Judgment The appellant questions order of learned Civil Judge, Senior Division, Sangamner dated 6.11.2004 accepting the Arbitration Award dated 24.11.2002 partly. 2. The appellant M/s Thyssen Krupp Industries India Private Limited (for short, "KIIL") had an agreement dated 17.11.1992 with respondent Sangamner Bhag Sahakari Sakhar Karkhana Ltd. (for short, "SBSSK"). By the said agreement the appellant KIIL agreed to design, procure, manufacture and supply to SBSSK machinery and equipments for continuous fermentation process based on Encillium process, developed and patented by the National Chemical Laboratory, Pune. 3. The agreement provided an Arbitration clause pursuant to which the disputes were referred for arbitration of two Arbitrators. Initially, an award dated 20.6.1999 was recorded, whereby the Arbitrators directed an amount of Rs.151.97 lakhs to be paid by appellant to the SBSSK. The award was filed in the Court of learned Civil Judge, Senior Division, Sangamner, objections were entertained and on 6.5.2000 the learned Civil Judge, Senior Division directed the award to be remitted to the learned Arbitrators for rendering a fresh award in consonance with directions recorded in the order. Said orders dated 6.5.2000 were questioned by both, the appellant and respondent herein to the High Court. Civil Revision Application No.801 of 2000 filed by SBSSK on the ground of jurisdiction to the arbitrator for saddling damages was rejected by judgment dated 20.10.2000. The appeal of present appellant was allowed. This judgment was carried to Honourable Supreme Court in Civil Appeal No.3365 and 3366 of 2002 by SBSSK and by the judgment dated 7.5.2002 the Honourable Supreme Court set aside the orders of High Court dated 20.10.2000 and confirmed the orders of learned Civil Judge, Senior Division, Sangamner dated 6.5.2000 and consequently, the matter was remitted to the same learned Arbitrators to revisit on the points enumerated by the learned Civil Judge, Senior Division by allowing the parties to adduce appropriate evidence. 4. It was, thereafter the second award dated 24.11.2002 is recorded by the learned Arbitrators, same was referred to the learned Civil Judge, Senior Division by way of objections from KIIL and also SBSSK and by order dated 6.11.2004 the learned Civil Judge, Senior Judge reduced the interest awarded on damages and approved amount making it Rule of the Court barring the past interest of Rs.10.65 lakhs. 5. There is no controversy between the parties about supply agreement dated 17.11.1992 including agreement for supervision services. 5. There is no controversy between the parties about supply agreement dated 17.11.1992 including agreement for supervision services. The memorandum of understanding dated 24.7.1995 is also accepted. The contract price of supply of the Plant was Rs.93.20 lakhs while supervision contract was Rs.3.30 lakhs aggregating to Rs.96.50 lakhs. SBSSK has paid aggregate amount of Rs.83.88 lakhs to KILL. The respondent has recovered back a sum of Rs.9.32 lakhs by invoking the performance Bank guarantee. 6. The learned Counsel for the appellant submits that the award does not portrait correct legal position and suffers from personal assumptions and presumptions. If by the Award, appellant has to pay Rs.91.60 lakhs, then the appellant receives nothing for the Plant supplied and additionally it has to pay Rs. 6.50 lakhs to the respondent while the respondent is benedicted with the running Plant completely free. The Plant supplied, cannot be said to be a junk, as has been repeatedly canvassed by the respondent during the submissions. The Plant and machinery could not be said to be useless to the respondent. The respondent is not painting correct situation about the huge plant containing huge vessels and equipment of stainless steel, supplied by the appellant as to whether are disposed of or sold as a scrap or is lying with the SBSSK and SBSSK has started commencement with old Plant or whether it has installed a completely new Plant. Learned Counsel submits that the damages awarded by the learned Arbitrators is beyond the scope of the issue involved and it is not associated with proper appreciation of Clause 15 of the agreement between the parties. (a) The claim raised by the respondent to the tune of Rs. 107.54 lakhs was the claim for refund of price and not for damages. This has not been amended by the respondent SBSSK even after remand of the matter by Honourable Supreme Court. The SBSSK has reiterated that it was a prayer for refund of price right from the beginning. (b) Learned Counsel for appellant submits, the award was for a claim towards a non performing machinery, which is directly contrary to the express pleaded case of the respondent for refund of price. The SBSSK has reiterated that it was a prayer for refund of price right from the beginning. (b) Learned Counsel for appellant submits, the award was for a claim towards a non performing machinery, which is directly contrary to the express pleaded case of the respondent for refund of price. The Arbitrators have erroneously held the prayer for Rs.107.50 lakhs as a prayer for damages, even if the stipulation relating to guarantee performance is treated as a warranty, the ceiling provided in Clause did not apply to the claim on account of non performing machinery. 7. Mr Dhorde, learned Counsel for respondent submits that SBSSK had already an Alcohol fermentation plant by molasses process, however, KIIL assured to give yield of 260 liters of alcohol by yiest. In spite of there being five trials held, failed to give guaranteed performance, hence, the matter was referred to the Arbitrators. Till 14.12.1993 the Plant was not started. He does not dispute the memorandum of understanding dated 24.7.1995, however, repeats that junk machinery was supplied by the appellant and in spite of five trials the plant/machinery failed to give guaranteed performance and consequently, SBSSK rightly claimed refund of price paid. The award does not call for interference. The findings recorded by the learned Civil Judge, Senior Division in earlier round of litigation or that by Honourble Supreme Court would operate as res judicata to reopen the issue. Provisions of Section 12, 13 and 59 of the Sale of Goods Act would be applicable. The view taken by the learned Arbitrators for calculation of damages is a possible view. This Court is not sitting in appeal to decide correctness of award. 8. Both the learned Counsel have placed reliance to reported judgments referred hereinafter to stress their respective points. (a) In AIR 2005 SUPREME COURT 446, in the matter of U.P.State Road Transport Corporation, v. State of U.P. and another, the Honourable Supreme Court observed as, " Res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again in a subsequent stage of the same proceedings. " (b) In (2009) 5 Supreme Court Cases 678, in the matter of Madhya Pradesh Housing Board Vs. " (b) In (2009) 5 Supreme Court Cases 678, in the matter of Madhya Pradesh Housing Board Vs. Progressive Writers and Publishers, the Honourable Supreme Court has observed, " Courts hearing applications under Section 30 do not exercise any appellate jurisdiction and cannot reappraise evidence. Interpreting a contract is a matter within the jurisdiction of arbitrator. Award passed by arbitrator is ordinarily final. It cannot be interfered with unless the reasons/findings contained therein are totally perverse or award is based on wrong proposition of law." 9. In 2009 (10) Supreme Court Cases 63, in the matter of Steel Authority of India Limited Vs. Gupta Brother Steel Tubes Limited, the Honourable Supreme Court observed that, " view taken by arbitrator as to meaning of a contractual clause if possible one and not absurd, then irrespective of its correctness or otherwise, held ; not subject to judicial review, particularly under Art.136 of the Constitution." In the said judgment the Honourable Supreme Court has also observed, there is no impediment or any obstacle for the parties to a contract to make a provision of liquidated damages for specific breaches only, leaving other types of breaches to be dealt with as unliquidated damages. There is no principle which requires that once the provision of liquidated damages has been made in the contract, in the event of breach by one of the parties, such clause has to be read covering all types of breaches although parties may not have intended and provided for compensation in express terms for all types of breaches. It is well known that the intention of the parties to an instrument has to be gathered from the terms thereof and that the contract must be construed having regard to the terms and conditions as well as nature thereof." 10. In 2010 (2) Supreme Court Cases 182, in the matter of State of Rajasthan Vs. Nav Bharat Construction Company (2), paragraphs 17, 18 and 19 of the judgment postulates : "17. The jurisdiction of the court to set aside an award under Section 30 of the Act has now been settled by catena of decisions of this Court as well as by the different High Courts in India. Nav Bharat Construction Company (2), paragraphs 17, 18 and 19 of the judgment postulates : "17. The jurisdiction of the court to set aside an award under Section 30 of the Act has now been settled by catena of decisions of this Court as well as by the different High Courts in India. Taking those principles into consideration, it would thus be clear that under Section 30 of the Act it must be said that the court is not empowered to re-appreciate the evidence and examine the correctness of the conclusions arrived at by the Umpire in considering an application for setting aside the award." "18. In this connection, we may refer to a decision of this Court in the case of Bhagwati Oxygen Ltd. vs. Hindustan Cooper Ltd. ( 2005 (6) SCC 462 ). In that decision, this Court observed in paragraph 25 as follows : (SCC pp.472-73) "25 This Court has considered the provisions of Section 30 of the Act in several cases and has held that the court while exercising the power under Section 30, cannot re-appreciate the evidence or examine correctness of the conclusions arrived at by the Arbitrator. The jurisdiction is not appellate in nature and an award passed by an Arbitrator cannot be set aside on the ground that it was erroneous. It is not open to the court to interfere with the award merely because in the opinion of the court, another view is equally possible. It is only when the court is satisfied that the Arbitrator had misconducted himself or the proceedings or the award had been improperly procured or is otherwise invalid that the court may set aside such award." "19. Similarly in Food Corporation of India v. Chandu Construction in which one of us (Chatterjee,J.) was also a party, it was held that when the Arbitrator or the Umpire as the case may be, had ignored the specific terms or had acted beyond the four corners of the contract, it was open for the court in the exercise of its power under Section 30 of the Act to set aside the award on the ground that the Arbitrator could not ignore the law or misapply the terms of the contract in order to do what he thought was just and reasonable." 11. In (2009) 9 SCC 357 , in the matter of K.V. Mohammed Zakir Vs. In (2009) 9 SCC 357 , in the matter of K.V. Mohammed Zakir Vs. Regional Sports Centre, the Honourable Supreme Court has observed, "where arbitrator acts within jurisdiction, "the reasonableness of the reasons" given by arbitrator is not open to scrutiny by courts, however, interference is called for only where reasoning is such as no person of ordinary prudence can ever approve of it. impermissibility of substitution of court's own view for the view taken by arbitrator in award was also indicated in paragraphs 5 and 6. 12. In 2009 (12) SCC 1 in the matter of State of Rajasthan and another Vs. Ferro Concrete Construction Private Limited, Honourable Supreme Court observed that, "if the award is not based on any evidence, it would amount to legal misconduct. Arbitrator making award solely on the basis of claim statement, accepting the claim statement itself as proof is impermissible. " Paragraph 55 of the judgment reads as under : "55. While the quantum of evidence required to accept a claim may be a matter within the exclusive jurisdiction of the arbitrator to decide, if there was no evidence at all and if the arbitrator makes an award of the amount claimed in the claim statement, merely on the basis of the claim statement without anything more, it has to be held that the award on that account would be invalid. Suffice it to say that the entire award under this head is wholly illegal and beyond the jurisdiction of the arbitrator, and wholly unsustainable." 13. In (1989) 1 Supreme Court Cases 532, in the matter of Gujarat Water Supply and Sewerage Board Vs. Unique Erectors (Gujarat) (P) Ltd. and another, Honourable Supreme Court, in paragraph 9 of the judgment observed thus : "9. The scope and extent of examination by the court of the award made by an arbitrator has been laid down in various decisions. It has to be noted that there is a trend in modern times that reasons should be stated in the award though the question whether the reasons are necessary in ordinary arbitration awards between the parties is pending adjudication by the Constitution Bench of this Court. Even, however, if it be held that it is obligatory for the arbitrator to state reasons, it is not obligatory to give any detailed judgment. Even, however, if it be held that it is obligatory for the arbitrator to state reasons, it is not obligatory to give any detailed judgment. An award of an arbitrator should be read reasonably as a whole to find out the implication and the meaning thereof. Short intelligible indications of the grounds should be discernible to find out the mind of the arbitrator for his action even if it be enjoined that in all cases of award by any arbitrator reasons have to be stated. The reasons should not only be intelligible but should also deal either expressly or impliedly with the substantial points that have been raised. Even in a case where the arbitrator has to state reasons, the sufficiency of the reasons depends upon the facts and the circumstances of the case. The court, however, does not sit in appeal over the award and review the reasons. The court can set aside the award only if it is apparent from the award that there is no evidence to support the conclusion or if the award is based upon any legal proposition which is erroneous." 14. In (1988) 3 SCC 36 , in the matter of Indian Oil Corporation Ltd. Vs. Indian Carbon Ltd., it is observed that, "Award should at least indicate the mind of the arbitrator as to how and why he acted in a specific manner. Short intelligible intentions of the grounds should be available for his action. The Court does not sit in appeal over the award and review the reasons. The court can set aside the award only if it is apparent from the award that there is no evidence to support the conclusions or if the award is based upon any legal proposition which is erroneous." 15. In (2003) 5 SCC 705 , in the matter of Oil & Natural Gas Corporation Ltd. Vs. Saw Pipes Ltd. it was observed that, " The award should be in accordance with the terms of the contract and for construction of the contract, the intention of the parties is to be gathered from the words used in the agreement." Paragraph 54 and 55 of the said judgment read thus: "54. Saw Pipes Ltd. it was observed that, " The award should be in accordance with the terms of the contract and for construction of the contract, the intention of the parties is to be gathered from the words used in the agreement." Paragraph 54 and 55 of the said judgment read thus: "54. It is true that if the Arbitral Tribunal has committed mere error of fact or law in reaching its conclusion on the disputed question submitted to it for adjudication then the Court would have no jurisdiction to interfere with the award. But, this would depend upon reference made to the arbitrator: (a) If there is a general reference for deciding the contractual dispute between the parties and if the award is based on erroneous legal proposition, the Court could interfere; (b) It is also settled law that in a case of reasoned award, the Court can set aside the same if it is, on the face of it, erroneous on the proposition of law or its application; and (c) If a specific question of law is submitted to the arbitrator, erroneous decision in point of law does not make the award bad, so as to permit of its being set aside, unless the Court is satisfied that the arbitrator had proceeded illegally." "55. In the facts of the case, it cannot be disputed that if contractual term, as it is, is to be taken into consideration, the award is, on the face of it, erroneous and in violation of the terms of the contract and thereby it violates Section 28(3) of the Act. Undisputedly, reference to the Arbitral Tribunal was not with regard to interpretation of question of law. It was only a general reference with regard to claim of respondent. Hence, if the award is erroneous on the basis of record with regard to proposition of law or its application, the Court will have jurisdiction to interfere with the same." 16. In 1955 SCR (2) 1315 in the matter of J.K.Iron and Steel Co.Ltd., Kanpur V. The Iron and Steel Mazdoor Union, Kanpur, it is observed that, "It is not open to the Tribunals to disregard the pleadings and to reach any conclusion that they think are just and proper." 17. In 1955 SCR (2) 1315 in the matter of J.K.Iron and Steel Co.Ltd., Kanpur V. The Iron and Steel Mazdoor Union, Kanpur, it is observed that, "It is not open to the Tribunals to disregard the pleadings and to reach any conclusion that they think are just and proper." 17. Mr Dhorde submits, the formula adopted by the Arbitrators for awarding damages needs to be evaluated properly, as the plant and machinery totally failed to give the guaranteed results and in paragraph 85, Arbitrators have correctly held it to be breach of warranty. This is more so, as in spite of five trials, there could not be any positive result in user of the new plant. There is no jurisdictional error, inviting interference by this Court. The method of calculation by the Arbitrators is not perverse. 18. It was also canvassed by the appellant that the machinery and equipments supplied were complete without any default or fault as per the capacity mentioned. It was a negative approach of the respondent, associated by the respondent's stubborn and adamant behaviour that has created entire mayhem in the situation. The problem in the process was deliberate sabotage. On the contrary, the appellant has suffered heavily in the transaction. 19. On evaluating the available record, the remittance of the matter by the learned Civil Judge, Senior Division by judgment dated 6.5.2000 was -(A) Whether the claimant has made out specific case of rejection of plant and machinery; (B) Whether a stipulation relating to guaranteed performance was a condition or warranty; (C) Whether the respondent was entitled for Rs. 21.42 lakhs. The observations of the learned Civil Judge, Senior Division, are confirmed by Honourable Supreme Court. The message thereby conveyed is, the directions in respect of prayer for Rs.107.54 lakhs being a prayer for refund of price was not a remittance for consideration. The Clause 15 of the supply contract was entered into by the parties consciously and by virtue of subsequent modification, by way of memorandum of understanding, the liability of the appellant was made 20% of the contract price as damages. 20. The Clause 15 of the supply contract was entered into by the parties consciously and by virtue of subsequent modification, by way of memorandum of understanding, the liability of the appellant was made 20% of the contract price as damages. 20. Clause 15 of the supply agreement was the inter se arrangement between the parties, and consequently, the appellant would be liable to pay Rs.18.64 lakhs up to the ceiling of 20% provided in the agreement and supplementary agreement, (whereby Clause 15.2 (a) of the agreement came to be modified) and the appellant agreed to pay liquidated damages of Rs.1 lakh for every one liter less production of alcohol or proportionately than guaranteed figure, as mentioned therein. The maximum ceiling was enhanced to 20%. One should not be oblivious to the fact that Clause 15 will have to be read in tune with Clause 21 also. Clause 15 of the Supply Contract deals with penalties, as under : "15.0 PENALTIES 15.1 If the Seller fail to deliver the Machinery and Equipment within five and half months from the effective date of this Agreement or extension allowed by the Purchaser, if any, thereof, the Seller shall pay liquidated damages by an amount equal to 0.25% (quarter percent) of the Contract Price, for every completed week of delay but not exceeding 5% (five percent) of the Contract Price. Minor parts which will not affect commissioning schedule shall not attract penalty clause. 15.2. PENALTIES AGAINST FAILURE TO GIVE GUARANTEED PERFORMANCE OF CONTINUOUS FERMENTATION PLANT : a) FERMENTATION SECTION : Rs.1.00 lakh (Rupees one lakh only) will be payable as Liquidated Damages for every one litre less production or proportionately than guaranteed figures as specified in "Yield Chart -Annexure B" appended to this agreement and forming part of this agreement, for continuous running of the Distillery for 15 consecutive days, by the Supplier. Performance parameters shall be as per Annexure 'D'. (b) LIQUIDATED DAMAGES FOR FAILURE OF GUARANTEED PERFORMANCE 1) STEAM Rupees 93.200/-equivalent to 1% of the contract price will be payable as Liquidated Damages for every 0.1 Kg/lit more steam consumption at any stage than guaranteed figures subject to maximum 3 percent of the contract price. Performance parameters shall be as per Annexure 'D'. (b) LIQUIDATED DAMAGES FOR FAILURE OF GUARANTEED PERFORMANCE 1) STEAM Rupees 93.200/-equivalent to 1% of the contract price will be payable as Liquidated Damages for every 0.1 Kg/lit more steam consumption at any stage than guaranteed figures subject to maximum 3 percent of the contract price. 2) POWER Rupees 1,39,000/-equivalent to 1.5% of the contract price will be payable as liquidated damages for every 10 Kwh/L1 (of production) more power consumption at any stage than guaranteed figures subject to a maximum of 2 percent of the contract price. 15.3 The penalties/liquidated damages payable against non-performance of fermentation section under clause 15.2 (a) herein above and penalties/liquidated damages payable for guaranteed performance towards steam and power as per clause 15.2 (b) herein above shall be limited to maximum of 10% of the contract price." There was maintenance warranty in Clause 21 as under : "21. MAINTENANCE/WARRANTY 21.0 For a period of twelve months from the date of commissioning of the continuous fermentation plant or eighteen months from the date of last supply, whichever is earlier (called the maintenance warranty period), the Seller shall remain liable to rectify/replace any parts thereof, such as may be found to be defective or below the rated capacity under proper use and maintenance arising due to faulty design, materials, or workmanship. The Purchaser shall give the Seller notice in writing stating the particulars of the defects or failures and the Seller shall thereupon make good the defective or underrated equipments or replace the same free of cost to make it comply with the requirements of the continuous fermentation plant. If the Seller fail to do so within reasonable time so as to reduce the production loss to the minimum as required by the Purchaser, the Purchaser may rectify and replace at the cost of the Seller the whole or any portion of the Machinery and Equipment, as the case may be, which is defective or underrated or fail to fulfil the requirements of the Agreement and may recover the actual cost thereof from the Seller or adjust the same from any balance payment to be made to the Seller, or recover by raising debit notes. Such rectification/ replacement shall be carried out by the Purchaser within a short time as possible and at a reasonable price and under advice to the Seller. Such rectification/ replacement shall be carried out by the Purchaser within a short time as possible and at a reasonable price and under advice to the Seller. In case of such rectification/replacement by the Purchaser the whole cost of such rectification/ replacement done and the defective equipment on being replaced shall be taken away by the Seller at their own cost. The Purchaser shall have the right to operate the Machinery and Equipment after the commissioning date of the continuous fermentation plant except that this shall not be considered to permit operation of any equipment which may be materially damaged by such operation before any required rectification or alteration have been carried out." "21.2 If it becomes necessary for the Seller to replace or renew any defective part of the continuous fermentation plant and Machinery under this clause, the provisions of the first paragraph of this clause shall apply to the parts of the Machinery and Equipment so replaced or renewed until the expiration of one month from the date of such replacement or renewal, or until the end of the aforesaid maintenance period of twelve months whichever is later." 21. There is no controversy about the fifth trial held in respect of commissioning of the plant and machinery after Memorandum dated 24.7.1995. It was by virtue of memorandum of understanding dated 24.7.1995, the fifth trial guaranteed performance subject to minimum alcohol yield of 245 liters of molasses containing 44% F.S. minimum and as per yield chart was agreed upon. Certain modifications and additions to the plant were also carried. 22. The survey of events illustrates that (A) The contract price for supply was Rs.93.20 lakhs and Respondent paid Rs.83.88 lakhs; (B) the five trials is not in controversy; (C) there is delay of 24 weeks in delivery by the appellant; (D) The Bank guarantee has been encashed by the respondent. 23. The controversy more or less revolves to respondent branding that entire plant supplied and erected by the appellant has gone waste and is of no use to respondent, it has become a junk. 24. 23. The controversy more or less revolves to respondent branding that entire plant supplied and erected by the appellant has gone waste and is of no use to respondent, it has become a junk. 24. The Clause 6 of memorandum of understanding dated 24.7.1995 reads as under: "To gain the confidence level of SBSSK, KILL and NCL has agreed that performance penalties/liquidated damages payable towards the non achievement of guaranteed performance shall be double i.e. instead of 10% payable under contract, 20% of contract value amounting to Rs.18,64,000/-shall be payable in case KILL/NCL fail to give the guaranteed performance as referred to above." The initial agreement inter se though provided general application of Sale of Goods Act, however, the parties would be guided by the terms consciously arrived at between them. Clause 2.2.2.4 and 8, 15 read in juxtaposition demonstrate that the liquidated damages are provided for failure to achieve guaranteed performance and they will not be limiting only to the period of trials held. Failure to give optimum output, whether would evolve a situation to brand that there was failure of performance from appellant by reason of breach of some of the conditions or warranty express or implied as to quality. 25. The claim that has been set up in the correspondence by the respondent was for refund of amount. It was not a case of breach of warranty of quality to stake a claim a diminution of price in terms of Section 59(1) of the Sale of Goods Act. There is no controversy, even after the plant is supplied, the appellant had to perform its obligation in the spirit of terms agreed upon. It may be the damages, or pecuniary compensation for the injury, a party has suffered, but in the instant case the pleaded assertions are about claim of refund of money and it could not be given a cloak to mean that it was a claim for damages. No evidence is adduced by the Respondent to make out a case for damages. Sending notice by itself would not be acceptable for case and a claim for damages for want of pleadings. The argument from the learned Counsel for respondent that Clause 7, 8 and 15 need to be restricted for initial trial period only and it would be only towards liquidated damages for not achieving performance level during the trial, is not conceivable. The argument from the learned Counsel for respondent that Clause 7, 8 and 15 need to be restricted for initial trial period only and it would be only towards liquidated damages for not achieving performance level during the trial, is not conceivable. This is more so, as stated earlier, the supply is governed by provisions of Sale of Goods Act and the claim raised for Rs.107.50 lakhs is certainly under the banner of Sale of Goods Act. The reliance placed by the Arbitrators to Section 12, 13 and 59 of Sale of Goods Act is divorced from the written contract between the parties. This has reached to a stage of concern, and untenable. It calls interference to such findings. 26. It was argued by Mr Parikh, that erection and commissioning of plant and performance of the plant will not be governed by the provisions of Sale of Goods Act, as it was only machinery and equipment that was supplied to the respondent. These submissions also need positive consideration. 27. The terms of contract between the parties does not demonstrate to provide to raise a claim for Rs.107.54 lakhs, however, it seems to be moving to the provisions of Sale of Goods Act. 28. I quite see that the theory of granting damages under two separate heads by the learned Arbitrators is suffering inconsistencies and contrary to pleaded case and the record. There was no case to indicate -(A) a failure of guaranteed performance; (B) for supply of non performing machinery. The award for non performing machinery to the tune of Rs.68.15 lakhs carried solely on speculative and imaginary calculations is illusory and does not answer in conformity to any procedure. Such misconduct invites limited interference by this Court. I am alive to the fact, this is not an appellate jurisdiction to evaluate the Award, however, conducting matter contrary to record compels to investigate worth of such finding. 29. The contention that the machinery was non performing, is beyond the scope of terms and it should have been borne in mind that failure to give guaranteed performance is not to be branded as loss of entire machinery or machinery to be junk. It is not informed by the respondent that the machinery supplied by the appellant has resulted in total failure or operations are inhibited. Consciously, Respondent did not advert as to what it has done with the plant and machinery. It is not informed by the respondent that the machinery supplied by the appellant has resulted in total failure or operations are inhibited. Consciously, Respondent did not advert as to what it has done with the plant and machinery. However, the impression generated is that the machinery and equipments were giving results, but the respondent felt that the results were not up to mark. The findings of the learned Arbitrators in paragraph 75 that the ceiling in Clause 15.3 of the agreement would not be applicable to the claim of damages of Rs.107.54 lakhs is contrary to the case activated. The quantification of damages arrived at by the learned Arbitrators is only for the restricted period of five trials, which should not have been taken as a base by the learned Arbitrators. This is more so, several other features like supply of steam, temperature to ensure survival of yeast, have decisive factors in reducing the performance of the yield and it could not solely be attributed to the defects in the machinery or the equipments supplied by the appellant. The observation that, "This very loss will have to be compensated 74.24% of the amount of Rs.91.81 lakhs paid to supplier and comes to Rs.68.15 lakhs" is unconceivable. The decision and the findings in respect of damages of Rs.68.15 lakhs for breach of warranty is, to repeat is not a case pleaded for which no issues were raised and no arguments were advanced. The case was refund of Rs.107.54 lakhs. While the Award is dealing with case of damages. The assumptions of different figures arrived at in paragraph 85 that the respondent desired 262 liters of the yield and it was 245 liters and, therefore, total loss is again not supported by cogent document. 30. The contention of Mr Dhorde that the claim of damages of Rs.107.54 lakhs is concluded by the judgment of Honourable Supreme Court is difficult to digest. Before Honourable Supreme Court, the controversy was whether the claim of Rs. 107.54 lakhs as refund of price was within the scope of reference and Supreme Court has held that it was within the scope of reference and the Arbitrators had the jurisdiction. The agreement, and further memorandum, it cannot be said that the supply of machinery was non performing and the damages apply only for the period of trials. 107.54 lakhs as refund of price was within the scope of reference and Supreme Court has held that it was within the scope of reference and the Arbitrators had the jurisdiction. The agreement, and further memorandum, it cannot be said that the supply of machinery was non performing and the damages apply only for the period of trials. This interpretation formed by the learned Arbitrators is contrary to the theme of contract agreed upon between the parties. The contention of the learned Arbitrators in paragraph 77, " the agreement nowhere shows that the provision of liquidated damages was made for any indefinite period and instead it shows that the end point was the concluding of performance trials" is not in tune with the recitals in the different clauses. 31. Considering all facts, I hold the calculations carried by the learned Arbitrators of Rs.68.15 lakhs as damages, calls for interference. Rest of the award, needs no interference. This is more so, the appellant has accepted its liability to pay Rs.2.09 lakhs, also accepted liability of Rs.18.64 lakhs. However, it would have to be treated as the cost towards non giving of the requisite yield. 32. The appeal is partly allowed with costs. The award is set aside to the extent of Clause 3 of awarding damages for loss suffered due to supply of non performing machinery and equipments, Rs.68.15 lakhs. The award is already set aside for past interest of Rs.10.65 lakhs. Other terms in the award remain unaltered. The cross objection of the respondent is rejected. The appellant has deposited Rs.83,86,749/-in this Court. Rs.63,86,749 is withdrawn by the respondent. The respondent to deposit the same in this Court up to 31st March 2012. Rs.20 lakhs are invested in the Nationalised Bank. Since the claim for Rs.68.15 lakhs is set aside, Appellants are entitled for the same with interest on invested amount. Order is stayed up to 31st March 2012.