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24. The claimant made a claim for the work already done and the actual loss the claimant sustained due to mobilisation and demobilisation of equipments and idling the equipments and vessels till the variation of the contract. Here the claimant has not made the claim based on damages for breach of contract.

25. As rightly pointed out by the learned counsel appearing for the appellant, there is no clause in the contract to claim abortive costs. However, in common law, a person who has done some work pursuant to the agreement has to be reimbursed for that work. As per the Trade usage, actual expenses or cost incurred by a person towards a work as per contract is to be reimbursed.

28. Towards the rate of interest also, the Tribunal awarded 9% considering the fact that most of the expenditure has been incurred abroad, where the interest rates are quite low.

29. Thus for the work already done and for mobilisation and demobilisation of the equipments and idling the equipments, the claimant made a claim and the learned Arbitrators awarded the claim after analysing the materials as aforesaid.

30. As rightly pointed out by the learned single Judge, there is no breach of contract and the claimant is not entitled to any compensation under Section 73 or 74 of the Contract Act. As pointed out earlier with regard to work done by way of spending amount, the claimant is entitled to get reimbursement of the same from the Ennore Port Ltd. It is also pertinent to note that such entitlement is also supported by the latin maxim : Ex qua persona quis lucrum capit - ejus factum prestare debet - He who derives advantage from any one should bear that person's obligations, or make good his deeds. There is also another latin maxim : Nemo debet ex alieno damno lucrari - No one should be enriched out of the loss or damage sustained by another. Under Section 28(3) of the Arbitration and Conciliation Act, 1996, the Arbitral Tribunal while making an award take into account the terms of the contract and trade usages applicable to the transaction. Thus as per the trade usages applicable to the transaction, the claimant is entitled to claim the amount spent towards execution of the contract till the issuance of the variation order. Thus, the Arbitral Tribunal has rightly passed the award as per the trade usages applicable to the transaction and there is no patent illegality and the Award is also not contrary to the public policy of India.