JUDGMENT : Prayer: Original Side Appeal under Section 37 of the Arbtiration and Conciliation Act 1996 r/w Clause 15 of the Letters of Patent read with O XXXVI Rule (1) of the OS Rules and Section 13(1) of the Commercial Courts Act, 2015, has been filed against the fair and decreetal order passed by the learned Single Judge in ARB O.P.(Comml.Division) No.76 of 2021, dated 17.12.2021. The claimant before the learned Arbitrator has filed this appeal challenging the impugned order passed by the learned Single Judge in ARB O.P.(Comm.Division) No.76 of 2021, dated 17.12.2021, reversing Award dated 29.05.2019 passed by the learned Arbitrator. 2. Mr.Vijaynarayan, learned Senior Counsel, for Mr.P.J.Rishikesh, learned counsel for the claimant/appellant, submitted that the appellant company being one of the pioneers in real estate business, have successfully developed several projects in and around Chennai City and earned a reputation among the business circle in developing prime real estate projects within Chennai City and they have also attained unassailable reputation in the field of construction, due to which, many persons have come forward to work in collaboration with the appellant company. While the appellant company was looking for the property to develop in the proximity of the Grand Southern Trunk (GST) Road, the respondents had approached them in the year 2013 with a proposal to procure the lands in Melmaruvathur locality representing that they have wide contacts in that locality and therefore, they would be in a position to procure the lands measuring upto 120 acres for development into a township. Hence, based on such promise given by them, the appellant company entered into a Memorandum of Understanding (in short “MoU”) dated 09.05.2013, whereupon the respondents have agreed to procure 120 acres of land in a continuous and contiguous manner for the development of residential/commercial layout as per Clause 9 of the MoU. Subsequently, the appellant prepared a detailed sketch showing the entire 120 acres of land, however, the respondents have put them in a precarious situation by procuring the lands in a haphazard and non-contiguous manner. 3. Subsequently, the appellant prepared a detailed sketch showing the entire 120 acres of land, however, the respondents have put them in a precarious situation by procuring the lands in a haphazard and non-contiguous manner. 3. Continuing further, learned Senior Counsel argued that it was mutually agreed upon by the parties by way of Clause 12(a) and 12(b) of the MoU that after completion of the entire project, the respondents shall be allotted to an extent equivalent to 26.1% per acre by allotting any plot of any size and the appellant shall be allotted to an extent equivalent to 73.9% per acre. The respondents undertook to procure an extent of 120 acres of lands in Sothupakkam, Sirunagalur and Oonamalai Village in several survey numbers measuring upto an extent of 120 acres as provided in Schedule A and B of the MoU dated 09.05.2013. It is further submitted that out of 120 acres, 34.38 acres were already purchased and held by the respondents and another 4.90 acres were held by the respondents by way of agreement and in toto, they were having 39.28 acres. Besides, the parties have mutually fixed the sale consideration of those lands at Rs.25 lakhs per acre for the entire 120 acres of the schedule mentioned properties and that the cost of the entire procurement came up to Rs.30 crores and the said sum was agreed to be paid by the appellant to the respondents as per the conditions prescribed in the MoU. Thereafter, on the date of executing the MoU on 09.05.2013, a sum of Rs.60 lakhs was paid to the third respondent and the balance sale consideration was agreed to be paid during the progress of the project, besides, it was agreed that the registration charges and stamp duty for the entire conveyance shall be borne by the appellant. 4. Thereafter, on the date of executing the MoU on 09.05.2013, a sum of Rs.60 lakhs was paid to the third respondent and the balance sale consideration was agreed to be paid during the progress of the project, besides, it was agreed that the registration charges and stamp duty for the entire conveyance shall be borne by the appellant. 4. Further, learned Senior Counsel has read out various Clauses of MoU dated 09.05.2013 as follows:- (i) as per Clause 9, the respondents are responsible for procuring an extent of 120 acres of lands in a continuous and contiguous manner; (ii) as per Clause 12(a) and 12(b), after completion of the entire project, the respondents shall be allotted an extent equivalent to 26.1% per acre by way of allotting any plot of any size and in any manner, to be decided by the appellant; (iii) as per Clause 17, since the time is the essence of the contract, it was agreed that the entire transaction relating to the procurement of 120 acres of lands shall be completed within a period of 3 months and if the respondents fail to procure the same within such period, a grace period of 1 month was provided and on the whole, a total of 4 months' time period was agreed by the parties as the maximum time for procurement of 120 acres of lands by the respondents; (iv) as per Clause 18, the appellant company are at liberty to develop and complete the project at their own will; and (v) as per Clause 19, in the event of failure by the respondents in procuring the entire extent of lands as agreed in the MoU dated 09.05.2013, the appellant company are at liberty to procure the required lands on their own and the additional cost incurred by them shall be deducted from the land area to be allotted to the respondents. 5. Learned Senior Counsel further argued that inspite of the aforesaid agreed terms, the respondents have failed to perform their contractual obligations as per the MoU dated 09.05.2013 and sought for extension of time for procuring the entire extent of lands. But, even after several months from the deadline, the respondents could not procure 120 acres. 5. Learned Senior Counsel further argued that inspite of the aforesaid agreed terms, the respondents have failed to perform their contractual obligations as per the MoU dated 09.05.2013 and sought for extension of time for procuring the entire extent of lands. But, even after several months from the deadline, the respondents could not procure 120 acres. Therefore, by subsequent Supplemental MoU dated 27.06.2014, the extent of land was determined at 65-67 acres and the consideration was fixed at Rs.35-37 lakhs per acre as against 120 acres and Rs.25 lakhs respectively fixed in the MoU dated 09.05.2013. However, till June 2014, the respondents were able to procure only 54.35 acres and even such lands were not in a contiguous manner as those lands were in a scattered and irregular shape. Therefore, since the respondents have committed material breach under Section 73 of the Contract Act, they are liable to compensate the appellant for the serious lapses committed by them on different heads. Hence, the appellant issued a notice dated 02.12.2017 to the respondents informing them of the breach committed by them and again, after issuing another notice dated 10.01.2018, arbitral proceedings were instituted praying for the following reliefs: a) to declare that the respondents had committed breach of the MoU dated 09.05.2013 and Supplemental MoU dated 27.06.2014 and that they were not entitled to a share in the developed project; b) to direct the respondents to pay a sum of Rs.6.02 crorers towards loss of project; a sum of Rs.20.45 crores towards loss of interest; a sum of Rs.9.04 crores towards additional expenditure; and costs of arbitral proceedings. 6. The appellant adduced documentary evidence by exhibiting Exhibits C1 to C14 and the respondents adduced documentary evidence by exhibiting Exhibits R1 to R7 and finally, the Arbitral Tribunal, after framing 12 issues for consideration, by Award dated 29.05.2019, granted a declaration that the respondents committed breach of the MoU dated 09.05.2013 and Supplemental MoU dated 27.06.2014 and that they are not entitled to claim a share or right or interest in the layout developed by the appellant and with regard to the claim towards the loss of profit, a sum of Rs.2,43,40,500/- was awarded and all other claims were rejected except payment of Rs.9 lakhs towards costs of the arbitral proceedings. 7. 7. Mr.Vijaynarayan, learned Senior Counsel, further argued that as against the MoU, the respondents instead of procuring 120 acres of lands, have procured only 36 acres; secondly, the appellant had only 62.45 acres, that too, the same was not in contiguous manner and the rest of the balance lands could not be procured, as a result, the appellant, having invested close of 16.22 crores towards sale consideration, suffered loss due to the breach, because, they were unable to put the land to optimum use. Finally, learned Arbitrator came to the conclusion that there was a breach of contract on the part of the respondents and decided to compensate the appellant on a nominal basis and to arrive at a compensation, the Arbitrator relying on Section 73 of the Contract Act awarded 2.5 crores which is 15% of 16.22 crores invested by the appellant. But, however, learned Single Judge has wrongly set aside the award passed by the learned Arbitrator entertaining a new plea made by the respondents for the first time that under Section 34 of the Contract Act, these are contingent contract and the appellant is not entitled to receive any compensation. 8. Mr.Vijaynarayan, learned Senior Counsel, further argued that the arbitrator factually concluded that there has been a breach of contract on the part of the respondents and therefore, under Section 73 of the Contract Act, the Arbitrator decided to grant nominal damages for such breach, hence, the findings of the learned Single Judge reversing the award passed by the Arbitrator awarding 15% of the investment made by the appellant as damages, is untenable and without any justification. When the situation itself speaks that as against the MoU dated 09.05.2013 to procure 120 acres of lands, they were able to procure only 61.5 acres of lands, but, even such lands also were not in a continuous and contiguous manner, this would evidently show that no evidence is required to be produced, therefore, awarding of 15% compensation against the total investment made by the appellant is reasonable. However, this vital aspect has been completely ignored by the learned Single Judge. 9. In support of his submissions, referring to a decision of the Hon'ble Apex Court in M/s. Construction & Design Services Vs. However, this vital aspect has been completely ignored by the learned Single Judge. 9. In support of his submissions, referring to a decision of the Hon'ble Apex Court in M/s. Construction & Design Services Vs. Delhi Development Authority [ (2015) 14 SCC 263 ], Mr.Vijaynarayan, learned Senior counsel, argued that if there is delay in executing the work which resulted in loss, then the respondent is entitled to reasonable compensation. The Apex Court further held that the evidence of precise amount of loss may not be possible, but, in the absence of any evidence by the party committing breach that no loss was suffered by the party complaining of breach, the Court has to proceed on guess work as to the quantum of compensation to be allowed in the given circumstances. 10. Again, referring to another judgment of the Hon'ble Apex Court in the case of Oil & Natural Gas Corporation Limited (ONGC) Vs. Saw Pipes Limited [ (2003) 5 SCC 705 ], learned Senior counsel argued that in every case of breach of contract, the person aggrieved by the breach is not required to prove actual loss or damage suffered by him before he can claim a decree. The Court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequence of the breach of a contract. 11. By concluding his arguments, learned Senior Counsel argued that if there is a breach of contract, in such circumstances, loss would be assessed based on the guesswork and the burden was on the breacher who committed breach to show that no loss was caused by the delay. In the present case, when the respondents have procured only 61.5 acres as against 120 acres, even after the expiry of 4 months' time and for several years, the respondents could not procure the lands as agreed by them. Therefore, since it is a clear case of breach, awarding of 15% of compensation against the total amount invested by the appellant is just and reasonable compensation. This has been wrongly interfered with by the learned Single Judge, as a result, the appellant had suffered huge loss. Therefore, the impugned order is liable to be interfered with. 12. Therefore, since it is a clear case of breach, awarding of 15% of compensation against the total amount invested by the appellant is just and reasonable compensation. This has been wrongly interfered with by the learned Single Judge, as a result, the appellant had suffered huge loss. Therefore, the impugned order is liable to be interfered with. 12. Mr.OM.Prakash, learned Senior Counsel, for Mr.U.Karunakaran, learned counsel for the respondents, argued that A-schedule properties referred to in MoU dated 09.05.2013 belong to the respondents and they have executed a sale deed in favour of the appellant company for joint development. As far as B-Schedule properties belonging to the third parties are concerned, copies of documents of such properties have been submitted to the appellant for legal verification. But, the entire properties referred to in B-Schedule could not be purchased within 4 months, therefore, both parties have mutually agreed to reduce the procurement of lands from 120 acres to 67.5 acres for joint development and they have also entered into a Supplemental MoU dated 27.06.2014 and thereby the lands to an extent of 53 acres have been transferred in favour of the appellant company and this was mentioned in 'A' schedule property and in 'B' schedule property, the land to be purchased has been mentioned. 13. Drawing the attention of the Court to a Clause 1 of the Supplemental MoU dated 27.06.2014, learned Senior Counsel for the respondents argued that under the MoU dated 09.05.2013, the parties have agreed to fix Rs.25 lakhs per acre for procurement of total extent of 120 acres, but, under the Supplemental MoU dated 27.06.2014, this was reduced 65-67 acres with regard to the total extent and similarly sale consideration was increased to Rs.35-37 lakhs per acre. It is further submitted that when the Supplemental MoU dated 27.06.2014 says that in the event of failure to procure such lands on the part of the respondents, the appellant company can very well procure the balance lands and the proceeds therefrom can be deducted to the extent mentioned in the agreement, but, without purchasing the property as per the agreement, the appellant has wrongly issued legal notice dated 10.01.2018 seeking refund of the advance amount. Learned Arbitrator disregarding the documentary evidence adduced by the first respondent, held that the respondents have committed breach of MoU dated 09.05.2013 and Supplemental MoU dated 27.06.2014 and thereby passed an Award dated 29.05.2019 directing the respondents to pay 15% of the total fund invested by the appellant, especially when no evidence was adduced by the appellant for such compensation. 14. Continuing further, Mr.OM.Prakash, learned Senior Counsel, argued that if the respondents failed to procure the extent of lands specified in the MoU, the appellant was permitted to procure the same and adjust any excess cost against the respondents' share in the completed project and neither the MoU nor the Supplemental MoU envisaged relinquishment of rights in case of breach. Therefore, the approach of the Arbitral Tribunal is untenable and unsustainable, hence, learned Single Judge has rightly reversed the same. On this count, the findings and conclusions arrived at by the learned Single Judge are not liable for interference. 15. Heard the learned Senior Counsel appearing on either side and perused materials available before this Court. 16. Admittedly, the respondents are having 39.28 acres of lands close to Grand Southern Trunk (GST) Road, near Melmaruvathur. The appellant company, who were looking for properties to develop a residential township/commercial shops, have approached the respondents in the year 2013 with a proposal to acquire an extent of 39.28 acres owned by them close to GST Road. The respondents represented that they have wide range of contacts in the said area, hence, they would be in a position to acquire the lands to an extent of 120 acres for developing the same into a township. Subsequently, a Memorandum of Understanding (MoU) dated 09.05.2013 was entered into between the parties and the respondents said to have identified several lands in Sothupakkam, Sirunagalur and Oonamalai Village. Some of the important conditions stipulated in the MoU dated 09.05.2013 are stated below:- (i) The lands to an extent of 120 acres are to be acquired by the respondents for sale in a continuous and contiguous manner for development of the same as residential/commercial layout; (ii) As the time is the essence of the contract, the respondents shall procure 120 acres of lands within 3 months and in the event of failure, 1 month grace time is provided and on the whole, 4 months' time is given for performing their contractual obligation. (iii) After completion of the project, the respondents shall be allotted 26.1% per acre by way of allotting any plot of any size and in any random manner to be decided by the appellant; and the appellant shall be allotted to an extent equivalent to 73.9% per acre. (iv) The appellant company are at liberty to procure the required lands on their own and the additional cost incurred by them shall be deducted from the land area to be allotted to the respondents. 17. It is seen from the records that when the respondents undertook to purchase 120 acres of lands, they have procured the lands measuring an extent of 34.38 acres, besides, having 4.90 acres of land by way of agreement and in toto, they were having only 39.38 acres of lands. Under the MoU dated 09.05.2013, the sale consideration of Rs.25 laksh per acre was fixed for the procurement of 120 acres, for which, the appellant was required to pay an aggregate sum of Rs.30 crores. It is further stated in the MoU that if the total cost of purchase exceeds Rs.30 crores, then the said sum has to be borne by the respondents. As per MoU, the respondents are entitled to 26.1% or 6900 sq.ft. per acre of land and the appellant is entitled to 73.9% or 22200 sq.ft. per acre of land. The further condition stipulated in the MoU is that if the respondents fail to procure the lands as agreed, the appellant is entitled to do the same and any excess cost for that purpose shall be deducted by making an adjustment against the area allotted to the respondents. 18. It is also to be noted that since the respondents could not perform their contractual obligation, they sought for extension of time for procuring the entire extent of lands and till 2014, they had procured only 54.35 acres and even such lands procured by them are not in a contiguous manner and those lands are in a scattered and irregular shape. Therefore, in view of the above, Supplemental MoU dated 27.06.2014 was entered into between the parties with modified conditions. As per the Supplemental MoU dated 27.06.2014, the entire extent of land to be procured was reduced from 120 acres to 65-67 acres and the sale consideration for one acre was fixed at Rs.35-37 lakhs as against the original consideration of Rs.25 lakhs. As per the Supplemental MoU dated 27.06.2014, the entire extent of land to be procured was reduced from 120 acres to 65-67 acres and the sale consideration for one acre was fixed at Rs.35-37 lakhs as against the original consideration of Rs.25 lakhs. It was further agreed in the Supplemental MoU dated 27.06.2014 that the excess amount of the sale consideration paid by the appellant over and above Rs.25 lakhs would be adjusted against 26.1% share of the respondents in the developed plots, besides, adjusting an additional 20% of the excess amount of the procurement costs towards 26.1% share of the respondents. It was further stipulated in the Supplemental MoU that the respondents shall procure the balance extent of 10 acres within a period of 15 days from date of the Supplemental MoU dated 27.06.2014, failing which, the appellant is given the right to procure the lands and the excess amount shall be accordingly adjusted from the share of the respondents. Since the lands so purchased by the respondents are not in a continuous and contiguous nature, the appellant could not put the lands to optimum use, due to which, the appellant had suffered huge loss. Hence, aggrieved by the breach of the contract, the appellant invoked arbitration clause and Hon'ble Mr.Justice E.Padmanabhan (Retd.) was appointed as the Sole Arbitrator to decide and adjudicate the dispute. The appellant raised 3 claims under different heads, namely, to declare the breach on the part of the respondents; to pay the loss caused to the appellant due to the breach; and to pay the loss of profit and expenditure. Although the respondents had filed the counter affidavit, learned Arbitrator came to the conclusion that firstly, there was an MoU dated 09.05.2013, as per which, the respondents had to procure 120 acres of lands in a continuous and contiguous manner, but, they were unable to procure such lands in spite of grant of extension of time; secondly, Supplemental MoU dated 27.06.2014 has been reached between the parties with modified conditions, but, the respondents have neither honoured the commitments of MoU dated 09.05.2013 nor the Supplemental MoU dated 27.06.2014, therefore, learned Arbitrator has rightly come to the conclusion that out of 120 acres of lands to be procured without any gap in- between the lands of GST Road, only 54.35 acres of lands were procured by the respondents. Accordingly, after analyzing the above said facts, learned Arbitrator has come to the conclusion that on account of the breach, the respondents are not entitled to any claim or share in the lands purchased by the appellant Company, besides directing the respondents to pay a sum of Rs.2.43 crores towards the loss suffered by the appellant on account of delay in purchasing the lands. But, challenging the same, when the matter was reached before the learned Single Judge on the ground that there was no evidence produced for establishing the extent of damage, the respondents were unable to explain why there was a delay in executing the work, therefore, the appellant is entitled to reasonable compensation due to the delay caused by the respondents on two counts; firstly as per MoU dated 09.05.2013; secondly as per Supplemental MoU dated 27.06.2014, for which, no evidence is necessary as it is an admitted case of breach. Therefore, learned Arbitrator, in our considered opinion, was bound to grant reasonable compensation and accordingly, 15% compensation has been rightly awarded. 19. In Construction & Design Services' case (cited supra), the Hon'ble Apex Court held that if there is a delay in executing the work and that has certainly resulted in loss, then the respondent is entitled to reasonable compensation. For better appreciation, relevant paragraphs thereof are extracted below:- “14. There is no dispute that the appellant failed to execute the work of construction of sewerage pumping station within the stipulated or extended time. The said pumping station certainly was of public utility to maintain and preserve clean environment, absence of which could result in environmental degradation by stagnation of water in low lying areas. Delay also resulted in loss of interest on blocked capital as rightly observed in para 7 of the impugned judgment of the High Court. In these circumstances, loss could be assumed, even without proof and burden was on the appellant who committed breach to show that no loss was caused by delay or that the amount stipulated as damages for breach of contract was in the nature of penalty. Even if technically the time was not of essence, it could not be presumed that delay was of no consequence. Even if technically the time was not of essence, it could not be presumed that delay was of no consequence. Thus, even if there is no specific evidence of loss suffered by the respondent-plaintiff, the observations in the order of the Division Bench that the project being a public utility project, the delay itself can be taken to have resulted in loss in the form of environmental degradation and loss of interest on the capital are not without any basis. 15. Once it is held that even in absence of specific evidence, the respondent could be held to have suffered loss on account of breach of contract, and it is entitled to compensation to the extent of loss suffered, it is for the appellant to show that stipulated damages are by way of penalty. In a given case, when highest limit is stipulated instead of a fixed sum, in absence of evidence of loss, part of it can be held to be reasonable, compensation and the remaining by way of penalty. The party complaining of breach can certainly be allowed reasonable compensation out of the said amount if not the entire amount. If the entire amount stipulated is genuine pre-estimate of loss, the actual loss need not be proved. Burden to prove that no loss was likely to be suffered is on party committing breach, as already observed. 16. It is not necessary to refer to all the judgments on the point in view of categorical pronouncement of this Court in Saw Pipes (supra), laying down as follows:- "64. It is apparent from the aforesaid reasoning recorded by the Arbitral Tribunal that it failed to consider Sections 73 and 74 of the Indian Contract Act and the ratio laid down in Fateh Chand case wherein it is specifically held that jurisdiction of the court to award compensation in case of breach of contract is unqualified except as to the maximum stipulated; and compensation has to be reasonable. Under Section 73, when a contract has been broken, the party who suffers by such breach is entitled to receive compensation for any loss caused to him which the parties knew when they made the contract to be likely to result from the breach of it. Under Section 73, when a contract has been broken, the party who suffers by such breach is entitled to receive compensation for any loss caused to him which the parties knew when they made the contract to be likely to result from the breach of it. This section is to be read with Section 74, which deals with penalty stipulated in the contract, inter alia (relevant for the present case) provides that when a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, the party complaining of breach is entitled, whether or not actual loss is proved to have been caused, thereby to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named. Section 74 emphasizes that in case of breach of contract, the party complaining of the breach is entitled to receive reasonable compensation whether or not actual loss is proved to have been caused by such breach. Therefore, the emphasis is on reasonable-compensation. If the compensation named in the contract is by way of penalty, consideration would be different and the party is only entitled to reasonable compensation for the loss suffered. But if the compensation named in the contract for such breach is genuine pre-estimate of loss which the parties knew when they made the contract to be likely to result from the breach of it, there is no question of proving such loss or such party is not required to lead evidence to prove actual loss suffered by him. Burden is on the other party to lead evidence for proving that no loss is likely to occur by such breach. Take for illustration: if the parties have agreed to purchase cotton bales and the same were only to be kept as a stock-in-trade. Such bales are not delivered on the due date and thereafter the bales are delivered beyond the stipulated time, hence there is breach of the contract. The question which would arise for consideration is - whether by such breach the party has suffered any loss. If the price of cotton bales fluctuated during that time, loss or gain could easily be proved. But if cotton bales are to be purchased for manufacturing yarn, consideration would be different. 67. Take for illustration construction of a road or a bridge. If the price of cotton bales fluctuated during that time, loss or gain could easily be proved. But if cotton bales are to be purchased for manufacturing yarn, consideration would be different. 67. Take for illustration construction of a road or a bridge. If there is delay in completing the construction of road or bridge within the stipulated time, then it would be difficult to prove how much loss is suffered by the society/State. Similarly, in the present case, delay took place in deployment of rigs and on that basis actual production of gas from platform B-121 had to be changed. It is undoubtedly true that the witness has stated that redeployment plan was made keeping in mind several constraints including shortage of casing pipes. The Arbitral Tribunal, therefore, took into consideration the aforesaid statement volunteered by the witness that shortage of casing pipes was only one of the several reasons and not the only reason which led to change in deployment of plan or redeployment of rigs Trident II platform B-121. In our view, in such a contract, it would be difficult to prove exact loss or damage which the parties suffer because of the breach thereof. In such a situation, if the parties have pre-estimated such loss after clear understanding, it would be totally unjustified to arrive at the conclusion that the party who has committed breach of the contract is not liable to pay compensation. It would be against the specific provisions of Sections 73 and 74 of the Indian Contract Act. There was nothing on record that compensation contemplated by the parties was in any way unreasonable. It has been specifically mentioned that it was an agreed genuine pre-estimate of damages duly agreed by the parties. It was also mentioned that the liquidated damages are not by way of penalty. It was also provided in the contract that such damages are to be recovered by the purchaser from the bills for payment of the cost of material submitted by the contractor. No evidence is led by the claimant to establish that the stipulated condition was by way of penalty or the compensation contemplated was, in any way, unreasonable. There was no reason for the Tribunal not to rely upon the clear and unambiguous terms of agreement stipulating pre-estimate damages because of delay in supply of goods. No evidence is led by the claimant to establish that the stipulated condition was by way of penalty or the compensation contemplated was, in any way, unreasonable. There was no reason for the Tribunal not to rely upon the clear and unambiguous terms of agreement stipulating pre-estimate damages because of delay in supply of goods. Further, while extending the time for delivery of the goods, the respondent was informed that it would be required to pay stipulated damages." “17. Applying the above principle to the present case, it could certainly be presumed that delay in executing the work resulted in loss for which the respondent was entitled to reasonable compensation. Evidence of precise amount of loss may not be possible but in the absence of any evidence by the party committing breach that no loss was suffered by the party complaining of breach, the Court has to proceed on guesswork as to the quantum of compensation to be allowed in the given circumstances. Since the respondent also could have led evidence to show the extent of higher amount paid for the work got done or produce any other specific material but it did not do so, we are of the view that it will be fair to award half of the amount claimed as reasonable compensation.” 20. In the present case, as highlighted above, as per MoU dated 09.05.2013, the respondents have to complete the procurement of 120 acres within 4 months' time, but, despite extension of time one after another, they were unable to procure the full extent of 120 acres in terms of MoU. Therefore, this is the first breach of contract. Subsequently, when Supplemental MoU was reached between the parties on 27.06.2014 reducing from 120 acres to 65-67 acres, once again the respondents had miserably failed to honour their commitments. Thus, it is a clear case of breach of MoU dated 09.05.2013 and Supplemental MoU dated 27.06.2014, for which, no evidence is necessary. Consequently, as rightly held by the learned Arbitrator, the party complaining of breach is entitled to receive just and reasonable compensation, hence, awarding of 15 % of compensation on the total fund invested by the appellant company, in our considered view, is just and proper, therefore, the impugned order passed by the learned Single Judge reversing the award passed by the learned Arbitrator is liable to go. The command of the arbitration law is well settled that the award passed by the Arbitral Tribunal cannot be ordinarily set aside by the Court unless it is proved that such award is contrary to the provisions of the Act. While dealing with a similar legal position, this Court in Chennai Container Terminal Pvt. Ltd. Vs. The Board of Trustees of Chennai Port Trust and others [MANU/TN/1398/2018] held thus:- “40. An award may be said to be against the public policy if the making of the award was induced or affected by fraud or corruption or on the ground that the award is against justice or against morality or is patently illegal or is against the interest of India. It is nobody's case that the award was induced by fraud or corruption. 41. An award might be set aside as patently illegal, provided the illegality goes to the root of the award. If the illegality is of a trivial nature, it cannot be said that the award is against public policy. This proposition was reaffirmed by the Supreme Court in Hindustan Zinc Ltd. v. Friends Coal Carbonization, reported in (2006) 4 SCC 445 . In ONGC Ltd. v. Saw Pipes Ltd., reported in (2003) 5 SCC 705 , the Supreme Court held that an award could also be set aside, if it was so unfair and unreasonable, that it shocked the conscience of the Court.” The above observation clearly shows that if the arbitral award is patently illegal, the same can be set aside. But, in the present case, there is no such patent illegality or the award goes against the public policy. At the cost of repetition, it may be mentioned that two times, the respondents have committed breach of contract as detailed supra, for which, learned Arbitral Tribunal has rightly awarded 15% compensation against the fund invested by the appellant company. But, unfortunately, this patent illegality committed by the respondents has been completely overlooked by the learned Single Judge. 21. This apart, Section 58 of the Indian Evidence Act, 1872, states that facts admitted need not be proved, for, no fact need be proved in any proceeding which the parties thereto agree to admit at the hearing. Section 56 of the Indian Evidence Act says that fact judicially noticeable need not be proved. Sections 56 and 58 are extracted below:- 56. Section 56 of the Indian Evidence Act says that fact judicially noticeable need not be proved. Sections 56 and 58 are extracted below:- 56. Fact judicially noticeable need not be proved: No fact of which the Court will take judicial notice need to be proved. 58. Facts admitted need not be proved: No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. In the present case, admittedly, the respondents have not honoured their commitments as agreed in MoU dated 09.05.2013 and the subsequent Supplemental MoU dated 27.06.2014. Thus, it is vividly clear that there is a clear case of admitted breach committed by the respondents and therefore, the Tribunal is competent to award just and reasonable compensation, hence, in our considered view, learned Arbitrator rightly relying on Section 73 of the Contract Act has awarded 15% of 16.22 crores invested by the appellant. 22. In ONGC Limited's case (cited supra), the Hon'ble Apex Court, while dealing with a similar and identical issue, held that the terms of the contract are required to be taken into consideration before arriving at the conclusion whether the party claiming damages is entitled to the same. If the terms are clear and unambiguous stipulating the liquidated damages in case of the breach of the contract, then in such cases, the party who has committed the breach is required to pay such compensation. For better appreciation, paragraph No.68 thereof is extracted below:- 68. From the aforesaid discussions, it can be held that:- (1) Terms of the contract are required to be taken into consideration before arriving at the conclusion whether the party claiming damages is entitled to the same; (2) If the terms are clear and unambiguous stipulating the liquidated damages in case of the breach of the contract unless it is held that such estimate of damages/compensation is unreasonable or is by way of penalty, party who has committed the breach is required to pay such compensation and that is what is provided in Section 73 of the Contract Act. (3) Section 74 is to be read along with Section 73 and, therefore, in every case of breach of contract, the person aggrieved by the breach is not required to prove actual loss or damage suffered by him before he can claim a decree. The Court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequences of the breach of a contract. (4) In some contracts, it would be impossible for the Court to assess the compensation arising from breach and if the compensation contemplated is not by way of penalty or unreasonable, Court can award the same if it is genuine preestimate by the parties as the measure of reasonable compensation. A bare reading of the above said observations would support award passed by the learned Arbitrator. The above said ruling says that in every case of breach of contract, the person aggrieved by the breach is not required to prove actual loss or damage suffered by him before he can claim a decree and the Court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have suffered in consequence of the breach of a contract and in some cases, like the one adjudicated before the learned Arbitrator, no need to prove the delay as it is explicit and repeatedly established by the appellant, hence, it is unnecessary to prove the same, because, the breach has already occurred, as a result, the appellant had suffered loss. Thus, awarding of 15% compensation against the total investment made by the appellant cannot be found fault with. However, this has been completely overlooked by the learned Single Judge. 23. With regard to allotment of 26.1% share to the respondents, it is apposite to take note of the endorsement made by the respondents on 19.09.2014 in the Supplemental MoU dated 27.06.2014, which is extracted below:- A reading of the above endorsement depicts that on behalf of other respondents, the respondents 3 and 4 have relinquished their rights in MoU dated 09.05.2013 and Supplemental MoU dated 27.06.2014. Therefore, once the respondents themselves have made an endorsement relinquishing their rights, the question of allotting 26.1% share to the respondents as per MoU dated 27.06.2014 does not arise, hence, in our considered view, the impugned order passed by learned Single Judge reversing award passed by the learned Arbitrator declining to grant such share to the respondents is not tenable. 24. In fine, for the reasons stated above, the impugned order passed by the learned Single Judge is set aside and the award passed by the learned Arbitrator is hereby confirmed. Consequently, Original Side Appeal is allowed. No Costs.