JUDGMENT : Gautam Kumar Choudhary, J. 1. This appeal is preferred under Section 37(1)(b) of the Arbitration and Conciliation Act, 1996 against the order dated 29.08.2009 passed under Section 34 of Arbitration and Conciliation Act, whereby and whereunder the arbitral award made by the sole arbitrator has been set aside. 2. Admitted fact leading to the present appeal can be summed up as under: i. Appellant Company was awarded a contract for construction of minor bridge by the Executive Engineer, Road Construction Division, National Highway No. 2 (respondent no. 4) for a total value of Rs.28,86,371/- vide agreement dated 22.06.1992. ii. Dispute is with regard to extra work done by the appellant for which a demand was raised for a sum of Rs.30,79,375/- with interest at the rate of 18% per annum on the said amount from 01.07.1999. The appellant invoked the arbitral clause and the matter was referred to the sole arbitrator. The sole arbitrator vide award dated 17.07.2007 awarded the claim for extra work to the tune of Rs.30,79,375/- with @ 8% interest with cost of arbitration of Rs.40,000/- and Rs.32,400/- as respondent’s share of arbitrator’s fees deposited by them. iii. Respondent preferred Misc. Case No. 56 of 2007 under Section 34 of the Arbitration and Conciliation Act, 1996 in which the award was set aside on the ground that learned arbitrator overlooked the proviso of Clause 11 of the Agreement No. 02/F2/1992-93 dated 22.06.1992 wherein it had been clearly laid down that the contractor shall not be entitled to any payment for any additional work done unless he had received an order in writing from the In-charge for the additional work done. 3. It is argued by learned counsel for the appellant that the State is acting unfairly in the present case by denying the genuine admitted claim of the Appellant for the additional work done, taking shelter under a clause of the agreement. It has not been disputed at any stage that the additional work had not been done. 4. It is further argued that the Superintending Engineer after due examination and verification, forwarded the claim to the Chief Engineer for sanction of the fund to make payment to the claimant. However, the fund was not sanctioned nor any payment was made to the claimant. 5. 4. It is further argued that the Superintending Engineer after due examination and verification, forwarded the claim to the Chief Engineer for sanction of the fund to make payment to the claimant. However, the fund was not sanctioned nor any payment was made to the claimant. 5. The rate prescribed was of the year 1986 and the work was completed in the year 1998 i.e. after 12 years from the preparation of the chart of schedule rates, the cost was calculated at an escalated rate and approved by the officer of the Respondent. Annexure-2 is a copy of letter No. 547WE dated 01.07.1999 of the Executive Engineer, N.H No. 2, Dhanbad addressed to the Superintending Engineer enclosing a detailed chart mentioning the additional work with cost. This chart was prepared by the Junior Engineer, Section Gola-2. It also contains the comments and recommendation of the Sub-Divisional Officer, N.H. Division No. 1, Chas and the Executive Engineer, R.C.D.N.H Sub-Division-II, Dhanbad. This chart shows the total cost as Rs. 30,79,375.65. Annexure-3 is the copy of the letter of the Superintending Engineer bearing No. 760( A 90) dated 28.07.2002 addressed to the Chief Engineer recommending the extra costs recommended by the J.E. Asst. Engineer and the Executive Engineer for sanction and payment. 6. It is argued that where the arbitral award is for admitted additional work, the same is not amenable to interference under Section 34 of the 1996 Act. 7. Reliance is placed on the following authorities: i. (2016) 4 SCC 119 wherein it has been held that absence of revised agreement as to extra work does not bar claim of an applicant contractor when admittedly extra work had been done by the contractor due to changed nature of work. ii. (2020) 11 SCC 161 there was a similar clause, wherein it was held that said requirement will have to be construed as being put in the agreement so as to ensure that the additional work has actually been done, the claim is put forth along with details so that baseless claim is not made at a distant point in time when it will not be possible to determine. 8. 8. In the present case, relying on the authority, it is argued that not only the sanctioned amount of additional work was recommended by the Superintending Engineer after due verification but also a detail chart mentioning additional work with cost was also mentioned there 9. It is argued by Mr. Ashok Kumar Yadav, learned Sr. S.C.-I, appearing for the State, that the present case involves the claim for additional work under the following heads: - Item No. Description 1 Extra cost involved in casting of Deck-slab and R.C.C. girder etc. in staging, centering, shuttering etc. then inherent in schedule of rate of North Chhotanagpur. 2 Extra cost involved in casting of sub-structure in slaging, centering, shuttering, gangway etc. 3 Overhead expenses etc:- Amount of running A/C Bill till 12/93 as per M.B. 4 Overhead expenses etc:- Amount of running A/C Bill 12/93 as per M.B. 5 Overhead expenses etc:- Amount of running A/C Bill 12/93 as per M.B. 10. While referring to these items, it is argued that so far item nos. 3, 4 and 5 are concerned, they relate to overhead expenses and turnover losses. The appellant is not entitled to any relief as the matter is not res-integra and has been settled by this Court in Arbitration Appeal No. 17 of 2009 at para-19, where similar claim has been turned down by the Coordinate Bench of this Court in Arbitration Appeal No. 13 of 2009. FINDING 11. Considering the grounds and arguments advanced on behalf of the appellant, following questions arise to be answered in the instant appeal. (i) If the Appellant is entitled to the charges for the additional work done dehors clause 11 of agreement, which provided that a contractor shall not be entitled to any payment for any additional work done unless he had received an order in writing from the in-charge for the additional work? (ii) If the learned Court below exceeded its jurisdiction in interfering with the award? 12. Before adverting to the impugned order and the grounds raised in appeal before this Court, it shall be desirable to state the scope of judicial interference under Section 34 of the Arbitration and Conciliation Act, 1996. The grounds on which an award can be set aside has been elucidated in DDA v. R.S. Sharma and Co. 12. Before adverting to the impugned order and the grounds raised in appeal before this Court, it shall be desirable to state the scope of judicial interference under Section 34 of the Arbitration and Conciliation Act, 1996. The grounds on which an award can be set aside has been elucidated in DDA v. R.S. Sharma and Co. New Delhi, (2008) 13 SCC 80 and followed in Associate Builders v. DDA, (2015) 3 SCC 49 which are as follows: (a) An award, which is (i) contrary to substantive provisions of law; or (ii) the provisions of the Arbitration and Conciliation Act, 1996; or (iii) against the terms of the respective contract; or (iv) patently illegal; or (v) prejudicial to the rights of the parties; is open to interference by the court under Section 34(2) of the Act. (b) The 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. (c) The award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the court. (d) 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. It has been further held in Somdatt Builders—NCC—NEC (JV) Versus National Highway Authority of India & Ors Civil Appeal 2025 SCC OnLine SC 170, “ 38. In PSA Sical Terminals Private Ltd. (supra), this Court reiterating the well settled principles held as under: 40. It will thus appear to be a more than settled legal position, that in an application under Section 34, the court is not expected to act as an appellate court and reappreciate the evidence. The scope of interference would be limited to grounds provided under Section 34 of the Arbitration Act. The interference would be so warranted when the award is in violation of “public policy of India”, which has been held to mean “the fundamental policy of Indian law”. A judicial intervention on account of interfering on the merits of the award would not be permissible. However, the principles of natural justice as contained in Sections 18 and 34(2)(a)(iii) of the Arbitration Act would continue to be the grounds of challenge of an award. A judicial intervention on account of interfering on the merits of the award would not be permissible. However, the principles of natural justice as contained in Sections 18 and 34(2)(a)(iii) of the Arbitration Act would continue to be the grounds of challenge of an award. The ground for interference on the basis that the award is in conflict with justice or morality is now to be understood as a conflict with the “most basic notions of morality or justice”. It is only such arbitral awards that shock the conscience of the court, that can be set aside on the said ground. An award would be set aside on the ground of patent illegality appearing on the face of the award and as such, which goes to the roots of the matter. However, an illegality with regard to a mere erroneous application of law would not be a ground for interference. Equally, reappreciation of evidence would not be permissible on the ground of patent illegality appearing on the face of the award. 41. A decision which is perverse, though would not be a ground for challenge under “public policy of India”, would certainly amount to a patent illegality appearing on the face of the award. However, a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality. (emphasis supplied) 13. Further, law is settled that arbitrator being a creation of the contract cannot travel beyond the express terms of the agreement. The sole arbitrator in this case was appointed under Section 11(6) of the Arbitration Act by the order dated 21.06.2006 to arbitrate the dispute. Claimant contractor had filed all four applications u/s 11(6) of Act,1996. The instant award has been passed in A.A 27/2004, and separate awards were passed in other cases. 14. The claimant/contractor raised the following claims before the Arbitrator: I. Payment of due amount of additional work beyond the agreement value, submitted by the Executive Engineer by letter no. 547 dated 1.07.1999 duly approved and sanctioned by the Superintending Engineer by his letter no. 760 dated 28.07.2002, and forwarding the same to Chief Engineer for allotment of fund and sanction of the additional work amounting to Rs 30,79,375.00 only. II. 547 dated 1.07.1999 duly approved and sanctioned by the Superintending Engineer by his letter no. 760 dated 28.07.2002, and forwarding the same to Chief Engineer for allotment of fund and sanction of the additional work amounting to Rs 30,79,375.00 only. II. Payment of interest under Section 3 of Interest Act, 1978 for delayed and with holding of the legitimate amount from the date of admission by the Executive Engineer i.e. 01.07.1999 to the date of filing of the claim up to 21.09.2006 i.e. for 87 months at the rate of 18% which comes to Rs 40,18,584.00. Payment of interest pendente lite at the rate 18% i.e. from the date of claim made before this Tribunal to the date of the award. III. Payment of cost of arbitration and litigation amounting to Rs 2,00,000/-. 15. Learned Arbitrator allowed Claim No.I, but denied interest as claimed under II. Arbitration Cost of Rs 40,000/ was allowed. 16. Main contention of the Respondent Department is that no work beyond the scope of the sanctioned estimate either to increase in the work or change in the specification could be allowed without obtaining the written approval of the Ministry as per the letter of the Ministry’s letter no. RS/NH 11 co-ord/32 p 84 dated 19.04.84. 17. It has not been disputed that with reference to Claim no.1 Superintending Engineer had not sanctioned the amount, but had only submitted to the Chief Engineer without recommendation which was not sanctioned by the Chief Engineer. It was also admitted that originally the work was to be completed by 22.12.1993 but due to different difficulties it could not be completed and the period was extended up to 19.09.1998. The work was thus completed within extended sanctioned period. 18. Additional work has not been denied and it is also evident that after due verification by the Jr Engineer and the Asst Engineer for sanction of the extra cost for the work done at the increased rate proposal was submitted by the Superintending Engineer before the Chief Engineer for sanction and payment. No order was passed for approval and the matter remained pending with the Chief Engineer. 19. No order was passed for approval and the matter remained pending with the Chief Engineer. 19. The sole ground on which the award has been set aside by the learned Court below under section 34 of the 1996, Act is that the learned Arbitrator had overlooked the proviso of clause 11 of agreement with provided that, the contractor shall not be entitled to any payment for any additional work done unless he has received an order in writing from the in-charge for the additional work. 20. The impugned order is not sustainable for the following reasons: Firstly, as discussed above while adjudicating a matter under section 34 of the 1996 Act, the Court does not Act as an appellate forum so as to reappreciate evidence and construct the terms of agreement, but can only set it aside on limited grounds under Section 34 of the Act of 1996 as discussed in the foregoing paragraphs. Award cannot be said to be patently illegal going to the root of matter to call for interference. Secondly , facts are undisputed that the departmental officers right from junior to superintending engineer had evaluated the work, and submitted the same for allotment after due verification. No clause has been cited in the agreement on behalf of the Department that additional work in all circumstance was expressly barred. What the term provided was that additional work should be done on written orders. When the works were completed as per the oral directions, it was unfair on the part of the Department to turn around and deny the payment taking shelter over a technical ground. If the work had been done at the instance of some of the departmental officers, beyond the terms of agreement, or such which were not required, appropriate disciplinary actions could have been initiated against the erring officers, which has not been done in the present case. Learned Arbitrator rightly noted that not taking any decision in the matter reflected complete lack of control of the Chief Engineer of his office. Thirdly, Award cannot be said to be against the settled position of law. Section 70 of the Contract Act specifically provides, “ 70. Learned Arbitrator rightly noted that not taking any decision in the matter reflected complete lack of control of the Chief Engineer of his office. Thirdly, Award cannot be said to be against the settled position of law. Section 70 of the Contract Act specifically provides, “ 70. Obligation of person enjoying benefit of non-gratuitous act .— Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.” In a case of similar nature, Venkatesh Construction Co. v. Karnataka Vidyuth Karkhane Ltd. , (2016) 4 SCC 119 , Hon’ble Supreme Court held, “ When the evidence and material clearly depict the change of nature of work involved and when the extra work to be done was also admitted by DW 1, the parties cannot be expected to go for a revised agreement/contract. Moreover, having regard to the fact that the work was to be completed within a specified time-frame, the parties cannot be expected to go for a second round of negotiation and reframe the terms and conditions of the work. While so, the High Court was not right in placing reliance upon Clause 11 of the contract to reverse the findings of fact recorded by the trial court”. Principles laid down in this case has been followed in (2020) 11 SCC 161. Thus, award for the admitted additional work done, cannot be said to be contrary to substantive provisions of law. It cannot also be called to be against the express provision of contract or that it was unfair and unreasonable. Fourthly, facts of the Arbitration Appeal No.17 of 2009 relied upon by the co-ordinate Bench, of this Court does not lay a proposition of law that arbitral award cannot be made regarding a claim with respect to an admitted additional work. On the contrary it has been noted in para 19 of the Judgment, “Every award has to be tested independently on the touchstone of the permissible grounds of interference under Section 34 of the Act of 1996”. On the contrary it has been noted in para 19 of the Judgment, “Every award has to be tested independently on the touchstone of the permissible grounds of interference under Section 34 of the Act of 1996”. As a matter of fact, in Arbitration Appeal No.13 of 2009 (N.R Construction Private Ltd Vs the State of Jharkhand and others, the co-ordinate Bench allowed the appeal thereby restoring the arbitral award. The impugned order is, therefore, set aside. Arbitral Award is restored. Arbitration Appeal is allowed. Pending I.A., if any, stands disposed of.