JUDGMENT By this appeal filed under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter 'Act of 1996' for short), appellant seeks to challenge an Order and Judgment dated 14th October 2004 passed by the learned District Judge, Raigad Alibag, substantially rejecting the arbitration application filed by the appellant challenging the award made by the arbitral tribunal on 10th March 2004. By the said award dated 10th March 2004, the arbitral tribunal had allowed most of the claims made by the respondent (for the sake of convenience, the appellant is referred to as 'owner' and the respondent is referred to as 'the contractor' in the later part of judgment). Some of the relevant facts for the purpose of deciding this appeal are summarized as under: 2. There was an old bridge across Dharamtar Creek on Alibag-Pen Road which was showing severe distress. The owner decided to get a new bridge constructed adjacent to the old bridge under “Build Operate and Transfer” (BOT) scheme. In the year 1996, a Government Resolution was issued by which the Government laid down policy guidelines for inviting private participation with own funding on BOT basis for roads and bridges projects. The owner invited offers for construction of two lane bridge across Dharamtar creek with approaches in Km.19/200 of Alibag-Pen-Khopoli road. Tender notice was published on 18th December 1998. The date of pre-bid meeting was 15th February 1999. The owner accepted the bid of contractor and issued Works Order on 31st August 1999. The offer made by the contractor in the tender was Rs. 15,25,00,000/-. The letter of acceptance was issued by the owner in the name of the then bidder Ameya Developers Pvt. Ltd., who by letter dated 23rd August, 1999, informed the owner regarding floating of new company in the name and style of “Patwardhan Infrastructure Pvt. Ltd.” and requested to issue work orders in the name of Patwardhan Infrastructure Pvt. Ltd. The owner accordingly gave approval to transfer the work in the name of Patwardhan Infrastructure. The owner issued a notification on 5th February 2001 for levy of toll from 6th February 2001 and specified a rate of toll per trip. The concession period offered by the contractor was 13 years 7 months and 26 days. The owner issued a notification on 5th February 2001 for levy of toll from 6th February 2001 and specified a rate of toll per trip. The concession period offered by the contractor was 13 years 7 months and 26 days. By letter dated 28th March 2001 to the owner, the contractor alleged that at the time of entering into agreement, contractor was not told that an approach was sanctioned by the owner to Ispat factory on NH-17 and the said factory was using that approach and all vehicles were using facility road. The contractor alleged that it had contemplated while bidding that the entire traffic to Ispat factory would use only the approach and gate near the facility since no approach from NH-17 was in use. The contractor demanded compensation alleging loss of toll which could not be foreseen while bidding. 3. By letter dated 14th September 2002, the contractor informed the owner regarding diversion of traffic by Ispat factory via NH-17 instead of passing through toll booth causing loss to the contractor and requested for joint survey of traffic between 25th September 2002 and 29th September 2002 to ascertain the loss. During the period between 30th September 2002 and 5th October 2002, a joint traffic count was taken. The contractor placed reliance upon an alleged note from the Inspector of Police, Pen Raigad stating that the Ispat factory was not using the gate on highway to Goa and companies own buses and trucks were not using the gate. Use of said gate was started all of a sudden somewhere from 15th February 2001 and at the same time, vehicles passing through Dharamtar Creek had started using that road from 15th February 2001 onwards. It was alleged that earlier all these vehicles were using Ispat Companies gate near Dharamtar bridge. The said alleged note was annexed by the contractor in the arbitration proceedings as Exhibit-C-17. By letter dated 16th September 2002, the contractor issued a notice under clause 3.4.17 of the contract to the Executive Engineer alleging that the bid of the contractor was submitted on the basis that traffic of Ispat factory would pass by NH-17 through the facility under BOT contract and the new situation arisen because of the gate of Ispat factory could not be visualized and/or anticipated while bidding. The contractor requested for compensation of Rs.15487/-per day plus interest from 15th February 2001 to 31st August 2002 and at Rs.18,140.50 ps. per day plus interest from 1st September 2002 and then as per the toll rates prevailing from time to time. A joint survey was conducted between 30th September 2002 and 5th October 2002. 4. By letter dated 9th November 2002, the contractor issued a notice to Executive Engineer of the owner requesting for his decision for the claims regarding compensation. By letter dated 22nd November 2002, Executive Engineer denied the claims of compensation made by the contractor relying upon clauses 3.4.18, 3.7.1, 3.7.2 and 3.7.3 of the contract. 5. By letter dated 3rd February 2003, the contractor requested the owner to take immediate action to physically disconnect the approach used by Ispat factory. 6. The dispute arose between the parties and the matter was referred to arbitration. Pursuant to the directions given by the arbitral tribunal, the contractor filed Statement of Claims on 4th June 2003 making various claims for compensation and interest. The said claims were resisted by the owner by filing written statement. Neither of the parties led any oral evidence before the arbitral tribunal. By an award dated 10th March 2004, the arbitral tribunal allowed claim Nos.1 and 2 which were for compensation up to the date of award and allowed compensation calculated at 81.5% of the amount specified in front of each month in a chart till the end of concession period with interest @ 19% per annum compounded monthly on delayed payments. The arbitral tribunal directed the owner to pay cost of arbitration quantified at Rs.50,000/-and directed the owner to bear their own cost of arbitration. 7. The owner impugned the said award by filing arbitration application before the learned District Judge, Alibag, Raigad. By an Order dated 14th October 2004, the learned District Judge partly modified the award to the extent that the interest which was directed to be paid @ 19% per annum compounded monthly was modified by simple interest @ 19% per annum. 8. The owner has challenged the said Order and Judgment dated 14th October 2004 passed by the learned District Judge, Alibag, Raigad, under Section 37 of the Act of 1996. 8. The owner has challenged the said Order and Judgment dated 14th October 2004 passed by the learned District Judge, Alibag, Raigad, under Section 37 of the Act of 1996. The learned counsel appearing for the owner submits that as per the contract, it was duty cast upon the contractor to study the bid thoroughly, methodically and carefully before quoting. It is submitted that an opportunity was provided to the contractor to participate in the pre-bid meeting and to seek all clarifications of all their doubts before submitting the bid. It is submitted that the contractor had participated in the pre-bid meeting and had sought clarifications only regarding future variation due to construction of Revas-Karanja project. It is submitted that Ispat factory was in existence since long. Ispat factory was granted permission by the owner for another bridge on 13th February 1996 which was much before starting of this project. There was no new development or change of fact situation after submission of bid. It is submitted that permission granted to Ispat factory was only for the period of three years which expired before opening of bid submitted by the contractor. It is submitted that the owner was thus, not liable to accept any responsibility on account of loss suffered, if any, to the contractor due to the use of data or any change in traffic plying, as a result of construction of new road/link road. It is submitted that in any event, the owner had permitted the access to Ispat factory premises from NH-17 by passing the toll under clause 3.7.2 of the contract. It is submitted that under clause 3.7.16 of the contract, the owner was empowered to permit construction of approaches to the properties to the adjoining road length for which the Entrepreneur has no right to raise any objection. It is submitted that in view of such provisions which were binding on both the parties, contractor could not have made any claim for loss alleged to have been suffered in view of the permission granted to a party to construct approaches to the road length. It is submitted that the bidder was under obligation to carefully study the work and site condition, specifications, schedules and drawings and various other data and shall be deemed to have visited the site of the work and to have fully informed himself regarding the local conditions. It is submitted that the bidder was under obligation to carefully study the work and site condition, specifications, schedules and drawings and various other data and shall be deemed to have visited the site of the work and to have fully informed himself regarding the local conditions. The bidder was deemed to have carried out his own surveys and investigations and assessment of site condition and shall be fully aware of all statutory requirements, including those concerning labour. He shall be also deemed to have made his own assessment of present and future traffic. The data collected by Government on the basis of preliminary surveys would be made available to the entrepreneur in good faith but only for general information without any commitment or responsibility on the part of the owner about its accuracy. Clauses 3.4.1, 3.7.1, 3.7.2, 3.7.3 and 3.7.16 of the contract are extracted below: 3.4.1 : GENERAL: The Entrepreneur shall be deemed to have carefully studied the work and site conditions, specifications, schedules and drawings and various other data and shall be deemed to have visited the site of the work and to have fully informed himself regarding the local conditions. He shall be deemed to have carried out his own surveys and investigations and assessment of site conditions. He shall be deemed to be fully aware of all statutory requirements, including those concerning labour and the local conditions/status of availability and employment of labour. He shall be deemed to have made his own assessment of present and future traffic. The Entrepreneur shall accordingly work out his proposal. The data collected by Government on the basis of preliminary surveys will be made available to the entrepreneur in good faith but only for general information without any commitment or responsibility on the part of the Government about its accuracy. 3.7.1:- The Entrepreneur shall carry out his own traffic studies and assessment independently to arrive at the likely volume of traffic, field surveys and investigations including soil investigation and collect necessary data and prepare his own cost and time estimates for formulating the proposal. 3.7.2:- If traffic intensity data observed during the last few years is available with the Department, it will be made available to the Entrepreneur if asked for in writing. 3.7.2:- If traffic intensity data observed during the last few years is available with the Department, it will be made available to the Entrepreneur if asked for in writing. The Government shall not accept any responsibility on account of loss suffered by the Entrepreneur either due to the use of the above data or any change in traffic plying as a result of construction of new roads/links or improvements to the existing road network in the vicinity or any other similar change. 3.7.3:- No restriction of any kind shall be imposed by the Entrepreneur on the existing or future traffic routes or facilities to be provided by the Government. No specific developments shall be undertaken or proposed development altered to suit the proposal. And also no restriction shall be imposed by the entrepreneur on the traffic plying on this road during the construction period unless approved by the Superintending Engineer. 3.7.16:- The Government may permit construction of approaches to the properties adjoining the road length, for which the Entrepreneur shall not take any objections. 9. The learned counsel for the owner submits that learned arbitrator has not considered the relevant clauses of the contract at all in the impugned award and did not deal with the submissions made by owner in the written statement as well as during oral argument advanced. The learned counsel submits that claim for compensation which was awarded by the arbitral tribunal is contrary to and in teeth of clause Nos.3.4.1, 3.7.1, 3.7.2 and 3.7.3 of the contract. 10. The learned counsel then submits that the contractor having demanded separate variation in the pre-bid meeting regarding variation due to construction of Revas-Karanja project, the contractor could have sought clarification even in respect of the Ispat factory approach, in the said pre-bid meeting. It is submitted that after award of the contract, the contractor could not raise any claim based on the situation existing prior to the date of submission of bid. 11. The learned counsel for the owner submits that the arbitral tribunal has awarded the claim for compensation relying upon the disputed documents and more particularly Exhibit-C-17. The arbitral tribunal has allowed the claim for compensation though no oral evidence was led by the contractor, nor such claim was proved in any manner whatsoever by the contractor. 11. The learned counsel for the owner submits that the arbitral tribunal has awarded the claim for compensation relying upon the disputed documents and more particularly Exhibit-C-17. The arbitral tribunal has allowed the claim for compensation though no oral evidence was led by the contractor, nor such claim was proved in any manner whatsoever by the contractor. Even if there was joint survey for few days carried out by the parties, the same could not be the basis for awarding claims for compensation. It is submitted that the award is based on no evidence and is in violation of principles of natural justice. The learned counsel for owner then submits that the arbitral tribunal has not only allowed claim for compensation up to the date of award, but also allowed claim for compensation for future period without there being such claim for future period in terms of the contract. The learned counsel submits that claim for compensation for the subsequent period up to the date of concession period is totally perverse and without application of mind. The arbitral tribunal could not have contemplated the situation from the date of award till the end of concessional period and thus, could not have awarded the compensation for future period. The learned counsel for the owner then submits that the interest @19% awarded by the arbitral tribunal was not a contractual rate and was exorbitant. The learned counsel submits that the learned District Judge in the impugned Order and Judgment delivered under Section 34 of the Act of 1996 has not dealt with most of the submissions made by the owner and has not dealt with the effect of the binding clauses of the contract and has rejected the said application substantially except directing partial modification in respect of interest. 12. Mr. Rajiv Kumar, the learned senior counsel appearing for the contractor on the other hand submits that the approach road used by Ispat factory was not in existence and could not be visualized or assessed by the contractor while submitting bid. The access of Ispat factory was neither visible nor was in existence and thus, the contractor did not consider the effect of such alleged access while submitting their bid. The access of Ispat factory was neither visible nor was in existence and thus, the contractor did not consider the effect of such alleged access while submitting their bid. It is submitted that the arbitral tribunal, after site visit, rendered a finding that the said road was not in existence and such finding of fact rendered by the arbitral tribunal unless is perverse, this Court cannot interfere with such finding at this stage under Section 37 of the Act of 1996. The learned senior counsel submits that though the arbitral tribunal placed reliance on the note prepared by the police annexed as Exhibit-C-17 to the Statement of Claim, no objection was raised by the owner. The learned senior counsel submits that in any event, the arbitral tribunal has not allowed compensation only on the basis of such document, but has also considered the joint survey reports conducted by the parties. It is submitted that the owner did not challenge the quantification recorded in the joint survey report before the arbitral tribunal and the same thus, could not be challenged in the subsequent proceedings. It is submitted that the award was based on admitted documents and also based on site visit conducted by the arbitral tribunal. The arbitral tribunal has interpreted the provisions of contract and documentary evidence produced by the parties and has rendered a finding of fact. It is submitted that re-appreciation of evidence considered by the arbitral tribunal is not permissible in the present proceedings. It is submitted that though the arbitral tribunal had awarded interest @ 19% compounded, the same has been already modified by the learned District Judge by awarding simple interest @ 19%. The contractor has no objection if this Court awards a reasonable rate of interest to the contractor on the awarded claims. In so far as the compensation for claims subsequent to the date of award till the end of concessional period is concerned, the learned senior counsel submits that if this Court comes to a conclusion that no such compensation for future period could be awarded by the arbitral tribunal, which has been awarded on the same principles, rights of the contractor to claim in future shall be preserved. 13. The learned senior counsel placed reliance upon the Judgment of the Supreme Court in case of Mcdermott International Inc. v. Burn Standard Co. 13. The learned senior counsel placed reliance upon the Judgment of the Supreme Court in case of Mcdermott International Inc. v. Burn Standard Co. Ltd. And Others; (2006) 11 Supreme Court Cases 181)and particularly paragraphs 112 and 113 which read thus: “112. It is trite that the terms of the contract can be express or implied. The conduct of the parties would also be a relevant factor in the matter of construction. The construction of the contract agreement is within the jurisdiction of the arbitrators having regard to the wide nature, scope and ambit of the arbitration agreement and they cannot be said to have misdirected themselves in passing the award by taking into consideration the conduct of the parties. It is also trite that correspondences exchanged by the parties are required to be taken into consideration for the purpose of construction of a contract. Interpretation of a contract is a matter for the arbitrator to determine, even if it gives rise to determination of a question of law. 113. Once, thus, it is held that the arbitrator had the jurisdiction, no further question shall be raised and the court will not exercise its jurisdiction unless it is found that there exists any bar on the face of the award.” 14. The learned senior counsel for the contractor also placed reliance on Judgment of Supreme Court in case of Ravindra Kumar Gupta and Company V. Union of India (2010) 1 Supreme Court Cases 409) and particularly paragraph 8 which reads thus: 8. We are of the considered opinion that the High Court committed a serious error in re-appreciating the evidence led by the parties before the arbitrator. This evidence was duly scrutinised and evaluated by the arbitrator. With regard to Claim 5, the arbitrator has given elaborate reasons. Therefore, findings recorded by the arbitrator cannot be said to be either perverse or based on no evidence. A firm finding has been recorded that under Claim 5 there was default and delay on the part of the Union of India with respect to: (i) The payment of RARs final bill. (ii) Delay in appointing agency for ATT. (iii) Delay in giving decisions. (iv) Increase in height of tent plinth (given late). This conclusion has been erroneously substituted by the High Court with its own opinion on appreciation of the evidence. (ii) Delay in appointing agency for ATT. (iii) Delay in giving decisions. (iv) Increase in height of tent plinth (given late). This conclusion has been erroneously substituted by the High Court with its own opinion on appreciation of the evidence. Such a course was not permissible to the High Court while examining objections to the award under Section 30 of the Arbitration Act, 1940. 15. The learned senior counsel for the contractor also relied upon a Judgment in case of Satna Stone and Lime Company Limited, Madhya Pradesh And ors. Vs. Union of India And Anr. (2008) 14 Supreme Court Cases 785) and particularly paragraph 18 which reads thus: “18. From the discussion of the aforementioned cases, it is clear that the error apparent on the fact of the award contemplated by Section 16(1)(c) as well as Section 30(c) of the Arbitration Act is an error of law apparent on the face of the award and not an error of fact. Same principle has been reiterated in Thawardas Pherumal v. Union of India. The Court reiterated the legal position that an arbitrator cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. The legal position has been crystallised in a series of judgments of this Court that the arbitrator has got ample power in giving an award. 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 a task of being a judge of the evidence before the arbitrator. The court should approve the award with the desire to support it if that is reasonably possible rather than to destroy it by calling it illegal. This Court has very limited jurisdiction to interfere with the reasoned award. Only when the award is based upon a proposition of law which is unjustified in law, the error of law must appear from the award itself or from any document or note incorporated in it or appended to it. It is not permissible to travel beyond and consider material not incorporated in or appended to the award.” 16. Placing reliance upon the aforesaid three judgments of Hon’ble Supreme Court, the learned senior counsel submits that the Court shall not re-appreciate the finding of fact and the evidence considered by the arbitral tribunal in the present proceedings. It is not permissible to travel beyond and consider material not incorporated in or appended to the award.” 16. Placing reliance upon the aforesaid three judgments of Hon’ble Supreme Court, the learned senior counsel submits that the Court shall not re-appreciate the finding of fact and the evidence considered by the arbitral tribunal in the present proceedings. It is submitted that arbitrator is the sole judge of the quality as well as the quantity of evidence and it would not be for the court to take upon itself a task of being a judge of the evidence before the arbitrator. 17. On perusal of the clause 3.4.1 of the contract, it is clear that it was for the bidder to visit the site or work, study the work and site conditions, and various other datas and to have fully informed himself regarding the local conditions, shall carry out his own survey and investigations and assessment of site conditions and shall be deemed to have made his own assessment of present and future traffic. The owner had not given any commitment or responsibility about its accuracy or any data given to the contractor in good faith. 18. Clause 3.7.2 of the contract categorically provides that the Government shall not accept any responsibility on account of loss suffered by the Entrepreneur either due to the use of the data or any change in traffic plying as a result of construction of new roads/links or improvements to the existing road network in the vicinity or any other similar change. The record indicates that the contractor in a pre-bid meeting had demanded variation on account of project of Revas-Karanja. The record also indicates that the Ispat factory was already using approach road prior to the submission of the bid by the contractor. The said permission granted to Ispat factory was already over before the date of submission of the bid by the contractor. No such clarification was sought by the contractor in the pre-bid meeting. In the impugned award, the arbitral tribunal observed that the documentary evidence on record would prove that the traffic of Ispat factory was not using the approaches from NH-17 till 15th February 2001. In support of the said finding, the arbitral tribunal placed reliance upon the alleged note (Exhibit-C-17) annexed to the Statement of Claim by the contractor. In the impugned award, the arbitral tribunal observed that the documentary evidence on record would prove that the traffic of Ispat factory was not using the approaches from NH-17 till 15th February 2001. In support of the said finding, the arbitral tribunal placed reliance upon the alleged note (Exhibit-C-17) annexed to the Statement of Claim by the contractor. The arbitral tribunal rendered a finding that letter dated 4th October 2002 from the owner before the arbitral tribunal revealed that the permission granted to the Ispat factory on 20th December 1995 was only for three years which might have expired prior to submission of bid by the contractor. It is further observed that the documents produced by the contractor prove that the permission given was not in force when the contractor submitted their bid and neither party produced any documents to prove that the permission for the approach from NH-17 was renewed in between 13th February 1999 till 21st December 2001. It is also observed that after cancellation of permission, no action seemed to have been taken by the owner to stop possible use of the approach till then. The arbitral tribunal observed that the owner should have brought the fact of existence of another approach to the notice of intending bidders to make them take suitable cognizance of the said fact in the bid document. However this fact was concealed from the bidders. It is observed that in spite of suppression of the material fact at the relevant time, the contractor were induced to perform the contract. 19. Based on these observations and findings, the arbitral tribunal allowed claim for compensation made by the contractor relying upon the joint survey report by applying the factum of 81.5% to the claim by the contractor. 20. Perusal of the award would indicate that the arbitral tribunal has not considered the relevance and effect of the provisions of contract in the impugned award. The arbitral tribunal also did not consider that it was the contractor who was supposed to visit the site and acquaint himself of all site conditions which would have bearings on the price of the bid and in any event, ought to have sought clarifications in respect of doubt if any, occurred due to site visit in the said pre-bid meeting. Though the contractor had sought clarifications in respect of the other project which would have affected the price bid and sought variation, no clarification was sought by the contractor in respect of the approach used by Ispat. On the contrary without any evidence on record, the arbitral tribunal rendered a finding that the owner had suppressed and/or concealed any facts from the contractor and had induced the contractor to perform the contract. In my view, such finding of fact which is on the face of it perverse and based on no evidence and are rendered after ignoring obligations of the contractor under the contract and overlooking the provisions of the contract. 21. Perusal of record and the award indicates that though the owner had admitted only the correspondence entered into between the parties and had disputed other documents relied upon by the contractor in the Statement of Claim, the arbitral tribunal placed reliance upon an alleged note which was annexed at Exhibit-C-17 in the Statement of Claim without the same being proved by the contractor while allowing claim for compensation. In my view, the arbitral tribunal could not have relied upon any disputed and unproved document in the impugned award. Principles of Evidence Act are applicable to arbitration proceedings also and the same could not have been ignored by the arbitral tribunal. 22. The arbitral tribunal has awarded compensation without any oral evidence led by the contractor. The entire amount of compensation awarded is based on joint survey report which was carried out for few days and for much later period which in my view, could not be used as evidence for the purposes of awarding compensation for several years. In my view, the award is based on no evidence. The claim for compensation is required to be proved. The arbitral tribunal has not indicated in the impugned award the basis of applying the factor of 81.5%. The entire award is thus, vitiated. In view of the facts of this case, judgment of Supreme Court in case of Mcdermott International Inc. (2006) 11 Supreme Court Cases 181)(supra) is of no assistance to the contractor. 23. In my view, the arbitral tribunal has committed a patent illegality, by awarding claim for compensation from the date of award till the end of concessional period. In view of the facts of this case, judgment of Supreme Court in case of Mcdermott International Inc. (2006) 11 Supreme Court Cases 181)(supra) is of no assistance to the contractor. 23. In my view, the arbitral tribunal has committed a patent illegality, by awarding claim for compensation from the date of award till the end of concessional period. Perusal of the Statement of Claim indicates that there was no monetary claim made by the contractor in the Statement of Claim for future. In any event, compensation could not have been quantified for post award period of contract by the arbitral tribunal. The arbitral tribunal could not have visualized the situation post award period. The award of future compensation is on the face of it perverse and untenable. The Judgment relied upon the senior counsel in case of Satna Stone And Lime Company Limited (2008) 14 Supreme Court Cases 7852)(supra) and Ravindra Kumar Gupta (2010) 1 Supreme Court Cases 409)(supra) are the judgments dealing with the cases under Arbitration Act 1940. In both these judgments, the Supreme Court has also held that an arbitrator cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. In my view, arbitral tribunal has to decide in accordance with the terms of contract and can allow the claim for compensation only if the breach alleged by a party is proved by him and only if the loss suffered due to such breach of other is proved by him. In the facts of this case, in my view, neither any breach is proved by the contractor on the part of the owner nor any loss is alleged to have been proved by it before the arbitral tribunal. The Order passed by the learned District Judge is totally silent on various issues raised by the owner and the said judgment dismissing the arbitration application in the facts of this case, in my view, is totally unsustainable in law and deserves to be set aside. I, therefore pass the following order. i) The impugned order dated 18th January 2004 passed by the learned District Judge, Alibag, Raigad rejecting part of the arbitration application filed by the owner is set aside. ii) Arbitration Application filed under section 34 is allowed. iii) Impugned award dated 10th March 2004 made by the arbitral tribunal is set aside. iv) Appeal succeeds. i) The impugned order dated 18th January 2004 passed by the learned District Judge, Alibag, Raigad rejecting part of the arbitration application filed by the owner is set aside. ii) Arbitration Application filed under section 34 is allowed. iii) Impugned award dated 10th March 2004 made by the arbitral tribunal is set aside. iv) Appeal succeeds. There shall be no order as to costs.