position when further facts come to light and therefore, it is flexible in nature. In fact, the documents filed by the Employer (Exx.R5 and R6) were considered and the majority of the Arbitrators have granted the award. It cannot be said that the Arbitrators have not followed the procedure. When documents were filed the Employer has not raised any objection, and the contract can be by the conduct of the parties also. After completion of the contract, the Employer has improperly terminated the agreement. The work having been executed with the consent of the Employer, it is no more open to the Employer to raise objection regarding the revised claim. 4.4. After completion of the contract, the Employer has improperly terminated the agreement. The work having been executed with the consent of the Employer, it is no more open to the Employer to raise objection regarding the revised claim. 4.4. It is his contention that in respect of Claim No.1 regarding the rate for conveyance of surplus excavated earth, the same formed part of the contract agreement as amended and even as per the tender document, the scope of work includes excavation and disposal of unsuitable surplus materials, and, therefore, as per the clause the unsuitable surplus materials not used shall be disposed by the Contractor with all lifts and leads. The contract amount concluded in Item No.1.03C is inclusive of the same as per Clause 301.9.6. It is stated that, in fact, the Arbitral Tribunal has considered the same specifically and even though the Contractor has claimed ` 7,68,111/-, the amount awarded was ` 3,45,502/-. 4.5. In respect of the Claim No.2, which relates to the revision of rates, it is submitted that the claim made by the Contractor to the extent of ` 87,98,572/-was up to Part V bill as per Ex.C42, since the final quantities were not arrived at at that time. It is stated that the Employer has raised clarifications regarding certain errors and mistakes in the calculations and accordingly, the Tribunal has sought details of quantities of materials executed as per minutes dated 16.9.2008 directing the Contractor to correct statements before the Tribunal and by that time, the final quantities up to Bill No.VII were arrived at and it was pursuant to the direction of the Tribunal, the Contractor vide its letter dated 17.10.2008 corrected the inadvertent mistakes in the calculations and rates and the final quantities up to bill No.VII and submitted a claim for the revised rate of ` 1,32,56,362/-with a copy served to the Employer, who has never raised any objection for the revised calculations and it was in those circumstances, the revised claim made was taken on record by the Arbitral Tribunal, the same was considered and award was passed. Therefore, it is not correct to contend that the majority of the Arbitral Tribunal has granted more than what was claimed and that would amount to ignoring the subsequent events that have taken place before the Tribunal. Therefore, it is not correct to contend that the majority of the Arbitral Tribunal has granted more than what was claimed and that would amount to ignoring the subsequent events that have taken place before the Tribunal. It is also stated that the revision of rates was only based on the data adopted by the Highways Department with tender premium. The correction was made before the Tribunal only after considering the arguments advanced and after giving opportunity to the Employer, especially when the Employer has not raised any objection. It is submitted that it is not as if the Tribunal should act as a Civil Court and the Code of Civil Procedure is applicable. It is the submission of the learned Senior Counsel that the Employer has conveniently suppressed what has happened subsequently to question the validity of the second claim. 4.6. It is also denied that there is an express provision in the contract which bars claiming escalation and stipulates that the prices shall be firm. He would rely upon a clause in the Conditions of Contract which enables the recommendation of the Engineer for liquidated damages and other deductions in respect of variation of price of bitumen. Therefore, when the contract clause itself provides for variation, one cannot say that it is a price fixed contract. In fact, the Tribunal has considered all these aspects while passing the award. The Employer, who has not raised any dispute regarding the quantum or working of rates, cannot now raise it under Section 34 of the Act. 4.7. Regarding Claim No.4, in respect of the loss of profit, it is his contention that the total contract amount was fixed at ` 9,19,46,759/-insofar as it relates to 81 roads, whereas the work was performed only in respect of 37 roads, which was, according to the Contractor, due to the breach of contract committed by the Employer. If only the Employer has allowed the Contractor to fulfill the entire contract, the Contractor would have earned profit of ` 9,19,46,759/- and that was reduced to ` 3,63,97,966/-due to the breach of contract by the Employer. In respect of the right of the Contractor to claim estimated profit, he would rely upon various judgments, namely (i) Mohd. If only the Employer has allowed the Contractor to fulfill the entire contract, the Contractor would have earned profit of ` 9,19,46,759/- and that was reduced to ` 3,63,97,966/-due to the breach of contract by the Employer. In respect of the right of the Contractor to claim estimated profit, he would rely upon various judgments, namely (i) Mohd. Salamatullah and others v. Government of Andhra Pradesh, AIR 1977 SC 1481 , (ii) A.T.BrijPaul Singh v. State of Gujarat, AIR 1984 SC 1703 , and (iii) The Superintending Engineer, T.N.U.D.P., Madras Circle v. A.V.Rangaraju, AIR 1994 Madras 217. 4.8. In respect of Claim No.6 regarding the loss due to idle establishment, the Tribunal has considered the claim on the basis of the materials placed and under Section 34 of the Act the jurisdiction of this Court is not to re-appreciate the evidence and that is also his submission in respect of Claim No.8 relating to interest. CONSIDERATION 5. I have heard the learned counsel for the Employer and the learned Senior Counsel for the Contractor and perused the entire records and given my anxious though to the issue involved in this case. 6. The Employer, through the Tamil Nadu Road Development Company, has issued a publication in the newspapers on 16.2.2007 inviting tenders for Improvement, Widening and Strengthening of Existing Roads, Construction of storm water drains and cross masonry works inside Thiru Vi.Ka.Industrial Estate, Guindy, Chennai, fixing the last date for receipt of tenders as 21.3.2007. A pre-bid meeting was held on 2.3.2007 and tender was called on a double cover format. The qualification tender was opened by the Tamil Nadu Road Development Corporation on 21.3.2007 and the Contractor was pre-qualified along with another tenderer. Thereafter, the financial bid was opened on 9.4.2007 and on finding that the tender furnished by the Contractor was lower, namely ` 9,46,13,415/-, in the letter of the Tamil Nadu Road Development Corporation dated 11.4.2007, a discussion was arranged with the Tender Evaluation Committee and after prolonged discussion, as the Contractor has reduced quoted rates in respect of few items, the final negotiated amount was arrived at ` 9,19,46,759/- and the Employer, by letter dated 17.5.2007, notified the acceptance and directed the Contractor to furnish performance security. 7. 7. Admittedly, as per the terms of agreement, it was signed on 25.6.2007 and the work was commenced on 15.6.2007, and as per the terms of agreement, the period for completion of the work is seven months, namely by 14.1.2008, and it was subsequently extended by the Employer up to the date of termination, namely 30.3.2009. Since there was a review of quantum of work after the contract was awarded, it was assessed that in respect of the entire work, the cost will increase to ` 16,91,41,214/-. However, the Employer took a decision to permit the Contractor to complete the work only in respect of 37 roads for the agreed amount of ` 9,19,46,759/-. 8. The claim made by the Contractor under the nine heads was mainly based on the allegation that major portion of the road has not been handed over by the Employer as per the provisions of the agreement; actual quantities of work to be carried out has not been issued as per the Bill of Quantities; the instructions on the specifications to be followed for Bituminous Macadam and Semi Dense Bituminous Concrete was not given in time; and the payment for the work done has not been made as per Clause 39 of the Conditions of Contract and the Contractor was prevented from performing the contract leading to idle labour, over heads and loss of turnover, etc. 9. While considering the nine claims, the majority of the members of the Arbitral Tribunal, while rejecting Claim Nos.5, 6 (Part) and 7, has granted an award of ` 2,01,23,010/-and also awarded simple interest at the rate of 12% per annum on the said amount from the date of the award till the date of payment. The dissenting Arbitrator, while agreeing with the granting of awards in respect of Claim Nos.1 and 3 and rejecting in respect of Claim Nos.5, 6 (Part) and 7, has not accepted the award in respect of Claim No.2 for a sum of ` 1,32,56,362/-, Claim No.4 for a sum of ` 47,81,690/-, and Claim No.6 (Part) to the extent of ` 3,69,324/-. 10. In the petition filed by the Employer under Section 34 of the Act, the Employer has restricted only in respect of Claim Nos.1, 2, 4 6 (Part) and 8. JURISDICTION OF THIS COURT 11. 10. In the petition filed by the Employer under Section 34 of the Act, the Employer has restricted only in respect of Claim Nos.1, 2, 4 6 (Part) and 8. JURISDICTION OF THIS COURT 11. Before going into each and every one of the claims and also submissions made by the respective counsel, it is relevant to note that the jurisdiction of this Court while exercising its power under Section 34 of the Act is limited and it cannot be exercised for the purpose of re-appreciation of evidence or factual matrix, for, the Arbitrator is the sole Judge chosen by the parties in respect of the appreciation of evidence, either regarding quantity or quality. Simply because on appreciation of evidence two views are possible, the Court cannot substitute its view for the view of the Arbitrators. This celebrated concept is uniformly followed by the Apex Court and all other Courts in this country on the conception that the arbitration is the creation of the parties by mutual consent to settle their dispute outside the Court, but at the same time the law confers a legal status to such award passed by the Arbitrators. Under Section 34 of the Act, the power of the Court to set aside the award is limited. For proper understanding, it is apposite to extract Section 34 of the Act, which is as follows: "Section 34. Application for setting aside arbitral award.- (1)Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and subsection (3). For proper understanding, it is apposite to extract Section 34 of the Act, which is as follows: "Section 34. Application for setting aside arbitral award.- (1)Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and subsection (3). (2) An arbitral award may be set aside by the Court only if- (a) the party making the application furnishes proof that- (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) theparty making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or .(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matter beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that- (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India. Explanation.- Without prejudice to the generality of sub-clause (ii) of clause (b), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced of affected by fraud or corruption or was in violation of section 75 or section 81. Explanation.- Without prejudice to the generality of sub-clause (ii) of clause (b), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced of affected by fraud or corruption or was in violation of section 75 or section 81. (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. (4) On receipt of an application under sub-section (1), the court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award." 12. Even while dealing with the Arbitration Act, 1940, the power of the Court to set aside the award under Section 30 of the Arbitration Act, 1940 was well defined by judicial precedents in a catena of decisions, as it was observed by the Apex Court in M.P. Housing Board v. Progressive Writers and Publishers, 2009 (2) CTC 843 : (2009) 5 SCC 678 in the following words: "18. It is fairly well settled and needs no restatement that the award of the arbitrator is ordinarily final and the courts hearing applications under Section 30 of the Act do not exercise any appellate jurisdiction. Reappraisal of evidence by the court is impermissible. In IspatEngineering and Foundry Works, B.S. City, Bokaro v. Steel Authority of India, B.S. City, Bokaro, (2001) 6 SCC 347 , itis held: “4. Needless to record that there exists a long catena of cases through which the law seems to be rather well settled that the reappraisal of evidence by the court is not permissible. In IspatEngineering and Foundry Works, B.S. City, Bokaro v. Steel Authority of India, B.S. City, Bokaro, (2001) 6 SCC 347 , itis held: “4. Needless to record that there exists a long catena of cases through which the law seems to be rather well settled that the reappraisal of evidence by the court is not permissible. This Court in one of its latest decisions ArosanEnterprises Ltd. v. Union of India, (1999) 9 SCC 449 , upon consideration of decisions in ChampseyBhara & Co. v. JivrajBalloo Spg. & Wvg. Co. Ltd. AIR 1923 PC 66, Union of India v. BungoSteel Furniture (P) Ltd. 1967 (1) SCR 324 , N. Chellappan v. KeralaSEB, (1975) 1 SCC 289 , SudarsanTrading Co. v. Govt. of Kerala, (1989) 2 SCC 38 , State of Rajasthan v. PuriConstruction Co. Ltd., (1994) 6 SCC 485 , as also in Olympus Superstructures (P) Ltd. v. MeenaVijay Khetan, (1999) 5 SCC 651 , has stated that reappraisal of evidence by the court is not permissible and as a matter of fact, exercise of power to reappraise the evidence is unknown to a proceeding under Section 30 of the Arbitration Act. This Court in ArosanEnterprises categorically stated that in the event of there being no reason in the award, question of interference of the court would not arise at all. In the event, however, there are reasons, interference would still be not available unless of course, there exist a total perversity in the award or the judgment is based on a wrong proposition of law. This Court went on to record that in the event, however, two views are possible on a question of law, the court would not be justified in interfering with the award of the arbitrator if the view taken recourse to is a possible view. The observations of Lord Dunedin in ChampseyBhara stand accepted and adopted by this Court in BungoSteel Furniture to the effect that the court had no jurisdiction to investigate into the merits of the case or to examine the documentary and oral evidence in the record for the purposes of finding out whether or not the arbitrator has committed an error of law. The court as a matter of fact, cannot substitute its own evaluation and come to the conclusion that the arbitrator had acted contrary to the bargain between the parties.” 19. The court as a matter of fact, cannot substitute its own evaluation and come to the conclusion that the arbitrator had acted contrary to the bargain between the parties.” 19. Interpretation of a contract, it is trite, is a matter for the arbitrator to determine. Even in a case where the award contained reasons, the interference therewith would still be not available within the jurisdiction of the court unless, of course, the reasons are totally perverse or award is based on wrong proposition of law. An error apparent on the face of the records would not imply closer scrutiny of the merits of documents and materials on record. "Once it is found that the view of the arbitrator is a plausible one, the court will refrain itself from interfering.” (See SudarsanTrading Co. v. Govt. of Kerala, (1989) 2 SCC 38 and State of U.P. v. Allied Constructions, (2003) 7 SCC 396 ." 13. When the Arbitrators have applied their mind and passed a speaking order, unless the reason given by the Arbitrators is found to be perverse, the scope of this Court to interfere with the award is very limited. It was in U.P.StateElectricity Board v. Searsole Chemicals Limited, (2001) 3 SCC 397 , the Supreme Court has observed as follows: "4. ..... When the arbitrators have applied their mind to the pleadings, the evidence adduced before them and the terms of the contract, we do not think, it is within our scope to reappraise the matter as if this were an appeal, and it is clear that where two views are possible — in this case there is no such scope — the view taken by the arbitrators would prevail." 14. That view was again reiterated in State of U.P. v. Allied Constructions, (2003) 7 SCC 396 and it was held as follows: "4. Any award made by an arbitrator can be set aside only if one or the other term specified in Sections 30 and 33 of the Arbitration Act, 1940 is attracted. It is not a case where it can be said that the arbitrator has misconducted the proceedings. It was within his jurisdiction to interpret clause 47 of the agreement having regard to the fact-situation obtaining therein. It is not a case where it can be said that the arbitrator has misconducted the proceedings. It was within his jurisdiction to interpret clause 47 of the agreement having regard to the fact-situation obtaining therein. It is submitted that an award made by an arbitrator may be wrong either on law or on fact and error of law on the face of it could not nullify an award. The award is a speaking one. The arbitrator has assigned sufficient and cogent reasons in support thereof. Interpretation of a contract, it is trite, is a matter for the arbitrator to determine (see SudarsanTrading Co. v. Govt. of Kerala, (1981) 2 SCC 38). Section 30 of the Arbitration Act, 1940 providing for setting aside an award is restrictive in its operation. Unless one or the other condition contained in Section 30 is satisfied, an award cannot be set aside. The arbitrator is a Judge chosen by the parties and his decision is final. The court is precluded from reappraising the evidence. Even in a case where the award contains reasons, the interference therewith would still be not available within the jurisdiction of the court unless, of course, the reasons are totally perverse or the judgment is based on a wrong proposition of law. An error apparent on the face of the records would not imply closer scrutiny of the merits of documents and materials on record. Once it is found that the view of the arbitrator is a plausible one, the court will refrain itself from interfering (see U.P. SEB v. SearsoleChemicals Ltd., (2001) 3 SCC 397 and IspatEngg. & Foundry Works v. Steel Authority of India Ltd., (2001) 6 SCC 347 )." 15. It has been well established by judicial precedents long ago that the reasonableness of reason given by the Arbitrator cannot be challenged, as it was held in SudarsanTrading Co. v. Government of Kerala and another, (1989) 2 SCC 38 . The relevant portion of the said judgment is extracted hereunder: "29. ...... Furthermore, in any event, reasonableness of the reasons given by the arbitrator, cannot be challenged. Appraisement of evidence by the arbitrator is never a matter which the court questions and considers. If the parties have selected their own forum, the deciding forum must be conceded the power of appraisement of the evidence. ...... Furthermore, in any event, reasonableness of the reasons given by the arbitrator, cannot be challenged. Appraisement of evidence by the arbitrator is never a matter which the court questions and considers. If the parties have selected their own forum, the deciding forum must be conceded the power of appraisement of the evidence. The arbitrator is the sole Judge of the quality as well as the quantity of evidence and it will not be for the court to take upon itself the task of being a judge on the evidence before the arbitrator. See the observations of this Court in MCD v. JaganNath Ashok Kumar, (1987) 4 SCC 497 ." 16. The probability of substitution of its view for the view of the Arbitrator cannot again be a ground for interference with the validity of the award, as it was held in Municipal Corporation of Delhi v. M/s.Jagan Nath Ashok Kumar and another, AIR 1987 SC 2316 . In paragraph (4), it was observed as follows: "4. In this case, there was no violation of any principles of natural justice. It is not a case where the arbitrator has refused cogent and material factors to be taken into consideration. The award cannot be said to be vitiated by non-reception of material or non-consideration of the relevant aspects of the matter. Appraisement of evidence by the arbitrator is ordinarily never a matter which the court questions and considers. The parties have selected their own forum and the deciding forum must be conceded the power of appraisement of the evidence. In the instant case, there was no evidence of violation of any principle of natural justice. The arbitrator in our opinion is the sole judge of the quality as well as quantity of evidence and it will not be for this Court to take upon itself the task of being a judge of the evidence before the arbitrator. It may be possible that on the same evidence the court might have arrived at a different conclusion than the one arrived at by the arbitrator but that by itself is no ground in our view for setting aside the award of an arbitrator." 17. It may be possible that on the same evidence the court might have arrived at a different conclusion than the one arrived at by the arbitrator but that by itself is no ground in our view for setting aside the award of an arbitrator." 17. Therefore, it is well settled that the power of this Court in entering into the factual matrix, especially in cases of appreciation of evidence by the Arbitrator, is not well within the realm of this Court under Section 34 of the Act. Under the above said legal background one has to approach the issue in respect of each of the claims. CLAIM NO.1 18.1. The first claim made by the Contractor, which relates to the rate for conveyance of surplus excavated earth, is in respect of an amount of ` 7,68,111/-. 18.2. The Articles of Agreement entered into between the Employer and the Contractor on 25.6.2007 is read with (i) Letter of intent and confirmation letter; (ii) notice to proceed with the works; (iii) bill of quantities and payment schedule of maintenance works; (iv) contract data; (v) conditions of contract (including special conditions of contract); (vi) specifications; (vii) drawings; and (viii) any other document listed in the contract data as forming part of the contract. 18.3. In the Bill of Quantities (BOQ), which forms part of the contract, Item 1.03 and Ministry of Road Transport and Highways (MoRTH) Specification No.301 stipulates that it includes transportation and disposal of surplus and unsuitable material with all lifts and lead. MoRTH Specification No.301 is as follows: "Roadway excavation necessary for construction of roadway including cutting and loading in tippers, trimming bottom and side slopes, in accordance with requirements of lines, grades and cross sections, and transporting to the embankment location as also excavation of existing shoulders and median for the purpose of pavement construction including transportation and disposal of surplus and unsuitable material with all lifts and lead complete." Under Item 1.03C, the conveyance for disposable of unsuitable material is specified as ` 50/-per Cubic Metre. 18.4. The crux of the issue before the Tribunal was that the rate fixed under Item 1.03A in respect of Ordinary Soil includes conveyance and, therefore, the Contractor is not entitled to claim rate for conveyance of surplus excavated earth. 18.4. The crux of the issue before the Tribunal was that the rate fixed under Item 1.03A in respect of Ordinary Soil includes conveyance and, therefore, the Contractor is not entitled to claim rate for conveyance of surplus excavated earth. The Contractor would rely upon Clause 301.9.6 of MoRTH specification dealing with the rates as follows: "The contract unit rate for disposal of surplus earth from the roadway and drain excavation shall be full compensation for all labour, equipment, tools and incidentals necessary on account of the additional haul or transportation involved beyond the initial lead of 1000m" and would contend that the words "with all lifts and lead" will cover the initial lead of 1000 Metres only and in the facts of the present case, the Contractor has conveyed 15362.22 Cubic Metre of surplus earth and has not received the payment as per the rate quoted. 18.5. An argument was advanced on the side of the Employer to the effect that an amendment to the morth specification stipulating "all leads and lifts" in place of "initial lead of 1000m" was brought in and therefore, after the amendment, the contract rate is for all leads and lifts and not limited to 1000m. 18.6. It was considering both the claims, the Tribunal has come to a conclusion that the rates have been called for under Item 1.03 and there was no amendment/modification to the MoRTH specification incorporated to Clause 301.9.6 and, therefore, the Tribunal rejected the claim of the Employer to the effect that Claim No.1 is not maintainable. However, the Tribunal has worked out the amount at ` 6,25,911/-in that regard and taking note of the fact that a sum of ` 2,80,408.12 has already been made to the Contractor, awarded the balance amount of ` 3,45,502/-. The reasoning given by the Tribunal is cogent, which does not warrant any interference by this Court. CLAIM NO.2 19.1. The second claim made by the Contractor relating to the revision of rates for the items of work carried out beyond the contract period assumes importance in the circumstance that a vehement objection has been raised about the maintainability of the claim itself. 19.2. The revision has been claimed on the basis of Clause 20.1 of the Conditions of Contract, which stipulates as follows: "20.1. The Employer shall give possession of the site to the Contractor in accordance with the Contract Data. 19.2. The revision has been claimed on the basis of Clause 20.1 of the Conditions of Contract, which stipulates as follows: "20.1. The Employer shall give possession of the site to the Contractor in accordance with the Contract Data. If possession of major part is not given by the agreed date stated in the Contract Data, then the intended Completion Date shall be postponed by the Employer as may be required for that particular part/stretch. However this will not be applicable if sufficient Work Site is made available to the Contractor as and when required, for him to proceed ahead with the progress of work and if available work fronts remain unattended.", and inasmuch as there was an admitted delay in handing over of the site by the Employer, it was the contention of the Contractor before the Arbitral Tribunal that Clause 13.4 of the Instruction to Bidders, which is as follows: "13.4. The rates and prices quoted by the Bidder shall be fixed for the duration of the Contract and shall not be subject to adjustment on any account." isnot applicable, since the prolonging of the date was due to the fault of the Employer. 19.3. This was contested by the Employer stating that the term "duration of the Contract" will apply to the extended period also, since it relates to the execution and completion of work, which is the obligation of the Contractor, by relying upon Clause 50.2 of the Conditions of Contract, which is as follows: "50.2. Upon satisfactory compliance and observance of the performance standards (in terms of Enclosures I and II) by the Contractor during the Defect Liability – Period, the Engineer shall suitably inform the Employer who may then issue the Certificate of Contract Completion to the Contractor, subject to Contractor satisfying all provisions under this Contract." According to the Employer, the completion means the duration of performance plus defect liability period of 36 months and inasmuch as the rate quoted is fixed one as per Clause 13.4 of the Instructions to Bidder, supra, there is no question of adjustment or payment of further amount. 19.4. 19.4. The Tribunal has, in fact, analyzed this claim in detail in the context of Clause 39.1(f)(iii) of the Conditions of Contract, which contemplates that in case payment of 70% of the bill is cleared, an addition or deduction of amounts to account for variation in price of bitumen, as the case may be while settling the amount due and payable to the Contractor, can be made. The Tribunal has also found that the Employer has not handed over the major portion of the site within the contract period, which establishes the breach of contract by the Employer and that it was due to the said delay only the duration of contract has been extended. In fact, the Tribunal has referred to the specific admission of the Employer in the written argument in respect of Claim No.6 relating to the loss due to idle overheads that the same could be claimed only beyond the original contract period and held that there is a tacit admission and relying upon the rulings of the Supreme Court held that the Contractor was entitled to the revision of rates. 19.5. In respect of the revised rates, as it is seen Ex.C42, Mr.Shantha Kumar, learned counsel appearing for the Employer has vehemently contended that such revision can be possible only after due amendment to the claims as per the provisions of the Act and according to him, the addition so as to bring the claim to an exorbitant amount under this head is unauthorized. 19.6. It is seen that while the enquiry was proceeding before the Arbitral Tribunal, on behalf of the Contractor certain documents were filed pertaining to statement of claims containing Exx.C2 to C45 and the Employer has also filed certain copies of the judgments and on 16.9.2008, the Tribunal had posted the matter on 21.10.2008, during which the Contractor has given certain details marked as additional document Ex.C-VII, modifying Ex.C42 claim. 19.7. The point raised by the learned counsel for the Employer is that the revised claim cannot be considered to be a genuine claim, since it does not contain any signature, unauthenticated and the same has been inserted. 19.8. The Tribunal has item-wise discussed the revised rates claimed as follows: anddirected the Employer to pay an amount of ` 1,32,56,362/- to the Contractor. 19.9. 19.8. The Tribunal has item-wise discussed the revised rates claimed as follows: anddirected the Employer to pay an amount of ` 1,32,56,362/- to the Contractor. 19.9. But, on the facts of the present case, even as per the finding of the Arbitral Tribunal, it is not known as to how the amount of ` 1,32,56,362/-on that head has been arrived at. Under Ex.C42 there are two amounts (i) ` 68,37,575/-, and (ii) ` 87,98,572/-. While so, if the Arbitral Tribunal decides to grant more than the original amount of claim of ` 68,37,575/-, which was originally filed and marked as Ex.C42, it is necessarily incumbent on the part of the Tribunal to give proper reason for arriving at such exorbitant amount. Simply because the Contractor has made an application even with the permission of the Tribunal for the purpose of excess claim and that has not been objected to, it does not mean that the Tribunal need not give reason for awarding such increased amount, especially when it is not forming part of the contract originally entered into. As opined by the dissenting Arbitrator of the Arbitral Tribunal, it would not be safe to rely upon the statement of claim alone without any cross check and verification by independent authority. It is no doubt true that the modified claim by the Contractor is in respect of the subsequent extended period during which the work has been done, but then the nature of work has to be assessed by the Tribunal with appreciable evidence. Therefore, this is a case of no evidence in respect of the enhanced claim. 19.10. The contention of the learned Senior Counsel for the Contractor that in arbitration proceedings the concept of flexibility shall be considered to be an implied rule cannot be blindly accepted, especially when the Arbitral Tribunal fails to even give reason for the grant of the enhanced amount of revision of rates and no materials have been placed, except by way of an amended claim. Even if it is contended that only the Highways Department rates have been claimed by the Contractor, no particulars have been furnished to justify the decision of the Tribunal in respect of the said huge enhancement. 19.11. Even if it is contended that only the Highways Department rates have been claimed by the Contractor, no particulars have been furnished to justify the decision of the Tribunal in respect of the said huge enhancement. 19.11. However, in respect of the original claim made under Ex.C42 to the tune of ` 68,37,575/-, the Employer has not chosen to dispute the same and has only taken a stand that the contract being a price fixed contract, the Contractor is not eligible for enhancement. In such circumstances, I am of the view that the original amount claimed under this head by the Contractor under Ex.C42 at ` 68,37,575/-has to be granted and not the amount of ` 1,32,56,362/- granted under the impugned award, for which no reason has been attributed. 19.12. In view of the above, in respect of Claim No.2, the finding of the Tribunal awarding an amount of ` 1,32,56,362/- stands modified to the extent of ` 68,37,575/-. CLAIM NO.4 20.1. This drives us to the next claim, namely Claim No.4, since Claim No.3 in respect of pending bills for the work done has not been questioned by the Employer in this petition. 20.2. Claim No.4 relates to the loss of profit claimed on the works not performed in 37 roads to the extent of ` 89,78,105/-, for which the Tribunal has granted an amount of ` 47,81,690/-The total value of the contract as per the agreement for 81 roads is ` 9,19,46,759/-. It is admitted that it was modified to ` 962.52 Lakhs for 37 roads only. It was the case of the Contractor that it was due to that reason and also due to the delayed handing over of the site, the Contractor could carry out work only to the value of ` 3,63,97,966/-. The value of the contract omitted to be performed is ` 5,98,54,034/-. If only the Contractor was allowed to do the work, he would have earned 15% of the profit and it was on that basis he made a claim for ` 89,78,105/-towards loss of profit. The said claim is based on Section 73 of the Indian Contract Act. Reliance is placed on the specific conduct of the Employer admitting that "the variation in quantities and unavoidable bottleneck in handing over possession of the major portion of the road will corroborate the effective prevention of the Contractor of performing the contract." 20.3. The said claim is based on Section 73 of the Indian Contract Act. Reliance is placed on the specific conduct of the Employer admitting that "the variation in quantities and unavoidable bottleneck in handing over possession of the major portion of the road will corroborate the effective prevention of the Contractor of performing the contract." 20.3. However, it has been the case of the Employer that it was only a change of quantity from 81 roads to 37 roads and it is only a deviation and there is no prevention. It was submitted that the work front was released fully within the contract period and 33 roads were operated upon by the Contractor before the expiry of the original contract period and he worked for nine months and idled for six months. Even though the work was given to the value of ` 9.62 Crores, the Contractor has chosen to work only to the value of ` 3.3 Crores in the period of seven months and, therefore, according to the Employer, it is not due to its conduct any loss has been caused. 20.4. The Tribunal having found that the breach of contract has been committed by the Employer, held that the Contractor is entitled to compensation under Section 73 of the Indian Contract Act and, therefore, rejected the contention of the Employer that the Contractor is not entitled to any compensation towards loss of profit. The Tribunal has come to a conclusion that the value of work done by the Contractor will work out to ` 6,43,73,991/- and the balance work which could not be performed by the Contractor would be to the tune of ` 3,18,77,935/-and awarded a compensation of 15% on the unperformed portion of the contract amount. Thus, the Tribunal awarded a sum of ` 47,81,690/-under this head, as against the claim of ` 89,78,105/- . 20.5. In this regard, it is relevant to extract Section 73 of the Indian Contract Act, which is as follows: "Section 73. Thus, the Tribunal awarded a sum of ` 47,81,690/-under this head, as against the claim of ` 89,78,105/- . 20.5. In this regard, it is relevant to extract Section 73 of the Indian Contract Act, which is as follows: "Section 73. Compensation for loss or damage caused by breach of contract.-When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. Compensation for failure to discharge obligation resembling those created by contract.-When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract. Explanation.-In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused-by the non-performance of the contract must be taken into account." 20.6. Under similar circumstances, for the period of unperformed contract, as per Section 73 of the Indian Contract Act, in Mohd. Salamatullah and others v. Government of Andhra Pradesh, (1977) 3 SCC 590 , the Supreme Court has granted damages for breach of contract to 15%, by setting aside the order of the High Court reducing the damages to 10%. The operative portion of the said judgment is as follows: "4. However, the High Court, after setting out the facts bearing on the quantification of the damages, stated, without any convincing reasoning: We think that it will be just and reasonable to put this profit at 10 per cent of the contract price which works out to Rs.1,25,000. We are not able to discern any tangible material on the strength of which the High Court reduced the damages from 15 per cent of the contract price to 10 per cent of the contract price. We are not able to discern any tangible material on the strength of which the High Court reduced the damages from 15 per cent of the contract price to 10 per cent of the contract price. If the first was a guess, it was at least a better guess than the second one. We see no justification for the appellate court to interfere with a finding of fact given by the trial court unless some reason, based on some fact, is traceable on the record. There being none we are constrained to set aside the judgment of the High Court in regard to the assessment of damages for breach of contract. We restore the award of Rs.1,87,500 made by the trial court on account of estimated profits (it transpires that when the trial court passed the decree the amount was recovered by the appellants with the result that there was nothing more to be paid by the State to the respondents herein). Of course, having regard, to all the circumstances of the case we direct the parties to bear the costs in this court. We may make it further clear that in regard to other items of claim we uphold what the High Court has awarded. In view of the fact that shortly after the decree was passed by the trial court the decree amount appears to have been recovered by the respondents, we do not award any interest under the decree." 20.7. That was also the view of the Apex Court in M/s.A.T.Brij Paul Singh and Bros. v. State of Gujarat, AIR 1984 SC 1703 . While upholding the grant of damages at 15%, the Supreme Court has observed as follows: "11. Now if it is well-established that the respondent was guilty of breach of contract inasmuch as the rescission of contract by the respondent is held to be unjustified, and the plaintiff contractor had executed a part of the works contract, the contractor would be entitled to damages by way of loss of profit. Adopting the measure accepted by the High Court in the facts and circumstances of the case between the same parties and for the same type of work at 15 per cent of the value of the remaining parts of the work contract, the damages for loss of profit can be measured." 20.8. Adopting the measure accepted by the High Court in the facts and circumstances of the case between the same parties and for the same type of work at 15 per cent of the value of the remaining parts of the work contract, the damages for loss of profit can be measured." 20.8. Deprecating the conduct of the Arbitrator in reducing the award to 10%, this Court has held in The Superintending Engineer, T.N.U.D.P., Madras Circle v. A.V.Rangaraju, AIR 1994 Madras 217 as follows: "16. The arbitrator has awarded 10% of the profit on the incomplete work in all these three contracts, and this is alleged to be a bias on the part of the arbitrator. In M/s.A.T.Brijpal Singh and Bros. v. State of Gujarat ( AIR 1984 SC 1703 ), the Supreme Court has held that in a works contract, where there was breach of contract on account of which the contractor could not complete the work, he is entitled to claim damages on the basis of the expected profit on the balance of the incompleted work. In that case, 15% of the value of the balance of work, was awarded as damages. So, when the contract of the second respondent herein was illegally terminated before the completion of the work certainly the contractor is entitled to claim damages on the basis of the expected profit in the unfinished work. When such a right is available to the contractor under law and the quantum fixed by the arbitrator is only 10%, which according to the arbitrator is a reasonable compensation, the Court cannot, set aside this finding of the arbitrator as illegal or biased." 20.8. Inasmuch there has been a factual finding by the Tribunal, in my view, there is no ground to interfere with the award of the Tribunal under this claim. CLAIM NO.6 21.1. Claim No.6 relates to loss due to idle overheads, which were made under two heads (i) loss due to idle establishment to the tune of ` 11,69,061/-, and (ii) loss due to idle machinery to the tune of ` 36,20,252/-. While in respect of the claim made under the first sub-head the Tribunal has granted ` 3,69,324/-, the claim made under the second sub-head of loss due to idle machinery has been rejected. While in respect of the claim made under the first sub-head the Tribunal has granted ` 3,69,324/-, the claim made under the second sub-head of loss due to idle machinery has been rejected. Therefore, in this petition, this Court is concerned only in respect of the objection raised by the Employer regarding the grant of ` 3,69,324/-to the Contractor under the head loss due to idle establishment. 21.2. In this regard, the case of the Contractor was that originally when the Employer invited tenders, the required machinery, capacity management and supervisory staff was in respect of the whole contract. It has been the case of the contractor that due to the breaches committed by the Employer even during the contract period, the full potential of the establishment and tools and plant could not be derived and, therefore, in order to mitigate the damages, the Contractor had to transfer a portion of the idle overheads and machinery to the bills received and he has also presented the audited balance sheets. The Contractor also relied upon the MoRTH specification that prescribes 10% over the prime cost towards overhead charges as per the Analysis of Rates published by Indian Roads Congress on behalf of the MoRTH and stated that in order to minimise the damage, the Contractor has restricted the claim to the barest minimum, as the same represents time related expenses. 21.3. This was resisted by the Employer stating that in the initial contract period of 210 days, the Contractor did not work for 90 days for no blame on the part of the Employer and throughout the period of seven months, the site has been handed over. 21.4. The Tribunal has taken note of the application of the mitigation of the damages made by the Contractor by transferring a portion of the idle overhead and held that during the extended period the Contractor is entitled to claim overhead charges, since there is a breach of contract as it has been established, and thereby rejected the claim of the Employer as self-contradictory and after referring to the balance sheet in support of the claim made by the Contractor, the actual expenditure incurred from 15.1.2008 to 31.3.2008 has been arrived at by the Tribunal at ` 3,69,324/-. 21.5. 21.5. Inasmuch as the said award has been granted based on the material and actual expenditure incurred, which is a factual finding, there is absolutely no necessity to interfere with the said portion of the award. CLAIM NO.8 22.1. This now leads to the last claim, namely Claim No.8, which relates to interest. Under this claim, the Contractor has prayed for interest at the rate of 12% per annum from the date on which the Tribunal entered on reference up to the date of award and at the rate of 18% per annum from the date of the award up to the date of payment. 22.2. The said claim was opposed by the Employer stating that the contract stipulates interest only at the rate of 8% per annum for the delayed payment and, therefore, interest at the rate of 12% per annum is not permissible. In respect of the claim for interest at the rate of 18% per annum from the date of the award, it is objected stating that the same is the upper limit and the Tribunal is at liberty to award rate of interest as per the Reserve Bank of India norms. 22.3. The Tribunal, after considering both the contentions and taking into account the relative factors, has granted interest at the rate of 8% from the date of entering of reference, namely from 5.5.2008, to the date of the award, namely 30.3.2009, which works out to ` 1,14,533/-in respect of Claim Nos.1 and 3. 22.4. Inasmuch as it is admitted by the Employer that even as per the terms of the contract interest at the rate of 8% is payable, there is no illegality in the Tribunal granting interest at the rate of 8% per annum in respect of Claim Nos.1 and 3. Hence, the amount of ` 1,14,533/-awarded by the Tribunal needs no interference. CONCLUSION 23. To sum up, the amount awarded by the Tribunal is modified as under: It is made clear that after the date of the award till payment, the Contractor shall be entitled to interest at the rate of 12% per annum on the above modified amount. In the result, the original petition is partly allowed. Inasmuch as the award has been partly confirmed and as the contract has already been terminated, the Contractor is entitled to withdraw the bank guarantee from the bank. Consequently, the original applications are closed.