Judgment :- 1. The petitioner in O.P.No.949 of 2010 is referred as the petitioner in this order and the 1st respondent in O.P.No.949 of 2010 is referred as respondent in this order. 2. The respondent obtained a contract from Railways for gauge conversion and the petitioner was given sub contract under work order dated 28.2.2007 for construction of six minor bridges bearing Nos.616 to 621 upto pile cap level and the contract was on unit rate basis with items, quantities, rates prescribed to the annexure to work order. Initially, the contract price was fixed at Rs.15,12,450/-. It was also agreed that the respondent's site Engineer and the Project Management Consultant (P.M.C.) of the Rail Vikas Nigam Ltd., (RVNL) would make a joint measurement of work along with the petitioner and the payment would be made as per the joint measurement certified by those two persons. The petitioner started dismantling and commenced earth work in Item No.1 of work order in respect of bridge No.616 and raised bills. There was a misunderstanding between P.M.C and the petitioner and according to the petitioner, P.M.C. refused for joint measurement and therefore the petitioner alleged that he was forced to negotiate with the General Manager of the respondent to reduce price in respect of Item No.1 from Rs.180/M3 to Rs.95/M3. Thereafter, on 16.5.2007 the respondent issued an amendment to the work order whereby the size of the bridges were increased in several times and the contract price was also increased to Rs.32,69,750/-. It is alleged by the petitioner that by reason of the revised plan and size of the bridges as per the first amendment dated 16.5.2007, the petitioner was made to redo the work of the same bridge two or three times as there was change in the length of the barrel and therefore the petitioner sustained loss of Rs.3.00 lakhs. Further, due to water stagnation the petitioner was not able to carry out the work of other bridges and the petitioner was also not able to complete the work due to the want of proper supply of good quantity and dimension of steel and the steel supplied by the respondent was also taken away by the respondent at the later point of time. When those defects were pointed out, the contract period was extended by 10 more months and amendment No.3 dated 6.3.2008 was served on the petitioner in the month of July 2008 whereby the rate was increased but the scope of the work was reduced. Nevertheless, the petitioner already commenced and carried out the work as per the work order dated 28.2.2007 and the petitioner sustained heavy loss in carrying out the work. The respondent directed the petitioner to form ramp connecting the excluded bridges and directed the petitioner to execute the work in Bridge No.617 and also contradictory to the terms of the work order dated 28.2.2007 the respondent unilaterally handed over the works that were assigned to the petitioner, to the third parties without notice and without terminating the contract. Therefore, the petitioner by letters dated 20.8.2008 and 1.9.2009 demanded payment for the work done and also issued lawyer's notice followed by two letters dated 4.10.2008 and 16.10.2008 and also requested to refer the matter to arbitration. As there was no response from the respondent, the petitioner filed O.P.No.281 of 2009 on the file of this Court for appointment of arbitrator and the Hon'ble Justice K.Raviraja Pandian was appointed as arbitrator and before the arbitrator the petitioner made a claim for Rs.17,40,000/-and later enhanced the amount to Rs.20,90,350/-. 3. The respondent admitted the work order dated 28.2.2007 and the amendments to the work order dated 16.5.2007 and 6.3.2008, but denied the allegation that due to the non-supply of materials and due to the conduct of the respondent, the petitioner could not complete the contract and submitted that at the request of the petitioner the time limit was extended and as the petitioner failed to complete the work, there was no other alternative for the respondent to entrust the work to the third parties and therefore the respondent issued letter dated 12.1.2009 terminating the work order and by reason of the failure of the petitioner, the respondent also sustained loss and the petitioner is not entitled to any amount as claimed by him. 4. The learned Arbitrator framed the following issues: (1) Whether the claimant has performed his part of the contract as per the terms and conditions of the work order dated 28.2.2007 and the consequent amendments thereto? 4. The learned Arbitrator framed the following issues: (1) Whether the claimant has performed his part of the contract as per the terms and conditions of the work order dated 28.2.2007 and the consequent amendments thereto? (2) Whether claimant is entitled to the claim made by him in his claim statement on various headings as per the terms of the contract with the respondent? (3) Whether reasons cited by the claimant for not performing his part of the contract are true, correct and genuine? (4) Is not the claimant estopped from claiming different amounts of compensation at different points of time? (5) Whether the respondent is liable for the claims not provided under the contract? (6) Whether the contract is terminated in accordance with the terms of the contract and what is its consequence? 5. On the basis of the evidence the learned Arbitrator held that the contract was not validly terminated by the respondent as per Clause 37 of the work order and therefore, the petitioner is entitled to make claim for the work done by him. The learned Arbitrator further held that the Issue Nos.1 and 3 in favour of the respondent and decided to Issue Nos.2 and 4 in favour of the petitioner. The learned Arbitrator while deciding Issue No.5 dealt with various claims made by the petitioner and found that the petitioner is entitled to a sum of Rs.30,000/- for the fabrication work against the claim of Rs.50,000/-while answering Claim No.4 and awarded a sum of Rs.1,00,000/-towards expenses incurred in Bailing out water against the claim of Rs.2,50,000/-while answering Claim No.5 and awarded Rs.12,76,685/- towards work done by the petitioner while answering Claim No.6 and ordered refund of EMD, etc., for a sum of Rs.2,08,420/- and passed total award for a sum of Rs.16,15,105/-and awarded interest in respect of Items 4 to 6 by awarding dated 14.10.2010. The said award is challenged by both the parties in the above petitions. 6. Mr. Gnanaprakasam, the petitioner who appeared in person submitted that the learned Arbitrator having held that the termination is not valid, ought to have allowed the claims made by him and ought not to have rejected some of the claims and the rejection of Claim Nos.1, 2 and 3 are wrong and he is entitled to the claim amounts claimed in those claims. He further submitted that the learned Arbitrator ought to have awarded Rs.2,50,000/- claimed by him for the work executed by him and without any reason the learned Arbitrator awarded a sum of Rs.1,24,011/-and further the learned Arbitrator ought not to have deducted the amount already paid by the respondent from the award amount and therefore submitted that the award amount is liable to be set aside. 7. Mr. N.Nagu Sah, the learned counsel for the respondent submitted that the learned Arbitrator erred in holding that the contract was not validly terminated and the respondent rightly invoked Clause No.37, and terminated the contract as the petitioner committed default in completing the project and the petitioner also admitted in his letter that he was not able to complete the project and at his request part of the work was taken from him and despite extending the time and offering to pay enhanced amount the petitioner was not able to complete the contract and considering all these aspects the contract was validly terminated and therefore the learned Arbitrator was not right in giving a finding that the contract was not validly terminated. 8. Mr. N.Nagu Sah, the learned counsel for the respondent further submitted that the learned Arbitrator without giving any reason awarded a sum of Rs.1,00,000/-towards the expenses incurred by the petitioner for bailing out water and being a seasoned Contractor such eventualities ought to have been foreseen and there is also a Clause in the work order dated 28.2.2007 namely Clause 33 wherein it has been stated clearly that Contractor (petitioner) has confirmed that he has examined and obtained all information and fully satisfied regarding all relevant matters such as nature, character of site conditions including soil, availability of local material and labour and contract price includes allowance for all such contingencies and the contractor shall not raise any extra claims on any such matters and therefore the learned Arbitrator having regard to Clause 33 ought not to have awarded Rs.1,00,000/-towards expenses and the learned Arbitrator also erred in relying upon Exs.A8 and A9 for allowing such expenses and any generosity shown by the respondent cannot be taken as a right in favour of the petitioner and therefore the award of Rs.1,00,000/- is not correct. 9. 9. The learned counsel for the respondent further submitted that while answering Issue Nos.1 and 3 though the learned Arbitrator rejected the reasons stated by the petitioner, answered those issues in favour of the petitioner on the ground that the respondent was making amendments after amendments and allowing the petitioner to do work even after the expiry of the unexpired period, without appreciating that the various amendments to the work order were brought out at the instance of the petitioner and for his benefit. Further, the learned Arbitrator having rejected the Claim Nos.1 to 3 of the petitioner, ought not to have awarded a sum of Rs.12,76,685/-towards the work done by the petitioner and the learned Arbitrator also was not right in awarding Rs.30,000/-towards fabrication without any basis and the learned Arbitrator ought not to have granted a sum of Rs.2,08,420/- towards refund of EMD and other things. He therefore, submitted that the award of the Arbitrator is liable to be set aside. 10. To appreciate the arguments of the petitioner who appeared in person and also the learned counsel for the respondent, we will have to see the power of the Court under the provisions of Arbitration and Conciliation Act, 1996 in application filed to set aside the award. 11. In the Judgment reported in 2003 (5) Supreme Court Cases 705 (Oil and Natural Gas Corporation Ltd., Vs. Saw Pipes Ltd), the Hon'ble Supreme Court laid down the following principles: "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 Renusagarcase it is required to be held that the award could be set aside if it is patently illegal. 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 Renusagarcase 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. In the result, it is held that: (A) (1) The Court can set aside the arbitral award under Section 34(2) of the Act if the party making the application furnishes proof that: (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration. (2) The Court may set aside the award: (i) (a) if the composition of the Arbitral Tribunal was not in accordance with the agreement of the parties, (b) failing such agreement, the composition of the Arbitral Tribunal was not in accordance with Part I of the Act. (ii) if the arbitral procedure was not in accordance with: (a) the agreement of the parties, or (b) failing such agreement, the arbitral procedure was not in accordance with Part I of the Act. (ii) if the arbitral procedure was not in accordance with: (a) the agreement of the parties, or (b) failing such agreement, the arbitral procedure was not in accordance with Part I of the Act. However, exception for setting aside the award on the ground of composition of Arbitral Tribunal or illegality of arbitral procedure is that the agreement should not be in conflict with the provisions of Part I of the Act from which parties cannot derogate. (c) If the award passed by the Arbitral Tribunal is in contravention of the provisions of the Act or any other substantive law governing the parties or is against the terms of the contract. (3) The award could be set aside if it is against the public policy of India, that is to say, if it is contrary to: (a) fundamental policy of Indian law; or (b) the interest of India; or (c) justice or morality; or (d) if it is patently illegal. (4) It could be challenged: (a) as provided under Section 13(5); and (b) Section 16(6) of the Act. (B) (1) The impugned award requires to be set aside mainly on the grounds: (i) there is specific stipulation in the agreement that the time and date of delivery of the goods was of the essence of the contract; (ii) in case of failure to deliver the goods within the period fixed for such delivery in the schedule, ONGC was entitled to recover from the contractor liquidated damages as agreed; (iii) it was also explicitly understood that the agreed liquidated damages were genuine pre-estimate of damages; (iv) on the request of the respondent to extend the time-limit for supply of goods, ONGC informed specifically that time was extended but stipulated liquidated damages as agreed would be recovered; (v) liquidated damages for delay in supply of goods were to be recovered by paying authorities from the bills for payment of cost of material supplied by the contractor; (vi) there is nothing on record to suggest that stipulation for recovering liquidated damages was by way of penalty or that the said sum was in any way unreasonable. (vii) In certain contracts, it is impossible to assess the damages or prove the same. Such situation is taken care of by Sections 73 and 74 of the Contract Act and in the present case by specific terms of the contract. 12. (vii) In certain contracts, it is impossible to assess the damages or prove the same. Such situation is taken care of by Sections 73 and 74 of the Contract Act and in the present case by specific terms of the contract. 12. This principle was approved and followed in the Judgment reported in 2006 (11) Supreme Court Cases 181, (McDermott International Inc., Vs. Burn Standard Co. Ltd., and others), and held as follows: "The 1996 Act makes provision for the supervisory role of Courts, for the review of the arbitral award only to ensure fairness. Intervention of the Court is envisaged in few circumstances only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc., The Court cannot correct errors of the arbitrators. It can only quash the award leaving the parties free to begin the arbitration again if it is desired. So, the scheme of the provision aims at keeping the supervisory role of the Court at minimum level and this can be justified as parties to the agreement make a conscious decision to exclude the Court's jurisdiction by opting for arbitration as they prefer the expediency and finality offered by it. In RenusagarPower Co. Ltd. v. General Electric Co.(1994 Supp (1) SCC 644), this Court laid down that the arbitral award can be set aside if it is contrary to (a) fundamental policy of Indian law; (b) the interests of India; or © justice or morality. A narrower meaning to the expression “public policy” was given therein by confining judicial review of the arbitral award only on the aforementioned three grounds. An apparent shift can, however, be noticed from the decision of this Court in ONGC Ltd. v. Saw Pipes Ltd. ( 2003 (5) SCC 705 ) (for short “ONGC”). This Court therein referred to an earlier decision of this Court in Central Inland Water Transport Corpn. Ltd., v. Brojo Nath Ganguly ( 1986 (3) SCC 156 ) wherein the applicability of the expression “public policy” on the touchstone of Section 23 of the Indian Contract Act and Article 14 of the Constitution of India came to be considered. This Court therein referred to an earlier decision of this Court in Central Inland Water Transport Corpn. Ltd., v. Brojo Nath Ganguly ( 1986 (3) SCC 156 ) wherein the applicability of the expression “public policy” on the touchstone of Section 23 of the Indian Contract Act and Article 14 of the Constitution of India came to be considered. This Court therein was dealing with unequal bargaining power of the workmen and the employer and came to the conclusion that any term of the agreement which is patently arbitrary and/or otherwise arrived at because of the unequal bargaining power would not only be ultra vires Article 14 of the Constitution of India but also hit by Section 23 of the Indian Contract Act. In ONGC this Court, apart from the three grounds stated in Renusagar, added another ground thereto for exercise of the Court's jurisdiction in setting aside the award if it is patently arbitrary. Such patent illegality, however, must go to the root of the matter. The public policy violation, indisputably, should be so unfair and unreasonable as to shock the conscience of the Court. Where the arbitrator, however, has gone contrary to or beyond the expressed law of the contract or granted relief in the matter not in dispute would come within the purview of Section 34 of the Act. However, we would consider the applicability of the aforementioned principles while noticing the merits of the matter. What would constitute public policy is a matter dependant upon the nature of transaction and nature of statute. For the said purpose, the pleadings of the parties and the materials brought on record would be relevant to enable the Court to judge what is in public good or public interest, and what would otherwise be injurious to the public good at the relevant point, as contradistinguished from the policy of a particular Government. (See State of Rajasthan v. Basant Nahata 2005 (12) SCC 77). 13. Inthe Judgment reported in 2010 (1) Supreme Court Cases 549, (MadnaniConstruction Corporation Private Limited Vs. Union of India and others) the Hon'ble Supreme Court held thatthe arbitrator is the master of facts and when the arbitrator on the basis of record and materials which are placed before him came to specific findings and which cannot be stigmatised as perverse by the High Court, such findings cannot be ignored. 14. Union of India and others) the Hon'ble Supreme Court held thatthe arbitrator is the master of facts and when the arbitrator on the basis of record and materials which are placed before him came to specific findings and which cannot be stigmatised as perverse by the High Court, such findings cannot be ignored. 14. Further in the Judgment reported in 2011 (11) Scale 668 (P.R. Shah, Shares & Stock Broker (P) Ltd., Vs. M/s. B.H.H. Securities (P) Ltd., & others), the Hon'ble Supreme Court held that A Court does not sit in appeal over the award of an Arbitral Tribunal by re-assessing or re-appreciating the evidence and an award can be challenged only under the grounds mentioned in Section 34(2) of the Act. Therefore, in the absence of any ground under Section 34(2) of the Act it is not possible to re-examine the facts to find out whether a different decision can be arrived at. 15. Therefore, from the above Judgments the award of Arbitrator can be set aside only if the parties are able to convince that they have made out a case under Section 34(2) of the Arbitration and Conciliation Act and on the grounds as stated above in the various Judgments referred to above. Therefore, we will have to see whether the parties were able to bring out their case within the parameters laid down by the Hon'ble Supreme Court in the above Judgments for setting aside the award. 16. In this case both the petitioner and the respondent wanted to set aside the award and as per the contention of the petitioner the order has to be set aside and as he is entitled to more amount than awarded and according to the respondent the learned Arbitrator committed serious error in awarding a sum of Rs.16,15,105/- on various heads as stated above and according to the respondent they are not liable to pay any such amounts. 17. Let me take the claim No.6 namely the award of Rs.12,76,685/- by the learned Arbitrator towards the work done by the claimant. 17. Let me take the claim No.6 namely the award of Rs.12,76,685/- by the learned Arbitrator towards the work done by the claimant. In O.P.No.274 of 2011 filed by the respondent to set side the award, it is admitted that the petitioner herein is entitled to a sum of Rs.12,13,884/- as per the work certified by the respondent herein and out of the said amount the respondent already paid a sum of Rs.11,45,555/- and therefore the learned Arbitrator ought not to have awarded a sum of Rs.12,76,685/-. It is made clear in the award that the respondent herein is liable to pay a sum of Rs.16,15,105/-less the amount already paid. A sum of Rs.12,76,685/-was arrived at for the work done by the petitioner and according to the respondent a sum of Rs.11,45,555/- was already paid and in that case the said amount can be deducted from the total award and having regard to the admission of the claim by the respondent and the difference is only negligible, the objection by the respondent with regard to the award of Rs.12,76,685/-towards the work done by the petitioner cannot be found to be erroneous or excessive. 18. As regards the award of Rs.30,000/-towards fabrication against the claim of Rs.50,000/-, the learned Arbitrator has given the reasons was arriving at the said sum and the reasons stated by the learned Arbitrator cannot be said to be perverse. Similarly, the award of Rs.1,00,000/-for the expenses incurred by the petitioner in bailing out water was also based on Exs.R8 and R9 and though there was no Clause in the work order which would enable the petitioner to make a claim for claiming expenses for bailing out water and the learned Arbitrator on the basis of Exs.R8 and R9 found that the petitioner incurred expenses and having regard to the period of work, awarded a sum of Rs.1,00,000/- and in my opinion, that finding cannot also be termed as perverse. 19. As regards the refund of EMD etc., for a sum of Rs.2,08,420/-in paragraph 16.9 the learned Arbitrator has given the reasons. Therefore, in my opinion, the parties were not able to make out the case to set aside the award as per the guidelines given by the Hon'ble Supreme Court as stated above. 19. As regards the refund of EMD etc., for a sum of Rs.2,08,420/-in paragraph 16.9 the learned Arbitrator has given the reasons. Therefore, in my opinion, the parties were not able to make out the case to set aside the award as per the guidelines given by the Hon'ble Supreme Court as stated above. Further, as held by the Hon'ble Supreme Court that this Court does not sit in appeal over the award of an Arbitral Tribunal by reassessing or re-appreciating the evidence and the arbitrator is the master of facts and when the arbitrator on the basis of the materials which are placed before him came to specific findings, such findings cannot be ignored unless they are perverse. As stated supra, the findings of the learned Arbitrator cannot be termed as perverse and the learned Arbitrator has given cogent reasoning for passed the award and therefore I do not find any merit in the submissions of the learned counsel appearing for the parties. 20. In the result, both the Original Petitions are dismissed. No costs.