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5. The MOU included a Clause (Clause 10) that stated that "Neither Party is liable for any indirect, special or consequential loss or damage or any loss or damage due to loss of goodwill or loss of revenue or profit arising from or in connection with this MOU." The Arbitral Tribunal referred to the decision of the learned Single Judge of this Court in Simplex Concrete Piles (India) Ltd. v. Union of India1 and held that Plus91 would be entitled to damages notwithstanding the said Clause 10 of the MOU.

9. Cost and Expense ***

10. No Consequential Damages Neither Party is liable for any, indirect, special or consequential loss or damage or any loss or damage due to loss of goodwill or loss of revenue or profit arising from or in connection with this MOU.

11. Termination In the event either Party materially breaches any term of this MOU, which breach is not cured within thirty (30) days after written notice specifying the breach is given to the breaching party, the non-breaching party may (i) terminate this MOU by giving written notice to the breaching Party; and (ii) pursue any and all remedies available subject to the provisions of this MOU.

57. Clause 10 of the MOU would necessarily have to be interpreted in the context of the other terms of the MOU which do not indicate that any rights had accrued in favour of any of the parties in respect of any project. It merely indicates the intent of the parties to enter into project- wise agreements after the same are identified.

58. As per Clause 10 of the MOU, the parties had expressly agreed that none of them would be liable to (i) any indirect, special, or consequential loss or damage; (ii) any loss or damage due to loss of goodwill; and (iii) loss of revenue or profit arising from or in connection with the MOU.

63. Clause 10 of the MOU expressly provides that none of the parties would be liable for any "loss of revenue or profit arising from or in connection with this MOU". The claim for loss of profit awarded by the Arbitral Tribunal is plainly contrary to the express terms of the MOU. The Arbitral Tribunal has proceeded on the basis that the said clause is contrary to the public policy and is, thus, void. The said conclusion is patently illegal.

64. It is essential to maintain the bargain entered into between the parties. The parties agreed that they would not be liable for (i) any indirect, special, or consequential loss or damage; (ii) any loss or damages due to loss of goodwill; and, (iii) loss of revenue or profit arising from or in connection with the MOU. If the MOU is accepted as a binding agreement, this is clearly a part of the bargain struck by the parties. Disregarding the said stipulation would in effect amount to re- writing the bargain between the parties.