Delhi District Court
Through Its DirectorCommercial vs M/S Ester Industries Ltd on 29 August, 2019
IN THE COURT OF SH. PRASHANT KUMAR, ADJ01,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CS No. 18333/16
M/s Amarsons Commercial (P) Ltd.,
having its registered office at
R697, New Rajinder Nagar, New Delhi - 110 060
Through its DirectorCommercial
Sh. Parvin K. Aggarwal
..............Plaintiff
Vs.
M/s Ester Industries Ltd.
Having its registered office at
Sohan Nagar, P. O. Charubeta,
Kalima - 262 308
District Udham Singh Nagar (U.P.)
Second Address:
Head Office:
7576, Amrit Nagar,
Behind New Delhi, South Extention Part - I,
New Delhi - 110 003
................Defendant
Date of institution of the suit : 09.04.1997
Date on which order was reserved : 13.08.2019
Date of decision : 29.08.2019
CS No. 18333/16 Page No. 1 of 23
SUIT FOR RECOVERY OF RS.2,80,000/
JUDGMENT
1. Plaintiff has filed a suit for recovery alleging that plaintiff is a Private Limited Company, whose director is Sh. Pravin.K. Aggarwal. The plaintiff is carrying on its business of export and import as well to provide consultancy services in relation to any business. Defendant entered into an agreement with the plaintiff for sale of 600 unsecured redeemable Bank of Baroda Bond of Rs.5,000/ each at a discount of 6.5 % plus reimbursement of interest @ of 16 % p.a. accrued thereon from 01.07.1996 to 11.11.1996 and defendant was to pay its sale price together with accrued interest amounting to Rs.29,69,315/ (principle price of Rs.28,05,000/ plus Rs.1,64,315/ as interest from 01.07.1996 to 11.11.1996). The contract concluded on 18.11.1996 and the payment was to be delivered by 19.11.1996 to defendant at Delhi by plaintiff against physical delivery on 600 Bank of Baroda Bonds on 18.03.2003 or earlier and interest at fixed rate of 16% p.a. as per the terms and conditions of the said bonds. One certificate containing 20 Bank of Baroda Bonds was issued. Defendant confirmed the contract regarding sale of 600 unsecured bonds of Rs.5,000/ each amounting to Rs.30 Lakhs @ 6.5% through Fax message dated 18.11.1996 conveyed to the plaintiff alleging that defendant needed payment positively by 19.11.1996 and related document would be handed over to the CS No. 18333/16 Page No. 2 of 23 representative of the plaintiff against delivery of payment. Payment was to be made at Delhi by the plaintiff and agreed documents were to be delivered by defendant at Delhi.
2. Sh.Praveen Kumar Aggarwal, Director of plaintiff reached Delhi with calculated sale price along with interest of 134 days amounting to Rs.29,69,315/ by means of account payee demand draft dated 18.11.1996 for Rs.5 Lakhs and a bankers cheque dated 19.11.1996 of Rs.24,69,315/ in favour of defendant. He contacted Sh.R.C.Rustagi, General Manager, (F&A), Ester Industries Ltd i.e. defendant and requested him to deliver the documents. Payment was handed over to Sh.R.C.Rustagi, however, documents were not handed over. Demand draft dated 18.11.1996 for Rs.5 Lakhs and a banker's cheque dated 19.11.1996 of Rs.24,69,315/ were cancelled thereafter.
3. Plaintiff company sent a notice dated 14.12.1996 asking defendant to give physical delivery of the bonds alleging that it was still ready and willing to make payment. The defendant company in its reply admitted sale of 600 bonds. However, it was stated that no representative of company reach. The defendant company on 19.11.1996 with an agreement amount of Rs.29,69,315/. Defendant company committed the breach for the reason that price had gone very high. Plaintiff was required CS No. 18333/16 Page No. 3 of 23 to purchase the bonds from the market at face value of 100% to discharged its obligation under taken with that person. Hence, suit for recovery of damages along with interest. Damages are claimed being difference between market price at 100% and contracted price at 93.5% and interest is claimed @ 16 % per annum from 01.07.1996 to 31.12.1996 less interest payable to the defendant for 134 days along with other expenses. Hence, the present suit.
4. It is important to mention here that though WS has been filed as mentioned above however the suit was decreed by Ld. Predecessor vide its judgment dated 31.03.1998. An appeal was preferred and vide appeal order of Hon'ble High Court of Delhi dated 10.03.2011. It has been remanded back again and trial de novo has started. Another important fact which is to be considered is that one application under Order XI Rule 14 CPC was filed wherein order was issued to the defendant to file certain documents as required as mentioned in the application. These directions were never complied by the defendant despite giving several opportunities even subject to cost. Therefore, the defence of defendant has been struck off. Nonpayment of cost by the defendant has also been considered accordingly and right to crossexamine PW has been closed vide order dated 21.01.2014.
CS No. 18333/16 Page No. 4 of 235. Following issues were framed on 17.10.1997:
1. Whether the defendant has committed a breach of term of the contract dated 18.11.1967? OPP
2. Whether the defendant is liable to pay damages for not performing part of its contract? OPP
3. Whether the plaintiff is entitled to interest on damages and other misc. expenses? OPP
4. To what amount, the plaintiff is entitled to from the defendant? OPP.
5. Relief.
6. Before proceeding further, it is important to mention here that initially plaintiff had examined one witness and defendant examined only one witness after the case was remanded back from the appellate court. There is no evidence from the side of defendant and two witness have been examined by the plaintiff.
They have not been crossexamined.
7. Before proceeding further, order dated 10.03.2011 passed by Hon'ble High Court of Delhi is perused. Para No. 5 and 6 of the order speaks about the directions which are required to be followed to decide the case accordingly. It is a consent order vide which the party agreed to remand back the case for leading evidence with regard to the loss which would be caused to the plaintiff on account of failure of defendant to honour the CS No. 18333/16 Page No. 5 of 23 contract. The case has been remanded back to consider another fact of entitlement of plaintiff to establish that inspite of its best efforts the subject bonds were not available for purchase prior to March, 1997 or if available earlier than March, 1997 then what was the rate prevailing at that earlier date. It has been further directed that the court has to decide the issue pertaining to claim of plaintiff for grant of interest afresh on the subject bonds for the period from 01.07.1996 to 31.12.1996 less the period of 134 days. Para no. 6 of the impugned order is also important to mention here which reads as under :
"6. Parties to appear before the trial Court on 28th April, 2011. Trial Court to allow the parties to lead the evidence with respect to quantification of the loss and as per the observations made above and also give the judgment thereafter on the entitlement of the respondent/plaintiff including the entitlement towards the accrued interest."
8. From bare perusal of para No. 6 it is reflected that parties have been given an opportunity to lead their evidence with respect to quantification of loss including interest as well. It is a matter of record however, that despite giving an opportunity to the defendant there is no evidence from their side as well as their right to lead evidence has been closed including striking off their defence.
9. Final arguments were duly adduced by Ld. Counsels for both CS No. 18333/16 Page No. 6 of 23 the parties. I have duly considered the arguments advanced and have perused the evidence on record carefully. My issue wise findings are as under:
10.ISSUE No. 1Whether the defendant has committed a breach of term of the contract dated 18.11.1967? OPP
11.Onus of this issue is upon the plaintiff. Vide this suit plaintiff has alleged that they are into the business of export and import as well as providing consultancy service. The case of the plaintiff is that he entered into an agreement with defendant for purchase of 600 unsecured redeemable bonds of Rs.5,000/ each at a discount of 6.5% plus reimbursement of interest @16% per annum accrued thereon from 01.07.1996 to 11.11.1996 and plaintiff was to pay a total price of Rs.29,69,315/. It is alleged that this contract concluded on 18.11.1996 and payment was to be made on 19.11.1996.
12.In this regard, plaintiff has examined Sh.P.K.Aggarwal, Director of the company on earlier occasion on 02.02.1998 as well as after the case was remanded back with direction to lead evidence afresh, on 28.10.2013. On 02.02.98 PW1 has stated that he entered into a contract for sale of 600 bonds of Rs.5,000/ each at a discount of 6.5% on 18.11.1996. It is stated CS No. 18333/16 Page No. 7 of 23 that these bonds were not available in open market as they were privately placed by Bank of Baroda to specific group of persons who happened to be their client. It is alleged that defendant made offer of these bonds to plaintiff company through a fax message o 18.11.1996. It is important to mention here that copy of such fax message dated 18.11.1996 is not placed on record.
13.It is alleged that as per the agreement plaintiff arranged sum of Rs.29,69,315/ in the form of a banker's cheque and draft and sent the concerned person to the office of defendant. It is alleged that defendant however did not handed over the bonds.
Defendant returned the draft and banker cheque on 20.11.1996. Plaintiff kept the payment ready with him till 29.11.1996 and kept on communicating with defendant to hand over the bonds after receiving the payment. However, bonds were not delivered. These draft and banker cheque were cancelled after 29.11.1996. Plaintiff has also sent a legal notice Ex.PW1/7. Ex.PW1/8 is the reply of the defendant to the notice. Ex.PW1/11 is the copy of the statement of account issued by Bank of Baroda and Ex.PW1/13 is the statement of account issued by State Bank of India. It is stated that these bonds were purchased by plaintiff company for further sale as per their commitment. It is alleged that plaintiff company had entered into the contract for sale of these bonds with J.M.Shares and Brokers Ltd. The CS No. 18333/16 Page No. 8 of 23 company had purchased 1000 bonds in total including the bonds which were to be purchased from the defendant. It is stated that the bonds were available in the market at par and plaintiff suffered a loss of 6.5% on the face value of the bond.
14.This witness was cross examined on 02.02.1998 by and on behalf of defendant and it has been stated by PW1 that he can produce the document of purchase of 640 bonds from the market for keeping his commitment with J.M. Shares. The suggestion given from the side of the defendant that they had refused to deliver the bond has been denied.
15.During examination of PW1, second time, after the case was remanded back, it is stated that after refusal from the side of defendant plaintiff tried to purchase the bonds from the market but they were not available before March 1997. Plaintiff purchased the bonds in March, 1997 to comply its commitment towards the buyer M/s J.M.Shares and Stock Brokers Ltd., Mumbai. It is stated that plaintiff company suffered loss to the tune of Rs.2,80,000/. It is stated that defendant company disposed off Bank of Baroda bonds within a period of one week from the date of contract. However, they have not furnished the relevant information and document. It is further stated that as per inquiry 600 Bank of Baroda bonds were sold by defendant company to M/s Sahara India Financial Corporation Ltd. It is CS No. 18333/16 Page No. 9 of 23 further alleged that defendant company did not give interest from 01.07.1996 to 31.12.1996 less 134 days which was agreed i.e. for the remaining period of 50 days from 12.11.1996 to 31.12.1996 amounting to Rs.75,685/.
16.For the second time, i.e. after remanding back of the case, in his examination in chief PW1 has demanded additional amount of Rs.75,685/ however it is not forming part of the original plaint. This witness was not cross examined by the defendant.
17.PW2 is Sh. S. N Jha, Manager Karvi Computer Share Pvt. Ltd. Who filed certain document Ex.PW2/A (21 pages) alleging that as per these documents bonds were transferred to M/s Sahara Indian Financial Corporation Ltd. on 21.11.1996. This witness further stated that he was not having any document to show at what rate these bonds were transferred.
18.It has already been stated above that PW1 and 2 have not been crossexamined by the defendant on second occasion, for the reason that their defence has been struck off and opportunity to crossexamine these witness has been closed. Thus, there is nothing from the side of defendant either in the form of defence or in the form of cross examination of the plaintiff's witness.
19.In order to prove this issue no. 1 the plaintiff has to show that CS No. 18333/16 Page No. 10 of 23 he was ready and willing to perform the contract and it was due to the conduct of the defendant or their agent the contract could not be performed and breach has been caused. In this regard, PW1 Sh.P.K.Aggarwal has been examined being the Director of the plaintiff company who has categorically stated that there was an agreement between defendant vide which defendant agreed to sell 600 bonds of Bank of Baroda of the value Rs.5,000/ each. This fact is not disputed from the pleadings. In their written statement which was filed initially, defendant has not disputed this fact that there was no agreement to this effect. Proceeding further plaintiff/PW1 has alleged that as per the agreement he reached at the spot along with the payment on 19.11.1996, however, the agent of defendant, though took the draft and banker cheque but did not hand over the bonds as per agreement. It is further stated by PW1 that on next date i.e. 20.11.1996, banker's cheque and draft were returned by and on behalf of defendant alleging that bonds cannot be supplied as rates have gone high. From the perusal of the record it is reflected that on earlier occasion when PW1 was cross examined by defendant and when defendant has lead his evidence as well, it was stated from their side that nobody from the side of the plaintiff came forward to make the payment, therefore, the contract was terminated. Thus, both plaintiff and defendant had categorically stated that there was breach of the contract.
CS No. 18333/16 Page No. 11 of 2320.Now, the second aspect required to decide this issue is to see as to who has committed the breach. Plaintiff has alleged that it was defendant who committed the breach by not handing over the 600 bonds as per agreement for the reason that their rates have too high. In support his contention, plaintiff has placed on record a number of documents i.e. communication of letter and fax messages in between them wherein plaintiff has alleged that he was ready and willing to make the payment and receive the bond. It is further alleged that plaintiff was asked to wait till March, 1997. Plaintiff has relied upon various documents i.e., copy of the resolution passed in favour of PW1 as Ex.PW1/1, the notice under Order XXII was issued by counsel for plaintiff seeking production of original documents is Ex.PW1/2, postal receipt of the notice is Ex.PW1/3 and the AD is Ex.PW1/4, the original FAX letter is Ex.PW1/5, copies of bankers cheque and draft are mark X and Y, the original letter Faxed is Ex.PW1/6, copy of notice Ex.PW1/7, Ex.PW1/8 is reply to the said notice. Ex.PW1/9 is the Memorandum of Association. Ex.PW1/10 is the Article of Association, Certified copy of statement of account issued by Bank of Baroda is Ex.PW1/11, Certified copy of statement of account issued by SBI is Ex.PW1/13 to substantiate this fact. During second time this witness relied upon his earlier duly sworn in affidavit exhibited as Ex.PW1/X. CS No. 18333/16 Page No. 12 of 23
21.It is a matter of record that subsequent to remand back from the appellate court, various directions were given to defendant under Order XX Rule 12 and 14 CPC. Cost was also imposed upon the defendant for non compliance of such directions, however, they have not been complied with nor the cost was paid. Therefore, as a consequences thereof, the defence of the defendant has been strike off and right to crossexamine the witness has also been closed. It is also a matter of record that there is no evidence from the side of the defendant subsequent to the stage when the matter has been received after its remand back on 10.03.2011. If the earlier evidence led by defendant and cross examination of PW1 conducted on his behalf is to be seen for reference, even then it is reflected that he has not been able to counter any of these facts mentioned above that plaintiff had communicated through various emails and fax messages that he was ready to make the payment but defendant was not honouring the contract. Therefore, with these submissions, I am of the considered opinion that plaintiff has been able to shift the onus upon the defendant by preponderance of probabilities that it is the defendant who has committed the breach of the agreement. Further, there is no evidence from the side of the defendant subsequent to the remand back of the case vide order dated 10.03.2011. Thus, issue no. 1 is decided in favour of the plaintiff.
CS No. 18333/16 Page No. 13 of 2322.ISSUE Nos. 2, 3 and 4.
2. Whether the defendant is liable to pay damages for not performing part of its contract? OPP
3. Whether the plaintiff is entitled to interest on damages and other misc. expenses? OPP
4. To what amount, the plaintiff is entitled to from the defendant? OPP.
23.All these issues are interlinked and keeping in mind the directions by order of remand back dated 10.03.2011, they are taken up together and decided in the following paras.
24.The case of the plaintiff is that because defendant had not supplied the bonds as per agreement, therefore, he had to purchase the same from the open market at the current rate and as he was having a further contract with his clients therefore, he had to sell 1000 bonds including 600 bonds in question to its clients and in that dealing he had to spend more, thus, suffered losses. Vide this suit he has claimed the difference of market rate of 600 bonds prevalent at that time and the discounted value of such bonds which defendant agreed to sell to him.
25.In support of his contention, plaintiff examined PW2 Sh.S.N.Jha, Manager from Karvi Computer Share Pvt. Ltd. This CS No. 18333/16 Page No. 14 of 23 witness was summoned to bring record/document to show as to whom the 600 bonds were sold by defendant and at what rate. This witness stated that those 600 bonds were transferred to M/s Sahara India Financial Corporation Ltd., on 21.11.96, however, he was not having any document to show at what rate these bonds were transferred/sold.
26.Keeping in mind the directions given vide order dated 10.03.2011 passed by Hon'ble High Court of Delhi in its appellate jurisdiction, the case has been remanded back with direction to the parties to lead evidence afresh on the point of quantification of damages as well as issue pertaining to claim of interest for which issue No. 3 has been framed accordingly. It is a matter of record that vide earlier judgment dated 31.03.1998 passed by my Ld. Predecessor, before remand back of the case, claim of interest was declined.
27.Certain issues which are required to arrived at a logical conclusion to determine the quantification of the damages and claim of interest by the plaintiff are mentioned as under: i. At what rate plaintiff purchased 600 bonds.
ii. At what rate defendant sold the 600 bonds to person other than plaintiff.
iii. Whether it was within the knowledge of the defendant that plaintiff was having a contract with third party to sell CS No. 18333/16 Page No. 15 of 23 the 600 bonds which were to be purchased by him from the defendant.
iv. In the event of breach of agreement what actual loss has been suffered by the plaintiff.
28.With regard to the point (i) and (ii), though it is alleged by PW 1 during his evidence on both the occasions i.e. on 02.02.1998 and 28.10.2013 (the day when examination in chief of PW1 was recorded after remand back) that defendant sold 600 bonds to some other person and plaintiff had to purchase those 600 bonds from the open market at current market rate prevalent at that time, however, the evidence led by the plaintiff is not in detail. In other words, plaintiff has neither placed on record any document to show at what rate he had purchased the 600 bonds from the market or what was the prevalent current rate at that time nor he has placed on record any evidence to show the rate at which defendant is alleged to have sold the bonds to M/s Sahara India Financial Corporation Ltd. on 21.11.96. PW2 has been examined by the plaintiff in this regard to prove the sale of 600 bonds by the defendant however, this witness i.e., PW2 failed to place on record any document or information in this regard. Thus, the evidence available on record is silent about the details of impugned 600 bonds sold by the defendant as well as 600 bonds purchased by the plaintiff.
29.Before proceeding further it is important to discuss the law CS No. 18333/16 Page No. 16 of 23 pertaining to the quantification of damages. Section 73, 74 and 75 of Indian Contract Act, speaks about grant of damages. Section 74 provides for the provision for compensation for breach of contract where penalty is stipulated for and Section 75 provides for the provision for grant of compensation/damages to the party rightfully rescinding the contract. The case of plaintiff cannot be said to be covered by Section 74 and 75 of the Act. It is Section 73 which is applicable in present circumstances. Section 73 Contract Act reads as under : "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 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.
CS No. 18333/16 Page No. 17 of 23Explanation In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the nonperformance of the contract must be taken into account."
30.The existence of a concluded contract is a sine qua non in a claim for compensation for loss and damages under this section arising out of breach of contract. Annexure for damage is always as a matter of right when contract has been broken, as against the relief of specific performance which lies in the discretion of the court. It has been held in 'Maharastra State Electricity Board vs. Sterlite Industries India Ltd.', AIR 2000 Bom. 204 that, "damages for breach of contract committed by the defendant are a compensation to the plaintiff for the damage, loss or injury he has suffered through that breach and therefore unless and until loss is actually suffered, damages cannot be awarded."
31.Thus, it is clear that in order to claim compensation, actual loss should have been suffered. It is essential that a person who claim damages for breach of a contract should have performed or was ready to perform his part of obligations arising under the contract. Similar observation has been made in case AIR 947 Nag. 193. Section 73 and 74 are for the benefit of a party willing to perform a contract and not for the defaulting party.
CS No. 18333/16 Page No. 18 of 23Similar has been held in 'Timblo Irmaos Ltd. Vs. Jorge Anible Motos Sequeira', (1997) 2 SCR 451.
32.With regard to point (iii) (supra), it is to be seen as to whether it was within the knowledge of the defendant or it was communicated by the plaintiff to him orally or in writing or whether it was forming part of the contract that plaintiff was having a contract with a third person and he had to sell the bonds to some other person which were sought to be purchased from the defendant. In this regard, there is no evidence available on record. Plaintiff has alleged in the plaint that he had to sell those 600 bonds further to some third person who was his client and due to the breach committed by the defendant he had to purchase those 600 bonds from the open market, however, he has not alleged anywhere either in the pleadings or in his evidence on both occasions i.e. 02.02.1998 and 28.10.2013 to this extent. In these circumstances, therefore, the requirement of law is to see the aspect of remoteness. In deciding whether damages claimed are too remote, the test is whether the damage is such, as must have been in the contemplation of parties as being a possible result of the breach. It has been held in 'Pravudayal Agarwala Vs. Ram Kumar Agarwala' AIR 1956 CAL 41 and 'Chaplin Vs. Hicks' (1911) 2 K.B. 786 that, "if such facts is communicated to the other parties then it cannot be regarded as too remote. The damages are to be assessed based CS No. 18333/16 Page No. 19 of 23 on natural and probable consequences of the breach actual knowledge must be shown. Mere imprudence and carelessness is not knowledge."
33.It has further been held in 'State of Kerela Vs. K.Bhaskaran', AIR 1985 Ker. 49 that, "defendant is liable only for reasonably foreseeable losses, those that a normally prudent person standing in his place possessing his information when contracting would have reason to foresee as probably consequences of future breach."
34.Remoteness of damage is a question of fact and only guidance a law can give is, to lay down general principles. The plaintiff can recovery in such a case if the defendant had special knowledge of the relevant circumstances which may be derived from the plaintiff or other independent sources.
35.It is important to mention here that plaintiff has made a contract with a third party involving the same subject matter, then the contract broken does not affect the damages recoverable unless such a contract within the contemplation of the parties committing breach. Where the onward contract is within the knowledge of the parties then in such case plaintiff can seek enhancement of damages it has been held in 'Parsondass H. Thacker vs. Saran Engineering Company Ltd.' AIR 1965 SC CS No. 18333/16 Page No. 20 of 23 1981.
36. Now, coming to the case in hand, it has already been stated above that it is a matter of record that there is no evidence as to at what rate defendant has sold the bonds and at what rate plaintiff has purchased the same from the open market. It means and implies that quantification of the loss suffered by plaintiff as alleged cannot be done in the manner as alleged by him. Moreso, it is not the case of the plaintiff nor emerging from the facts and circumstances as well as evidence supported with document that it was within the knowledge of the defendant that plaintiff was having contract with third party to sell those bonds further. In the absence of any such evidence to the contrary the plaintiff therefore, cannot claim excess damages. In this regard, reference can be laid upon judgment of 'Union of India Vs. United Timber Works' AIR 1960 Pun 478 and State of Kerela Vs. K. Bhaskaran (supra) that, "damages cannot be awarded for loss of profit on the ground of equity in the absence of proof of any damage having been sustained. Thus, an owner of a vehicle seized but not returned, was not entitled to loss of income without proof of loss. However, it has also been held that s. 73 allows, as damages, the loss of reasonable profits arising from a breach of contract. It further held that courts are bound to try to get at that sum of money which would put the wronged party in the same position as that in which he would CS No. 18333/16 Page No. 21 of 23 have been, if he had not sustained the wrong which entitles him to claim damages."
37.The outcome of above findings is that it was not within the knowledge of defendant that plaintiff was having a contract to sell the bonds again to third party. Moreso, as the mandate laid down in 'Maharastra State Electricity Board' (supra) that the loss so suffered should be actual cannot be ignored. Thus, in my considered opinion, the plaintiff cannot claim special damages i.e. claim of 16 % interest per annum for 6 months from 01.07.1996 to 31.12.1996 less interest payable for 134 days.
38.The evidence led by plaintiff is with regard to the facts as alleged in the plaint that he was having an agreement with the defendant to purchase 600 bonds on discount and when the agreement was breached by defendant then he had purchase from the market at par. Evidence to this effect is unrebutted and supported with documents which is also reflected from the various communication in between the plaintiff and the defendant. Therefore, in my considered opinion, he is entitled to recover the reasonable compensation to this extent only. Plaintiff has also alleged that he had incurred miscellaneous expenses to the tune of Rs.7,330/. In my considered opinion, these are considered as reasonable expenses, therefore, plaintiff CS No. 18333/16 Page No. 22 of 23 is also entitled to recovery this amount.
39.The outcome of above discussion is that plaintiff has been able to establish from the record that breach has been committed by the defendant. Plaintiff has also been able to establish that he suffered loss of Rs.1,95,000/ which was a discounted amount as per the agreement, if he would have purchased the bonds from the defendant. Plaintiff however has not be able to establish the special damages for the reason that it was not within the knowledge of the defendant that he was having special contract with some third party. Hence, he is not entitled for the interest of 16% per annum for 06 months from 01.07.1996 to 31.12.1996 on damages, as prayed. He is however entitled for recovery of miscellaneous expenses for Rs.7,330/.
40.RELIEF Plaintiff is entitled for recovery of Rs.2,04,315/ along with interest @ 12% from the date of filing of the suit till its realization. Costs of the suit is also awarded. Decree sheet be prepared, accordingly.
File be consigned to record room, after due compliance.
Digitally signed by PRASHANT PRASHANT KUMAR KUMAR Date: 2019.09.05 Announced in the open 14:38:34 +0530 court on 29.08.2019 (Prashant Kumar) ADJ01, Central District Tis Hazari Courts, Delhi CS No. 18333/16 Page No. 23 of 23