J.B. PARDIWALA, J.

1. This First Appeal under Section-37 of the Arbitration and Conciliation Act, 1996 [for short The Act, 1996] is at the instance of the original applicants and is directed against the judgment and order dated 19/01/2017 passed by the Judge of the City Civil Court, Court No.8, Ahmedabad in the Civil Misc. Application No.349 of 2008 filed by the appellants herein under Section-34 of the Act, 1996 for setting aside the arbitral award passed by the Sole Arbitrator appointed by this Court in the Arbitration Petition No.20 of 2014.

2. The subject matter of this First Appeal can be gathered from the facts recorded in the award passed by the Arbitrator. I may quote the relevant paragraphs of the award.

2.1 The Hon'ble High Court of Gujarat at Ahmedabad by its order dated 28-4-2005, in Arbitration Petition No.20 of 2004, appointed the undersigned R.C. Bhatt, as Sole Arbitrator to resolve the disputes in connection with work contract dated 7-5-2001 entered into between the parties. The claimant and respondents were intimated by Regd. A.D. letters to appear before the Sole Arbitrator.

2.2 The Claimant appeared before the Sole Arbitrator and filed Claim Statement Ex.9. The claimant is proprietary concern of Shri Thakkar Pratapkumar Chunilal carrying on business as Government approved Contractor. The contract for removal of Debris from earthquake affected Bachau Town of Kutch District Zone-B was awarded by agreement No.W-9.

It is the case of the claimant that the estimated cost of the work was Rs. 1,10,20,000/- and the claimant's cost was Rs. 1,17,80,000/- i.e. 6.89% above. The work order was issued on 7-5-2001 with stipulated period of 45 days and the date of completion was 28-6-2001. It is alleged by the claimant that whatever quantity was offered had been completed and the work was considered as completed on 29-6-2001. The Bank Guarantee of Rs. 5,89,000/- was furnished towards the security deposit which was released on 30-10-2002.

2.3 The case of the claimant is that the amount of Rs. 41,29,053/- had not been paid by the respondents through the work was considered as completed as per the contract. The claimant has alleged that against the tender quantity of 3,80,000/- M.T. the quantity of 2,79,938.439 M.T. was offered till 29-6-2001 with the result, that the quantity of 1,00,051.561 M.T. could not be executed due to breach of contract on part of the respondents. The claimant has alleged that considering the rate of Rs. 31/- per M.T. the work of Rs. 31,01,598.391 could not be executed. It is alleged that at the time of entering into contract, 25% were contemplated towards the profit and as claimant is prevented from performing the contract of Rs. 31,01,598.391, the loss of profit at 25% is required to be paid which comes to Rs. 7,75,399.57. The claimant gave notice dated 9-9-2002 calling upon the respondents to make outstanding payment along with interest at 18% P.A. and to release the Bank Guarantee within the period of sixty days from the date of receipt of notice but the respondents did not pay it and gave reply dt.20-11-2002.

2.4 Hence, the claimant has prayed for the payment of the following amounts from respondents:-

(a) Rs. 41,29,053-00 For work done but not paid.

(b) Rs. 30,34,853-71 Interested 18 percent per Annum from 28-6-2001 to 31-7-2005.

(c) Rs. 7,75,399-57 Loss of profit.

Rs.79,39,306-28 Ps. Plus interest at 18% per annum from 1-8-till realization.

The claimant has prayed for the award of Rs. 79,39,306-29 in their favor and against the respondents with interest at 18% p.a. from 1.8.2005 till realization and other and further relief as may be deemed just and proper.

2.5 The respondent No.2 Executive Engineer has filed written statement at Exh.13. The respondent No.1 State of Gujarat has not filed written statement. The respondent No.2 has denied that an amount of Rs. 41,29,053/- has not been paid though the work is considered as contemplated as per the contract. It is contended that Rs. 1.55 lacs has been wit