JUDGMENT : (Goutam Bhaduri, J.) 1. This appeal is against the order dated 29-1-2022 passed by the Judge, Commercial Court (District Level), Naya Raipur, Chhattisgarh, in an unregistered MJC/2022 wherein the order dated 2-12-2021 passed by the Managing Director of the Chhattisgarh State Civil Supplies Corporation Limited (for brevity ‘the Corporation’) was dismissed on the ground that the appeal would not lie, as the order passed by the Managing Director is not in the capacity of an Arbitrator. So it was not an arbitral award. Thus, this appeal. 2. The facts, in brief, are that the appellant – AVI India International LLP, which is a partnership firm, was constituted with two partners. Pursuant to e-auction to purchase the rice available with the Corporation, an agreement was executed in between the parties on 1-4-2021. The agreement was entered for sale of 10,000 MT of rice which was to be lifted within 45 days. At the time agreement, an amount of Rs. 1,10,00,000/- was deposited by the appellant towards the security amount. It is stated that after execution of agreement one of the partner of the appellant’s firm was detected with and suffered COVID infection and eventually breathed his last on 8-4-2021. It is stated that by such time during the second wave of COVID Pandemic, lock down was imposed in the State of Chhattisgarh from 9-4-2021 to 31-5-2021 thereby entire commercial transport came to a standstill. According to the appellant, the rice which was to be lifted from Balod district lock down was imposed there and simultaneously lock down was also going on at Dhamtari District where from the appellant firm was operating. Subsequent to it on 3-5-2021, after specified period of contract an amount of Rs. 2,21,20,000/- was paid to the Corporation for purchase of 1000 MT rice. Consequent thereon the delivery order was issued. Thereafter, invoking force majeure clause, the Corporation extended the time on 27-5-2021, which continued and from 1-6-2021 a limited lock down was operating in the State of Chhattisgarh. Subsequently, Rs. 5,53,00,000/- was paid to the Corporation for purchase of 2500 MT of rice for which the delivery order was issued thereby 3500 MT of rice was lifted as against Rs. 7,74,20,000/-. 3. On 28-7-2021 (Annexure - A/5) the Corporation issued a show cause notice to the appellant as to why the security amount should not be confiscated and reply was sought for. 7,74,20,000/-. 3. On 28-7-2021 (Annexure - A/5) the Corporation issued a show cause notice to the appellant as to why the security amount should not be confiscated and reply was sought for. Pursuant to the same, reply was submitted by the appellant on 31-7-2021 (Annexure-A/6) stating that since one of the partner had died and they suffered financial loss due to outbreak of COVID-19 Pandemic as such considering the death of partner they may be exempted to lift the entire rice as agreed and the rice be supplied equivalent to the price of earnest money. Thereafter, again a letter was issued by the Corporation on 6-9-2021 (Annexure-A/7) to deposit the penalty amount of Rs. 60,76,237/- calculated uptill 11-9-2021. It was further stated that in the event of non payment of such amount for the rest of rice, the earnest money shall be forfeited. Reply was submitted by the appellant on 20/09/2021 (Annexure A/8) and it was stated that because of lock down imposed, no transportation was allowed and in the meanwhile since one of the partners died, the remaining quantity of 6500 MT of rice was not possible to be lifted; the agreement was sought to be canceled; and requested for return of the amount deposited. It was further stated that the rice which was required to be lifted within 45 days from the date of agreement could not be lifted owing to outbreak of COVID-19 pandemic. 4. As per the appellant, since no action was taken by the Corporation on frequent representations instead a penalty was imposed, the appellant preferred a petition before this Court bearing WPC No.4013 of 2021, wherein the High Court had passed an order on 18/10/2021 (Annexure A/9) directing the appellant herein to make a representation raising dispute before the Managing Director of the Corporation as per clause 13 of the agreement. Thereafter, on 22/10/2021 (Annexure A/10) the appellant raised the dispute as per clause 24 (13) of the agreement whereby the penalty imposed to the tune of Rs. 60,76,237/- was sought to be waived and also sought return of Rs. 1,10,00,000/- or in lieu thereof equivalent rice to the price of aforesaid amount was prayed for. 5. Another show-cause notice was issued to the appellant on 15/11/2021 (Annexure A/11) and the appellant was asked to deposit Rs. 71,92,896/- as a penalty and in response to confiscation of Rs. 60,76,237/- was sought to be waived and also sought return of Rs. 1,10,00,000/- or in lieu thereof equivalent rice to the price of aforesaid amount was prayed for. 5. Another show-cause notice was issued to the appellant on 15/11/2021 (Annexure A/11) and the appellant was asked to deposit Rs. 71,92,896/- as a penalty and in response to confiscation of Rs. 1,10,00,000/- of EMD the appellant was asked to appear before the Corporation on 30/11/2021. The said show-cause notice was issued with due approval of the Managing Director of the Corporation. The appellant submitted its reply vide Annexure A/12 before the Managing Director of the Corporation. Thereafter, the order dated 02/12/2021 (Annexure-A/2) was passed by the Managing Director of the Corporation. 6. Being aggrieved by such an order, the appellant preferred an appeal before the Commercial Court, under Section 34 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act, 1996’). The said appeal was dismissed by the Commercial Court by the order dated 29/01/2022 (Annexure A/1) on the ground that the order passed by the Managing Director was under the administrative head and not in the capacity of Arbitrator, therefore, the appeal would not lie and accordingly dismissed the appeal. Hence this appeal. 7. Ms. Shailja Shukla, learned counsel for the appellant, would submit that pursuant to sale of 10,000 MT of rice, the agreement when was executed, the total consideration was Rs. 22,12,00,000/-. Out of which an amount of Rs. 1,10,00,000/- was deposited by the appellant as earnest money (EMD). Because of death of one of the partner due to COVID infection and on account of imposition of Lock down, the performance of contract could not be carried out, therefore, the original contract was frustrated. Learned counsel would further submit that though the contract speaks about adjudication of dispute under the provisions of the Chhattisgarh Madhyastham Adhikaran Adhiniyam, 1983 (for short ‘the Adhiniyam, 1983’) but such dispute cannot be referred as the nature of dispute is not covered under the Adhiniyam, 1983 as dispute of work contracts only can be referred thereunder. She would also submit that the order of the Commercial Court affirms the fact that the nature of dispute cannot be referred under the Adhiniyam, 1983 against which no appeal has been preferred by the Corporation and as such those findings have reached its finality. 8. She would also submit that the order of the Commercial Court affirms the fact that the nature of dispute cannot be referred under the Adhiniyam, 1983 against which no appeal has been preferred by the Corporation and as such those findings have reached its finality. 8. Learned counsel would next submit that the contract had expired by the efflux of time and since after execution of the agreement on 01/04/2021 because of imposition of lock down the things were beyond the control of the appellant, therefore, execution of the same contract cannot be further pressed for as it stood frustrated. Learned counsel would submit that the penalty cannot be imposed as it was not a part of contract and the contract having been frustrated, the Corporation, which is a State authority, cannot advance the logic of undue enrichment, therefore, they are required to return the said amount or in lieu thereof, supply the rice to the extent of amount of Rs. 1,10,00,000/-. 9. Mr. Anish Tiwari, learned counsel for the respondent, per contra, would submit that the order which was subject of challenge was passed by the Managing Director and subsequent thereto the reference was provided to the parties to approach under the Adhiniyam, 1983. Consequently, the order dated 02/12/2021 which was subject of challenge before the Commercial Court was not an arbitral award as the Managing Director has not passed the order in the capacity of an Arbitrator. He would further submit that therefore, when the award itself cannot be said to be an arbitral award, the consequent appeal would not lie from the administrative order of the Managing Director of the Corporation. He would submit that the order impugned is well merited, which do not call for any interference of this Court. 10. We have heard learned counsel for the parties and perused the documents. 11. In order to appreciate the dispute in between the parties, we went through the agreement. The agreement was of 01/04/2021 for Rs. 21,12,00,000/- to lift the rice from the respondent Corporation. An amount of Rs. 1,10,00,000/- was deposited as EMD at the time of execution of contract. The time which was agreed upon in between the parties was as per clause 22 of the agreement wherein from 01/04/2021, the agreement was to last till 45 days for lifting of rice. 21,12,00,000/- to lift the rice from the respondent Corporation. An amount of Rs. 1,10,00,000/- was deposited as EMD at the time of execution of contract. The time which was agreed upon in between the parties was as per clause 22 of the agreement wherein from 01/04/2021, the agreement was to last till 45 days for lifting of rice. For the sake of convenience, clause 22 of the agreement is quoted below:- 22½ Lda/k dh iw.kZ fMyhojh ysus dh vafre frfFk vuqca/k fnukad 01-04-2021 ls 45 dk;Z fnol rd jgsxhA 12. Clause 24 (13) of the agreement speaks about resolution of dispute by reference. The same reads as under:- 24¼13½ mHk; i{kks ds e/; bl fufonk rFkk vuqca/k ds laca/k esa dksbZ Hkh fookn mRiUu gksus ds 60 fnol ds Hkhrj izca/k lapkyd NRrhlxढ+ LVsV flfoy lIykbZt dkiksZjs'ku dks fujkdj.k gsrq izLrqr fd;s tk,axsA ftldk fujkdj.k izLrqfr fnukad ls 30 fnu ds Hkhrj fd;k tkosxkA mDr 30 fnu dh le; lhek mHk;i{kks ds }kjk vkilh lgefr ls cढ+kbZ tk ldrh gSA ;fn dksbZ i{k] izca/kd lapkyd }kjk ikfjr vkns'k ls vlarq"V gks ;k izca/kd lapkyd ds }kjk mDr le;kof/k esa dksbZ vkns'k ikfjr ugh fd;k tkrk rks] {kqC/k i{k mDr fookn dks fujkdj.k gsrq NRrhlxढ+ e/;LFke vf/kdj.k vf/kfu;e] 1983 ds varxZr xfBr NRrhlxढ+ ek/;LFke vf/kdj.k] jk;iqj esa fu.kZ; gsrq izLrqr dj ldrk gSA ftldk fujkdj.k NRrhlxढ+ e/;LFke vf/kdj.k vf/kfu;e] 1983 ds rgr gksxk] tks vafre ,oa cU/kudkjh gksxkA 13. Reading of the aforesaid clauses would show that in case of any dispute arises, touching the contract, the dispute was required to be referred within a period of 60 days to the Managing Director of the Corporation, which would be decided within a further period of 30 days from the date of presentation and the said period of 30 days can be extended with the mutual consent. The second part of the clause shows that in case any party is aggrieved by the order of the Managing Director, the dispute can be referred under the Adhiniyam, 1983 and the said order would be binding. 14. The second part of the clause shows that in case any party is aggrieved by the order of the Managing Director, the dispute can be referred under the Adhiniyam, 1983 and the said order would be binding. 14. With regard to reference of dispute by Act, 1983 the word ‘Dispute’ is defined under Section 2(d) of the Adhiniyam, 1983, which is quoted below:- 2(d) ‘dispute' means claim of ascertained or ascertainable money valued at Rupees 50,000 or more relating to any difference arising out of the execution or non-execution of a works contract or part thereof; 15. ‘Work Contract’ is defined under Section 2 (i) of the Adhiniyam, 1983, which is quoted below:- 2(i) ‘works-contract’ means an agreement in writing or a letter of intent or work order issued for the execution of any work relating to construction, repair or maintenance of any building or superstructure, dam, weir, canal, reservoir, tank, lake, road, well, bridge, culvert, factory, work-shop, powerhouse, transformer or such other works of the State Government or Public Undertakings or of the Corporations of the State as the State Government may, by notification, specify in this behalf at any of its stages, entered into by the State Government or by an official of the State Government or by Public Undertakings or Corporation or by any official of the State Government for and on behalf of such Corporation or Public Undertakings and includes an agreement for supply of goods or material and all other matters relating to the execution of any of the said works and also includes the services so hired for carrying out the aforesaid works and shall also include all concession agreement, so entered into by the State Government or public undertakings or Corporation, wherein a State support is involved or not.” The agreements in writing for the execution of the work relating to construction, repair or maintenance of electric lines, water supply and sewerage/drainage system shall also be “works contract” (2) Words and expressions used but not defined in this Act, but defined in the Arbitration Act shall have the meanings assigned to them in the Arbitration Act. 16. 16. The order of the Commercial Court would show that it has referred the notification No.F 11-16/Food/2018/29-2 dated 05/07/2019 wherein the following notification was issued:- No. F 11-16/Food/2018/29-2.-- In exercise of the powers conferred by clause (i) of Sub-section (1) of Section 2 of the Chhattisgarh Madhyastham Adhikaran Adhiniyam, 1983 (No. XXIX of 1983), the State Government, hereby, Notifies that the agreements in writing for execution of the work relating to Custom Milling, Handling and Movement, of Paddy procured under Minimum Support Price and Procurement, Handling and Movement of commodities to be distributed in Public Distribution System within and out of the State shall also be included in “Works Contract” 17. After going through the definition we are of the view that it has been rightly held by learned Commercial Court that agreement of sale is not an execution of work contract relating to custom milling, handling and movement of paddy procured under the minimum support price and which are required to be distributed under the public distribution system. Therefore, clause which was contained in second part of 24 (13) of the agreement would expose any party to be a remediless and since the purchase of paddy was not under custom milling, no such dispute could have been referred under the Adhiniyam, 1983. The logical interpretation, therefore, would be that in case of any dispute, it would be the Managing Director who would decide the same, it would fall under the first part of clause of agreement 24 (13). 18. In the facts of this case, since the second part of clause 24 (13) of the agreement, the dispute could not have been referred under the provisions of the Adhiniyam, 1983, as it would be without jurisdiction it left the only option of reference of dispute to the Managing Director and finding would have a finality. The finality of decision can be referred from the very nature of language of clause that nature of reference of dispute was not for any particular specification but includes the dispute as a whole. Therefore, it was the intention of the parties to avoid dispute and to resolve it in a particular way. The terms of agreement shows that test of preventing disputes or deciding disputes was also resorted to for the purpose of considering whether the agreement was a reference to arbitration or not. Therefore, it was the intention of the parties to avoid dispute and to resolve it in a particular way. The terms of agreement shows that test of preventing disputes or deciding disputes was also resorted to for the purpose of considering whether the agreement was a reference to arbitration or not. The intention of the parties is to be found out by reading the terms broadly and clearly without being circumscribed. The second part of clause having become non-effective, the decision of the Managing Director would have a binding effect relating to meaning of dispute. 19. The very nature of scheme of resolution of dispute, which renders the second part of agreement of reference to the Adhiniyam, 1983 is without jurisdiction so the effect would be the finding arrived at by the Managing Director of the Corporation would have a nature of finality. The agreement speaks about resolution of a dispute under the Adhiniyam, 1983 which cannot be enforced under the law. In the instant case the mechanism of dispute resolution has two folds i.e. one to the Managing Director of the Corporation and the second one to the Adhiniyam, 1983. As has been observed that the dispute cannot be referred under the Adhiniyam, 1983 as it will not have the jurisdiction under such Act to adjudicate such dispute. The nature of dispute was over purchase of rice, therefore, the same could not be referred. In the facts of the case to resolve any dispute it would compel the parties to go to the Managing Director for resolution of a dispute as parties cannot be left remediless despite the intention to resolve the dispute by a mechanism. The dispute resolution before the Managing Director, therefore, will have the binding effect on both the parties. As such the very clause would be a part of arbitral agreement rendering the order to be an award. 20. Further the facts of this case would show that the agreement itself was for a specific period of 45 days from 01/04/2021. By efflux of time, it would have been otherwise ended on 15/05/2021. Since because of death of one of the partner of the firm, the firm could not carry out its business activities and because of imposition of lock down owing to outbreak of COVID-19 pandemic, the agreement could not be executed as agreed within time. By efflux of time, it would have been otherwise ended on 15/05/2021. Since because of death of one of the partner of the firm, the firm could not carry out its business activities and because of imposition of lock down owing to outbreak of COVID-19 pandemic, the agreement could not be executed as agreed within time. In subsequent period of agreement, the appellant deposited amount of Rs. 7,74,20,000/- at two different dates and lifted 3500 MT of rice. Subsequent thereto show cause notices were issued and when during exchange of notices, nothing was forthcoming, the appellant filed a petition before this Court bearing WPC No.4013/2021. The said writ petition was disposed of by order dated 18/10/2021. Paras 7 & 8 of the said order are quoted below for ready reference : 7) Considering that clause 13 of the agreement provides for dispute resolution mechanism, the petition is disposed of at the motion stage. The petitioner is granted liberty to file fresh representation raising a dispute before the Managing Director of respondent No.2 and the petitioner shall also have liberty to avail the remedy as provided under clause 13 of the agreement. 8) In case any such representation is filed by the petitioner within a period of 7 days from today, the Managing Director of respondent No.2 is directed to consider and decide the same within the stipulated time as provided under clause 13 of the agreement. 21. Reading of the aforesaid order of this Court would show that the High Court directed the appellant herein to file a representation (raising a dispute) before the Managing Director of the Corporation and to avail the remedy under clause 13 of the agreement. 22. The agreement was executed on 1-4-2021. As per Section 12 (5) read with Seventh Schedule of the Act, 1996, the Managing Director being an employee of the Corporation was ineligible to act as no express agreement exist before us, which waive the applicability of said Section. The intention of the parties to the agreement would show that the entire dispute was required to be referred to the Arbitrator to an alternative resolution system. Consequently, in our view, the order passed by the Managing Director raises a presumption of bias or partiality or lack of independence on his part. The intention of the parties to the agreement would show that the entire dispute was required to be referred to the Arbitrator to an alternative resolution system. Consequently, in our view, the order passed by the Managing Director raises a presumption of bias or partiality or lack of independence on his part. Even if it is considered that the order dated 2-12-2021 was not passed in the capacity of Arbitrator, the order had to pass the test of neutrality. 23. The undisputed facts about imposition of lock down immediately after the agreement was executed would show that the period of execution of contract i.e. 45 days expired during the period of lock down and nothing could have been transpired. Outbreak of COVID-19 Pandemic was an unprecedented event for the entire world. Insofar as a force majeure even occurs de hors the contract, it is dealt with by a rule of positive law under Section 56 of the Contract Act. The undisputed facts suggest that after date of agreement i.e. 1-4-2021 one of the partner, who was infected with COVID-19, died on 8-4-2021 and lock down was imposed in the State from 9-4-2021. The lock down continued uptill 31-5-2021. In the meanwhile, the period of 45 days, which was initially fixed for purchase of rice on 1-4-2021, expired on 15-5-2021. It is further undisputed that lock down further was imposed in the State with limited restrictions from 1-6-2021. These facts have not been disputed. Subsequently after the expiry of period on two occasions i.e. on 3-5-2021 and 25-6-2021 an amount of Rs. 7,74,20,000/- was paid by the appellant for which the appellant lifted 3500 MT of rice. The said lifting was in lieu of payment of amount. Though the original contract of 1-4-2021 was to be executed within a period of 45 days, the same suffered with force majeure events of lock down owing to pandemic. 24. The Supreme Court in the matter of Energy Watchdog v Central Electricity Regulatory Commission and Others, (2017) 14 SCC 80 , has dealt with such case of force majeure events and held thus at paras 34, 35, 36 and 41 : 34. “Force majeure” is governed by the Contract Act, 1872. 24. The Supreme Court in the matter of Energy Watchdog v Central Electricity Regulatory Commission and Others, (2017) 14 SCC 80 , has dealt with such case of force majeure events and held thus at paras 34, 35, 36 and 41 : 34. “Force majeure” is governed by the Contract Act, 1872. Insofar as it is relatable to an express or implied clause in a contract, such as the PPAs before us, it is governed by Chapter III dealing with the contingent contracts, and more particularly, Section 32 thereof. Insofar as a force majeure event occurs dehors the contract, it is dealt with by a rule of positive law under Section 56 of the Contract Act. Sections 32 and 56 are set out herein: “32. Enforcement of contracts contingent on an event happening.—Contingent contracts to do or not to do anything if an uncertain future event happens, cannot be enforced by law unless and until that event has happened. If the event becomes impossible, such contracts become void. * * * 56. Agreement to do impossible act.—An agreement to do an act impossible in itself is void. Contract to do act afterwards becoming impossible or unlawful.—A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Compensation for loss through non-performance of act known to be impossible or unlawful.—Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise.” 35. Prior to the decision in Taylor v. Caldwell, the law in England was extremely rigid. A contract had to be performed, notwithstanding the fact that it had become impossible of performance, owing to some unforeseen event, after it was made, which was not the fault of either of the parties to the contract. Prior to the decision in Taylor v. Caldwell, the law in England was extremely rigid. A contract had to be performed, notwithstanding the fact that it had become impossible of performance, owing to some unforeseen event, after it was made, which was not the fault of either of the parties to the contract. This rigidity of the Common law in which the absolute sanctity of contract was upheld was loosened somewhat by the decision in Taylor v. Caldwell in which it was held that if some unforeseen event occurs during the performance of a contract which makes it impossible of performance, in the sense that the fundamental basis of the contract goes, it need not be further performed, as insisting upon such performance would be unjust. 36. The law in India has been laid down in the seminal decision of Satyabrata Ghose v. Mugneeram Bangur & Co. The second paragraph of Section 56 has been adverted to, and it was stated that this is exhaustive of the law as it stands in India. What was held was that the word “impossible” has not been used in the section in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose of the parties. If an untoward event or change of circumstance totally upsets the very foundation upon which the parties entered their agreement, it can be said that the promisor finds it impossible to do the act which he had promised to do. It was further held that where the Court finds that the contract itself either impliedly or expressly contains a term, according to which performance would stand discharged under certain circumstances, the dissolution of the contract would take place under the terms of the contract itself and such cases would be dealt with under Section 32 of the Act. If, however, frustration is to take place dehors the contract, it will be governed by Section 56. * * * 41. Indeed, in England, in the celebrated Sea Angel case, the modern approach to frustration is well put, and the same reads as under: “111. In my judgment, the application of the doctrine of frustration requires a multi-factorial approach. If, however, frustration is to take place dehors the contract, it will be governed by Section 56. * * * 41. Indeed, in England, in the celebrated Sea Angel case, the modern approach to frustration is well put, and the same reads as under: “111. In my judgment, the application of the doctrine of frustration requires a multi-factorial approach. Among the factors which have to be considered are the terms of the contract itself, its matrix or context, the parties’ knowledge, expectations, assumptions and contemplations, in particular as to risk, as at the time of the contract, at any rate so far as these can be ascribed mutually and objectively, and then the nature of the supervening event, and the parties’ reasonable and objectively ascertainable calculations as to the possibilities of future performance in the new circumstances. Since the subject-matter of the doctrine of frustration is contract, and contracts are about the allocation of risk, and since the allocation and assumption of risk is not simply a matter of express or implied provision but may also depend on less easily defined matters such as “the contemplation of the parties”, the application of the doctrine can often be a difficult one. In such circumstances, the test of “radically different” is important: it tells us that the doctrine is not to be lightly invoked; that mere incidence of expense or delay or onerousness is not sufficient; and that there has to be as it were a break in identity between the contract as provided for and contemplated and its performance in the new circumstances.” (emphasis in original) 25. Applying the aforesaid principles in the facts of this case would show that when the contract was executed there was no imposition of lock down. The imposition of lock down owing to outbreak of COVID-19 was not a normal phenomenon, which can be assumed. State of events was not a part of promise of contract. The knowledge, expectations, assumptions and contemplations, in particular as to risk, as at the time of the contract, at any rate so far as these can be ascribed mutually and objectively but when it goes out of such possibilities and assertion and calculation, which was out of the contemplation of the parties the impossibility to perform the contract comes to fore. 26. It is the trite law that doctrine of frustration is not to be lightly invoked. 26. It is the trite law that doctrine of frustration is not to be lightly invoked. Here in existing facts with the change of circumstances happened when the Pandemic infection came gripped the entire world after a period of nearly 100 years if those circumstances are not considered to be grave or unpredictable, then there could not be any other grave circumstances can be contemplated. Therefore, in our view, the agreement dated 1-4-2021, which was to be performed within a period of 45 days was eclipsed by pandemic lock down, the entire contract was frustrated and neither party could have fallen back on it for due performance. 27. The order of the Managing Director further would show that penalty of Rs. 71,92,896/- was imposed apart from confiscation of Rs. 1,10,00,000/-. Perusal of the agreement shows that it does not contain any imposition of penalty. It does not provide for some drastic consequences. There is nothing on record to show that whether or not actual damage or loss is proved to have been caused. 28. The Supreme Court in the matter of State of Bihar and Others v Industrial Corporation (P) Ltd. and Others, (2003) 11 SCC 465 , held that the penalty could not be imposed without affording any opportunity. Apart from that, the Court held that the levy of penalty and recovery thereof can only be made in the event they are exhausted or statutory proof thereof. The Court while dealing with such principle reiterated the law laid down in the matter of Dwarka Prasad Agrawal v B.D. Agarwal, (2003) 6 SCC 230 and held thus at para 15 : 15) We may further notice that in Dwarka Prasad Agarwal v. B.D. Agarwal, this Court laid emphasis on the right of a citizen to have his grievances adjudicated by an impartial tribunal holding : (SCC pp.245-46 para 38) "38. There is another aspect of the matter which must also be taken notice of. A party cannot be made to suffer adversely either indirectly or directly by reason of an order passed by any court of law which is not binding on him. The very basis upon which a judicial process can be resorted to is reasonableness and fairness in a trial. Under our Constitution as also the International Treaties and Conventions, the right to get a fair trial is a basic fundamental/human right. The very basis upon which a judicial process can be resorted to is reasonableness and fairness in a trial. Under our Constitution as also the International Treaties and Conventions, the right to get a fair trial is a basic fundamental/human right. Any procedure which comes in the way of a party in getting a fair trial would be violative of Article 14 of the Constitution of India. Right to a fair trial by an independent and impartial Tribunal is part of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950,,,,." 29. Further the Supreme Court in the matter of Kailash Nath Associates v Delhi Development Authority and Another, (2015) 4 SCC 136 , has held that where a sum is named in a contract as a liquidated amount payable by way of damages, the party complaining of a breach can receive as reasonable compensation such liquidated amount only if it is a genuine pre-estimate of damages fixed by both parties. Reference is made to Section 73 of the Indian Contract Act, 1872 (for short ‘the Act, 1872’), which speaks that reasonable compensation will be fixed on well known principles that are applicable to the law of contract, which are to be found, inter alia, in Section 73 of the Act, 1872. The Supreme Court held thus in paras 43.2 to 43.6 : 43.2 Reasonable compensation will be fixed on well known principles that are applicable to the law of contract, which are to be found inter alia in Section 73 of the Contract Act. 43.3 Since Section 74 awards reasonable compensation for damage or loss caused by a breach of contract, damage or loss caused is a sine qua non for the applicability of the Section. 43.4 The Section applies whether a person is a plaintiff or a defendant in a suit. 43.5 The sum spoken of may already be paid or be payable in future. 43.6 The expression "whether or not actual damage or loss is proved to have been caused thereby" means that where it is possible to prove actual damage or loss, such proof is not dispensed with. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the contract, if a genuine preestimate of damage or loss, can be awarded. 30. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the contract, if a genuine preestimate of damage or loss, can be awarded. 30. For the sake of convenience, Section 73 of the Act, 1872 is quoted below : “73. Compensation for loss or damage caused by breach of contract.—When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. Compensation for failure to discharge obligation resembling those created by contract.—When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract. Explanation.—In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account. 31. This Court in the matter of State of Chhattisgarh & Another v M/s Learn Nature Consultants Partnership Firm, ARBA No.27 of 2019 (decided on 13-12-2022), held thus at paras 16, 17, 23 & 24 : 16. In order to ascertain the damages the Supreme Court in the matter of Kanchan Udyog Limited Versus United Spirits Limited { (2017) 8 SCC 237 } has held that under Section 73 of the Contract Act, a party who suffers breach of contract is entitled to compensation for any loss or damage caused to him thereby from the party who has broken the contract. It further held that there must be causal connection between the breach of contract and the “loss sustained by the party” who suffers the breach. The common sense test of causation is whether a breach of contract is a sufficiently substantial cause of the plaintiff's loss. It further held that there must be causal connection between the breach of contract and the “loss sustained by the party” who suffers the breach. The common sense test of causation is whether a breach of contract is a sufficiently substantial cause of the plaintiff's loss. In regard to remoteness of damage, in para 27 of the judgment, the Court has held as under:- 27. In Galoo Ltd. the emphasis was on the common sense approach, holding that the breach may have given the opportunity to incur the loss but did not cause the loss, in the sense in which the word “cause” is used in the law. The following passage extracted therein from Chitty on Contracts, 26th Edn. (1989) Vol. 2, pp. 1128-1129, Para 1785 may be usefully set out: (WLR p. 1370 A – B) “....'The important issue in remoteness of damage in the law of contract is whether a particular loss was within the reasonable contemplation of the parties, but causation must also be proved: there must be a causal connection between the defendant’s breach of contract and the plaintiff’s loss. The courts have avoided laying down any formal tests for causation: they have relied on common sense to guide decisions as to whether a breach of contract is a sufficiently substantial cause of the plaintiff’s loss.” 17. Further the Supreme Court in Kanchan (supra) has reiterated the view taken in the matter of C. & P. Haulage v. Middleton, (1983) 3 All ER 94 & in the matter of Cullinane v. British Rema Mfg. Co. Ltd. {(1954) 1 QB 292} and held thus in para 31:- “31. In C & P Haulage, which considers Cullinane also, it has been observed as follows: (C. & P. Haulage case, All ER p.99 b-e) “...The law of contract compensates a plaintiff for damages resulting from the defendant’s breach; it does not compensate a plaintiff for damages resulting from his making a bad bargain. Where it can be seen that the plaintiff would have incurred a loss on the contract as a whole, the expenses he has incurred are losses flowing from entering into the contract, not losses flowing from the defendant’s breach. In these circumstances, the true consequence of the defendant’s breach is that the plaintiff is released from his obligation to complete the contract-or in other words, he is saved from incurring further losses. In these circumstances, the true consequence of the defendant’s breach is that the plaintiff is released from his obligation to complete the contract-or in other words, he is saved from incurring further losses. If the law of contract were to move from compensating for the consequences of breach to compensating for the consequences of entering into contracts, the law would run contrary to the normal expectations of the world of commerce. The burden of risk would be shifted from the plaintiff to the defendant. The defendant would become the insurer of the plaintiff’s’ enterprise. Moreover, the amount of the damages would increase not in relation to the gravity or consequences of the breach but in relation to the inefficiency with which the plaintiff carried out the contract. The greater his expenses owing to inefficiency, the greater the damages. 23. Lord Goodard, CJ., in Bonham- Carter v. Hyde Park Hotel Ltd. {(1948) 64 TLR 177} stated: “Plaintiff must understand that if they bring actions for damages it is for them to prove their damage: it is not enough to write down the particulars, and, so to speak, throw them at the head of the Court saying: ‘This is what I have lost; I ask you to give me these damages.’ They have to prove it.” The claim for damages would not be admissible if there is a total absence of specific particulars of the loss allegedly suffered by the plaintiff. In as suit for quantified damages based on an actionable claim, it is the obligation of the plaintiff to specify the damages with respect to the individual claims and to point out precisely the extent of damage, with reference to all material particulars and the manner in which it was caused. In a suit for damages caused by the defendant’s breach of contract, the damages must be proved by the plaintiff. He must satisfy the Court both as to the fact of damage and as to its amount when it claims substantial damages. 24. In all actions accordingly on the case where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage, and the circumstances under which these act are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. (See: Ractliffe v. Evans, {1982 (2) QB 524}). 32. (See: Ractliffe v. Evans, {1982 (2) QB 524}). 32. The appellant has stated that the liquidated damages cannot be granted unless, the parties plead and demonstrate sufferance of actual loss. 33. The Supreme Court in the matter of Fateh Chand v Bal Kishan Das, AIR 1963 SC 1405 , has held that seller cannot forfeit the earnest money received under the agreement to sell even if the buyer is guilty of breach of performance of agreement to sell as forfeiture being in the nature of penalty is hit by Section 74 of the Indian Contract Act, 1872 which cannot take place unless loss is pleaded and proved by the seller. The ratio has further been followed and the principle laid down that the expression "whether or not actual damage or loss is proved to have been caused thereby" means that where it is possible to prove actual damage or loss, such proof is not dispensable. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the contract, if a genuine pre-estimate of damage or loss, can be awarded. 34. Having held the contract being frustrated by act of force majeure subsequent payment for lifting/sale of rice cannot be merged with the original contract and it would have distinct and separate entity having independent transaction. The stand of the Corporation, therefore, being a Government undertaking, cannot be appreciated and consequent thereof we held that the penalty imposed cannot be sustained and hereby set aside. 35. Now with respect of deposit of Rs. 1,10,00,000/- the appellant has sought for return of amount or in lieu thereof to allow it to lift the rice to the extent of aforesaid price. Having held the agreement being frustrated by force majeure and the fact that to allow that amount of deposit to be in the hold of the respondent, which is a Government undertaking would amount to unjust enrichment. 36. The Supreme Court in the matter of India Council for Enviro-legal Action v Union of India and others, (2011) 8 SCC 161 , discussed different case-laws. Few of the paras i.e. para Nos.152, 153, 154, 155 & 156 are reproduced hereinbelow: 152. 36. The Supreme Court in the matter of India Council for Enviro-legal Action v Union of India and others, (2011) 8 SCC 161 , discussed different case-laws. Few of the paras i.e. para Nos.152, 153, 154, 155 & 156 are reproduced hereinbelow: 152. Unjust enrichment' has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 153. Unjust enrichment is "the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer" and "even though he may have received [it] honestly in the first instance." (Schock v. Nash (732 A 2d 217) Delware 1999), 232-33. 154. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. In the leading case of Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1942] 2 All ER 122, Lord Wright stated the principle thus : "....(A)ny civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution." 155. Lord Denning also stated in Nelson v. Larholt, [1947] 2 All ER 751 as under:- "…...It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Lord Denning also stated in Nelson v. Larholt, [1947] 2 All ER 751 as under:- "…...It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular frame-work. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution, if the justice of the case so requires." 156. The above principle has been accepted in India. This Court in several cases has applied the doctrine of unjust enrichment. 37. Since the money is in the hold of the Corporation to the extent of Rs. 1,10,00,000/-, which was earlier deposited by the appellant as EMD, applying the principles of undue enrichment, we are of the considered view that in view of the backdrop of the fact of non performance of contract owing to pandemic lock down which resulted into frustration of contract within the stipulated time, the appellant is entitled to refund of the said amount. 38. In the result, - the appeal is allowed; - the impugned order dated 29-1-2022 (Annexure-A/1) passed by the Judge, Commercial Court (District Level), Naya Raipur, Chhattisgarh, in an unregistered MJC/2022 and the order dated 2-12-2021 (Annexure-A/2) passed by the Managing Director of the Corporation are set aside; and - the appellant would be entitled to refund of amount or adjust the claim of EMD of Rs.1,10,00,000/- equivalent to the value of rice without any interest thereof. 39. There shall be no order as to cost(s).