JUDGMENT : S.C. Dharmadhikari, J. 1. These appeals were heard together and can be conveniently disposed of by this common judgment. The main arguments were canvassed in the appeal of the State Government, namely, Appeal No. 145 of 2017. 2. The State of Maharashtra is aggrieved and dissatisfied with the order passed by the learned single Judge on 12th February, 2015, in Arbitration Petition No. 1158 of 2012 which was decided along with Arbitration Petition (Lodg.) No.1541 of 2014 and Arbitration Petition (Lodg.) No. 1542 of 2014. 3. By a common order delivered in these proceedings, the learned single Judge dismissed Arbitration Petition (Lodg.) No.1541 of 2014, but allowed Arbitration Petition (Lodg.) No.1542 of 2014. Similarly, the learned Judge dismissed Arbitration Petition No. 1158 of 2012. The operative part of the order reads as under : “ … … … Accordingly, Arbitration Petition (L) No. 1542 of 2014 (Miscellaneous Application No. 229 of 2012) is partly allowed by setting aside the award in respect of the claims mentioned at Item Nos.(B), (D) and (E) in paragraph 10 above in the sum of Rs.4,94,27,000/-, Rs.8,38,61,545/- and Rs.1,96,18,000/-, respectively. The rest of the Award for the sum of Rs.43,30,25,000/- together with interest and costs awarded is confirmed. Arbitration Petition (L) No.1541 of 2014 (Miscellaneous Application No.230 of 2012) is dismissed. Arbitration Petition No.1158 of 2012 is dismissed. There shall be no order as to costs.” 4. An Award was made by the Arbitral Tribunal comprising of two former Judges of this court, one of whom was even a former Chief Justice of the Jammu & Kashmir High Court and one a former Secretary in the Public Works Department of the Government of Maharashtra. It is common ground that the respondent was awarded a contract for the work of construction of Mumbai Bypass of Mumbai Pune Road National Highway No.4 from kilometers 133/800 to kilometers 138/200 in Taluka and District Thane. The details of the contract are as under : “1.0 In the month of October 1998, the Respondent through its Executive engineer, Public Works Department, Road Development Division No.III, Panvel, Maharashtra (for short “the Executive Engineer”) invited bids on Build, Operate and Transfer basis (referred as B.O.T. Hereafter) for the work of construction of Mumbra Bypass off Mumbai-Pune Road N.H.-4 and joining the existing Mumbai Pune Road at Km.138/200 for a length of 5.41 Km. In response thereto, the claimant (in its former name 'Atlanta Infrastructure Ltd.') submitted its bid on 12.04.1999 which the Respondent accepted and communicated its acceptance thereof to the Claimant by thee letter No. RDD-III.AB.AB.TC.753 dated 26.05.2000 addressed to the Claimant. A copy of the said letter dated 26.05.2000 tendered in evidence is marked as Exhibit C-1 in Claimant's compilation of documents marked 'CD-1'. On 12.07.2000, the Formal Agreement embodying the mutually agreed terms and conditions in this regard was duly executed by and between the Claimant and the Respondent (for short 'the said Contract'). Pursuant thereto, Work Order was issued by the Respondent vide letter No. RDD-III. AB.TC.BOT.3009 on 18.08.2000 with thee direction to commence the work forthwith. A copy of the said work Order is tendered in evidence and marked as Exhibit C-2 in the said 'CD-1'. Under the said contract, the Claimant was to execute the project as defined in Section 4 and specified in Sections 5 and 6 of the said Contract at the cost of Claimant and recover the investment made by the Claimant in execution of the project by way of recovery of toll from the users of the road. On 11.05.2005, Supplemental Agreement to the said Contract was executed by and between the Claimant and the Respondent. However, according to the Claimant, the said Supplemental Agreement was executed by the Claimant in the circumstances stated in the Statement of facts and Claims filed and in particular on assurance given by the Respondent that the signing the said Supplemental Agreement would not amount to Claimant giving up disputes and differences then pending adjudication including the disputed terms of the said Supplemental Agreement. 2.0 As the disputes by and between the Claimant and the Respondent arose out of and/or in relation to and/or concerning the said Contract read with the said Supplemental Agreement during the course of collection of Toll by the Claimant which disputes could not be settled even following the procedure for settlement thereof as per clause 3.4.17 of the General Conditions of Contract incorporated in and forming part of the said Contract, by its letter bearing No. AL/Mumbai/4817/2010 dated 03.12.2010 addressed to the Respondent through the said Executive Engineer, the Claimant gave notice to the Respondent under the said Clause 3.4.17 invoking arbitration for resolution thereof and ultimately the present Arbitral Tribunal has been constituted to adjudicate and decide the same.” 5. In the lead matter, namely, the appeal of the Government of Maharashtra, Mr. Samdani learned senior counsel appeared and submitted a written note consisting of the list of dates and events. 6. After running through them, Mr. Samdani would submit that the formal agreement entered into between the State and ATLANTA (hereinafter referred to as “the Claimant”) provided for construction period of two years a concession period, which included the construction period of six years and nine months and concession period (toll collection period) of four years and nine months. The cost of the project was envisaged with interest at Rs.35.91 crores. After the work order was issued by the State to the Claimant, on 18th August, 2000, the original date for completion of the construction was stipulated as 17th August, 2002. However, on 11th May, 2005, a supplementary agreement was entered into between the parties providing for an increased scope of work. The concession period was then stipulated as ten years, four months and twenty five days, inclusive of the construction period and the concession period (toll collection period) was worked out as five years and eight months. Thus, the total project cost was worked out at Rs.58.68 crores. 7. Mr. Samdani would submit that on 5th December, 2007, the Claimant wrote a letter to the Superintending Engineer in terms of clause 3.4.17 (I) of the BOT Contract making, in all, twelve claims which are identical to the claims made before the Arbitral Tribunal. On 25th December, 2007, the construction was completed by the Claimant. The construction period was extended to 27th December, 2007, by the State without any penalty. On 29th December, 2007, the Provisional Completion Certificate was issued by the State to the Claimant and on 11th August, 2009, the Claimant wrote a letter to the Chief Engineer in terms of clause 3.4.17 (II). These were the very claims which were forwarded to the Superintending Engineer. The arbitration was invoked by the Claimant on 1st October, 2009 and on 20th December, 2009, the Statement of Claim was filed raising identical claims. 8. Mr. Samdani would submit that though a Office Note was prepared on 21st December, 2009 by the Section Officer pursuant to the letters of the Claimant raising identical claims, essentially that brought out the details in completing the construction at site. 8. Mr. Samdani would submit that though a Office Note was prepared on 21st December, 2009 by the Section Officer pursuant to the letters of the Claimant raising identical claims, essentially that brought out the details in completing the construction at site. This Office Note acknowledged that the delay was on account of several factors, but particularly concerning encroachment, acquisition of private land and the work of railway flyover bridge. The aforesaid delay resulted in losses and claims for damages. To compensate for these losses on account of delay as well as the claim set out by the Claimant in its letters, the Chief Engineer suggested an increase in the concession period which would also result in an increase in the toll collection period. By this Office Note, the toll collection was proposed to be increased to six years and nine months. The Office Note was accepted by the hierarchy upto the Principal Secretary (Finance) considering all the aforesaid factors causing delay and, accordingly, a proposal was made to extend the concession period for collection of toll. The Office Note considered the delay right till the completion of the project, namely, 25th December, 2007. 9. The contention of Mr. Samdani is that a complete copy of this Office Note was not produced before the Arbitral Tribunal by the Claimant and it produced only three pages of the Marathi version of this office Note. The aforesaid incomplete Office Note (Exhibit-C-109) was produced as a part of the rejoinder filed by the Claimant to the statement of defence before the Arbitral Tribunal and for a different reason and in a different context. Mr. Samdani complained that even before this Court, in appeal records, an English translation of this Note is submitted, but it is incomplete. Mr. Samdani went on to urge that pursuant to this Office Note, a draft of the Notification was prepared for being submitted to the Law & Judiciary Department for its approval so that it could be sent for publication. This document was not produced before the Arbitral Tribunal. After receipt of the approval from the Law & Judiciary Department, the Office Note was prepared for seeking approval for sending this Notification for publication and that is dated 24th February, 2010. This document was not produced before the Arbitral Tribunal. After receipt of the approval from the Law & Judiciary Department, the Office Note was prepared for seeking approval for sending this Notification for publication and that is dated 24th February, 2010. The final Notification was published on 26th February, 2010, extending the period of collection of toll upto 21st September, 2014, with the rates applicable from 1st March, 2010. This document was produced before the Arbitral Tribunal (Exhibit C-127), but without any foundation or basis. At the same time, the Notes before the Law & Judiciary Department were not produced, but suppressed. Mr. Samdani's argument is that everything that was claimed by the Claimant-contractor was subsumed in the Office Notes dated 21st December, 2009 and 26th February, 2010. Once these are the two most material documents, but the background in which these were prepared and executed being suppressed from the Arbitral Tribunal, the Award is vitiated by a fraud. This fraud is perpetuated by the Claimant. Mr. Samdani thus urged that this Award is vitiated by a fraud perpetrated on the public and particularly the Arbitral Tribunal by the Claimant. Once there is an underlying fraud and clearly proved and established, then, the Arbitration Award deserves to be set aside. 10. Mr. Samdani submits, and with all persuasive abilities at his command, that the State Government cannot be called upon to honour an Award made in favour of a contractor like the respondent whose conduct was not above board. The Claimant did not state before the Tribunal that it continued to take benefit of the extended period under the Notification. Thus, most of the claims which were covered by the Notification did not survive for consideration of the Tribunal at all. In other words, as against each of these claims, the concession and the extended period availed of by the Claimant would show that the recoveries thereagainst stood adjusted or set off in terms of this Government Notification. Then, nothing would survive for consideration of the Arbitral Tribunal. The Claimant could not have raised the same claims twice over, particularly after knowing that the Government has accepted its request for extending the period enabling collection of toll by the Claimant. The Claimant cannot complain that the State of Maharashtra and its officials prevented it from collecting the toll. 11. Mr. The Claimant could not have raised the same claims twice over, particularly after knowing that the Government has accepted its request for extending the period enabling collection of toll by the Claimant. The Claimant cannot complain that the State of Maharashtra and its officials prevented it from collecting the toll. 11. Mr. Samdani would submit that in the Arbitral Award there is no reference to the Office Note dated 21st December, 2009 and similarly, there is no reference to the Notification dated 26th February, 2010. 12. Mr. Samdani would submit that when the matter is approached in the backdrop of this Notification, then, it was made clear to this Court earlier and even now that the concession period for collection of toll being increased, the claims arising on account of delay stood satisfied. In other words, there was a complete accord and satisfaction with regard to the claims of the Claimant arising on account of delay. When the Notification was perused, it prompted an inquiry into the cause and reasons for issuance of the Notification. The commencement of the inquiries and their conclusion revealed that there was an incomplete copy of the Office Note dated 21st December, 2009, produced before the Arbitral Tribunal. That compelled the State to move a Notice of Motion (Lodg.) No. 744 of 2016 for taking a complete copy of this Office Note on record. A complete copy was produced by way of an additional affidavit dated 22nd April, 2010, in this Notice of Motion. Upon perusing the affidavit / additional affidavit, this Notice of Motion was allowed to the extent of producing a copy of the Office Note dated 21st December, 2009. Mr. Samdani placed strong reliance on this order dated 26th April, 2016 passed in Notice of Motion (Lodg.) No.744 of 2016. Mr. Samdani then emphasized that claims based on delay were awarded, but the Arbitration Petition challenging the Award was allowed and the Award was set aside to the extent of delay-based claims. As far as non-delay based claims are concerned, some of them are disallowed by the learned single Judge and for illustration, the claim based on the change in the Income Tax laws. Mr. Samdani would submit that even reimbursement of royalty charges was disallowed. A claim in relation to reduced productivity of plant and machineries due to idling was also set aside by the learned single Judge. 13. Mr. Mr. Samdani would submit that even reimbursement of royalty charges was disallowed. A claim in relation to reduced productivity of plant and machineries due to idling was also set aside by the learned single Judge. 13. Mr. Samdani submits that if the material and relevant terms and conditions of the contract and some of the provisions and clauses of the supplementary agreement are perused, it is evident that the Claimant is seeking to derive double benefit. Mr. Samdani would submit that the Claimant accepted the extension, enjoyed it and collected toll, thus taking the benefits thereunder. Mr. Samdani would submit that some of the claims were considered by the State during the pendency of the arbitration and were satisfied. Giving the break-up, Mr. Samdani would submit that the toll collection stood increased to Rs.64 crores as against the contract cost of Rs.35 crores. Under the supplementary agreement, the contract cost was enhanced to Rs.58 crores and the toll collection was considered at Rs.190 crores. On account of the extension of the toll collection period by the above Notification, the Claimant, in fact, has collected a sum of Rs.240.08 crores by way of toll collection. Mr. Samdani would rely upon the Cash Summary Statement in that regard. Mr. Samdani would submit that in Reference No.2, the claim of the Claimant was for reimbursement of the loss of cash collection during the period 1st September, 2010 to 10th September, 2010 and 18th September, 2010 to 15th January, 2011, in all aggregating to 130 days. The claim of the Claimant was upheld by the Arbitral Tribunal and, accordingly, the State was directed to compensate the Claimant @ Rs.11,47,985/- per day. Accordingly, the Tribunal made an Award for Rs.14,92,38,050/- for thirteen days of suspended toll collection. Mr. Samdani would submit that once the concession period got extended by one year and one month and applying the rate at which the Claimant claimed compensation in Reference No.2 for this period, the amount of toll collection would work out at least to Rs.45.46 crores for that period alone. 14. Mr. Samdani's argument is that the above two documents have a complete bearing on the claims raised by the Arbitral Tribunal and these two documents, in fact, substantiate and prove that the claims are fully satisfied. 14. Mr. Samdani's argument is that the above two documents have a complete bearing on the claims raised by the Arbitral Tribunal and these two documents, in fact, substantiate and prove that the claims are fully satisfied. It is submitted that if a material document is concealed from the Tribunal, then, the award is vitiated and liable to be set aside. 15. Mr. Samdani would submit that the State, in its petition to challenge the Award, took up a ground that by the aforesaid Notification, the period of concession for toll collection was extended. However, this ground could not be pressed in the absence of a back-up document, namely, the Office Note which was suppressed. That is how it was sought to be produced and relied upon. 16. Alternatively and without prejudice Mr. Samdani would submit that during the pendency of the Arbitration proceedings, the Claimant accepted the satisfaction offered by the State in terms of the extension of concession period for collection of toll without reserving any liberty to pursue and prosecute its claims. That is how they have enjoyed the extended concession period. Consequently, a Claimant cannot make a claim for which other satisfaction is accepted. The impugned order is thus contrary to law and liable to be set aside. 17. Without prejudice to the above contentions and in the alternative, it is submitted by Mr. Samdani that this supplementary agreement dated 11th May, 2005, contemplated increase in the scope of work, increase in concession period, including construction period and consequential increase in toll collection period with the projected toll collection. While admitting execution of the supplementary agreement, it is urged by the Claimant that they signed it, but their outstanding claims were still kept alive. The view taken by the Tribunal as also the learned single Judge is that the execution of this supplementary agreement will not affect the claims of the Claimant which are required to be adjudicated on merits. Mr. Samdani urges that it is this aspect which goes to the root of the matter inasmuch as determination of concession period encompasses within it, the scope of work, delay, the cost involved in the work and its reimbursement by toll collection. The claim made by the Claimant on account of delay is for the construction period extended by the supplementary agreement. Mr. The claim made by the Claimant on account of delay is for the construction period extended by the supplementary agreement. Mr. Samdani emphasized how the periods got extended and urged that if the claims of the Claimant were kept under reserve, then, the Claimant could not be permitted to take benefit of the extended concession period for toll collection for that encompasses the above matters. 18. The Claimant has, without any reservation, taken the benefit of the concession period for toll collection. No account is rendered by the Claimant of toll collection for the extended period which sets off other claims from those which remain unaffected or are kept under reserve. It is thus submitted that all the claims of the Claimant on account of the delay or otherwise upto the date of the supplementary agreement were not open for adjudication. The Claimant, by taking benefit of the extended concession period for toll collection, disentitled itself from keeping the claims unaffected or in reserve. Mr. Samdani, therefore, submitted that but for this supplementary agreement, the concession period for toll collection would not have been valid till the period under the supplementary agreement, namely, 11th January, 2011, and but for the Notification dated 26th February, 2010, the concession period for toll collection would not have been valid until 21st September, 2014. In these circumstances, such vital matters have been overlooked by both the Tribunal and the learned single Judge. The material documents, namely, supplementary agreement, its impact on the claims, the acceptance of the benefit by the Claimant under this agreement are equally crucial and have an important bearing on the claim. These having been not taken into account or rather omitted from consideration would render the impugned Award totally vulnerable and capable of being interfered with under section 34 of the Arbitration & Conciliation Act, 1996. Thus, the Award is liable to be set aside on the ground that the Claimant cannot enjoy twin benefits, namely, keeping alive the claims and retaining the benefits under this agreement. The Claimant is thus approbating and reprobating which is impermissible in law. 19. Further, alternative submissions are on claims under individual heads. They are compiled under a written Note 4 by Mr. Samdani and which is handed over to us. Mr. Samdani's broad challenge, based on this Note, is that these claims have been awarded when there was no evidence to support them. 19. Further, alternative submissions are on claims under individual heads. They are compiled under a written Note 4 by Mr. Samdani and which is handed over to us. Mr. Samdani's broad challenge, based on this Note, is that these claims have been awarded when there was no evidence to support them. Thus, Mr. Samdani's attempt was that even if we take the individual claims they could not have been awarded at all. Thus, after his oral arguments, these extensive notes have been handed over by Mr. Samdani, including his additional written note. 20. Mr. Samdani concluded his arguments by placing reliance on the following decisions: (i) AIR 1963 SC 250 Lala Kapurchand Godha & Ors. vs. Mir Nawab Himayatalikhan Azamjah (ii) (1964) 3 SCR 164 : AIR 1963 SC 1685 , Union of India vs. A.L. Rallia Ram (iii) (2010) 8 SCC 660 Venture Global Engineering vs. Satyam Computer Services Ltd. & Anr. (iv) (2015) 2 SCC 49 Associate Builders vs. Delhi Development Authority. (v) (2013) 5 SCC 470 Rajasthan State Industrial Development & Investment Corporation & Anr. vs. Diamond & Gem Development Corporation Limited & Anr. (vi) (1991) 4 SCC 93 Associated Engineering Co. vs. Government of Andhra Pradesh & Anr. (vii) (2009) 1 SCC 180 Sethi Auto Service Station & Anr. vs. Delhi Development Authority & Ors. (viii) (1994) 1 SCC 1 S.P. Chengalvaraya Naidu (dead) by LRs vs Jagannath (dead) by LRs & Ors. (ix) (2005) 6 SCC 149 State of A.P. & anr. vs. T. Suryachandra Rao. (x) (2011) 8 SCC 670 State of Uttaranchal & Anr. vs. Sunil Kumar Vaish & Ors. (2002) 2 SCC 256 Om Prakash Gupta vs. Ranbir B. Goyal. 21. On the other hand, Mr. Vashi, learned senior counsel appearing on behalf of the Claimant would submit that to the extent the Award has been upheld by the learned single Judge, his order requires no interference by us. Mr. Vashi would contend that we cannot overlook the ambit and scope of the power which is vesting in the court under section 34 of the Arbitration & Conciliation Act, 1996. He would submit that the Claimant is completely taken by surprise for none of these arguments which have been raised before us were ever raised during the course of proceedings before the Tribunal or before the learned single Judge. 22. He would submit that the Claimant is completely taken by surprise for none of these arguments which have been raised before us were ever raised during the course of proceedings before the Tribunal or before the learned single Judge. 22. For example, he would submit that a Memo of Appeal may contain several grounds, some of which are pressed, some which are expressly given up and some are not touched at all. That does not mean that those which are given up or not touched at all can be raised for the first time in appeal so as to take the opponent by surprise. There is a methodology to introduce mixed questions while arguing an appeal. It may be that Order XL Rule 27 of the Code of Civil Procedure, 1908, is relied upon but the prerequisites or preconditions for invocation of the same have to be expressly satisfied or there should be proof of the nature demanded by law. There is absolutely no material to establish and prove as to why what is introduced now during the course of arguments is being introduced, how it has a bearing on the whole controversy, why if it was so important and vital, was the same not raised before the Tribunal or before the learned single Judge and most of the documents which are now conveniently compiled though marked as exhibits by the Tribunal have allowed to be so marked by consent. Mr. Vashi was very critical of the fact that the Claimant is accused of suppression of material documents or keeping back a crucial matter from the Tribunal. Thus, an allegation of suppression and fraud, without any particulars, is being levelled. It is sought to be introduced in the arguments for the first time. While it is true that fraud vitiates everything from inception, but what the law demands is the particulars of a fraud. The particulars have to be pleaded and thereafter the necessary ingredients so as to constitute fraud have to be proved. If that fraud is not pleaded and established in this manner, then, this doctrine, in vague and general terms, is of no assistance. It cannot be, therefore, resorted to by the State to defeat a just and legitimate claim. The Claimant, therefore, need not be called upon to prove the negative. If that fraud is not pleaded and established in this manner, then, this doctrine, in vague and general terms, is of no assistance. It cannot be, therefore, resorted to by the State to defeat a just and legitimate claim. The Claimant, therefore, need not be called upon to prove the negative. Once the State of Maharashtra has miserably failed to establish and prove fraud even though pleaded belatedly, then, there is no obligation on the Claimant to place any material in rebuttal. Thus, new grounds, new pleas and new aspects are being introduced without there being any foundation for the same either in the pleadings or otherwise. For these reasons, Mr. Vashi would submit that the appeal of the State be dismissed and the Award to the extent not challenged by the Claimant in the separate appeal should also be maintained. 23. Alternatively and without prejudice Mr. Vashi would submit that the order of the learned single Judge has awarded all the claims except extra over-heads and loss of expected profits, reimbursement for escalation in prices of high speed diesel, cement and steel etc., except bitumen; the excess excavation work due to landslide and shifting of alignment and finally difference in rates and costs on account of additional work ordered. Mr. Vashi would submit that Build Operate and Transfer (“BOT” for short) concept was introduced by the Central and State Governments under the Public Private Partnership Model for short known as 3 Ps (PPP Model). In this, the Government stipulates the technical criteria for construction of a facility and the bidder has to quote the concession period for collecting toll. The bidder has to construct, operate and maintain the facility at his own cost. In turn, he is allowed to collect toll from users of the facility during the concession period to enable the bidder to recover investment, including profit. The deciding factor for award of the contract is the concession period and the bidder quoting the lowest concession period is awarded the contract. The bidder has to work out all the costs. He has to consider the pros and cons and then to quote the concession period. He has to prepare a cash flow based on the costs. A typical agreement of this nature was highlighted by Mr. The bidder has to work out all the costs. He has to consider the pros and cons and then to quote the concession period. He has to prepare a cash flow based on the costs. A typical agreement of this nature was highlighted by Mr. Vashi and he would submit that in the present case, the Government of Maharashtra invited bids on the above basis for construction of Mumbra Bypass from kilometer 133/800 to kilometer 138/200 of Mumbai-Pune Road N.H. No.4. The concession period quoted was for six years and nine months, which included construction period of two years and the work was to commence from 18th August, 2000. The contract contained financial details and early cash flow statement as per Form Nos.2, 3, 4, 5 and 6 and the interest agreed compounded annually was to be expressly set out. Once such was the nature of the contract and with the requisite forms and details in place, then, Mr. Vashi submits that the Claimant expected all the preparatory ground work to be completed and the site ready for commencement of the contract work. However, there was a delay in completion of the project as the land was not acquired, encroachments were not removed, both of which was the obligation and duty of the State. In the meanwhile, the State ordered several additional works (variations) like construction of four under-passes, railway over-bridge, via duct, retaining walls etc. In addition, the additional amount was required to be spent for shifting of utilities. The construction of additional works, additional payment for land acquisition and shifting of utilities pursuant to variation orders from the Executive Engineer were the issues taken up pending finalisation of the supplementary agreement between the parties. Since there was a dispute regarding the rate of extra works, escalation, damages like overheads and profit, idling of machineries, revision of rates etc., due to extended concession period / delay, the parties signed a supplementary agreement wherein the revised project cost was considered at Rs.78.55 crores. The concession period was revised to ten years four months and twenty five days, but all without prejudice to the settlement of claims separately. The Claimant was not agreeable to execute the supplementary agreement. It was not satisfied with the terms proposed and compensation offered. It had already submitted a comprehensive statement of claims. The concession period was revised to ten years four months and twenty five days, but all without prejudice to the settlement of claims separately. The Claimant was not agreeable to execute the supplementary agreement. It was not satisfied with the terms proposed and compensation offered. It had already submitted a comprehensive statement of claims. However, there was a reconciliation and it was agreed that the supplementary agreement be signed pending finalisation of the claims and that the claims raised by the respondent-contractor / Claimant would be processed separately. He would submit that there is a document to this effect Exhibit C-45. The work as per revised scope of the supplementary agreement could not be completed within the period stipulated in this agreement. That was entirely due to the continuing breaches on the part of the State Government. Several additional works were further ordered after signing of the supplementary agreement which necessitated additional time for execution and extension of concession period. The work proposed to be completed in two years was finally completed on 25th December, 2007. This much time was consumed entirely because of the impediments and additional works ordered by the State Government. The cost was Rs.229 crores. The State also granted extension of time till 25th December, 2007, without levy of any penalty on the Claimant. A completion certificate was issued, but even thereafter, the variations like widening of side shoulders near Toll Plaza etc., were ordered. These were ordered after opening of the facility on 28th December, 2007, as recorded in paragraph 26(i) of the Award in Reference No.1. After relying upon the arbitration clause / agreement and its broad wording, Mr. Vashi would submit that the disputes which arose between the parties were first referred by the Claimant to the Superintending Engineer who duly accepted them. In turn, he forwarded them to the Secretary in the Public Works Department. Further, the Secretary in the Public Works Department forwarded them for the financial approval to the Secretary, Finance. These claims were not rejected as was suggested, but the said Secretary put in a Note recommending review of the BOT Policy. The Claimant, not being satisfied with the decision offering a concession period of twenty four years nine months and twenty eight days, invoked the arbitration clause. The claims of the Claimant raised before the Tribunal and as highlighted in Reference No.1 were allowed. The Claimant, not being satisfied with the decision offering a concession period of twenty four years nine months and twenty eight days, invoked the arbitration clause. The claims of the Claimant raised before the Tribunal and as highlighted in Reference No.1 were allowed. The Arbitral Tribunal awarded majority of them whereas the learned single Judge disallowed part of them. 24. Thus, Mr. Vashi would submit that the learned single Judge rightly upheld part of the Award, namely, for claim Nos.4, 5, 6 and 8 in Mumbra Bypass Reference No.1. He also rightly turned down the objection to the jurisdiction of the Arbitral Tribunal. 25. Mr. Vashi has also tendered a written Note to buttress his argument that individual claims also have been rightly awarded and to the extent indicated above. Mr. Vashi relied upon his written arguments / submissions and particularly highlighted paragraphs 2.1 to 2.4 to submit that the appeal of the State is devoid of merits and deserves to be dismissed. 26. To the extent indicated in this written Note and particularly at page 31 thereof, the learned senior counsel would submit that insofar as Reference No.2 is concerned, there as well, the order of the learned single Judge to the extent challenged by the State, requires no interference. 27. Thus, Mr. Vashi argued that part of the Award was rightly upheld by the learned single Judge (Claim Nos.4, 5, 6 and 8). To the extent it has not been upheld but interfered with, Mr. Vashi would submit that there is a separate appeal. 28. That is an appeal by the Claimant and presently we do not refer to the contentions therein. 29. Mr. Vashi would submit that in the State's appeal to the extent the learned single Judge upholds the above claims in the Award is concerned, the sufficiency or adequacy of the materials claim-wise cannot be gone into by this Court. Mr. Vashi would submit that on every single aspect of this individual claims, particularly excess excavation due to landslide and shifting of alignment, difference in rates and costs on account of additional work, extra over-heads and loss of expected profit, and reimbursement for escalation in price of high speed diesel, cement and steel etc., except bitumen, the Claimant-contractor placed oral and documentary evidence which has been appraised and appreciated by the Arbitral Tribunal. That appreciation and appraisal of these materials by the Arbitral Tribunal has not been interfered with by the learned single Judge. Thus, a petition under section 34 of the Arbitration & Conciliation Act, 1996, taking recourse against an arbitral award is not an appeal against the same. The Award can be set side only on the specified grounds and there is no power outside the said provision which would enable the Court to interfere with the Award. Once the learned single Judge in terms of his powers under section 34 of the Arbitration & Conciliation Act, 1996, refuses to interfere with the Award, then, in further appeal this Court cannot travel or go beyond the powers conferred by the above provision in the Arbitration & Conciliation Act, 1996. This Court cannot then deal with individual claims and find out whether there was adequate and sufficient material placed in support of the same by the Claimant-contractor and whether that has been appraised and appreciated by the Arbitral Tribunal. There is no power which enables reappraisal and re-appreciation of the same materials in our appellate jurisdiction. Once there is no ground made out to interfere with the Award and as provided in law, then, we should uphold both the Award as also the order of the learned single Judge and dismiss this appeal. 30. As far as Mr. Vashi's arguments on the claim of illegal suspension of the toll collection between the period from 1st September, 2010 to 10th September, 2010 and 18th September, 2010 to 15th January, 2011, on the basis of some complaints is concerned, the argument is that there was no provision for suspension of toll collection in clause 3.8.1(d) or under any provision of the contract. The toll collection could not have been suspended during the operation period. The Government has relied upon clause 7 of the General Conditions of Contract to contend that toll suspension was justified. The Claimant relied on clause 3.8.1 and urged that if the Executive Engineer of the State was not satisfied with the maintenance of the road by the Claimant, he was at liberty to get the maintenance done at the risk and cost of the entrepreneur. That, however, does not authorise the State Government to suspend toll collection. It is on these lines and after perusing the clauses that the learned single Judge rightly upheld this Award. That, however, does not authorise the State Government to suspend toll collection. It is on these lines and after perusing the clauses that the learned single Judge rightly upheld this Award. He held that there was no justification for suspending the toll collection. There was no negligence or lack of care in road maintenance. The toll collection could not be suspended under any contractual provisions and that in the absence of any specific provision in the contract, the Chief Engineer was not within his rights to order such suspension. Thus, this is a view taken by the Arbitral Tribunal and the learned single Judge of the aforementioned and other clauses of the contract. So long as this view is a possible one and not vitiated by utter perversity or error of law apparent on the face of the Award, we have no jurisdiction to interfere with it. In such a situation, we must proceed to uphold the Award on Reference No.2 as well. 31. On that count we must notice the other appeal of the State Government which was argued by Mr. N.V. Walawalkar, learned senior counsel. 32. Mr. Walawalkar submitted that Appeal No.145 of 2017 is directed against that part of the order of the learned single Judge where he dismissed the State of Maharashtra's challenge to the arbitral Award. He would submit that the view taken by the Arbitral Tribunal and the learned single Judge is not a possible view. Such a view cannot be taken given the express terms and conditions of the contract. Mr. Walawalkar would submit that if we see points a, b and c framed by the Arbitral Tribunal and the discussion thereon at page 46 of the appeal paper-book, namely, Appeal No.145 of 2017 and points d and e and the discussion thereon, it is evident that the Claimant had argued that there is no power in the State Government to suspend toll collection and he relied upon clause 3.8.1. However, if the argument is that the toll collection has been unlawfully and wrongly suspended, then, the loss sustained on account of such suspension would have to be established and proved. That loss is taken and computed in terms of money. There was no proof of actual loss placed before the Tribunal. Mr. Walawalkar would submit that clause 3.4.19 does not cover the situation and the cash flow statement would not be relevant. That loss is taken and computed in terms of money. There was no proof of actual loss placed before the Tribunal. Mr. Walawalkar would submit that clause 3.4.19 does not cover the situation and the cash flow statement would not be relevant. That statement is relevant only in cases covered by clause 3.9. As far as the loss on account of suspension of toll collection is concerned, no evidence was led by the Claimant. The finding that this claim deserves to be upheld, is totally perverse. That finding is rendered by relying on clause 3.9 which is wholly inapplicable. 33. Alternatively, and without prejudice Mr. Walawalkar would submit that inconsistent findings have been rendered. When clause 3.8.1 is not applicable at all, then, the view taken cannot be said to be a possible or plausible one. In the circumstances, Mr. Walawalkar would submit that the appeal be allowed and the Award, to the extent indicated above, be set aside. 34. The above completes the narration of the nature of the dispute, the materials in relation thereto, the appreciation and appraisal thereof by the Arbitral Tribunal and the ultimate finding and conclusion in the Award. The above narration also sets out the nature of the challenge before the learned single Judge. 35. We will come to the Claimant's appeal a little later. However, as far as the two State appeals are concerned, with the assistance of Mr. Samdani, Mr. Walawalkar and Mr. Vashi we have perused the appeal paper-book, the written notes of arguments, the compilations and the decisions relied upon. 36. As far as the legal parameters are concerned, section 34 of the Arbitration & Conciliation Act, 1996, would have to be first referred. That is reproduced hereinbelow : “34. Application for setting aside arbitral award. — (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). That is reproduced hereinbelow : “34. Application for setting aside arbitral award. — (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (2) An arbitral award may be set aside by the Court only if— (a) the party making the application furnishes proof that - (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, (iii) failing any indication thereon, under the law for the time being in force; or (iv) 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 (v) 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: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (vi) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that— (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India. Explanation-1 — For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if - (i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basis notions of morality or justice. Explanation-2 – For the avoidance of any doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute. (2-A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award : Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by re-appreciation of evidence. (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. (4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award. (5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement. (6) An application under this section shall be disposed of expeditiously and in any event within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the party.” 37. The ambit and scope of the powers conferred by this provision on a court to set aside the arbitral Award would have now to be noted. First of all, the provision enables seeking recourse against the arbitral Award. The ambit and scope of the powers conferred by this provision on a court to set aside the arbitral Award would have now to be noted. First of all, the provision enables seeking recourse against the arbitral Award. The arbitral Award can be set aside if the party brings before the Court, proof or materials as enumerated in the first part of the proviso, namely, section 34(2)(a) of the Act. The second part enables the Court to exercise powers to set aside the Award. 38. Since the Award is essentially challenged on the ground that it violates public policy, we would have to refer to the judgment of the Hon'ble Supreme court in the case of Associate Builders vs. Delhi Development Authority, reported in (2015) 3 SCC 49 , wherein the Hon'ble Supreme enumerated the legal principles as under : “... … … … 17. It will be seen that none of the grounds contained in sub-clause 2 (a) deal with the merits of the decision rendered by an arbitral award. It is only when we come to the award being in conflict with the public policy of India that the merits of an arbitral award are to be looked into under certain specified circumstances. … … … … 19. When it came to construing the expression "the public policy of India" contained in Section 34(2) (b) (ii) of the Arbitration and Conciliation Act, 1996, this Court in ONGC v. Saw Pipes, 2003 (5) SCC 705 , held : (SCC pp. 727-28 & 744-45, paras 31 & 74) "31. Therefore, in our view, the phrase "public policy of India" used in Section 34 in context is required to be given a wider meaning. It can be stated that the concept of public policy connotes some matter which concerns public good and the public interest. What is for public good or in public interest or what would be injurious or harmful to the public good or public interest has varied from time to time. However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/decision is likely to adversely affect the administration of justice. However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/decision is likely to adversely affect the administration of justice. Hence, in our view in addition to narrower meaning given to the term "public policy" in Renusagar case [1994 Supp (1) SCC 644] 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. 74. 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. (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. 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. (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." 20. The judgment in ONGC v. Saw Pipes Ltd. has been consistently followed till date. 21. In Hindustan Zinc Ltd. vs. Friends Coal Carbonisation, this Court held: (SCC p. 451, para 14) "14. The High Court did not have the benefit of the principles laid down in Saw Pipes [ (2003) 5 SCC 705 ], and had proceeded on the assumption that award cannot be interfered with even if it was contrary to the terms of the contract. It went to the extent of holding that contract terms cannot even be looked into for examining the correctness of the award. This Court in Saw Pipes [ (2003) 5 SCC 705 ] has made it clear that it is open to the court to consider whether the award is against the specific terms of contract and if so, interfere with it on the ground that it is patently illegal and opposed to the public policy of India." 22. In McDermott International Inc. v. Burn Standard Co. In McDermott International Inc. v. Burn Standard Co. Ltd., this Court held: (SCC pp. 209-10, paras 58-60) “58. In Renusagar Power Co. Ltd. V General Electric Co. 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 (c) 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. vs. Brojo Nath Ganguly 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. 59. 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. 60. What would constitute public policy is a matter dependent upon the nature of transaction and nature of statute. However, we would consider the applicability of the aforementioned principles while noticing the merits of the matter. 60. What would constitute public policy is a matter dependent 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 Rajasthan v. Basant Nahata)" 23. In Centrotrade Minerals & Metals Inc. v Hindustan Copper Ltd. Sinha, J., held: (SCC p. 284, paras 103-104) "103. Such patent illegality, however, must go to the root of the matter. The public policy, indisputably, should be unfair and unreasonable so 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." 104. What would be a public policy would be a matter which would again depend upon the nature of transaction and the nature of statute. For the said purpose, the pleadings of the parties and the materials brought on record would be relevant so as to enable the court to judge the concept of what was a public good or public interest or what would otherwise be injurious to the public good at the relevant point as contradistinguished by the policy of a particular government. (See State of Rajasthan v. Basant Nahata)" … … … 27. Coming to each of the heads contained in the Saw Pipes judgment, we will first deal with the head "fundamental policy of Indian Law". It has already been seen from the Renusagar judgment that violation of the Foreign Exchange Act and disregarding orders of superior courts in India would be regarded as being contrary to the fundamental policy of Indian law. To this it could be added that the binding effect of the judgment of a superior court being disregarded would be equally violative of the fundamental policy of Indian law. To this it could be added that the binding effect of the judgment of a superior court being disregarded would be equally violative of the fundamental policy of Indian law. 28 In a recent judgment, ONGC Ltd. v. Western Geco International Ltd., this Court added three other distinct and fundamental juristic principles which must be understood as a part and parcel of the fundamental policy of Indian law. The Court held- (SCC pp. 278-80, paras 35 & 38-40) 35. What then would constitute the "fundamental policy of Indian law" is the question. The decision in ONGC does not elaborate that aspect. Even so, the expression must, in our opinion, include all such fundamental principles as providing a basis for administration of justice and enforcement of law in this country. Without meaning to exhaustively enumerate the purport of the expression "fundamental policy of Indian law", we may refer to three distinct and fundamental juristic principles that must necessarily be understood as a part and parcel of the fundamental policy of Indian law. The first and foremost is the principle that in every determination whether by a court or other authority that affects the rights of a citizen or leads to any civil consequences, the court or authority concerned is bound to adopt what is in legal parlance called a "judicial approach" in the matter. The duty to adopt a judicial approach arises from the very nature of the power exercised by the court or the authority does not have to be separately or additionally enjoined upon the fora concerned. What must be remembered is that the importance of a judicial approach in judicial and quasi-judicial determination lies in the fact that so long as the court, tribunal or the authority exercising powers that affect the rights or obligations of the parties before them shows fidelity to judicial approach, they cannot act in an arbitrary, capricious or whimsical manner. Judicial approach ensures that the authority acts bona fide and deals with the subject in a fair, reasonable and objective manner and that its decision is not actuated by any extraneous consideration. Judicial approach in that sense acts as a check against flaws and faults that can render the decision of a court, tribunal or authority vulnerable to challenge. … … … 38. Judicial approach in that sense acts as a check against flaws and faults that can render the decision of a court, tribunal or authority vulnerable to challenge. … … … 38. Equally important and indeed fundamental to the policy of Indian law is the principle that a court and so also a quasi-judicial authority must, while determining the rights and obligations of parties before it, do so in accordance with the principles of natural justice. Besides the celebrated audi alteram partem rule one of the facets of the principles of natural justice is that the court/authority deciding the matter must apply its mind to the attendant facts and circumstances while taking a view one way or the other. Non-application of mind is a defect that is fatal to any adjudication. Application of mind is best demonstrated by disclosure of the mind and disclosure of mind is best done by recording reasons in support of the decision which the court or authority is taking. The requirement that an adjudicatory authority must apply its mind is, in that view, so deeply embedded in our jurisprudence that it can be described as a fundamental policy of Indian law. 39. No less important is the principle now recognised as a salutary juristic fundamental in administrative law that a decision which is perverse or so irrational that no reasonable person would have arrived at the same will not be sustained in a court of law. Perversity or irrationality of decisions is tested on the touchstone of Wednesbury principle of reasonableness. Decisions that fall short of the standards of reasonableness are open to challenge in a court of law often in writ jurisdiction of the superior courts but no less in statutory processes wherever the same are available. 40. It is neither necessary nor proper for us to attempt an exhaustive enumeration of what would constitute the fundamental policy of Indian law nor is it possible to place the expression in the straitjacket of a definition. 40. It is neither necessary nor proper for us to attempt an exhaustive enumeration of what would constitute the fundamental policy of Indian law nor is it possible to place the expression in the straitjacket of a definition. What is important in the context of the case at hand is that if on facts proved before them the arbitrators fail to draw an inference which ought to have been drawn or if they have drawn an inference which is on the face of it, untenable resulting in miscarriage of justice, the adjudication even when made by an Arbitral Tribunal that enjoys considerable latitude and play at the joints in making awards will be open to challenge and may be cast away or modified depending upon whether the offending part is or is not severable from the rest." 29. It is clear that the juristic principle of a "judicial approach" demands that a decision be fair, reasonable and objective. On the obverse side, anything arbitrary and whimsical would obviously not be a determination which would either be fair, reasonable or objective. 30. The audi alteram partem principle which undoubtedly is a fundamental juristic principle in Indian law is also contained in Sections 18 and 34 (2)(a)(iii) of the Arbitration and Conciliation Act. These Sections read as follows : "18. Equal treatment of parties.- The parties shall be treated with equality and each party shall be given a full opportunity to present his case. … … … 34. Application for setting aside arbitral award. - (1) … … … (2) An arbitral award may be set aside by the Court only if- (a) the party making the application furnishes proof that- … … … (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;" 31. The third juristic principle is that a decision which is perverse or so irrational that no reasonable person would have arrived at the same is important and requires some degree of explanation. It is settled law that where: (i) a finding is based on no evidence, or (ii) an arbitral tribunal takes into account something irrelevant to the decision which it arrives at; or (iii) ignores vital evidence in arriving at its decision, such decision would necessarily be perverse. … …. ... 36. It is settled law that where: (i) a finding is based on no evidence, or (ii) an arbitral tribunal takes into account something irrelevant to the decision which it arrives at; or (iii) ignores vital evidence in arriving at its decision, such decision would necessarily be perverse. … …. ... 36. The third ground of public policy is, if an award is against justice or morality. These are two different concepts in law. An award can be said to be against justice only when it shocks the conscience of the court. An illustration of this can be given. A claimant is content with restricting his claim, let us say to Rs. 30 lakhs in a statement of claim before the arbitrator and at no point does he seek to claim anything more. The arbitral award ultimately awards him 45 lakhs without any acceptable reason or justification. Obviously, this would shock the conscience of the court and the arbitral award would be liable to be set aside on the ground that it is contrary to "justice". … … … 40. We now come to the fourth head of public policy namely, patent illegality. It must be remembered that under the explanation to Section 34(2) (b), an award is said to be in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption. This ground is perhaps the earliest ground on which courts in England set aside awards under English law. Added to this ground (in 1802) is the ground that an arbitral award would be set aside if there were an error of law by the arbitrator. This is explained by Lord Justice Denning in R v. Northumberland Compensation Appeal Tribunal ex p Shaw. (All ER. p.130 D-E: KB p. 351) "Leaving now the statutory tribunals, I turn to the awards of the arbitrators. The Court of King's Bench never interfered by certiorari with the award of an arbitrator, because it was a private tribunal and not subject to the prerogative writs. If the award was not made a rule of court, the only course available to an aggrieved party was to resist an action on the award or to file a bill in equity. If the award was not made a rule of court, the only course available to an aggrieved party was to resist an action on the award or to file a bill in equity. If the award was made a rule of court, a motion could be made to the court to set it aside for misconduct of the arbitrator on the ground that it was procured by corruption or other undue means (see Statutes 9 and 10 Will. III, c. 15). At one time an award could not be upset on the ground of error of law by the arbitrator because that could not be said to be misconduct or undue means, but ultimately it was held in Kent v. Elstob, that an award could be set aside for error of law on the face of it. This was regretted by Williams, J., in Hodgkinson v. Fernie, but is now well established." … … … 42. In the 1996 Act, this principle is substituted by the 'patent illegality' principle which, in turn, contains three sub heads - 42.1 (a) A contravention of the substantive law of India would result in the death knell of an arbitral award. This must be understood in the sense that such illegality must go to the root of the matter and cannot be of a trivial nature. This again is a really a contravention of Section 28(1)(a) of the Act, which reads as under: "28. Rules applicable to substance of dispute.-(1) Where the place of arbitration is situated in India,- (a) in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India;" 42.2 (b) A contravention of the Arbitration Act itself would be regarded as a patent illegality - for example if an arbitrator gives no reasons for an award in contravention of Section 31(3) of the Act, such award will be liable to be set aside. 42.3 (c) Equally, the third sub-head of patent illegality is really a contravention of Section 28(3) of the Arbitration Act, which reads as under : "28. Rules applicable to substance of dispute. 42.3 (c) Equally, the third sub-head of patent illegality is really a contravention of Section 28(3) of the Arbitration Act, which reads as under : "28. Rules applicable to substance of dispute. -(1) – (2) … … … (3) In all cases, the Arbitral Tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction." This last contravention must be understood with a caveat. An arbitral tribunal must decide in accordance with the terms of the contract, but if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that the award can be set aside on this ground. Construction of the terms of a contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way that it could be said to be something that no fair minded or reasonable person could do.” 39. We are mindful of the fact that the learned single Judge has to apply the very principles while considering the challenge or recourse to the instant arbitral Award. 40. Before we proceed further, we would like to deal with the contentions of Mr. Samdani that during the course of the arbitral proceedings, the Claimant kept back and suppressed from the Tribunal, documents or did not produce complete set of documents which amounts to fraud and that vitiates the Award. 41. This argument concerns the Office Note which was prepared pursuant to the Claimant's invocation of the arbitration. The argument is that the complete copy of this Office Note was not produced before the Arbitral Tribunal by the Claimant. It produced only three pages of the Marathi version of the Office Note. Alternatively and without prejudice it is argued that the aforesaid incomplete Office Note (Exhibit C-109) was produced as a part of the rejoinder filed by the Claimant to the Statement of Defence before the Arbitral Tribunal and for a different reason and in a different context. Even before this Court in appeal, where an English translation of the said Office Note is submitted, that is incomplete. Then, a draft of the Notification pursuant to this Office Note was prepared for being submitted to the Department of Law & Judiciary, Government of Maharashtra for their approval so that the same could be sent for publication. Even before this Court in appeal, where an English translation of the said Office Note is submitted, that is incomplete. Then, a draft of the Notification pursuant to this Office Note was prepared for being submitted to the Department of Law & Judiciary, Government of Maharashtra for their approval so that the same could be sent for publication. This document was not produced before the Arbitral Tribunal and further the Office Note prepared for seeking approval for sending a Notification for publication post approval from the Department of Law & Judiciary was also not produced before the Arbitral Tribunal. 42. Mr. Samdani relied upon a compilation styled as Convenience Compilation and and Mr. Vashi agreed that we can make a reference to it. This Convenience Compilation contains, according to Mr. Samdani, the material and relevant documents and we should, according to him, refer to it. 43. The document at page 50 was on record of the Tribunal as Exhibit C-109 and it is on the subject of approval to the revised construction period. The document opens with a letter dated 8th October, 2009, addressed by the Chief Engineer, Public Works Division, Mumbai. This communication was forwarded to the Finance Department and it suggested that it should be placed before the Standing Committee of the Government. However, it was found that once there is a dispute redressal mechanism in the form of arbitration, then, it was decided that it would not be proper to place the same before the Standing Committee and, in terms of the request made by the Claimant so also in the light of clause 3.4.17, the Arbitral Tribunal had been appointed. 44. Insofar as that subject is concerned, the claims of the Claimant as also the additional works proposed by the Division through the proposal were considered and it was found that the concession period was stipulated as twenty four years two months and seventeen days. Now that the proposal will have to be placed before the Tribunal, neither the claims of the Claimant nor the proposal for additional works can be placed before the Finance Department. It was found that the toll collection Notification is to come to an end on 11th September, 2010. In the meanwhile, the proceedings before the Tribunal and its conclusion is likely to take some time. It was found that the toll collection Notification is to come to an end on 11th September, 2010. In the meanwhile, the proceedings before the Tribunal and its conclusion is likely to take some time. It was thought fit that during the pendency of the proceedings, there should not be any disruption in the toll collection. Therefore, the demands which were placed before the Finance Department apart, whether the revised construction period should be approved or not requires consideration. Thus, it was found that the proposal in relation to revised construction period be considered independently. That is how the Department proceeded. It proceeded on the lines that if the proposal in relation to the revised construction period is approved, then, the period for toll collection can be determined and within this period even the Arbitral Tribunal will render the Award. It is in these circumstances there was a discussion with the Minister of Finance and Planning, Principal Secretary, Finance and the Deputy Secretary in the concerned Department. In terms of the discussions, a revised proposal was prepared and it had been placed for approval. After referring to the nature of the contract, the terms and conditions and the matters which are considered while drawing up the revised construction proposal, it was proposed that this be approved. On a perusal of a complete copy of this Office Note, which is at pages 56 to 61 of the Convenience Compilation, we do not see how the Claimant can be accused of holding back or suppressing the relevant document. The so-called incomplete as well as complete copy has been perused by us. Since we are both familiar with Marathi language, we have carefully perused it with the assistance of the senior counsel. We do not find that had a complete copy been placed, the same could have impacted the arbitral proceedings and to such an extent as complained by Mr. Samdani. 45. We have also perused the Note placed by the Finance Department and its remarks. The Finance Department has not expressly negatived the proposal, but has advised that in such cases and bearing in mind the financial repercussions, the State should proceed cautiously. Our attention has also been invited by Mr. Samdani. 45. We have also perused the Note placed by the Finance Department and its remarks. The Finance Department has not expressly negatived the proposal, but has advised that in such cases and bearing in mind the financial repercussions, the State should proceed cautiously. Our attention has also been invited by Mr. Samdani to the Office Note and from the Convenience Compilation which has been prepared by the Claimant, but we do not find that merely because one or two pages of this Note being not placed, there was prejudice to the State Government or to larger public interest so as to enable us to interfere with the Award. In fact, we find that the proposal has been approved by the Finance Department. In the circumstances, we do not think that the Award can be interfered with. 46. The argument was that the Office Note is dated 21st December, 2009. This Office Note was placed before the appropriate and competent authorities. Even if a complete copy had not been produced, what is evident therefrom is this Office Note and related documents were placed before the Department of Finance and it is stated that on 5th January, 2010, the revised concession period of fourteen years, one month and four days was approved by that Department. This approval was communicated on 22nd January, 2010, to the Chief Engineer of the Public Works Department (Divisional Office), Mumbai. A copy of this communication has also been forwarded to the Claimant. In the teeth of this, we do not see how a charge of holding back documents can be sustained. 47. Secondly, pursuant to this Office Note, a draft of the Notification was prepared for being submitted to the Law & Judiciary Department for its approval so that the same could be sent for publication. This document, even if not produced, cannot have any bearing on the arbitral proceedings and the ultimate Award. We are of the opinion that before an allegation or a serious charge of fraud can be levied, much less substantiated, the State has to lay a foundation for the same in its pleadings. In the pleadings before the Arbitral Tribunal as also in the petition before the learned single Judge, it has not been mentioned that these Notes have a vital bearing on the controversy. In the pleadings before the Arbitral Tribunal as also in the petition before the learned single Judge, it has not been mentioned that these Notes have a vital bearing on the controversy. All that is emphasized and throughout is that given the Notes and approvals, the claims of the contractor-Claimant and his grievances were redressed. The appropriate extensions / reviews in the periods, namely, construction and concession, therefore, enabled the Claimant to recoup or reimburse the expenses of the project. That is an argument which can be canvassed, independent of the production of these Notes or non-production of some of the pages or withholding thereof. By merely saying that these Notes were held back or suppressed, but without proving the aforesaid equally important requirement or element, this charge cannot be sustained. The arguments in that behalf, therefore, ought to fail. Even if after the approval of the Law & Judiciary Department, an Office Note was prepared for seeking approval and sending the Notification for publication, eventually we will have to consider as to what is the legal consequence of the issuance of the Notification and whether, as alleged by the State and contended before us, everything the contractor claimed or demanded was covered by the terms of this final Notification and the supplementary agreement. 48. Mr. Samdani pertinently does not argue that the final Notification dated 26th February, 2010, extending the period of collection of toll upto 21st September, 2014, with the rates applicable from 1st March, 2010, was not produced. His argument is that this Notification was produced along with an application dated 28th June, 2011, but without any foundation or basis. 49. The argument on fraud is that the Claimant has attempted to conceal and suppress the two documents before the Arbitral Tribunal in adjudication of its claim for damages on account of delays and other claims upto the date of completion of the project. These claims were set out in the Claimant's letters of 5th December, 2007 and 11th August, 2009, leading to the issuance of the final Notification. The claims were accepted in the Office Note pursuant to which a Notification extending the concession period for toll collection was granted. Thus, the Claimant was successful, according to Mr. These claims were set out in the Claimant's letters of 5th December, 2007 and 11th August, 2009, leading to the issuance of the final Notification. The claims were accepted in the Office Note pursuant to which a Notification extending the concession period for toll collection was granted. Thus, the Claimant was successful, according to Mr. Samdani, in preventing the State and the Arbitral Tribunal from considering the two material documents being the Office Note dated 21st December, 2009 and the Notification dated 26th February, 2010, which have a complete bearing on all the claims made before the Tribunal. Thus, what bearing these documents have on the claim of the Claimant / contractor can still be argued and irrespective of the alleged non-production of a complete document. The incomplete document may have been produced, but eventually the appellant-State must establish and prove as to how it affected the claim of the Claimants and because of the Notes and the final Notification the claims stood satisfied. That is sought to be demonstrated and established by urging that there was a complete accord and satisfaction and nothing remained due and payable to the Claimant–contractor on account of issuance of the final Notification. We do not see how an argument of fraud can be build when the stand of the State Government is throughout shifting and unclear. It tries to rest the case of fraud on non-production or rather suppression of the documents which have a vital bearing on the claim of the contractor, but at the same time, the State argues that once these Notes lead to the issuance of the final Notification, by that Notification being issued and accepted, the claims of the Claimant do not survive. That there is a complete accord and satisfaction. We do not, therefore, feel obliged to consider this aspect of the matter any further. All the more, once the flip-flop on the part of the State is brought to the fore. The State, with equal vehemence, has argued that the Claimant has taken the benefit of the Notification and continued to collect the toll till the extended period under the Notification. The claims were continued to be placed before the Arbitral Tribunal though they stood satisfied. Importantly, Mr. Samdani argues that the effect of the Notification and acceptance thereof by the Claimant amounts to a complete accord and satisfaction of all claims before the Tribunal. The claims were continued to be placed before the Arbitral Tribunal though they stood satisfied. Importantly, Mr. Samdani argues that the effect of the Notification and acceptance thereof by the Claimant amounts to a complete accord and satisfaction of all claims before the Tribunal. It is in these circumstances we proceed to reject the argument canvassed by Mr. Samdani. 50. Equally untenable is the other argument which we must reject and that is that the Claimant-contractor placed before the Tribunal, the Notification, but without any foundation. Once the final Notification was a material document and that was evidently produced, then, everything that leads to issuance of the Notification is a matter of internal administration and governance need not be produced by the Claimant-contractor. All that he was relying upon is the stand of the Government that the Claimant-contractor has not given up his claim as raised in the two letters. The Claimant-contractor was pressing the claims very much before the Arbitral Tribunal as it had invoked the arbitration on 1st October, 2009 and had already filed its Statement of Claim dated 20th December, 2009. The Claimant never argued that it is withdrawing its claim before the Arbitral Tribunal or that there is no need to make any reference of its claim to the Arbitral Tribunal. Instead, it maintained that despite the Notification and other developments, there has never been a satisfaction of his claims. Once this was a stand of the Claimant and the answer to it of the State was that there was complete accord and satisfaction, then, all the more every allegation and charge of suppression and fraud must fail. The decisions of the Hon'ble Supreme Court and relied upon to buttress the submissions on the issue of fraud or suppression of material documents etc., are distinguishable. Mr. Samdani has conceded that the State, in the petition under section 34 of the Arbitration & Conciliation Act to challenge the Award, had pleaded a ground that by the Notification, the period of concession for toll was extended. That ground could not be canvassed in the absence of a back-up document, namely, the Office Note which was suppressed. We do not feel so. The Notification was required to be seen, according to Mr. Samdani, in the context of the Office Note which considered the claims and extended the period of toll collection. That ground could not be canvassed in the absence of a back-up document, namely, the Office Note which was suppressed. We do not feel so. The Notification was required to be seen, according to Mr. Samdani, in the context of the Office Note which considered the claims and extended the period of toll collection. We do not think so because the Notification speaks for itself. If issuance of that Notification was accepted as a full and final settlement of all the claims of the contractor, then, it was possible for the State to have resisted the Reference before the Arbitral Tribunal by bringing on record corroborative evidence. If indeed there was complete accord and satisfaction and in a contract of such magnitude involving huge claims, definitely there would have been an agreement or writing in that behalf. Relying upon that writing or agreement, it was possible for the State to resist the claim of the contractor. In any event, the final Notification itself could have been construed and interpreted by the State and which interpretation and construction of this Notification by the State would have definitely been considered by both the Tribunal and the learned single Judge. Apart therefrom, we have allowed Mr. Samdani to argue and satisfy us as to how by issuance of this Notification and its bringing on record, may be without the supporting or leading documents, the claims of the contractor stood satisfied. Once we have allowed the State despite its alleged handicap to prove such accord and satisfaction, then, all the more, we are disinclined to accept the arguments as culled out in the Note No.3 dated 26th September, 2017 and the additional written argument tendered on 18th November, 2017. 51. The next argument is that the Claimant accepted the benefits under the Note and Notification without demur or reservation. The Claimant was estopped from contending that its claims were still outstanding and is, therefore, approbating and reprobating or changing its version from time to time. 52. In that regard we have carefully perused the final Notification. A copy of the same is to be found in all the compilations and we would take it from the compilation of the State itself. It is urged that a copy of this final Notification is to be found at page 93 of the Convenience Compilation handed in. 52. In that regard we have carefully perused the final Notification. A copy of the same is to be found in all the compilations and we would take it from the compilation of the State itself. It is urged that a copy of this final Notification is to be found at page 93 of the Convenience Compilation handed in. Page 93 of this Convenience Compilation reads as under : “PUBLIC WORKS DEPARTMENT Mantralaya, Mumbai 400 032, dated the 26th February 2010 NOTIFICATION BOMBAY MOTOR VEHICLES ACT, 1958 No.PSP.2003/CR-218/LB-2/Road-9.-In exercise of the powers conferred by sub-sections (1-A), (1-B), (1-C), (1-D) and (1-E) of section 20 of the Bombay Motor Vehicles Tax Act, 1958 (Bom. LXV of 1958), and in supersession of the Government Notification, Public Works Department, No.PSP.2003/CR-218/LB-2/Road-9, dated 27th December, 2007 and of all other powers enabling it in that behalf, the Government of Maharashtra hereby declares that the toll shall be levied on the classes of motor vehicles specified in column (2) of the Schedule appended hereto and on the trailers drawn by such motor vehicles, passing through Mumbra-Kausa Bypass on the Mumbai-Pune Road, National Highway Number 4, from kilometer 133/800 to kilometer 138/200 in Thane District, which is improved under the “Build, Operate and Transfer (BOT) Scheme” by M/s. Atlanta Limited, Mumbai at their expenses, at the rates and for the periods specified against each of the said motor vehicles, in column (3) of the said Schedule, with effect from the 1st March, 2010 to the 21st September, 2014, at the toll collection centre at kilometer 5/000 on the Mumbra-Kausa Bypass Road :- Schedule Sr. No. Particulars of Motor Vehicles Rate of Toll per trip (in Rupees) 01-03-2010 to 31-03/2010 01-04-2010 to 31-03-2013 01-04-2013 to 21-09-2014 1. Motor cycle, Scooter, Moped or any other two wheeler, Tractor and Tractor with unladen trolley, Auto-Rickshaw permitted to carry three passengers excluding driver. Nil Nil Nil 2. Light Motor Vehicles as defined in the Motor Vehicles Act, 1988 (59 of 1988), - (a) Car, Jeep (having carriage capacity upto twelve passengers excluding driver) such as Tata Sumo, Trax, Commander, Six Seater Rickshaw (Tum-Tu,_ etc. 20:00 25:00 30:00 (b) Mini Bus or any other similar vehicle (having carriage capacity of more than twelve and upto twenty passengers, excluding driver) and goods carriage vehicles except vehicles vehicles included in entries at serial numbers 3 and 4 below. 30:00 40:00 45:00 3. 20:00 25:00 30:00 (b) Mini Bus or any other similar vehicle (having carriage capacity of more than twelve and upto twenty passengers, excluding driver) and goods carriage vehicles except vehicles vehicles included in entries at serial numbers 3 and 4 below. 30:00 40:00 45:00 3. Truck, Buses 65:00 75:00 90:00 4. Heavy goods vehicles and heavy passenger motor vehicles as defined in the Motor Vehicles Act, 1988 (59 of 1988), such as Truck/Trailers-combination, Multi-axle Vehicles etc., except vehicles covered by the entry at serial number 3 above 110:00 130:00 155:00 Notes.- (1) Concession in rates of toll are as given below, namely :- (a) 10 per cent rebate will be given to the purchase or booklet containing 50 coupons in advance. (b) 20 per cent rebate will be given to the purchase of booklet containing 100 coupons in advance. (c) For frequently travelling vehicles return and daily pass will be 1.5 times and 2.5 times of their respective one way travel rates. Return journey pas and daily pass will be valid upto 12:00 hours at midnight for the day of issuing the pass. (d) The rates of monthly pass will be 50 times of their respective one way travel rates. 2. The following types of vehicles are exempted from payment of toll, namely:- (i) VVIP vehicles carrying President of India, Vice-President of India, Governor of State, Public Representatives entitled for red lamp on their vehicles. (ii) Vehicles carrying sitting members of Parliament, Maharashtra Legislative Assembly and Maharashtra Legislative Council. (iii) State and Central Government Vehicles. (iv) Defence Vehicles. (v) Police Department Vehicles. (vi) Post and Telegraph Department Vehicles. (vii) Ambulance, Hearses. (viii) Fire Fighting Vehicles. 3. The above mentioned rates shall be displayed on boards clearly visible to the people in the vicinity of the Toll Stations. A receipt shall be passed on each and every occasion of recovery of toll. 4. For the purpose pf this Notification, M/s. Atlanta Limited, Mumbai, is authorized to collect and retain the amount of toll at the above mentioned toll collection centre.” 53. A receipt shall be passed on each and every occasion of recovery of toll. 4. For the purpose pf this Notification, M/s. Atlanta Limited, Mumbai, is authorized to collect and retain the amount of toll at the above mentioned toll collection centre.” 53. A perusal of this Notification leaves us in no doubt that in exercise of the powers conferred by the Bombay Motor Vehicles Tax Act and in supersession of the Government Notification of the Public Works Department dated 27th December, 2007, and of all other powers enabling it in that behalf, Government of Maharashtra declared that toll shall be levied on the class of motor vehicles specified in column No.2 of the Schedule appended to this Notification and on the trailers drawn by such motor vehicles passing through Mumbra-Kausa Bypass on the Mumbai Pune Road, National Highway No.4 from kilometer 133/00 to kilometer 138/200 in Thane District. That is improved under the BOT scheme by the Claimants at their expenses. The toll collection would be at the rates and for the period specified against each of these motor vehicles in column No.3 of the said Schedule with effect from 1st March, 2010 to 21st September, 2010 at the Toll Collection Centre at kilometer 5/000 on this Bypass road. This is only a Notification enabling levy of toll by superseding the earlier Notification dated 27th December, 2007 on the vehicles and for the period specified therein from the date enlisted therein. This also authorizes the Claimant to collect and retain the amount of toll at the Toll Collection Centre. 54. If this Notification and the authority to collect toll and the actual collection in pursuance thereof satisfies all the claims of the Claimant-contractor and hence there is complete accord and satisfaction, then, that aspect had to be proved by the appellant-State. It is clear that this is a defence to the claim of the Claimant before the Arbitral Tribunal. It is resisting that claim that the State came out with a positive case as noted above in addition to the denials in its written statement of defence. It was squarely, therefore, upon the State to establish and prove how this Notification satisfies the claims before the Arbitral Tribunal and, therefore, the pending References ought to be disposed of by merely issuance of such Notification and the acceptance of its terms by the Claimant-ATLANTA. It was squarely, therefore, upon the State to establish and prove how this Notification satisfies the claims before the Arbitral Tribunal and, therefore, the pending References ought to be disposed of by merely issuance of such Notification and the acceptance of its terms by the Claimant-ATLANTA. We do not think that the Claimant was estopped from urging that the claims were still outstanding. This is not a case of approbate and reprobate. If that was the position and by issuance of the above a closure brought about to the References pending before the Arbitral Tribunal, then, once again there would have been an express document or writing in that behalf. Nothing of that nature is produced either before the Tribunal or before the learned single Judge or before us. Hence, we do not think that there is any substance in the appellant's plea of the Claimant approbating and reprobating. Even that plea must fail. More so, when several alternate and without prejudice arguments have also been canvassed at the same time by the State. 55. The alternate and without prejudice arguments then concern the claims which have been awarded by the learned single Judge by maintaining the Award. Those are the claims excluding change in Income tax laws (subsequent legislation), reimbursement of royalty charges, reduced productivity from plant and machinery due to idling. The claims, though awarded by the Arbitral Tribunal under these heads, the Award to that extent has been interfered with by the learned single Judge. In other words, to that extent, the Award is set aside. These claims are made subject matter of challenge by the Claimant-contractor in its substantive appeal and we shall make a reference to the same a little later. 56. We are on the claims of the Claimant which were awarded by the Arbitral Tribunal and the Award to that extent is maintained or, at least, untouched by the learned single Judge. Insofar as that aspect is concerned, we have heard Mr. Samdani appearing on behalf of the appellant-State and Mr. Vashi. 57. The argument of Mr. Samdani is that the cost of excavation in landslide area and towards hillock, not contemplated in the original project, was required to be carried out by the Claimant. This excess work had to be reimbursed. The cost for this excess work needs to be reimbursed as additional scope of work. Vashi. 57. The argument of Mr. Samdani is that the cost of excavation in landslide area and towards hillock, not contemplated in the original project, was required to be carried out by the Claimant. This excess work had to be reimbursed. The cost for this excess work needs to be reimbursed as additional scope of work. The State Government issued a variation order for this work and certified the additional work carried out, at the rate agreed. Mr. Samdani relied upon clause 3.6.6 of the BOT contract appearing at page 128 of the Convenience Compilation and submitted that the Claimant maintained that these works were carried out, but they are not agreeable to accept the sum certified in full and final settlement. The written statement of the State Government refers to the acceptance of the claim under this head to the extent of Rs.181.03 lakhs. The defence was there was no excavation work carried out but only loading, unloading and transportation of murum was required. However, according to Mr. Samdani, the Arbitral Tribunal has allowed the claim to the extent of Rs.716.62 lakhs on the strength of documentary evidence (Exhibit C-100). Mr. Samdani would urge that the recommendation vide this document cannot be treated as unqualified admission or an admission on which a claim can be awarded. The recommendations are made to the State Government through proper channels, but they are not binding on the State Government. They are merely recommendations and, at best, views. If they were subjected to an approval from the State Government it is apparent that, that recommendation was expressly rejected. Hence this document could not have been the sole basis for awarding the claim. 58. Alternatively it is argued that there is no documentary evidence to support the Claimant's case that it, in fact, undertook excavation. Landslide involves removal of debris which gets accumulated. That does not obviously involve excavation. The rates for transportation were provided in the Departmental Supply Rates (DSR). Mr. Samdani would argue that there is no evidence independent of the same produced and with regard to quantity of material excavated. Thus, a claim which was not at all proved and substantiated has been awarded by the Arbitral Tribunal. Such an Award should have been, therefore, set aside by the learned single Judge. He fell in error in not setting aside the same. 59. Mr. Thus, a claim which was not at all proved and substantiated has been awarded by the Arbitral Tribunal. Such an Award should have been, therefore, set aside by the learned single Judge. He fell in error in not setting aside the same. 59. Mr. Vashi, however, would submit that there was enormous material on record to substantiate and prove this claim. Mr. Vashi has relied upon the order of the learned single Judge insofar as this aspect is concerned. 60. The learned single Judge in paragraph 24.1 of the order under challenge referred to the claim. He held that this was a variation claim. The Claimant pointed out that during the construction of bypass, some excavation was noted in a real estate adjoining the bypass, endangering the safety of the bypass. Some of these constructions caused landslides. As a result, the alignment was shifted towards the hill side. This necessitated construction of an additional retaining wall in landslide area, the cost of which was taken into consideration for additional scope of work. However, the Claimant urged that it was further required to incur an extra cost of excavation in landslide area and towards the hillock which was not within the contemplation of the parties in the additional scope of work. It was the Claimant's case that this cost was required to be reimbursed to them. The State contested this claim by relying on clause 3.4.19 of the General Conditions of Contract. The Superintending Engineer had recommended this claim in the sum of Rs.744.43 lakhs for consideration of the State, but it was not considered. After scrutiny, during arbitration, the State Government accepted the claim to the extent of Rs. 181 lakhs. 61. However, the Claimant produced original measurement books maintained bilaterally as well as certificates. The learned Arbitrators noted that the relevant facts, namely, shifting of the alignment and landslides having taken place were admitted. The quantity of extra excavation and transportation were recorded in the measurement books maintained and were not in dispute. The rate applied was the tendered rate. Then, the contractual provisions are referred in paragraph 24.2 of the order of the learned single Judge. It was based on all this that the Superintending Engineer prepared his estimate in the recommendation made by him. The Arbitrators have accepted this claim. The rate applied was the tendered rate. Then, the contractual provisions are referred in paragraph 24.2 of the order of the learned single Judge. It was based on all this that the Superintending Engineer prepared his estimate in the recommendation made by him. The Arbitrators have accepted this claim. The Arbitrators rejected the State Government's contention that the work involved only shifting as urged above and not excavation. Therefore, the rate payable according to the State Government was 51.70/cum (which was exclusive of excavation). The learned single Judge held that the view taken by the Arbitrators is clearly possible. It is based on a reasonable and proper interpretation of the contract. It is also supported by the material on record. 62. The learned single Judge held that there is no legal infirmity in either the admissibility of the claim or its assessment in value. Thus, no infirmity can be found with this part of the above order. 63. With the assistance of both sides, we have perused the Award, particularly the discussion on this point. It is evident from the Award that there was a foundation laid for this claim. There was also a denial in the written statement on behalf of the State Government. The Arbitral Tribunal also referred to (in paragraph 25.8 of the Award) the rejoinder of the Claimant in which the plea raised was that the State Government has accepted both entitlement of the Claimant to the relief sought in this regard as also the fact that the claim was recommended for acceptance to the State Government by the concerned Department, but it was only on account of the objection raised by the Finance Department that the admitted amount was determined at Rs.181.03 lakhs as against the earlier agreed sum of rs.744.43 lakhs. 64. Pertinently, the Claimant did not rely only on this part of the pleadings, but urged that there was a difference in the rates claimed by the Claimant and those admitted by the State Government. Besides this, the State Government has considered additional quantity involved due to shifting of the alignment of the road. However, that the shifting of the alignment and landslides have indeed taken place is an admitted fact. Thus, there was a clear reliance placed on measurement books maintained bilaterally as also the recommendation of the Chief Engineer. We are, therefore, not in agreement with Mr. However, that the shifting of the alignment and landslides have indeed taken place is an admitted fact. Thus, there was a clear reliance placed on measurement books maintained bilaterally as also the recommendation of the Chief Engineer. We are, therefore, not in agreement with Mr. Samdani that the sole basis for awarding this claim is the recommendation of the Chief Engineer. That would be an incorrect approach insofar as consideration of this claim. The entirety of the documentary evidence has been into consideration by the Tribunal and it has extensively referred not only to this Exhibit C-100, but several other materials brought on record. In addition, the contract clauses have also been interpreted. There are two variation orders for the landslide. The first one for landslide was upto the year 2005 and the second one for landslide was for the years 2005 to 2007. This amount was recommended and submitted to the Government of Maharashtra under letter No.7241 dated 25th November, 2006, by the departmental officials and that is Exhibit C-100. The Claimant had included the cost of excavation, but the respondent-State Government reiterated that there is no cost of excavation incurred. It is not just the Chief Engineer who recommended the claim as borne out by Exhibit C-93, but it is also the Secretary in the Public Works Department who forwarded this claim with his endorsement to the Finance Department as is evident from this document. The Superintending Engineer is the competent authority under clause 3.4.17 to give a decision and his decision is final and binding. The State Government did not contest this position that clause 3.4.17 could have been invoked. Thus, the claim has to be decided based on the agreed terms and conditions of the said contract. Besides, and in addition, there was an admission of the relevant facts. Above all, there were entries in the measurement book. In the backdrop of these materials and relying upon clause 3.6.6 of the General Conditions of Contract, which provided that all the items included in the variation order would be valued at DSR rates prevailing at the time of variation order plus 15% but the provision of 22% in the analysis of rates by the Claimant is based on Form-6. Form-6 is the bill submitted by the Claimant provided for 22% charges and that is clearly reproduced in clause (d) of paragraph 25.10 of the Award. Form-6 is the bill submitted by the Claimant provided for 22% charges and that is clearly reproduced in clause (d) of paragraph 25.10 of the Award. Thus, the Claimant had to spend 22% over and above the basic rate of the item and any extra work to be carried out by the Claimant is to attract the charges and the percentage over and above the rate. The Arbitral Tribunal rejected the argument of the State Government that the Claimant is entitled to 15% charges only. Thus, rejecting the arguments of the State Government to the contrary, but in the backdrop of the contents of the admitted documents, the claim has been awarded. 65. We, therefore, do not see any perversity in either the Arbitral Tribunal awarding this claim or the learned single Judge upholding the Award to that extent. 66. None of the decisions relied upon by Mr. Samdani, on the point that entries in the file and records or comments and remarks thereunder do not constitute an admission of liability or the factual matters, can be of assistance in this case. It is purely on facts and peculiar to the claim that the Arbitral Tribunal awarded the same in favour of the Claimant and directed the State Government to make payment. Hence these decisions are distinguishable on facts. 67. Then Mr. Samdani would argue and very extensively with regard to the claim of interest. 68. Mr. Samdani would submit that the claim of interest of the Claimant is founded on the basis that the cash flow statement (Form-6 Page 160 of the Convenience Compilation) originally agreed between the parties and forming part of the BOT contract reflects rate of interest at 20% per annum. The Claimant argued that in breach of the same, the State considered the rate of 18.89% per annum and 18.33% per annum for the calculation of the concession period on account of the additional work ordered in the supplementary agreement. According to the Claimant, the calculation deserves to be done at 20% per annum. Mr. Samdani urged before us that there was a fundamental error in the approach of the Tribunal insofar as the determination of the rate of interest. The rate determined by the Tribunal contravenes the written contract and the stipulation therein. The contract provides for interest to be compounded equally in projected cash flow. Mr. Samdani urged before us that there was a fundamental error in the approach of the Tribunal insofar as the determination of the rate of interest. The rate determined by the Tribunal contravenes the written contract and the stipulation therein. The contract provides for interest to be compounded equally in projected cash flow. In a projected cash flow which is subjected to change and which is further subjected to change if the prime lending rate of the Reserve Bank of India is lower, then, in the absence of contra material, particularly indicating the rate of interest paid to the bankers, the Award could not have been for interest at 20%. Thus, there was a formula based on which the cash flow would be worked. This is subject to other parameters being satisfied. The Tribunal has mechanically lifted the rate of interest indicated in the projection instead of determining it on independent materials. No documentary evidence was produced by the Claimant showing its sanctions from the banks and payment of interest to the banker for the subject project. Mr. Samdani urged that, in any event, in a situation like this, there is no contractual rate of interest and when the Award is for damages. Thus, the matter ought to be considered on the basis that there is no contract between the parties for payment of interest, but the provisions of the substantive law, namely, The Interest Act, would apply. This law does not justify payment of interest at 20%. In the circumstances, the impugned Award suffers from non application of mind and is thus liable to be set aside. Mr. Samdani relied upon paragraph 19 of the judgment of the Hon'ble Supreme Court in Associate Builders (supra). 69. The Tribunal considered the matter and in paragraph 26.6 it held that the Superintending Engineer of the State Government, Public Works Department, is the final authority as per clause 3.7.14 for taking decisions for settlement of disputes. The claim was recommended by the Superintending Engineer at 20% interest. There was a comment by the Tribunal on the conduct of the State Government to lower the interest rate below 20% when State Bank of India's prime lending rate was favourable and not to agree to the rate higher than 20% when it was unfavourable. This conduct was termed as de hors contractual provisions. There was a comment by the Tribunal on the conduct of the State Government to lower the interest rate below 20% when State Bank of India's prime lending rate was favourable and not to agree to the rate higher than 20% when it was unfavourable. This conduct was termed as de hors contractual provisions. More so, when the contract provided for Reserve Bank of India's rate and not State Bank of India's rate as considered by the State Government. The Tribunal, therefore, held that the Claimant is entitled to 20% interest. 70. We find that the learned single Judge in paragraph 26.1 of the order under challenge considered this aspect of the matter. He held that the Arbitral Tribunal has granted pendente lite interest and post Award interest on the amount of the Award at 20%. This rate is in accordance with the provisions of the contract, namely, the concession agreement. It requires no interference. 71. Pertinently in the arbitration petition before the learned single Judge, the only contention raised in paragraph 3.67 was that the Tribunal failed to consider clause 3.7.11 of the General Conditions of Contract. As per that clause, in case of change in lending rates by the Reserve Bank of India, the concession period stipulated in the contract shall be re-worked with suitable adjustments for the changed rates based on the cash flow statement/project statement of loss and repayment. The other contention was that the Claimant has signed supplementary agreement which stipulates the rate of interest at 18.33% from the fourth year onwards. 72. The reply to this paragraph, particularly paragraph 3.67 by the Claimant is that none of the materials are ignored and which are relevant and germane for the claim. In fact, the contention of the Claimant was clause 3.7.11 reveals that the rate of interest by the Reserve Bank of India was the applicable one, but the State Government considered the rate of interest by State Bank of India in the supplementary agreement. That was protested by the Claimant. That was at the time of execution of the supplementary agreement. By consent, this dispute was referred to the Tribunal. The Arbitral Tribunal, therefore, rendered the subject Award. Now they cannot turn around and question this finding of the Arbitral Tribunal. 73. That was protested by the Claimant. That was at the time of execution of the supplementary agreement. By consent, this dispute was referred to the Tribunal. The Arbitral Tribunal, therefore, rendered the subject Award. Now they cannot turn around and question this finding of the Arbitral Tribunal. 73. There was a without prejudice argument canvassed and that is even when the State Bank of India's medium term lending rate went up and became unfavourable at 20.42% per annum, the Claimant agreed to interest rate at 20%. Even the Superintending Engineer, relying on clause 3.4.17, gave a decision and which is final, conclusive and binding. The further document Exhibit C-101 which was considered by the Tribunal together with other materials which are extensively referred in paragraph 50 of the reply to the arbitration petition pages 435 and 436 of the paper-book, denote that there is no substance in the complaint of Mr. Samdani. We do not think that the interest rate is so excessive or exorbitant as would shock the conscience of this Court. The Award is, therefore, not liable to be interfered with. 74. Then the argument was with regard to variation in the rates of bitumen. The claim in relation to this was considered by the Tribunal on the basis of clause 3.6.7 of the BOT contract. The Claimant urged that it is entitled to compensation on account of the variation in the rates of bitumen. Mr. Samdani complained once again that the Arbitral Tribunal has allowed this claim to the extent allegedly admitted by the State and in that regard he invites our attention to paragraph 26.8 of the Award. He urged that the learned single Judge erred in upholding the decision of the Arbitral Tribunal insofar as this claim. In that regard, our attention is invited to the finding of the Arbitral Tribunal to the effect that there are entries in the measurement book with regard to bitumen. There is a recommendation of the Superintending Engineer. However, Mr. Samdani would submit that on the Claimant's documents there is no measurement as far as the quantum of bitumen is concerned. Further, the book in regard thereto, which was produced but not proved or exhibited, has been erroneously relied upon to award this claim. Mr. Samdani, therefore, complains that this claim as well is awarded on the basis of an admission, but that is not unqualified or unconditional. Further, the book in regard thereto, which was produced but not proved or exhibited, has been erroneously relied upon to award this claim. Mr. Samdani, therefore, complains that this claim as well is awarded on the basis of an admission, but that is not unqualified or unconditional. He would submit, therefore, that this claim should not have been awarded at all. We are unable to agree with Mr. Samdani and for more than one reason. Mr. Samdani says that there was no material before the Arbitral Tribunal insofar as this claim is concerned. We have carefully considered the submission in this regard. The Tribunal referred to clause 3.6.7 of the agreement (Exhibit C-103). It also referred to the recommendation of the Superintending Engineer admitted in the counter statement at page No.12. The tribunal held that as against the amount claimed by the Claimant, namely, Rs.322.45 lakhs, the Superintending Engineer admitted that Rs.244.50 lakhs are payable. The Tribunal, therefore, concluded that this is a virtual admission by the State Government. Therefore, it proceeded to award Rs.244.50 lakhs. 75. We have referred to the Convenience Compilation tendered by Mr. Samdani and we find from the same that there was indeed a clause therein (clause 3.6.7). In fact, clause 3.6 itself is titled as “Variation”. The expression has been defined in the contract to mean an order issued by the Engineer requiring variation, change, modification or alteration in all the general characteristics or any of the design criteria objectives, standard or requirements or the scope of any item or the timing of sequence of the construction covering the entire project. Thus, this would include a variation even insofar as bitumen is concerned for that is an item. By clause 3.6.2 it is the Engineer who can order the variation and if that order does not involve any material change or scope in the nature of the project, then, the further stipulation after the Engineer proposes to issue a fresh variation order is to be found in clause 3.6.3. Clause 3.6.4 says that it will be open even for entrepreneur to propose a variation and in terms of this clause. By clause 3.6.5 approval by the Engineer of a variation proposed by the entrepreneur is not otherwise expressly agreed to constitute a variation order or in itself entitle the entrepreneur to an adjustment to a completion date. Clause 3.6.4 says that it will be open even for entrepreneur to propose a variation and in terms of this clause. By clause 3.6.5 approval by the Engineer of a variation proposed by the entrepreneur is not otherwise expressly agreed to constitute a variation order or in itself entitle the entrepreneur to an adjustment to a completion date. The effect of this variation is then set out in clause 3.6.6. That requires the valuation of the items included in the variation order at the rates of items included with the agreement and in the absence of rates prevailing at the time of the variation order plus fifteen percent. Importantly, suitable rates or prices shall be agreed between the Superintending Engineer and the entrepreneur for items not covered in the DSR. In the event of disagreement, the Chief Engineer shall fix such rates or prices as shall, in his opinion, be reasonable and proper. Clause 3.6.7 is titled as “Escalation” and clause 3.6.7.2 expressly refers to variation in rates of bitumen. It says that the concession period will be adjusted to cover additional amount payable on account of variation in rates of bitumen. In the teeth of these materials, we do not see how Mr. Samdani can complain that there was no liability to pay the amount or that the same could not have been awarded on the basis of the recommendation of the Superintending Engineer. Apart therefrom, we do not find that the learned single Judge also was pursuaded to interfere given the contractual stipulations. The learned single Judge had, in paragraph 25(G) titled as “Difference in the rates and cost as claim and allowed on account of additional work ordered” considered even bitumen. In clause 25.1 the claim was referred and in clause 25.2 the entire claim in relation to additional work ordered was considered by the learned single Judge. In paragraph 25.3 the learned single Judge held that in many of these items, as a matter of principle, the claims were admitted by the State in the arbitration. In fact, in its statement before the Arbitral Tribunal, the State admitted that as per the actual work done by ATLANTA, the claim on account of the anti-crash barrier for Rs.162.50 lakhs was justified. Even for additional work after opening of the road, the claim of Rs.27.86 lakhs was accepted by the State in the arbitration. In fact, in its statement before the Arbitral Tribunal, the State admitted that as per the actual work done by ATLANTA, the claim on account of the anti-crash barrier for Rs.162.50 lakhs was justified. Even for additional work after opening of the road, the claim of Rs.27.86 lakhs was accepted by the State in the arbitration. On the other hand, no comments were offered by the State on the variation of the rate of bitumen for which an escalation payment of Rs.244.50 lakhs was recorded in the measurement book. The learned Judge held that the main dispute was relating to the claim of 22% additional mark-up over and above DSR rates. The Arbitrators' conclusion, according to the learned single Judge, is based on a possible interpretation of the contract. It is not liable to be interfered with. Thus, the learned single Judge considered the claims under the above head and found that even with regard to bitumen, one cannot make any departure from the accepted principle that the Arbitral Tribunal is free to interpret the terms of the contract and if that interpretation is a possible one, then, it cannot be termed as perverse or vitiated to the extent permitted by the parameters based on which an Award can be interfered with by the Court in its jurisdiction under section 34 of the Arbitration & Conciliation Act, 1996. We are surprised that with all this background and the admitted factual position noted by the Arbitral Tribunal and the learned single Judge, we are called upon to interfere in our appellate jurisdiction with the finding of the learned single Judge. We see no merit in the contentions of Mr. Samdani and we proceed to reject them. 76. Mr. Samdani would bring to our notice every claim by dividing it into individual head. Even in relation to the claim that an anti-crash barrier was ordered as a variation for which the Claimant claimed Rs.217.40 lakhs, the argument was that the State Government stated that the Claimant only provided the anti-crash barrier for a shorter running length than claimed and, accordingly, the claim was admissible only to the extent of Rs.162.50 lakhs. However, the Arbitral Tribunal awarded Rs.217.40 lakhs on the footing that there was a recommendation of the Superintending Engineer (Exhibit C-104). We do not think that we should go on dissecting the claims awarded in the manner suggested by Mr. Samdani. However, the Arbitral Tribunal awarded Rs.217.40 lakhs on the footing that there was a recommendation of the Superintending Engineer (Exhibit C-104). We do not think that we should go on dissecting the claims awarded in the manner suggested by Mr. Samdani. On all such claims that are awarded, the Arbitral Tribunal as also the learned single Judge have noted that there are no materials produced by the State to refute the factual averments in the claim petition. A general or a vague denial in the teeth of the recommendations of the Superintending Engineer could not, therefore, have been taken into consideration. Such an approach of the Arbitral Tribunal cannot, therefore, be termed as perverse. The conclusion in this regard from paragraph 26.0 to paragraph 26.9 thus cannot be termed as perverse. The Tribunal has assigned reasons because the amount which was accepted by the Superintending Engineer as payable has been awarded (Exhibit C-104 at page 485 in claimant's documents – Volume III). Even the learned single Judge has found that once the work has been carried out admittedly, then, there was no perversity in accepting and relying upon the recommendations of the Superintending Engineer. Thus, the entire amount claimed could have been awarded. 77. Similar is the position with regard to escalation, supervision charges, design and construction charges and contingencies for DSR and non-DSR items to the extent of 22% but the calculated rates in terms of the supplementary agreement are inclusive of the percentage mentioned above and, therefore, the claim was denied. The Claimant filed a rejoinder. 78. The Tribunal took the view that 22% was not considered in the supplementary agreement and that the claim of Rs.465.23 lakhs has been accepted by the Superintending Engineer. Once again, the learned single Judge has held that this is a possible view of the contractual losses and stipulations. We do not find that we should allow Mr. Samdani to argue now that this claim could not have been awarded in the light of the supplementary agreement. Mr. Samdani submits that a perusal of the supplementary agreement and more particularly Annexure-II thereof would reveal that 22% increase claimed by the Claimant has been considered. 79. If one peruses this supplementary agreement, it is evident therefrom that the same was executed for additional work. Mr. Samdani submits that a perusal of the supplementary agreement and more particularly Annexure-II thereof would reveal that 22% increase claimed by the Claimant has been considered. 79. If one peruses this supplementary agreement, it is evident therefrom that the same was executed for additional work. Clause 5 of this agreement says that having regard to the fact that the scope of additional work is a sequel to the existing BOT contract, the Government of Maharashtra decided to entrust this additional work to the Claimant as per the Memorandum of the Government of Maharashtra, Marathi letter dated 13th May, 2004. It is in these circumstances that the agreement was treated as supplementary to the original agreement. By recital No.3 the cost of the project for additional work as per the Government of Maharashtra Memorandum dated 13th May, 2004, and the provision of the variation clause No.3.6 of the existing BOT agreement and mutually agreed between the parties comes to Rs.29,00,05,189/-. The total project cost is also worked out to Rs.58,68,80,094/- only. The scope of work for the entire project is enclosed as Annexure-I, whereas the revised and amended document for the entire project (Form-6 revised) are at Annexure-II pages 9 to 12. Annexure-I to this agreement at pages 7 to 8 sets out the scope of additional work. Annexure-II sets out the details of the project cost. It is stated that this would cover the claim of 22%. The Tribunal found that a perusal of these pages 9 to 12 did not consider this claim. We do not think that we should indulge in this exercise and as is suggested now by Mr. Samdani. We do not think that the Award is contrary to the supplementary agreement under which the extra items were confirmed, including the escalation claim of 22%. Mr. Samdani would submit that the escalation on tender item 10% added 15% on DSR item as per clause 3.6, added 5% supervision charges on tender items, added 2% design and construction charges on tender items and added 5% miscellaneous charges on tender item would cover this 22%. We see that Mr. Samdani's argument overlooks the addition of 15% on DSR item as per clause 3.6.6. Thus, to our mind, therefore, the Tribunal has taken a possible view and the Award or the order of the learned single Judge cannot be termed as contravening the supplementary agreement. 80. We see that Mr. Samdani's argument overlooks the addition of 15% on DSR item as per clause 3.6.6. Thus, to our mind, therefore, the Tribunal has taken a possible view and the Award or the order of the learned single Judge cannot be termed as contravening the supplementary agreement. 80. Even with regard to measures recommended by the Traffic Police, we find that the State Government issued variation orders and accepted the cost of the same at Rs.111.03 lakhs. The State Government sought to argue that certain safety measures were recommended by the Traffic Police, but the Claimant did not complete the entire work. It completed only a part thereof. The State Government urged that some part of the safety measures ordered were not maintained and did not serve any purpose. The State Government contended, therefore, that the Claimant is entitled only to Rs.27.86 lakhs. However, the Tribunal went into this aspect by noting that in the rejoinder, the Claimant stated that the work had been executed in accordance with the variation order, for part of the work was yet to be executed and kept on hold since the revised concession period incorporating this variation order had not been recorded despite the follow up by the Claimant. Further, it denied the other allegation of the State Government. Once again, the Superintending Engineer recommended the claim in its entirety. That is how the Award granted it. Thus, in every claim and every aspect thereof, we find that common argument and namely that the State's admission of the claim is not unqualified but conditional. No such conditional part of the recommendation is highlighted before the Tribunal or the learned single Judge. On every occasion, the same contention has been canvassed and it has been rejected by holding that there has been no qualification nor the acceptance can be termed as conditional. The recommendation has been taken into consideration in its entirety and finding that the Superintending Engineer of the Public Works Department is the person making the recommendation, then, such recommendations coupled with other materials on record, cannot be brushed aside. We do not see why we should go on claim-wise and consider the conclusions in that order once the reasoning on every claim is on these lines. In the circumstances, even with regard to the claim on account of alleged price escalation in high speed diesel, cement and steel etc. We do not see why we should go on claim-wise and consider the conclusions in that order once the reasoning on every claim is on these lines. In the circumstances, even with regard to the claim on account of alleged price escalation in high speed diesel, cement and steel etc. is concerned, the Arbitral Tribunal held that it is not possible to agree that the BOT contract permitted escalation only with respect to bitumen. On the other hand, clause 3.6.7.1, which we have referred, says that if the additional work is ordered and if there is an order to that effect, then, the claims can be considered. The claims are for escalation. Those were not prohibited in terms of the contract and the interpretation placed by the Arbitral Tribunal is upheld by the learned single Judge. To our mind, therefore, there is no merit in the arguments of Mr. Samdani. 81. Finally, for the extra overheads and loss of expected profit, the claim is founded on the basis that due to the delay in construction of the project, the Claimant has incurred a loss of overheads and profits at 20% of the construction cost. Reliance was placed by the Claimant on its Chartered Accountant's certificate and an analysis of the rates of key items of the project. Mr. Samdani criticized this approach by terming that these are self-serving documents and particularly when the State Government has disputed the right of the Claimant to raise such a claim. At the same time, Mr. Samdani does not dispute that the State Government gave its own workings. The Arbitral Tribunal has allowed this claim on the ground that the percentage of profits and overheads stand substantially proved and that the State Government has extended the construction period without levy of penalty. Thus, it admits that the delay was attributable to it. Mr. Samdani would urge that there is no independent proof of the claim, particularly the actual quantum of overheads and profits lost. We do not think that now we should permit such an argument when the contents of the Chartered Accountant's certificate which was tendered and exhibited in evidence could have been questioned by the State. Mr. Samdani would urge that there is no independent proof of the claim, particularly the actual quantum of overheads and profits lost. We do not think that now we should permit such an argument when the contents of the Chartered Accountant's certificate which was tendered and exhibited in evidence could have been questioned by the State. That they were so questioned and were tried to be falsified, but the State Government did not succeed in that endeavour, is the opinion of the Arbitral Tribunal, then, we do not think that we should allow the State Government to argue now to the contrary. A technical objection is raised that the Chartered Accountant who issued the certificate was not produced as a witness to prove the certificate. Firstly, this argument belies the fact that the Indian Evidence Act has no application to the proceedings before the Arbitral Tribunal. Secondly, if the principles underlying the same are applicable and attracted, then, the State could have objected to the exhibition of this document, namely, the certificate of the Chartered Accountant and it being read in evidence. Thirdly and finally, the State could have resisted summoning of this Chartered Accountant for cross-examination by it. Apart therefrom, there was other material (Exhibit C-115) which also has been taken into consideration. That is the analysis of rates of key items of the project and which was also read in evidence without any serious objection by the State Government. We do not see, therefore, how we can interfere with this concurrent finding of fact. In the sense, the Award of the claim being confirmed by the learned single Judge. That was done by independent reasoning. That means that no grounds and of the above nature are now available. 82. Having considered the claims individually, we find that we cannot interfere with the Award as urged by the State Government. Now, what remains for consideration is the argument on behalf of the State Government and very seriously canvassed, namely, that the effect of the concession period has been ignored and even the supplementary agreement. 83. Mr. 82. Having considered the claims individually, we find that we cannot interfere with the Award as urged by the State Government. Now, what remains for consideration is the argument on behalf of the State Government and very seriously canvassed, namely, that the effect of the concession period has been ignored and even the supplementary agreement. 83. Mr. Samdani urged before us and with all pursuasive ability at his command that even if one accepts that the agreement was signed under protest and reservation and the Claimant would be entitled to raise the claims despite this agreement, the claimants must give credit for the extension in concession period i.e. toll collection period granted under this supplementary agreement. No such credit was ever given by the Claimant. The Award as part of claim No.5 of 22% escalation is liable to be interfered with according to Mr. Samdani because it contravenes the supplementary agreement itself. 84. In that regard one must also consider Mr. Samdani's argument that the Claimant could not have relied upon the alleged admissions in the written statement or the affidavit of evidence or the Office Notes / recommendations / internal communications and such reliance is completely misplaced. The specious argument is that the written statement is filed prior to the final Note and Notification. All the internal Notes and/or recommendations and/or communications are prior to the final Note and the Notification. We have already referred to the supplementary agreement. We now wish to further elaborate its terms. 85. There is, in the sequence of events itself, an admission that the BOT is dated 12th July, 2000. 18th August, 2000 is the work order issued to the Claimant whereas the original stipulated date for completion of the construction in terms of the BOT contract is dated 17th August, 2002. 86. Exhibit C-86 is a letter dated 5th December, 2007, addressed to the Superintending Engineer by the Claimant. This is on the subject of claims in the light of delays in the project due to reasons beyond the Claimant's control. This letter makes reference to eleven prior letters between both sides. This letter ends after summarising the claims as under : “Prayer: All the above claims and contentions raised by us have been brought to the notice of Competent Authority at about the relevant time for consideration. This letter makes reference to eleven prior letters between both sides. This letter ends after summarising the claims as under : “Prayer: All the above claims and contentions raised by us have been brought to the notice of Competent Authority at about the relevant time for consideration. The claims were submitted vide our letter No.AIL/MUM-A31(v)1299/2004 dated 07.07.2004, reserving the right to submit the updated claims. We request you to kindly consider our claims and approve the same and issue amendment to the Concession Agreement for the revised concession period as detailed in Annexure-'E'.” 87. Thus, this letter itself makes it clear that all the claims were submitted as far back as on 7th July, 2004, reserving the right to submit the updated claims. Then follows a letter dated 11th August 2009 by which the dispute resolution mechanism as provided for in the agreement clause 3.4.17(iii) was invoked. By this letter also, the Claimant reiterated that the earlier letter of 5th December, 2007, portion of which we have reproduced above, should be noted and the letter of 11th August, 2009, reiterates the contents of that letter. 88. Then, in the claim petition before the Tribunal also it was stated that none of the claims can be said to be given up merely because the supplemental agreement was executed and that there was a further development of the final notice being published, extending the period of collection of toll. It can, therefore, safely be concluded that this was not a waiver by any means of the claims raised by the Claimant. Else, Mr. Samdani would not have argued that the two Notes which were allegedly suppressed before the Tribunal or which were not placed in complete form and the final Notification subsumed all the claims of the Claimant. It would not have then been argued that these would not survive in the light of the extension of the toll collection period. Finally, it was also argued before us by Mr. Samdani that no credit has been given of the amounts collected post such extension. Thus, these are matters which are clearly mixed up by the State and they were not viewed in the manner now projected before us. Be that as it may, the supplementary agreement itself denotes that the entrepreneur has agreed to renew the bank guarantee and referred to in recital 3 of the supplementary agreement. Thus, these are matters which are clearly mixed up by the State and they were not viewed in the manner now projected before us. Be that as it may, the supplementary agreement itself denotes that the entrepreneur has agreed to renew the bank guarantee and referred to in recital 3 of the supplementary agreement. Then in recital 4, it is stated that during the execution of the project it becomes inevitable to augment the scope of work. Hence it was decided to include the works mentioned in recital 4 and that is why the Government of Maharashtra has decided to award the additional work to the present entrepreneur as per Memorandum dated 13th May, 2004. 89. Then come the main covenants and which refer to the revised and amended documents for entire project and in view of the supplemental agreement for additional work the rate of toll to be levied from time to time on vehicles using the said road length being indicated in the new schedule attached as Annexure-VI which shall supersede section 8 of the original agreement on page 42 and shall come into effect after the Notification is issued to that effect on completion of the project. The covenants, obligations or duties of the entrepreneur are set out in recital 6 and then follows the main recital that on completion of the project the entrepreneur shall prepare records, drawings; the original and three plastic laminated copies with a compact digital disc of the same shall be forwarded to the Executive Engineer incharge and for giving full and proper effect to the supplemental agreement. Both agree that the BOT agreement and this agreement shall be deemed to form and be read together and construed harmoniously. 90. To our mind, therefore, it cannot be suggested that the said agreement would make every other material relied upon by the Claimant ineffective and redundant. 91. This does not seem to be the understanding of the parties. Mr. Samdani may suggest this to be an admitted position, but it is evident from the pleadings that despite the Notes and the Notification, the claims of the Claimant survive for adjudication. Else, the Award could not have proceeded as it reads in the instant case. 92. 91. This does not seem to be the understanding of the parties. Mr. Samdani may suggest this to be an admitted position, but it is evident from the pleadings that despite the Notes and the Notification, the claims of the Claimant survive for adjudication. Else, the Award could not have proceeded as it reads in the instant case. 92. It is clear from the Award itself and particularly paragraph 4 thereof that the statement of facts and claims was filed on 20th December, 2009, whereafter the State of Maharashtra filed its statement of defence and counter-claim. On 11th February, 2010, the Claimant filed its rejoinder. The Tribunal has noted that the Claimant denied the existence and contents of the documents marked Exhibits, 7, 8, 11, 13, 20, 26, 31 and 32 in the compilation of documents submitted by the State and marked as RD-I. The respondent-State denied the existence and the contents of the documents at Exhibits C-107, C-108, C-115, C-116, C-119 and C-120 being the documents from the compilation submitted by the Claimant and marked as CD-III. The Claimant produced the originals of the documents marked Exhibit C-107, C-108, C-115, C-116, C-119 and C-120 which were verified by the advocate for the State and thereafter photocopies thereof were admitted in evidence along with other documents not disputed by the State Government, the originals whereof were returned to the Claimant with a direction to retain the same in its custody and produce them in the arbitral proceedings whenever required. If everything was said to be covered by this supplemental agreement and the final Notification or all the Notes preceding thereto, then, the points for determination settled and finalised by the Tribunal at the hearing held on 19th March, 2010, would not have read as under : “(a) Whether the Respondent committed breach / breaches of the terms and conditions of the Contract Agreement No. COM/BOR/1of 2000 – 2001 supplemented by the Supplemental Agreement dated 11th May, 2005 as alleged by the Claimant? (b) Whether any delay in completion of the project was caused by the Claimant? If so, whether the delay in completion of the project was caused due to any default and/or breach on the part of the Respondent? (c) Whether the Claimant has suffered any loss and/or damages as alleged? If so, whether the Respondent is liable to compensate the Claimant for loss and/or damages caused or suffered? If so, whether the delay in completion of the project was caused due to any default and/or breach on the part of the Respondent? (c) Whether the Claimant has suffered any loss and/or damages as alleged? If so, whether the Respondent is liable to compensate the Claimant for loss and/or damages caused or suffered? If so, to what extent? (d) Whether the Claimant is entitled to extension of concession period as claimed? If so, to what extent?” 93. It is apparent that there was an application made for amendment of the statement of facts and claims by the Claimant which was not objected to by the State. Though liberty was granted to file supplemental / additional written statement, the State Government declined to file any such pleading. Both sides agreed to lead oral evidence and, therefore, directions were given for filing affidavits of evidence and that is how the affidavits of the Managing Director of the Claimant and Mr. D.N. Tapekar, Executive Engineer – witnesses of the respondent-State were filed. The Claimant's Managing Director was cross-examined on behalf of the State. Thereafter, even the State's witness was examined and cross-examined. There were amendments made subsequently and particularly in paragraph 9 of the Award there is a reference made to an application for amendment filed by the Claimant. It says that in view of the communication dated 21st April, 2011, received by the Claimant from the State after the Claimant had first amended its statement of facts and claims filed on the basis of the Government Resolution dated 30th July, 2009, now there is prayer for alternate relief. The application was taken on record and at the hearing before the Tribunal held on 21st July, 2011, the State Government made a statement that for calculation of concession period for subject matter of arbitral reference, the rates mentioned in Category II of Annexure-B to the Government Resolution dated 9th January, 2003, would be applied and not the rates mentioned in the Government Resolution of 2009. In view of this statement made by the respondent-State, amendment application was allowed to the extent of calculation of concession period based on Government Resolution dated 9th January, 2003. In paragraph 11, not all the claims (a) to (j) of the Claimant were considered, whereas there was no quantification of the counter claim by the respondent-State. In view of this statement made by the respondent-State, amendment application was allowed to the extent of calculation of concession period based on Government Resolution dated 9th January, 2003. In paragraph 11, not all the claims (a) to (j) of the Claimant were considered, whereas there was no quantification of the counter claim by the respondent-State. After noting the admitted facts, the Tribunal in paragraph 15 observed that the amounts claimed under the express provisions of the said contract read with the provisions of the supplemental agreement and amounts claimed as compensation for losses suffered on account of the breaches of the said contract with the provisions of the supplemental agreement committed by the respondent-State shall be the broad bifurcation. Insofar as the Claimant's claims (a) to (e), they fall in first group, namely, made under the express provisions of the contract read with the provisions of the supplemental agreement, whereas claims (f) to (h) fall in the second group i.e. the claim for compensation for losses suffered on account of the breaches of the contract read with the provisions of the supplemental agreement committed by the respondent-State. Then, in paragraph 16, the Tribunal considered as to whether the State committed breaches of the terms and conditions of the contract and the supplemental agreement and whether any delay in completion of the project was caused by the Claimant or whether that was caused due to any default and/or breach on the part of the State. All the documents together with the foundational pleadings were considered and the Tribunal concluded that the impediments causing delays continue to hinder the programme of the work and out of 5500 meters, about 2280 meters of land was not made available for construction even after the lapse of the original stipulated time for completion of the said project. This fact was placed on record by the Claimant in the application made to the State Government dated 16th August, 2002, seeking extension of time to complete the project. Then, pending finalisation of the additional cost, extension of construction time and concession period, the Claimant executed the additional works in view of the assurances given by the respondent-State against ready orders but the impediments continued. Then, pending finalisation of the additional cost, extension of construction time and concession period, the Claimant executed the additional works in view of the assurances given by the respondent-State against ready orders but the impediments continued. The entire oral and documentary evidence on the point was referred and in paragraph 16.12 the finding of fact is that the Claimant was not responsible for non-completion of the construction work within the original stipulated period of two years. 94. Then, the Claimant's argument was that the work of construction could not be completed on or about 17th May, 2005, as contemplated in the supplemental agreement due to continuing breaches on the part of the State in performing their contractual obligations which have even been communicated to the State at the relevant times. The reasons are also summarised in paragraph 16.13 and it was stated that these issues were discussed at the site with the Chief Engineer on 26th May, 2006, as borne out from the letter dated 29th May, 2006. There is a letter of 29th May, 2006 (Exhibit C-49) in reply to the State's letter dated 20th April, 2006, marked as Exhibit C-48 to the Claimant's compilation of documents – CD-III. 95. In paragraph 16.15 of the Award it was observed that the State Government stated that as far as the Claimant's claim for delay due to non-availability of the traffic and power block from the Central Railway is concerned that is misleading because in the agreement with the Railways, it was made clear from the Railway's side that no claim shall be entertained due to delays in power blocks. Therefore, the Claimant having signed this agreement with the Railways as a witness, this claim is untenable. Then, there are references made by the Tribunal extensively to the documentary evidence and more than a dozen letters from 16th August, 2002 to 31st August, 2006 by the Claimant seeking compensation for the losses incurred on various counts and consequent extension of concession period, but the respondent-State wrongfully alleged that the Claimant had admitted that no claims were outstanding till 12th October, 2006. In that regard, reference was made to the Claimant's letter dated 8th November, 2006, marked as Exhibit C-54. In that regard, reference was made to the Claimant's letter dated 8th November, 2006, marked as Exhibit C-54. The finding of fact is that this evidence on record clearly establishes that hindrances like non-availability of site, non-granting of traffic blocks from Railways, issue of pending variation orders and extension of concession period etc. continued till 2007 and finally the Claimant could complete the work by the end of December, 2007. A provisional completion certificate to the said effect was issued and toll could be levied after the Gazette notification with effect from 28th December, 2007 onwards. All the relevant documents were referred and the finding of fact in paragraph 16.18 and 16.19, is to the effect that the issues regarding delay and responsibility for delay in completion of works stood resolved inasmuch as the State Government granted the extension of time to the respondents for execution of the construction work till 25th December, 2007 for reasons not attributable to the Claimant. Exhibit C-88 is relevant and was justifiably relied upon by the Claimant. Thus, till 25th December, 2007, the work could not be completed, but the Claimant cannot be blamed and the respondent-State Government was held to be in breach of the terms and conditions of the contract read with the supplemental agreement and that no delay in completion of the said project was caused by the Claimant. 96. If this is how the matter proceeded before the Tribunal, then, it is futile to urge that the supplemental agreement subsumes every aspect of the matter or that that was to conclude the pending issues and disputes in relation to which the Claimant approached the Arbitral Tribunal. Far from that, the disputes survived for adjudication as is evident from the above materials. 97. Further, from paragraph 17.1 and while considering the issue of loss and/or damage suffered by the Claimant or whether any compensation was liable to be paid by the Government to the Claimant, that the question of signing the supplemental agreement, the terms thereof was the subject matter of correspondence between the parties since 2002. The Claimant declined to sign this supplemental agreement incorporating certain terms at variance with the contract which new terms were not acceptable to the Claimant. Several letters addressed and from March 2003 till May 2005 and marked as exhibits are referred by the Tribunal. The Claimant declined to sign this supplemental agreement incorporating certain terms at variance with the contract which new terms were not acceptable to the Claimant. Several letters addressed and from March 2003 till May 2005 and marked as exhibits are referred by the Tribunal. The Claimant received a letter dated 4th June, 2004 (Exhibit C-38) from the office of the Chief Engineer of the Public Works Department compelling the Claimant to sign the supplemental agreement with the said Executive Engineer for the additional works for which sanction was accorded by the Government for Rs.29 crores. This letter was replied on 12th June, 2004 (Exhibit C-39) by the Claimant pointing out that the clauses of the proposed supplemental agreement and not acceptable to it are clearly indicated with reasons for non-acceptance. They include the total project cost of additional work as proposed. That is how the request for amendment of the supplemental agreement as also to give details of the variations to be made. Then, there was a meeting and which is referred in paragraph 17.3. That extensively discussed the clauses of the proposed supplemental agreement. The several meetings and resulting in a preparation of a comprehensive statement of claims with the outstanding disputes being submitted are referred by the Tribunal and it concludes that it is the State Government which unilaterally directed the Claimant to deposit Rs.25 lakhs by way of bank guarantee and it was directed to extend the validity of the earlier security deposit / bank guarantee of Rs.50 lakhs till 18th April, 2011. The Claimant was directed to complete the work on or before 17th May, 2005 and commence the toll collection from 18th May, 2005. For all this, the respondent insisted on the signature of the Claimant on this supplemental agreement and the Claimant resisted it terming the same as pressurizing tactics and declined to sign the supplemental agreement in the form proposed by the State Government. For all this, the respondent insisted on the signature of the Claimant on this supplemental agreement and the Claimant resisted it terming the same as pressurizing tactics and declined to sign the supplemental agreement in the form proposed by the State Government. It is evident from the said paragraphs and the pleadings so also the oral and documentary evidence appreciated and appraised by the Tribunal that the State Government finally reconciled and proposed to the Claimant that for the purpose of record, authenticating the additional work being incorporated by way of the supplemental agreement, the Claimant may sign the supplemental agreement pending finalisation of the claims raised by it from time to time, including the terms proposed to be incorporated in the supplemental agreement separately. This clarification was given by the State Government in its letter dated 7th April, 2005 (Exhibit C-45). The State stated that the claims of the Claimant are being processed separately. In the meanwhile and pending finallisation, it was requested to execute the supplemental agreement. Thus, there was absolutely no dispute about all these facts and the Tribunal went on to note that the State admitted that the completion of construction work was delayed on account of it by a period of five years, four months and ten days. As a matter of fact and as per the supplemental agreement, extra work of the said project was to be completed in four years and nine months, namely, upto 17th May, 2005 and which period was extended by the respondent-State upto 27th December, 2007, without levy of penalty. It is in these circumstances that the judicial notice was taken, particularly in days of inflation of the price of materials, labour charges and wages sky-rocketing and the value of rupee going down. That not only escalated the construction cost, but there was also substantial increase in the indirect cost. The contractual stipulations were, therefore, interpreted and in paragraph 17.5 there is a categorical finding that the claims raised by the Claimant are not adversely affected by the terms of the supplemental agreement. Even the said supplemental agreement incorporates provision for settlement thereof. Therefore, the Claimant's claims would have to be considered on merits and are considered as such by the Arbitral Tribunal. 98. How these claims were not settled and the matter ended in arbitration is then set out in paragraph 17.6 of the Award. 99. Even the said supplemental agreement incorporates provision for settlement thereof. Therefore, the Claimant's claims would have to be considered on merits and are considered as such by the Arbitral Tribunal. 98. How these claims were not settled and the matter ended in arbitration is then set out in paragraph 17.6 of the Award. 99. After this the Award proceeds claim-wise from paragraph 18 onwards. In the further paragraphs and the sub-paragraphs, eventually the Tribunal (paragraph 18.2) concludes that the percentage of overheads and profits stands substantially proved through oral evidence of the Claimant's witness and documentary evidence produced on record and admitted in evidence. Then, various aspects of all the claims and claim-wise are noted, including the recommendations of the Superintending Engineer. 100. It is evident that these recommendations were not relied upon in isolation, but together with the other materials produced by the Claimant. 101. It is in view thereof that the eventual Award directs payment of the amounts as are set out in paragraph 31 clauses (a) and (b) and then in clause (c) it is held that since in terms of the contract the State Government is entitled to extend the concession period on account of reimbursement of the amount due to the Claimant, the State should work out the period for which the Claimant is entitled to extension of the concession period on the basis of the cash flow submitted by the Claimant in their statement of claims and facts-Annexure-CA-VII page 88 and onwards of the Compilation of the Claimant's Documents-I taking into account the amount determined as payable to the Claimant in terms of clauses (a) and (b) of paragraph 31 of the Award and to issue the Gazette notification extending concession period by the period so determined within two months from the date of the Award. In the event of failure, the Claimant was entitled to receive and the respondent-State was directed to pay the sum stipulated in clause (d) of paragraph 31 of the Award together with arbitration costs. 102. We do not think that after such an extensive and elaborate exercise before the Arbitral Tribunal, we can arrive at a different conclusion. We agree with Mr. Vashi that this is a possible and plausible conclusion. 103. We do not think that the argument of Mr. 102. We do not think that after such an extensive and elaborate exercise before the Arbitral Tribunal, we can arrive at a different conclusion. We agree with Mr. Vashi that this is a possible and plausible conclusion. 103. We do not think that the argument of Mr. Samdani that the final Notification, therefore, would mean all claims of the Claimant do not survive or that they should give credit for having received or adjusted the amounts in terms of the final Notification to the State Government. The Award itself ought to be seen in its entirety and particularly after rejection of the counter-claims of the State Government-appellant before us. 104. Once the above conclusion is reached, the judgments relied upon by Mr. Samdani are of no assistance to him. Eventually every contract, every dispute or claim has to be placed in the forefront in deciding such matters. The nature of the dispute and the lis differs from contract to contract and claim to claim. The general rule laid down would have to be applied in the facts and circumstances of each case. In view thereof, we do not think that each judgment should be specifically referred and distinguished. We are of the opinion that each one of them is distinguishable on facts and about the legal principles, there is no dispute at all. 105. Once this view of the State's one appeal is taken, then, in the other matter which was argued by Mr. Walawalkar, we cannot take a different view. Eventually, Mr. Walawalkar's arguments, and as noted, themselves would show that he desires that we should probe the Award as if we are exercising such appellate powers as would enable us to re-appreciate and reappraise the same materials. Once conclusions based on a plausible interpretation of the clauses and terms and conditions of the contract have been rendered, then, all the more, we are not inclined to accept Mr. Walawalkar's arguments either. Both the appeals, therefore, ought to fail and they fail accordingly. 106. As far as the other two appeals are concerned, the claims of the Appellant/Contractor raised/allowed before the Arbitral Tribunal, the claims upheld/disallowed by the learned Single Judge are as under :- MUMBRA BYPASS REFERENCE - 1 S.No. Name of Claims Amount claimed by the Company Amount awarded in Rs. 106. As far as the other two appeals are concerned, the claims of the Appellant/Contractor raised/allowed before the Arbitral Tribunal, the claims upheld/disallowed by the learned Single Judge are as under :- MUMBRA BYPASS REFERENCE - 1 S.No. Name of Claims Amount claimed by the Company Amount awarded in Rs. by the Arbitral Tribunal Amount upheld by the Learned Single Judge Claim No.1 Subsequent Legislation 8,38,61,595.00 8,38,61,595.00 Disallowed Claim No.2 Reimbursement of royalty charges 2,07,95,000.00 1,96,18,000.00 Disallowed Claim No.3 Excessive cost of rehabilitation 94,95,000.00 Nil …. Claim No.4 Excess excavation due to landslide and shifting of assignment 7,44,13,000.00 7,16,62,000.00 7,16,62,000.00 Claim No.5 Difference in rates and cost on account of additional work 10,38,16,000.00 10,38,16,000.00 10,38,16,000.00 Claim No.6 Extra overheads and loss of expected profits 11,01,00,000.00 8,80,00,000.00 8,80,00,000.00 Claim No.7 Reduced productivity of plant and machinery due to extension of construction period. 6,62,07,000.00 4,94,27,000.00 Disallowed Claim No.8 Reimbursement for escalation in prices of HSD, Cement & Steel etc. except Bitumen 16,95,47,000.00 16,95,47,000.00 16,95,47,000.00 Claim No.9 Growth of traffic from the 7th year (para 26.7 at page no.93 of the award in Ref.1) 3% instead of 4% considered by State / Respondent 3% instead of 4% considered by State / Respondent Deemed upheld since not challenged by State / Respondent under 34 application Claim No.10 Cost of maintenance for road and bridge work after the period of 6 years (para 26.5 at page no.93 of the Award in Ref.1) Escalation to be paid Escalation to be paid Deemed upheld since not challenged by State / Respondent under 34 application Total 63,82,34,595.00 58,59,31,595.00 43,30,25,000.00 107. At the outset, it is submitted by Mr. Vashi that the learned Single Judge has erred in partly setting aside the award of Arbitral Tribunal, namely, for Claim Nos. 1, 2 and 7. 108. The Arbitral Tribunal recorded the following finding in paragraph no. 25.10(b) of the award in Reference-I :- “In the present case, the claim has been recommended for extension of the concession period by the Superintending engineer of the Respondent, the final authority for all decisions regarding claims arising out of or in relation to the said contract as per said Exhibit C-100 in CD-III considering amount of Rs.716.54 lacs. The Chief Engineer of the Respondent has also recommended the said claim as borne out from the said Exhibit C-93. The Chief Engineer of the Respondent has also recommended the said claim as borne out from the said Exhibit C-93. The Secretary to Public Works Department has also recommended the said claim to the Finance Department of the Respondent as borne out from the said Exhibit C-93. The Superintending Engineer is the competent authority under the said clause 3.4.17 to give decisions on behalf of the Respondent and his decision is final and binding. The Respondent has not contested the applicability of the said clause 3.4.17. The claim has to be decided based on agreed terms and conditions of the said Contract which are not in dispute.” 109. It is submitted by Mr. Vashi that the learned Single Judge has erred in partly setting aside the award of the Arbitral Tribunal by recording findings in paragraph 19 of the impugned judgment. 110. It is submitted that the parties vide agreement clause no. 3.4.17-Settlement of Disputes are bound to refer the disputes in the first instance to the Superintending Engineer prior to invoking arbitration. It is pertinent to note that sub-clause (ii) permits appeal against the order of the Superintending Engineer only to the appellant/contractor and not to the State/respondent. 111. It is further submitted that binding effect of decision of the named authority is covered by judgments of the Division Bench of Tamil Nadu and the Supreme Court in cases of (1) South India Railway Co. Ltd. vs. S.M. Bhashyam Naidu and Ors. AIR 1935 Mad. 356 and (2) Mallikarjun vs. Gulbarga University, (2004) 1 SCC 372 respectively. 112. It is further submitted by Mr. Vashi that the learned Single Judge has erred in partly setting aside the award by the Arbitral Tribunal, namely, for claim no. 1, 2 and 7 in view of the recent judgment of Hon'ble Supreme court in the case of Associate Builders vs. Delhi Development Authority, AIR 2015 SC 620 . 113. Without prejudice to above preliminary submissions, Mr. Vashi submitted on facts and merits of claims disallowed by the learned single Judge as follows:- Subsequent Legislation- (i) Reimbursement of Income tax. (ii) Reimbursement of Royalty Charges. 114. It is submitted by Mr. Vashi that the learned Single Judge has erred in setting aside the award of the Arbitral Tribunal on claim nos. 1 and 2 i.e. subsequent legislation-reimbursement of (i) income tax and (ii) royalty charges. 115. (ii) Reimbursement of Royalty Charges. 114. It is submitted by Mr. Vashi that the learned Single Judge has erred in setting aside the award of the Arbitral Tribunal on claim nos. 1 and 2 i.e. subsequent legislation-reimbursement of (i) income tax and (ii) royalty charges. 115. It is further submitted that both the claims are covered by Supreme Court judgments in case of Tarapore and Co. vs. State of MP (1994) 3 SCC 521 and National Highways Authority of India vs. ITD Cementation India Limited (2015) 14 SCC 21 . It is pertinent to note that the learned single Judge has not even considered the said judgments cited before the learned single Judge. Moreover, the reasons given by the learned single Judge are self contradictory, inasmuch as at one place the learned single Judge holds that if any tax is levied after a period of 30 days prior to submission of the bid, in that case, the contractor would be entitled to such a claim (paragraph 22.2 of the impugned order). After holding the same, the learned single Judge could not have rejected the claim of the appellant/ contractor. 116. It is further submitted by Mr. Vashi that it is an admitted fact that 30 days prior to submission of the bid, the appellant was neither required to pay income tax/MAT on infrastructure projects (BOT Projects) nor required to pay royalty on excavation of murrum used in road construction. It is held by the Hon'ble Supreme Court that a contractor is not supposed to bear additional expenses which are due to subsequent legislation and that if such taxes/royalty/fees are levied afterwards, the tendered sum cannot be taken to be agreed amount for completing the contract and that under such situation the State had by necessary implication agreed to reimburse these additional increased taxes/royalty/fees. 117. It is further submitted that in the case of National Highways Authority of India vs. ITD Cementation India Limited (supra), there was a similar clause no. 13.4, wherein, the contractor was to include all the duties, taxes and other levies payable 28 days prior to the deadline for submission of bids. There was a increase in the rates of royalty on minor minerals and additional levy of tax. 13.4, wherein, the contractor was to include all the duties, taxes and other levies payable 28 days prior to the deadline for submission of bids. There was a increase in the rates of royalty on minor minerals and additional levy of tax. The Arbitral Tribunal had awarded reimbursement of such additional taxes and it is held by the Hon'ble Supreme Court that construction of the terms of the contract is primarily for an arbitrator to decide and that he is entitled to take the view which he holds to be the correct one after considering the material before him and after interpreting the provisions of the contract and that the court while considering challenge to an arbitral award does not sit in appeal over the findings and decisions unless the arbitrator construes the contract in such a way that no fair minded or reasonable person would do. It is also held that the view so taken by the Arbitral Tribunal after considering the material on record and the terms of the contract is certainly a possible view, the court should not interfere. 118. It is further submitted that the appellant/contractor through it's witness had adduced evidence and the same remained uncontroverted. The witness of the appellant/ contractor had introduced CA certificates (C-107 and C-230) as evidence and the said certificates were not controverted. The Arbitral Tribunal had gone into all the evidence, both documentary and oral and had upheld the claims on facts of the case. 119. It is further submitted by Mr. Vashi that as regards the claim for reimbursement of royalty charges, the Arbitral Tribunal in paragraph no. 23 of the award in Reference-I had gone through all the Government Resolutions (C-94 to C-97) as well as the receipts of royalty charges paid (Challans of royalty payment). The said challans were also verified by the State/respondent. 120. It is further submitted that the witness of the appellant/contractor in paragraph no. 14 of the oral evidence, deposed on oath and there were no questions asked on this in his cross-examination and the evidence remained uncontroverted. The State/respondent while giving decision on the claim had admitted the liability amounting to Rs.196.58 lacs (C-110). 121. It is further submitted that the Superintending Engineer while deciding the disputes under clause no. 3.4.17-Settlement of Dispute, had accepted both the claims i.e. reimbursement of income tax and reimbursement of royalty charges. 122. The State/respondent while giving decision on the claim had admitted the liability amounting to Rs.196.58 lacs (C-110). 121. It is further submitted that the Superintending Engineer while deciding the disputes under clause no. 3.4.17-Settlement of Dispute, had accepted both the claims i.e. reimbursement of income tax and reimbursement of royalty charges. 122. It is further submitted that the learned single Judge disallowed both the claims i.e. on account of reimbursement of income tax and reimbursement of royalty charges and the findings are in paragraph no. 22.3 and 23.4 respectively. 123. It is further submitted by Mr. Vashi that the learned single Judge has erred in disallowing the claims allowed by the Arbitral Tribunal after going into the facts of the case, evidence on record, scrutinising the payments made to the Income Tax as well as to the Revenue Department, Government of Maharashtra and the decision of the Superintending Engineer under clause 3.4.17 accepting the claims of the contractor/appellant. It is pertinent to note that under the provisions of clause 3.4.17, the State/respondent is not allowed to appeal against the said orders of the Superintending Engineer and the said orders have thus become final and binding. Moreover, the order of the learned single Judge in the impugned judgment is contrary to the citations referred hereinabove and appeal of the contractor/ appellant needs to be allowed. 124. It is further submitted that the learned single Judge erred in disallowing Claim No. 7 amounting to Rs.4.94 crores under the head “reduced productivity of plant and machinery due to extension of construction period” on following grounds:- (a) It is firstly submitted that it is well settled that the learned Single Judge could not have under section 34 of the said Act acted as an appellate court. (b) Secondly, it is also well settled that if the view taken by the Arbitral Tribunal is a possible view on the facts and circumstances of the case and even if the 2nd view appears to be more logical, the Arbitral award cannot be interfered with under section 34 of the said Act. (c) Thirdly, in fact, the Arbitral Tribunal has come to a correct conclusion on the facts of the case. The Arbitral Tribunal has personally looked into the log books prepared and maintained by the respondent/State of Maharashtra. (c) Thirdly, in fact, the Arbitral Tribunal has come to a correct conclusion on the facts of the case. The Arbitral Tribunal has personally looked into the log books prepared and maintained by the respondent/State of Maharashtra. The said log books have indicated as to for how many hours and as to which machinery had been working/idling on particular dates. (d) Fourthly, on the basis of the same log books the Superintending Engineer had computed and recommended an amount to the tune of Rs.494.27 Lacs (C-116 at page no. 322-324 of Compilation No. 2). It is pertinent to note that under clause 3.4.17, the Superintending Engineer is a named Authority, who has to adjudicate upon the claims of the appellant. Thus, adjudication done by Superintending Engineer cannot be challenged by the Respondent. The Learned Single Judge has erred in holding that the adjudication by the Superintending engineer cannot be binding on the Respondent/State of Maharashtra (paragraph 19.3 (e) on page no. 12-13 of the impugned order). (e) Fifthly, the Learned Single Judge has erred in holding in paragraph No.20.1 of the impugned order that the appellant had made only one request as recorded in minutes dated 3rd January, 2001 (Exhibit C-20 at page no. 318 of Compilation No. 2) to shift the plant and machinery to some other site. In this regard, the Learned Single Judge ought to have noticed the reply given by Respondent/State of Maharashtra to the said notice dated 6th January, 2001 (Exhibit C-20), wherein the Respondent/State of Maharashtra had informed the appellant that the appellant cannot shift the machinery to some other site as entire land to carry out the work is going to be made available very shortly i.e. in February, 2001. In view of the said reply, the appellant was not expected to go on requesting for shifting of plant and machinery at regular intervals. (f) Sixthly, the Learned Single Judge ought to have appreciated that the State/Respondent had made the land available subsequent to February, 2001, in bits and pieces, but not the entire length as promised and hence the Appellant/Contractor could not have requested for shifting the machinery. The Appellant/Contractor has therefore subsequently claimed for under utilization of plant, machinery and equipments vide several letters as can be seen from Exhibit Nos. C-26 at page no. 324-339, C-37 (c) at page no. 383-384, C-37 (d) at page no. The Appellant/Contractor has therefore subsequently claimed for under utilization of plant, machinery and equipments vide several letters as can be seen from Exhibit Nos. C-26 at page no. 324-339, C-37 (c) at page no. 383-384, C-37 (d) at page no. 385-387 and Exhibit C-54 at page nos. 388-389 of Compilation No. 2. ….. (h) As regards the claim for reduced productivity of Plant and Machinery due to extension of construction period, the Arbitral Tribunal in paragraph no. 19.1 of the Award recorded in findings. The witness of the Appellant/Contractor had adduced oral evidence in paragraph no. 7 to 11 at page no. 190-191 of Compilation No. 2 and the evidence remained undented as can be seen from Answers to Question no. 12, 13 and 14. the witness had also relied upon the bid analysis (Exhibit no. C-115 at page no. 320-321 of Compilation No. 2) which had provision for deployment of Plant and Machinery. ….. (j) In view of the submissions made hereinabove, it is humbly submitted that the Learned Single Judge has erred in disallowing the claim allowed by the Arbitral Tribunal after going into the facts of the case, evidence on record and the decision of the Superintending Engineer under clause 3.4.17 accepting the claim of the Contractor/Appellant. It is pertinent to submit that under the provisions of clause 3.4.17, the State/Respondent is not allowed to appeal against the said order of the Superintending Engineer and has thus become final and binding. Moreover, the order of the Learned Single Judge in the impugned judgment is contrary to the citations referred hereinabove and appeal of the contractor/Appellant needs to be allowed. 125. Mr. Vashi has relied upon the provisions of some tax legislations and the scheme thereof to urge that the above conclusions of the learned single Judge were erroneous and require interference in our jurisdiction under section 37 of the Arbitration & Conciliation Act, 1996 read with the relevant provisions of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 ('Act 4 of 2016' for short). 126. Mr. Vashi has thus brought to our notice and highlighted what, according to him, is a contravention of the settled legal principles and such factual and legal errors which would vitiate the conclusion of the learned Single Judge insofar as the above aspects / claims highlighted by Mr. Vashi. 127. 126. Mr. Vashi has thus brought to our notice and highlighted what, according to him, is a contravention of the settled legal principles and such factual and legal errors which would vitiate the conclusion of the learned Single Judge insofar as the above aspects / claims highlighted by Mr. Vashi. 127. In that regard, he urged that there is an apparent dichotomy and contradiction in the order of the learned single Judge. Mr. Vashi has submitted that in paragraph 26 of the impugned judgment and order, the learned single Judge has upheld the claim of the appellant-Contractor for past, pendente lite and future interest at 20% per annum compounded annually which is provided in the contract. However, while discussing other claims in paragraph 28, the learned single Judge has wrongly recorded that the challenge of the Claimant is to the interest at simple rate. Thereafter in paragraph 30, the learned single Judge has held that the Claimant will be entitled to simple interest as opposed to the annual compounded interest. It is in these circumstances that Mr. Vashi would submit that the stipulated contract rate of 20% compounded and agreed by the State itself should not have been deviated from by the learned single Judge. To that extent, the order of the learned single Judge is erroneous and illegal. 128. Mr. Vashi has relied upon the above judgments in support of his contentions. 129. Mr. Vashi then highlighted that some of the errors which have been committed by the Arbitral Tribunal were specifically brought to the notice of the learned single Judge. Yet, those were not corrected by the learned single Judge. Mr. Vashi, therefore, placed before us that aspect of the matter and our attention was invited to the reasoning in paragraphs 28 and 29 of the order of the learned single Judge and the relevant clauses of the contract. 130. Thus, in both appeals Mr. Vashi would contend that to the extent challenged by the Claimant-contractor the order of the learned single Judge deserves to be interfered with and should be quashed and set aside. 131. On the other hand, Mr. Samdani appearing in support of the State's appeals and for the respondents in the Claimant's appeals would submit that the primary argument of Mr. Vashi has no merit. In that regard, Mr. 131. On the other hand, Mr. Samdani appearing in support of the State's appeals and for the respondents in the Claimant's appeals would submit that the primary argument of Mr. Vashi has no merit. In that regard, Mr. Samdani would submit that the Claimant has proceeded on the footing that the learned single Judge should have noticed clause 3.4.17 titled as “Settlement of Disputes”. Mr. Samdani would submit that there is no merit in the argument and now canvassed that the sub-clause (ii) of this clause permits appeals against the order of the Superintending Engineer only to the appellant-contractor and not to the State / respondent. It is submitted that this argument presupposes that it is the Claimant who alone can raise the claims and get them settled, but without corresponding opportunity to the opponent to resist and contest the same. This clause, even if assumed to be relevant now, cannot be pressed into service for the simple reason that there was a claim laid by the contractor before the Arbitral Tribunal. That claim was raised and opposed by the opponent-State. After full opportunity as was sought by the Claimant-contractor that claim was considered and granted, but some of the claims or part of it were disallowed. The Claimant took another chance and approached the learned single Judge. Insofar as the claims which were awarded in favour of the Claimant-contractor but the Award being challenged by the State, the State's petition succeeded only partially. Now the State has full opportunity to support the findings of the learned single Judge when he proceeds to disallow the claim of the contractor and to the extent challenged by the contractor. In other words, the Claimant-contractor opposed the Arbitration Petition of the State and argued that section 34 of the Act would have no application, but when it comes to the Claimant-contractor's petition, that opportunity is sought to be denied to the State. This also is an insignificant part of the matter because now the learned single Judge has passed his final order in the Arbitration Petitions and which is challenged in appeals. There is an appeal and a cross-appeal. In consideration of the same, it should be open for the State to urge that the order of the learned single Judge, to the extent it is against the Claimant-contractor deserves no interference. 132. Mr. There is an appeal and a cross-appeal. In consideration of the same, it should be open for the State to urge that the order of the learned single Judge, to the extent it is against the Claimant-contractor deserves no interference. 132. Mr. Samdani then submits that the learned single Judge has rightly interfered with the Award to the extent it disallows the claims of reimbursement of income tax and royalty charges. Mr. Samdani also submits that the learned single Judge's finding on the other claim, namely, reduced productivity of plant and machinery due to extension of the construction period is equally sound and the same requires no interference at our hands in appellate jurisdiction. In the circumstances, Mr. Samdani would submit that both the appeals be dismissed. Mr. Samdani has also submitted that the judgments cited by Mr. Vashi would have no application to the facts and circumstances of the present case. 133. Thus, the only point that arises for consideration in the two appeals of the Claimant is whether the order of the learned single Judge in setting aside the Award of the Arbitral Tribunal to the extent indicated above requires interference in our appellate jurisdiction and if so, what order. 134. As far as the reimbursement of the income tax is concerned, the claimant proceeded as under : (a) That thirty days prior to the submission of bid, the Claimant was neither required to pay income tax / Minimum Alternate Tax (for short MAT) on infrastructure projects nor was it required to pay royalty on excavation of murrum used in road construction. It is argued that the reimbursement of income tax was an issue considered by the Arbitral Tribunal. In that regard, our attention was specifically invited by Mr. Vashi to the Award – paragraph 22 to urge that the Tribunal held that clause 3.7.14 envisages that the Claimant was to take into account all taxes payable upto 30 days prior to the last date of the receipt of bids. The Claimant submitted the bids on 12th April 1999 and as such, the Claimant was to take into account all the taxes payable prior to 13th March, 1999. It is then the attempt of the Claimant to rely on the provisions of the Finance Act, 2000, applicable with effect from 1st April, 2001. The Claimant submitted the bids on 12th April 1999 and as such, the Claimant was to take into account all the taxes payable prior to 13th March, 1999. It is then the attempt of the Claimant to rely on the provisions of the Finance Act, 2000, applicable with effect from 1st April, 2001. There, section 80-1A(4A) read with section 12-CA of the Income Tax Act, there was hundred percent exemption of tax on income and as such, the Claimant did not consider the outflow on account of minimum alternate tax in the cash flow statement. By the provisions applicable with effect from 1st April, 2001, income tax at ten percent with three percent education cess and surcharge at ten percent under section 115-JB of the Income Tax Act, 1961, was imposed. This was increased to fifteen percent with three percent education cess and surcharge of ten percent with effect from 1st April, 2001. Under the terms of the contract, the Claimant was entitled to reimbursement of tax liability. Since minimum alternative tax was imposed after 30th March, 1999, i.e. thirty days prior to the last date of receipt of the bids, it is covered under the subsequent legislation and the Claimant, in the circumstances, could not have considered the outflow on account of minimum alternative tax in the cash flow statement. The Tribunal held that the Claimant's contention is, therefore, sustainable. 135. The Award proceeds on the footing that the State's Legal Department has agreed with the above contention of the Claimant and particularly that the claims were payable due to subsequent legislation. In fact, the concession period was recommended for extension based on every three years' period of remittance of income tax by the Claimant. The Arbitral Tribunal held that the State Government failed to appreciate the standard accounting procedure for working out the book profit justifying figures based on audit balance sheets of the Claimant supported by the certificate issued by the Chartered Accountant. That is how Exhibit C-130 was certified by the Chartered Accountant of the Claimant. It is, therefore, argued that on this conclusion of the Tribunal, the contract requires taking into account all taxes payable upto 30th day prior to the last date of receipt of the bid. That is how Exhibit C-130 was certified by the Chartered Accountant of the Claimant. It is, therefore, argued that on this conclusion of the Tribunal, the contract requires taking into account all taxes payable upto 30th day prior to the last date of receipt of the bid. The hundred percent exemption of tax on income as noted under the above provisions of the Income Tax Act was a concession and which was taken away due to imposition of minimum alternative tax with effect from 1st April, 2001, and which is after submission of the bids. The respondent-State, therefore, argued that relying upon clause 3.7.14, no reimbursement of the same was permissible. However, the Tribunal concluded that once the concession available was taken away due to imposition of minimum alternative tax with effect from 1st April, 2001, which could not have been considered in the cash flow statement submitted with the bid, then, the claim of the Claimant in that regard could not be denied. The contractor can only be expected to be bound by and to press for conditions which are known to him or which he is able to foresee reasonably while pricing in his tender. The Claimant claimed compensation for payment of this MAT due to imposition of the same after submission of the bids. The clause clearly provided that the Claimant was to take into account all the taxes payable upto 30th day prior to the last date of the receipt of the bids. It is in this context that Mr. Vashi emphasizes clause 22(h) of the Award and finally the conclusion of the Tribunal that the respondent is liable to pay to the claimant a sum of Rs.8,38,61,595.00 against the liability of MAT for the financial years 2007-08, 2008-09, 2009-10 and 2010-11. Accordingly, this amount was payable or alternatively, concession period should be extended on pro-rata basis in lieu thereof. The direction was to extend the concession period after every three years based on the payment of MAT by the Claimant on the basis of the certificate from its statutory auditor by using the cash flow as per Form-3. 136. The learned single Judge, however, did not agree with this reading of the clauses of the contract by the Tribunal. The learned single Judge concluded that the compensation / damages on account of subsequent legislation could not have been awarded. 136. The learned single Judge, however, did not agree with this reading of the clauses of the contract by the Tribunal. The learned single Judge concluded that the compensation / damages on account of subsequent legislation could not have been awarded. The learned single Judge has gone through the pleadings, the relevant clauses of the contract and particularly clause 3.7.14 and in paragraph 22.3 of the impugned order held that there is an inherent flaw in the Claimant's submission. The contract provides tax concession concerning the project declared by the Government of India or Government of Maharashtra upto thirty days prior to the receipt of the bid and that shall alone be available to the contractor and not other concessions. That does not mean that the contract provides for continuation of a particular tax concession for all times during the contract and the compensation to the contractor for the loss occasioned to him on account of the withdrawal of such concession at any time during the contract due to change in law. This only means that clause 3.7.14 as read by the learned single Judge envisages that the entrepreneur shall not be entitled to any special tax concession or any other concession as a result of undertaking the proposed project other than those declared by the Government of Maharashtra or Government of India upto thirty days before the last date of the receipt of the bids. The terms of the contract shall remain fixed as contained in the bid and no relief can be claimed from the State Government on the basis of tax concession of a posterior date. That is not a mandate to perpetuate the concession already made available, but to deny the benefit of a future concession. The Tribunal's conclusion for awarding this claim based on their interpretation of the above clause is not reasonable. It is not a conclusion which a reasonable person duly instructed in law could ever reach or is expected to reach. In fact, the learned single Judge clearly held that the Tribunal was aware of the fact that this clause is not about subsequent legislation at all. Yet, they proceeded to award this claim. This fact is evident from the finding of the Tribunal in paragraphs 22.1and 22.5. 137. Having carefully perused these findings, we are unable to agree with Mr. In fact, the learned single Judge clearly held that the Tribunal was aware of the fact that this clause is not about subsequent legislation at all. Yet, they proceeded to award this claim. This fact is evident from the finding of the Tribunal in paragraphs 22.1and 22.5. 137. Having carefully perused these findings, we are unable to agree with Mr. Vashi that the learned single Judge has committed any error of law apparent on the face of the award or his reading of the relevant clauses is perverse. In fact, the reading of the relevant clause 3.7.14 by the Arbitral Tribunal was clearly unsustainable. No reasonable person could have construed this clause particularly as understood and interpreted by the Tribunal. The Tribunal is aware that this clause, though explicitly not a clause for subsequent legislation, by implication it means that the claimant is entitled for compensation on account of the withdrawal of the concession of the income tax which was available to the Claimant on the date of the submission of the bid. Hence, we are not in agreement with Mr. Vashi that the Tribunal's finding is unnecessarily and unjustifiably interfered with by the learned single Judge. 138. Insofar as the reduced productivity of plant and machinery due to extension of the concession period is concerned, in the oral and written arguments Mr. Vashi has faulted the reasoning of the learned single Judge on as many as six counts. It is urged that the learned single Judge's findings and conclusions are not based on record. The learned single Judge has interfered with a possible conclusion reached by the Arbitral Tribunal and that is the precise reason for which we should set aside the order of the learned single Judge. 139. Once again, we have perused the entire record in relation to this claim. We have perused it with the assistance of Mr. Vashi and in relation to all the claims which were either granted or refused by the learned single Judge. From the relevant records we find that the learned single Judge proceeded on the footing that the view taken by the Arbitral Tribunal so far as this aspect is concerned is wholly perverse. The Arbitral Tribunal could not have based the claim only on production of log books. From the relevant records we find that the learned single Judge proceeded on the footing that the view taken by the Arbitral Tribunal so far as this aspect is concerned is wholly perverse. The Arbitral Tribunal could not have based the claim only on production of log books. Similarly, the learned single Judge held that the claim could not have been awarded on the basis of recommendations made by the Superintending Engineer of the State. More so, when they have not been shown to be expressly admitted or accepted. It is only on the basis of a single document, namely, the minutes dated 3rd January, 2001 and a notice dated 6th January, 2001 Exhibit C-20 that the claim seems to have been awarded. Once the claim is raised by alleging that the productivity of the land and machinery was reduced due to the extension of the construction period, then, a single or a solitary document will not be decisive or conclusive is the finding recorded by the learned single Judge. We think in the facts and circumstances of the present case that finding is accurate. If the productivity is reduced because the plant and machinery remains idle in the entire extended construction period, then, it was incumbent upon the Claimant to have proved that claim independent of this solitary document and the recommendation of the Superintending Engineer. Here, the period or duration is important. It is entire duration for which the plant and machinery remained idle and could not be shifted to some other site by the Claimant, ought to be the relevant test. Mere allegation, without any independent proof, could not have been accepted. The argument of Mr. Vashi is that the learned single Judge ought to have appreciated that the State Government had made the land available to the Claimant subsequent to February 2001 and that too in bits and pieces. If the entire length, as promised, could not be made available, then, the Claimant was not in a position to request for shifting the machinery. That is how the Claimant-contractor subsequently claimed these sums in money for underutilization of the plant, machinery and equipment by addressing several letters, namely, Exhibit-C-26 and C-54. Once again, we are of the opinion that the production of these letters by itself and without anything more was not sufficient. That is how the Claimant-contractor subsequently claimed these sums in money for underutilization of the plant, machinery and equipment by addressing several letters, namely, Exhibit-C-26 and C-54. Once again, we are of the opinion that the production of these letters by itself and without anything more was not sufficient. The learned single Judge has considered this aspect of the matter in paragraph 20.1. His findings are on the lines indicated above. Having carefully perused these findings, we do not think that the learned single Judge has committed any error of law apparent on the face of the award nor his findings can be termed as perverse. It is the other way round inasmuch as the Arbitral Tribunal's finding was perverse. The learned single Judge has held that once the claim is laid by alleging that throughout the extended period, namely, between 2002 to 2007, the Claimant could not have deployed its machinery at other sites, then, that allegation has to be established and proved by producing the relevant and admissible evidence for this duration. Any document preceding commencement of this period and of 3rd January, 2001 was hopelessly inadequate and insufficient to prove the claim which is led for the entire extended period. This is the precise finding and conclusion reached by the learned single Judge and while supporting it he held that mere production of a recommendation of the Superintending Engineer or the log book will not suffice. At best, the recommendation would demonstrate that the Superintending Engineer held such a view as is claimed to be favourable by the Claimant. However, that view was not agreed with by the Finance Department. Apart therefrom, log books would indicate that the plant and machinery was earmarked for deployment at the project site. It would indicate the machinery available at the relevant time. By this book or any entry therein, a charge or allegation of the machinery remaining idle throughout the duration or period as noted above will not be established and proved. Thus, independent of the recommendation of the Superintending Engineer, the entries in the log book, the single or solitary document of January 2001, evidence was necessary in absence of which it was held that the above would not to be enough to prove this claim. Further, there is no discussion in this regard in the Arbitral Tribunal's Award as well. Thus, independent of the recommendation of the Superintending Engineer, the entries in the log book, the single or solitary document of January 2001, evidence was necessary in absence of which it was held that the above would not to be enough to prove this claim. Further, there is no discussion in this regard in the Arbitral Tribunal's Award as well. Having noted all these materials, we are not in agreement with Mr. Vashi that the learned single Judge erroneously interfered with the Award on this count. 140. Finally, we find that the learned single Judge, while rejecting the other claims has adverted to the relevant materials and considered them in an overall manner. Once this was the approach of the learned single Judge, then, we do not find that the Award can be sustained insofar as these claims are concerned. 141. The learned single Judge has found and as is apparent from paragraphs 28, 29 and 30 of the impugned order that there is no substance in the argument of the Claimant's advocate that the Claimant was entitled to interest at compounded rate annually. In fact, the learned single Judge elaborately discussed this aspect and in great details. During the course of discussion, he was of the opinion that the Award is basically for recovery of damages occasioned by the delay for which the State was responsible and extra work carried out under the contract which was not in contemplation of the parties. The learned single Judge, therefore, referred to the relevant clauses of the General Conditions of Contract, namely, clause 3.6.6 as also clause 3.9 to hold that once damages or compensation ordered to be paid to the Claimant under the Award are neither in the nature of original cost of construction nor an extra amount payable as a result of the variation ordered by the Engineer, which results into an adjustment of the concession period, then, clause 3.9 is inapplicable. That deals with taking over of the facility by the Government during the concession period. That was not possible to be invoked. We have carefully perused clause 3.9 of the General Conditions of Contract. That deals with taking over of the facility by the Government during the concession period. That was not possible to be invoked. We have carefully perused clause 3.9 of the General Conditions of Contract. That states that the Government reserves absolute right to take over the project facility at any time after completion of the project during the concession period and in that event, the entrepreneur shall be eligible for compensation for the unrecovered amount as per the details furnished by him in the accepted cash flow statement. This payment shall be made in suitable installments as will be decided by the Engineer. As is rightly held by the learned single Judge the reliance on this clause would not establish and prove the claim. It is in these circumstances that the learned single Judge held that the claim is not proved. In fact, the concession period enables the Claimant to recover or reimburse himself for the cost of the project by collecting toll. That is for a specified duration and period. That is how the concession period is understood by parties. In the circumstances, the nature of the arrangement being properly understood by the learned single Judge, the criticism of his finding and conclusion by Mr. Vashi cannot be accepted. The agreement itself says that the entrepreneur shall have to make arrangements for financing the project from his own resources or from some market borrowings such as from banks and financial institutions. The security of his right to levy toll on motor vehicles using the project facility and display the advertisement may be used for the purpose. The Government also did not guarantee repayment of loan secured by the entrepreneur. It is in these circumstances that the arrangement for plant and machinery etc. being made by the Claimant itself and with the above clear understanding, then, the claim for that being not deployed or remaining idle for the entire duration is not proved. It is thus apparent that the Arbitral Tribunal's findings were based on no evidence at all. They have been rightly interfered with by the learned single Judge. 142. This discussion, therefore, is adequate for the disposal of the Claimant's appeals. Even with regard to interest and costs, we do not think that the order of the learned single Judge suffers from such grave illegality or perversity warranting our interference in appellate jurisdiction. 143. They have been rightly interfered with by the learned single Judge. 142. This discussion, therefore, is adequate for the disposal of the Claimant's appeals. Even with regard to interest and costs, we do not think that the order of the learned single Judge suffers from such grave illegality or perversity warranting our interference in appellate jurisdiction. 143. For the above reasons, we are not in agreement with Mr. Vashi that the order of the learned single Judge requires interference in our appellate jurisdiction. Appeal No.395 of 2016 is, accordingly, dismissed. 144. Insofar as the challenge laid by the Claimant to the Arbitral Award in Arbitration Petition No. 1158 of 2012 is concerned, there the learned single Judge was requested in terms of section 34 of the Arbitration & Conciliation Act, 1996, to order and direct the State Government to pay to the Claimant, compensation for unrecovered amount as per details furnished in the agreed cash flow statement of 40 years and 6 months (Reference-1) in case the respondents take over the facility during the concession period as awarded under clauses (a) and (c) of the Award. It was argued that the respondent-State filed Miscellaneous application No. 229 of 2012 and reliance is placed on paragraph 3.27 of this Miscellaneous Application. However, in paragraph 29 and 30 of the impugned order, the prayer of the Claimant is rejected. That rejection is claimed to be contrary to the concession agreement clauses read with Forms-2, 3 and 6 as well as clauses 3.1.15, 3.6.3(a), 3.6.6 and 3.9 of the General Conditions of Contract. 145. We have also perused the written arguments of the Claimant in this behalf. The learned single Judge in paragraphs 29 and 30 of the impugned order dealt with this aspect and once we have found, as discussed in the foregoing paragraphs, that the above clauses of the General Conditions of Contract have no application, then, the case of the Claimant could not have been accepted. The Award has directed the extension of the concession period. In the operative part of the Award, the amount has been quantified and thereafter, the State Government was directed to work out the period for which the contractor is entitled to extension of the concession period on the basis of the cash flow statement as per the agreement. The Award has directed the extension of the concession period. In the operative part of the Award, the amount has been quantified and thereafter, the State Government was directed to work out the period for which the contractor is entitled to extension of the concession period on the basis of the cash flow statement as per the agreement. Though the cash flow statement was prepared as per the directions of the Tribunal and in that the Claimant may say that the concession period was for 40 years and 6 months, however, it is only in the event of the failure of the State Government to extend the concession period in terms of the operative part (c) of the Award within two months from the date of the Award, then, there was an obligation to pay the sum specified in the operative part of the Award with interest. The argument is that the extension was not as per the cash flow statement. However, it is clear that the Arbitral Tribunal having directed the extension of the concession period so as to allow reimbursement or recoupment of the costs incurred on the project, then, we do not find any substance in this argument and for which reliance is placed on the above clauses of the agreement. The reasoning for not accepting this claim and to be found in the impugned order of the learned single Judge is thus not perverse. It is apparent that pending disposal of the Arbitration Petition No.1158 of 2012 as well, the Claimant contended that the State Government ought to have at least provisionally notified concession period of 24 years 9 months 28 days which was recommended by the Superintending Engineer, but finding that the facility was taken over on 21st September, 2014, the extension as granted enables the Claimant to recover the balance amount. It may be that the extension of the concession period may not be a per the understanding of the Claimant, but that by itself is not enough to interfere with the Award. The refusal of the learned single Judge to so interfere with it is justified. Hence, this appeal also fails. 146. Finally, what remains for our consideration are the judgments which have been relied upon by Mr. Vashi. The first judgment in the compilation styled as Convenience Compilation – 5. tendered by Mr. The refusal of the learned single Judge to so interfere with it is justified. Hence, this appeal also fails. 146. Finally, what remains for our consideration are the judgments which have been relied upon by Mr. Vashi. The first judgment in the compilation styled as Convenience Compilation – 5. tendered by Mr. Vashi relates to the challenge to the order of the High Court of Karnataka in the case of Mallikarjun v. Gulbarga University (2004) 1 SCC 372 . 147. There was a Notification issued by the Gulbarga University inviting tenders for construction of an Indoor Stadium. The appellant before the Hon'ble Supreme Court submitted his tender. That was accepted. An agreement was executed between the appellant and the respondent-University before the Hon'ble Supreme Court. The estimated cost was worked out. The work order was also issued. The work of construction as per the work order was completed, but certain disputes arose in relation to which the arbitration clause was invoked. The Superintending Engineer, PWD, Gulbarga Circle, was named to decide such disputes. Before this arbitrator, the parties filed their claims and counter claims and after hearing them, the Award was made. However, no copy of the Award was furnished to the appellant as a result of which a writ petition was filed before the High Court. In compliance with the directions of the High Court in that writ petition, the arbitrator sent a certified copy of the Award dated 30th July, 1999. After receipt of the certified copy of the Award, the appellant put that Award in execution. In execution, the University filed an objection. The Executing Court rejected that objection. Aggrieved, the University filed Civil Revision Petition No. 3719 of 2000 under section 115 of the Code of Civil Procedure before the High Court of Karnataka. In that, a plea was raised that the purported agreement on the basis whereof the dispute between the parties was referred to the Superintending Engineer was not an arbitration agreement and consequently, the Award made by him is not one made in terms of the provisions of the Arbitration Act, 1940. This plea was accepted by the High Court. That is how the execution proceedings were set aside and the Civil Revision Petition was allowed. The aggrieved contractor approached the Hon'ble Supreme Court. It is in that context that the observations by referring to clause 30 of the agreement were made. This plea was accepted by the High Court. That is how the execution proceedings were set aside and the Civil Revision Petition was allowed. The aggrieved contractor approached the Hon'ble Supreme Court. It is in that context that the observations by referring to clause 30 of the agreement were made. Clause 30 was held to be an arbitration agreement. The Superintending Engineer was held to be an independent person undisputedly. The objection was not to the Superintending Engineer being appointed as arbitrator, but that there was no agreement for arbitration at all. It is in these circumstances that the Hon'ble Supreme Court held that the agreement did contain an arbitration clause. Once that is constituted to be a valid arbitration agreement, then, the decision of the arbitrator named therein would have to be only after complying with the principles of natural justice. Therefore, the observations in paragraphs 17 to 20, heavily relied upon by Mr. Vashi, have been made. It is after making these observations and finally holding in paragraph 24 that there was a valid Award made by the arbitrator that the decision of the High Court of Karnataka was overturned and the Claimant contractor's appeal was allowed. This decision has no application to the facts and circumstances of the present case. 148. Even with regard to the decision of a Division Bench of this Court in the case of Thanikkudam Bhagwati Mills Ltd. vs. Mrs. Reena Ravindra Khona reported in 2007 (4) BCR 21, what we find therein is that a objection was raised to the maintainability of the appeal on the plea that no grounds other than those in the arbitration petition shall be allowed to be canvassed at any later stage after the facts are recorded by the Court unless the same recording is disputed by the petitioner by filing an affidavit to the same effect, have been tendered. We do not see any relevance of this decision to the controversy at hand for we have not allowed the State Government to raise any grounds which were not flowing from the pleadings. May be the grounds were not couched in the language or in the form in which the have been elaborated before us by Mr. We do not see any relevance of this decision to the controversy at hand for we have not allowed the State Government to raise any grounds which were not flowing from the pleadings. May be the grounds were not couched in the language or in the form in which the have been elaborated before us by Mr. Samdani, but once even with this elaboration the State could not succeed in demolishing the Award, then, we have no doubt in our mind that this principle will have no application to the instant case. 149. The judgment in the case of Associated Builders vs. Delhi Development Authority (2015) 3 SCC 49 has already been referred by us in the foregoing paragraphs extensively. We do not wish to again refer to it or reiterate the principles merely because the claimant is aggrieved by a part of the Award of the learned single Judge and has challenged that in appeal. 150. In the case of National Highways Authority of India vs. JSC Centrodorstroy (2016) 12 SCC 592 , the clause was somewhat peculiar. In that, clause 14.3 envisages all duties, taxes and other levies payable by the contractor under the contract, or for any other cause, as of the date 28 days prior to the deadline for submission of the bids, shall be included in the rates and prices and the total bid price submitted by the bidder. The parties adopted certain form of conditions of contract with some changes which are called Conditions of Particular Application ('COPA' for short). In that, clause 70.8 dealt with the effect of subsequent legislation. That clause is reproduced in the starting paragraphs of the judgment of the Hon'ble Supreme Court and in paragraph 5, the nature of the disputes referred for decision of the Arbitral Tribunal are set out. One dispute was compensation for additional cost on account of increase in service tax on the insurance premium under the insurance policy for the project and compensation for additional cost on account of service tax on the bank guarantee charges. The Claimant pointed out all these aspects in terms of the claim and the arbitrator made an Award in favour of the Claimant and against the National Highways Authority of India. The Claimant pointed out all these aspects in terms of the claim and the arbitrator made an Award in favour of the Claimant and against the National Highways Authority of India. The National Highways Authority of India challenged that Award by filing a petition under section 34 of the Arbitration & Conciliation Act before the High Court of Delhi. That petition was dismissed. Even an appeal before a Division Bench against that decision failed. 151. It is in that context that the Hon'ble supreme court held that only those claims which have constructional inputs alone would be eligible to be covered under clause 70 of the COPA. The service tax on bank guarantee could have been avoided by the claimant if the bank guarantee was replaced by tendering cash and that the facility of bank guarantee was optional and at the discretion of the claimant. It is in these circumstances that there was no scope for awarding these claims. However, the Hon'ble Supreme Court held that the assessment made by the Arbitral Tribunal in the instant case and affirmed by the High court was definitely within its jurisdiction. All the more because bank guarantees were required to be given under the contract itself and such requirement was stipulated by the appellant primarily to reduce its financial risk and to bind the claimant for its performance or protecting the money advanced to the Claimants. That was held to be a mandatory condition. Though at some stage the option of performance bond was mentioned in COPA, such option was withdrawn making performance security to be compulsorily in the form of an unconditional bank guarantee. Such requirement being directly referable to essential conditions and arising out of the terms of the contract, according to him the matter was definitely within the ambit of Clause 70.8 of COPA. 152. Mr. Vashi would read the findings in the judgment of the Hon'ble Supreme Court in paragraph 13, completely torn from the above factual conspectus. Such requirement being directly referable to essential conditions and arising out of the terms of the contract, according to him the matter was definitely within the ambit of Clause 70.8 of COPA. 152. Mr. Vashi would read the findings in the judgment of the Hon'ble Supreme Court in paragraph 13, completely torn from the above factual conspectus. The factual matrix and the backdrop in which the claim arose are not identical to the matter before us as the construction of the clause was an issue before the Hon'ble Supreme Court, but that construction as placed by the Arbitral Tribunal and affirmed by the High Court was found to be within the jurisdiction of the Arbitral Tribunal nor was it termed as perverse, then, we do not think that this judgment can be of any assistance to Mr. Vashi. 153. Similar is the position with regard to the judgment in Tarapore & Co. vs. State of MP reported in (1994) 3 SCC 521 . There as well, the Hon'ble Supreme Court found that the appellant's averment was that after the contract was entered into, minimum wages were raised by the State and he was required to pay them accordingly. The rates quoted by him, however, related to wages as were prevalent the time when the tender was invited. The revision of the wages upset all his calculations as extra amount had to be paid on this count. The reimbursement claim was rejected by the Superintending Engineer and, therefore, the Tarapore & Co. requested him to appoint an arbitrator. That having not been done, Tarapore & Co. appointed one Brigadier D.R. Kathuria as arbitrator. It approached the Court to direct the State to file the arbitration agreement and to make an order of reference. The State did not oppose this. It named one V.M. Chitale as arbitrator while filing the arbitration agreement. The question was, therefore, referred for determination by the two named arbitrators. The State admitted that the contractor was liable to pay the increased minimum wages but took a stand that the Claimant was not entitled to the increased amount on account of revision of wages and denied its liability to reimburse. The arbitrators, however, awarded this claim. That Award was challenged by the State before the District Judge. The State admitted that the contractor was liable to pay the increased minimum wages but took a stand that the Claimant was not entitled to the increased amount on account of revision of wages and denied its liability to reimburse. The arbitrators, however, awarded this claim. That Award was challenged by the State before the District Judge. The District Judge took the view that the whole award was not required to be set aside and remitted the same as per section 16(1)(c) of the Arbitration Act, 1940. Once again the arbitrators, on remand, held that the Claimant was entitled to the reimbursement of the increased or revised wages. Once again, the State approached a District Judge and the District Judge set aside the Award by his order dated 21st July, 1988. The contractor carried the matter in appeal to the High Court which held that the arbitrators ought to have given their finding insofar as primary question of liability which was not done. It is in this backdrop that the Hon'ble Supreme Court decided the main question, namely, whether in the face of the two Awards and the cases put up by the parties, can it really be said that the arbitrators had acted beyond jurisdiction in awarding the sum in question and had misconducted themselves. It is in consideration of these matters and the rival contentions that the Hon'ble Supreme Court holds in paragraph 26 that it has to be seen whether there was an implied contract to reimburse the increased cost on account of rise of rates of wages on both the counts. Mr. Vashi only relies upon these lines in the paragraph, but without reading it in its entirety. The claim was that the escalation in the rate of aforesaid wages was a necessary concomitant to that which was agreed upon. Thus, as the minimum wages were revised, the contractor claimed reimbursement. That is why and in view of the obligation to pay fair wages in terms of the statute that the reimbursement was justified. It is in that context the implied agreement was culled out. Once again, we do not see how this judgment can be of any assistance in the facts and circumstances before us. 154. In the second judgment of National Highways Authority of India [ (2015) 14 SCC 21 ] as well, we do not see how that can be of relevance. Once again, we do not see how this judgment can be of any assistance in the facts and circumstances before us. 154. In the second judgment of National Highways Authority of India [ (2015) 14 SCC 21 ] as well, we do not see how that can be of relevance. Clause 32.1 of that contract and which is reproduced by the Hon'ble Supreme Court in its judgment enabled the Supreme Court to confirm the view taken by the Tribunal as a plausible one. The subsequent legislation was an aspect covered by COPA and further clause 32.1 was referred in the context of whether the expression “future events” in that clause entitles the respondent/contractor to raise the claim. The Hon'ble Supreme Court's observations in paragraph 35, relied upon by Mr. Vashi, should be seen in the backdrop of the factual aspects and the matters set out in the preceding paragraphs. The essential argument was that the construction of the terms of the contract is primarily for an arbitrator to decide and if he takes the view of a contract or interprets it, the court does not sit in appeal over the findings unless the arbitrator construes the contract in such a way that it could be said to be something that no fair minded or reasonable person could do. To our mind, the principles are not in dispute at all. Their application to a given case is what is material. In the present matter, we do not see any error being committed by the learned single Judge and of the magnitude set out in this principle. We are, therefore, of the opinion that even this judgment has no application. 155. Finally, the reliance is on the judgment in the case of Sumitomo Heavy Industries Limited vs. Oil and Natural Gas Corporation Limited reported in (2010) 11 SCC 296 . Even that judgment must be seen in the backdrop of the facts. There, the contract was entered into on a turn key basis with ONGC Limited. The tenders were invited on 22nd July, 1982 and the closing date was 11th October, 1982. On the date of the closing of the bid, the fiscal limit of the Indian Income-tax laws was twelve nautical miles in the territorial waters of India. There, the contract was entered into on a turn key basis with ONGC Limited. The tenders were invited on 22nd July, 1982 and the closing date was 11th October, 1982. On the date of the closing of the bid, the fiscal limit of the Indian Income-tax laws was twelve nautical miles in the territorial waters of India. The work to be done under the tender was about 100 miles off the coast, and hence, the income arising therefrom was not subject to income-tax in India. Thereafter, the sub-contractor was appointed by the appellant before the Supreme Court with full knowledge of ONGC for execution of a part of the work under the contract. The work was ultimately completed as per the contract and certified as such. 156. Under the amended laws with effect from 1st April, 1983 the work done under the tender and the income arising therefrom became subject to Income-tax Act, 1961. Then, there were various insertions / amendments to the Income-tax Act by the Finance Act 1987. All these changes in law took place after the closing date of the bid. In the year 1988, the sub-contractor was served with income-tax notices to re-open and revise the assessments already made for the assessment years 1984-85 and 1985-86. A tax demand raised concerned the income from the respondent-ONGC for work executed by them at Bombay High. On the rejection of its objection, the sub-contractor paid that amount and claimed it from Sumitomo Heavy Industries Limited. The main contractor Sumitomo Heavy Industries Limited paid that amount and claimed it from ONGC by relying upon clause 17.3 of the General Conditions of Contract which provided for situations arising out of change of law. This claim was rejected by ONGC. Thereupon the arbitration clause was invoked and the arbitration led to the acceptance of the Reference by the Umpire. The Umpire directed ONGC to pay the sum specified in the Award with interest from 15th May, 1991. He declared that in the event of the appellant becoming liable to pay further sums to the sub-contractor due to any assessment of income-tax on the sub-contractor under the present sub-contract pursuant to section 44 BB of the Income-tax Act, then, the respondent-ONGC shall indemnify the appellant against any such payment on demand. He declared that in the event of the appellant becoming liable to pay further sums to the sub-contractor due to any assessment of income-tax on the sub-contractor under the present sub-contract pursuant to section 44 BB of the Income-tax Act, then, the respondent-ONGC shall indemnify the appellant against any such payment on demand. The ONGC sought setting aside of this Award and the learned single Judge took the view that the construction placed by the Umpire on clauses 17.3 of the agreement was clearly an incorrect one. This would justify the Court's interference with the Award. The Award was thus set aside and even an appeal to a Division Bench of the High Court failed. 157. The sub-contractor, therefore, approached the Hon'ble Supreme Court. That appeal was allowed by the Hon'ble Supreme Court on the reasoning that from the evidence it is clear that the sub-contractor became liable to pay the tax amount in question only because of the retrospective change in the income-tax law brought in subsequent to the date of bid closing. The liability to reimburse that amount to the sub-contractor arose in view of the commitment made by the said Sumitomo Heavy Industries Limited in their sub-contract to the sub-contractor. It cannot be ignored that if there was no change of law, this situation would not have arisen at all. Therefore, the payment was not voluntary, but in the face of a clear liability in the teeth of a back-to-back contract and because the payment was made to the sub-contractor that Sumitomo relied upon clause 17.3 and the Award gave a meaningful interpretation to it. This was certainly not a perverse view. 158. It is in the backdrop of these facts that we must see the reliance on this judgment by Mr. Vashi. Once such facts are absent before us, then, this judgment has no application. 159. In the circumstances, what we find is that the Claimant's challenge to the order of the learned single Judge cannot be accepted. Even the Claimant's appeals would, therefore, have to fail. Accordingly, we pass the following order: (i) The two appeals filed by the State so also the two appeals filed by the Claimant ought to be dismissed and they stand dismissed accordingly. (ii) However, there shall be no order as to costs. Even the Claimant's appeals would, therefore, have to fail. Accordingly, we pass the following order: (i) The two appeals filed by the State so also the two appeals filed by the Claimant ought to be dismissed and they stand dismissed accordingly. (ii) However, there shall be no order as to costs. (iii) In view of the dismissal of all the four appeals, the Notices of Motion and the Chamber Summons taken out in the said appeals for various reliefs do not survive and stand disposed of accordingly.