In Maula Bux –vs- Union of India, (1969) 2 SCC 554, the Court has
specifically held that it is true that in every case of breach of contract the
person aggrieved by the breach is not required to prove actual loss or
damage suffered by him before he can claim a decree and the Court is
competent to award reasonable compensation in a case of breach even if no
actual damages is proved to have been suffered in consequence of the breach
of contract. The Court has also specifically held that in case of breach of
some contracts it may be impossible for the Court to assess compensation
arising from breach.
Take for illustration construction of a road or a bridge. If there is delay in
completing the construction of road or bridge within stipulated time, then it
would be difficult to prove how much loss is suffered by the Society/State.
Similarly in the present case, delay took place in deployment of rigs and on
that basis actual production of gas from platform B-121 had to be changed.
It is undoubtedly true that the witness has stated that redeployment plan was
made keeping in mind several constraints including shortage of casing pipes.
Arbitral Tribunal, therefore, took into consideration the aforesaid statement
volunteered by the witness that shortage of casing pipes was only one of the
several reasons and not the only reason which led to change in deployment
of plan or redeployment of rigs Trident-II platform B-121. In our view, in
such a contract, it would be difficult to prove exact loss or damage which the
parties suffer because of the breach thereof. In such a situation, if the parties
have pre-estimated such loss after clear understanding, it would be totally
unjustified to arrive at the conclusion that party who has committed breach
of the contract is not liable to pay compensation. It would be against the
specific provisions of Section 73 and 74 of the Indian Contract Act. There
was nothing on record that compensation contemplated by the parties was in
any way unreasonable. It has been specifically mentioned that it was an
agreed genuine pre-estimate of damages duly agreed by the parties. It was
also mentioned that the liquidated damages are not by way of penalty. It was
also provided in the contract that such damages are to be recovered by the
purchaser from the bills for payment of the cost of material submitted by the
contractor. No evidence is led by the claimant to establish that stipulated
condition was by way of penalty or the compensation contemplated was, in
any way, unreasonable. There was no reason for the tribunal not to rely upon
the clear and unambiguous terms of agreement stipulating pre-estimate
damages because of delay in supply of goods. Further, while extending the
time for delivery of the goods, respondent was informed that it would be
required to pay stipulated damages.
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CONTRACT ACT
FAO(OS) No.240/2008
Date of Decision: August 30, 2011
GAIL(INDIA) LIMITED ...
versus
GEO MILLER & COMPANY LTD. ...
CORAM:
HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
1. The neat question which arises for our consideration in this Appeal is
whether the Arbitrator as well as the learned Single Judge fell into error in
awarding the sum of ` 22,29,840/-, avowedly withheld by the Appellant on
account of liquidated damages. According to Mr. Jagjit Singh, learned
counsel for the Appellant, the Award was facially in excess of the
jurisdiction and the powers reposed in the Arbitrator as it transgressed
Clause 27 of the Contract dealing with compensation for delay (liquidated
damages). Learned counsel for the Appellant has relied on – (i) Bharat
Coking Coal Limited –vs- Annapurna Construction, (2003) 8 SCC 154
where Their Lordships had found that the Arbitrator had exceeded his
jurisdiction inasmuch as it had not taken into consideration relevant clauses
of the contract for purposes of determining the fact situation. (ii) In West
Bengal State Warehousing Corporation –vs- Sushil Kumar Kayan, AIR 2002
SC 2185 the finding is to the effect that the Arbitrator rejected the plea that
the value of the stolen goods should be restricted to their declared value.
Clearly, however, this is not the factual matrix before us. (iii) In Rajasthan
State Mines & Minerals Ltd. –vs- Eastern Engineering Enterprises, (1999) 9
SCC 283 the Supreme Court opined that if the fundamental terms of an
agreement are ignored by the arbitrator, he acts in excess of his jurisdiction.
This is again of no relevance to the contentions raised before us. (iv) In Steel
Authority of India Ltd. –vs- J.C. Budharaja, AIR 1999 SC 3275 the
arbitrator awarded damages or compensation ignoring the prohibition
contained in that contract. It was held that the Arbitrator had travelled
beyond his jurisdiction.(v) Finally, the following paragraphs from Oil &
Natural Gas Corporation Ltd. –vs- Saw Pipes Ltd., (2003) 5 SCC 705 have
been pressed for our consideration:-
66. In Maula Bux –vs- Union of India, (1969) 2 SCC 554, the Court has
specifically held that it is true that in every case of breach of contract the
person aggrieved by the breach is not required to prove actual loss or
damage suffered by him before he can claim a decree and the Court is
competent to award reasonable compensation in a case of breach even if no
actual damages is proved to have been suffered in consequence of the breach
of contract. The Court has also specifically held that in case of breach of
some contracts it may be impossible for the Court to assess compensation
arising from breach.
67. Take for illustration construction of a road or a bridge. If there is delay in
completing the construction of road or bridge within stipulated time, then it
would be difficult to prove how much loss is suffered by the Society/State.
Similarly in the present case, delay took place in deployment of rigs and on
that basis actual production of gas from platform B-121 had to be changed.
It is undoubtedly true that the witness has stated that redeployment plan was
made keeping in mind several constraints including shortage of casing pipes.
Arbitral Tribunal, therefore, took into consideration the aforesaid statement
volunteered by the witness that shortage of casing pipes was only one of the
several reasons and not the only reason which led to change in deployment
of plan or redeployment of rigs Trident-II platform B-121. In our view, in
such a contract, it would be difficult to prove exact loss or damage which the
parties suffer because of the breach thereof. In such a situation, if the parties
have pre-estimated such loss after clear understanding, it would be totally
unjustified to arrive at the conclusion that party who has committed breach
of the contract is not liable to pay compensation. It would be against the
specific provisions of Section 73 and 74 of the Indian Contract Act. There
was nothing on record that compensation contemplated by the parties was in
any way unreasonable. It has been specifically mentioned that it was an
agreed genuine pre-estimate of damages duly agreed by the parties. It was
also mentioned that the liquidated damages are not by way of penalty. It was
also provided in the contract that such damages are to be recovered by the
purchaser from the bills for payment of the cost of material submitted by the
contractor. No evidence is led by the claimant to establish that stipulated
condition was by way of penalty or the compensation contemplated was, in
any way, unreasonable. There was no reason for the tribunal not to rely upon
the clear and unambiguous terms of agreement stipulating pre-estimate
damages because of delay in supply of goods. Further, while extending the
time for delivery of the goods, respondent was informed that it would be
required to pay stipulated damages.
68. From the aforesaid discussions, it can be held that:--
(1) Terms of the contract are required to be taken into consideration before
arriving at the conclusion whether the party claiming damages is entitled to
the same;
(2) If the terms are clear and unambiguous stipulating the liquidated
damages in case of the breach of the contract unless it is held that such
estimate of damages/compensation is unreasonable or is by way of penalty,
party who has committed the breach is required to pay such compensation
and that is what is provided in Section 73 of the Contract Act. (Emphasis
supplied).
(3) Section 74 is to be read along with Section 73 and, therefore, in every
case of breach of contract, the person aggrieved by the breach is not required
to prove actual loss or damage suffered by him before he can claim a decree.
The Court is competent to award reasonable compensation in case of breach
even if no actual damage is proved to have been suffered in consequence of
the breach of a contract.
(4) In some contracts, it would be impossible for the Court to assess the
compensation arising from breach and if the compensation contemplated is
not by way of penalty or unreasonable, Court can award the same if it is
genuine pre-estimate by the parties as the measure of reasonable
compensation.
2. We had considered the law on this subject in Bharat Sanchar Nigam
Limited –vs- BWL Limited, 2011 IV AD (Delhi) 302 and we remained
steadfast to our appreciation of the law in that decision.
3. Both Maula Bux –vs- Union of India, (1969) 2 SCC 554 (Three-Judge
Bench) as well as Saw Pipes Ltd. (Two-Judge Bench) are constrained to
charter a course in consonance with the enunciation of law by the
Constitution Bench in Fateh Chand –vs- Balkishan Dass, AIR 1963 SC
1405. After reproducing Section 74 of the Indian Contract Act, 1872, the
Constitution Bench had expounded the law in the following words:-
8. …..
The section is clearly an attempt to eliminate the somewhat elaborate
refinements made under the English common law in distinguishing between
stipulations providing for payment of liquidated damages and stipulations in
the nature of penalty. Under the common law a genuine pre-estimate of
damages by mutual agreement is regarded as a stipulation naming liquidated
damages and binding between the parties : a stipulation in a contract in
terrorem is a penalty and the Court refuses to enforce it, awarding to the
aggrieved party only reasonable compensation. The Indian Legislature has
sought to cut across the web of rules and presumptions under the English
common law, by enacting a uniform principle applicable to all stipulations
naming amounts to be paid in case of breach, and stipulations by way of
penalty.
9. The second clause of the contract provides that if for any reason the
vendee fails to get the sale-deed registered by the date stipulated, the amount
of Rs. 25,000/- (Rs. 1,000/- paid as earnest money and Rs. 24,000/- paid out
of the price on delivery of possession) shall stand forfeited and the
agreement shall be deemed cancelled. The covenant for forfeiture of Rs.
24,000/- is manifestly a stipulation by way of penalty.
10. Section 74 of the Indian Contract Act deals with the measure of damages
in two classes of cases (i) where the contract names a sum to be paid in case
of breach and (ii) where the contract contains any other stipulation by way of
penalty. We are in the present case not concerned to decide whether a
covenant of forfeiture of deposit for due performance of a contract falls
within the first class. The measure of damages in the case of breach of a
stipulation by way of penalty is by s. 74 reasonable compensation not
exceeding the penalty stipulated for. In assessing damages the Court has,
subject to the limit of the penalty stipulated, jurisdiction to award such
compensation as it deems reasonable having regard to all the circumstances
of the case. Jurisdiction of the Court to award compensation in case of
breach of contract is unqualified except as to the maximum stipulated; but
compensation has to be reasonable, and that imposes upon the Court duty to
award compensation according to settled principles. The section
undoubtedly says that the aggrieved party is entitled to receive compensation
from the party who has broken the contract, whether or not actual damage or
loss is proved to have been caused by the breach. Thereby it merely
dispenses with proof of "actual loss or damages"; it does not justify the
award of compensation when in consequence of the breach no legal injury at
all has resulted, because compensation for breach of contract can be awarded
to make good loss or damage which naturally arose in the usual course of
things, or which the parties knew when they made the contract, to be likely
to result from the breach.
11. Before turning to the question about the compensation which may be
awarded to the plaintiff, it is necessary to consider whether s. 74 applies to
stipulations for forfeiture of amounts deposited or paid under the contract. It
was urged that the section deals in terms with the right to receive from the
party who has broken the contract reasonable compensation and not the right
to forfeit what has already been received by the party aggrieved. There is
however no warrant for the assumption made by some of the High Courts in
India, that s. 74 applies only to cases where the aggrieved party is seeking to
receive some amount on breach of contract and not to cases where upon
breach of contract an amount received under the contract is sought to be
forfeited. In our judgment the expression "the contract contains any other
stipulation by way of penalty" comprehensively applies to every covenant
involving a penalty whether it is for payment on breach of contract of money
or delivery of property in future, or for forfeiture of right to money or other
property already delivered. Duty not to enforce the penalty clause but only to
award reasonable compensation is statutorily imposed upon courts by s. 74.
In all cases, therefore, where there is a stipulation in the nature of penalty for
forfeiture of an amount deposited pursuant to the terms of contract which
expressly provides for forfeiture, the court has jurisdiction to award such
sum only as it considers reasonable, but not exceeding the amount specified
in the contract as liable to forfeiture.
4. We must immediately advert to Clause 27 of the Contract, which is at
the fulcrum of this fight, and hence requires reproduction:-
27.0 COMPENSATION FOR DELAY (LIQUIDATED DAMAGES)
27.1 Time is the essence of the contract. In case the Contractor fails to
complete the work within the stipulated period then, unless, such failure is
due to force majeure as defined in clause 26 hereinabove or due to owner’s
default, the contractor shall pay to the owner by way of compensation for
delay and not as penalty, a sum @ 1/2% (half percent) of the value of
contract for delay per week on pro-rata or part thereof subject to a maximum
of 10% (ten percent) of the value of contract. The parties agree that this is a
genuine pre-estimate of the loss/damage which will be suffered on account
of delay/breach on the part of the contractor and the said amount will be
payable on demand without there any being any proof of the actual loss or
damages caused by such delay/breach.
The decision of the Engineer in charge in regard to applicability of
compensation for delay shall be final and binding on the contractor.
27.2 All sums payable by way of compensation under any of the conditions
and shall be considered as reasonable compensation without reference to the
actual loss or damage which shall have been sustained.
The Clause ordains firstly that time is of the essence which is significant
because it runs counter to the assumption that in building or construction
contracts time is not usually or normally of the essence. Secondly, it
postulates that if delay or failure is due either to force majeure or to the
owners’ default, compensation will not be imposable. Thirdly, it reiterates
the legal position obtaining in India that a penalty cannot be inflicted, which
appears to be what has actually transpired. Fourthly, the clause stipulates a
ceiling of damage at ten per cent of the value of the contract. Fifthly, only
half per cent of the value of the contract can be imposed for each week’s
delay. Sixthly, it reiterates that these liquidated damages are in the nature of
a genuine pre-estimate of loss, thus obviating the need to compute, with
exactitude, the actual damages suffered by the owners. Lastly and seventhly,
it gives finality to the decision of the Engineer Incharge with regard to the
applicability of compensation. It appears to us that all these concomitants
have not occurred in the circumstances of the present case.
5. We have perused the Award which had been unsuccessfully assailed
by the Appellant before the learned Single Judge. The Claim with which we
are concerned has been formulated and tabulated by the Arbitrator thus:-
Withheld as liquidated damages.
In (Rupees)
Value of Civil contract 4withheld for delay @ 9.78% of 86,60,000
8,46,948
Value of mechanical work withheld for delay @9.78% of 1,41,40,000
13,82,892
Total withheld as LD
22,29,840
6. The findings in the Award, so far as delay is concerned, are as
follows:-
4. The Claimants also submitted that various other reasons such as delay in
approval of basic engg. Package, quality plan, data sheets and approval of
vendor also contributed to delay from time to time.
On going through the documents attached to the Statement of Claim, I hold
that delay has taken place on these counts which has a cascading effect on
the progress of the work.
It is apparent that various reasons as above, such as the major delay in
release of mobilization advance and delay in commencement of work due to
Claimants inability to carry out necessary extra work arising out of shifting
of site agitation and unusual monsoon etc. had serious implications on the
completion of the contract which was required to be completed within a
short period of 10 months. Accepting these realities, EIL, Engineer Incharge
of the Respondents, had recommended extension for delay upto 22.10.1998
(actual date of completion). It is worthwhile to mention here that in terms of
Clause No.27.1 of Tender documents dealing with liquidated damages, the
decision of the Engineer Incharge regarding the applicability of
compensation for delay, shall be final and binding on the contractor.
I hold that because of delays beyond control of the Claimants for which
Respondents were fully responsible and because of the recommendations of
the Engineer Incharge for extension of delay, the liquidated damages
amounting to Rs.22,29,840/- cannot be imposed on the Claimants by the
Respondents.
7. The learned Single Judge has concluded that Clause 27 of the
Contract has not been violated, and we think rightly so. The Claim of the
Respondent, simply stated, is for payment of amounts illegally withheld by
the Appellant. No evidence has been led before the Engineer Incharge or the
Arbitrator, or for that matter before the learned Single Judge (as it could not
have been done), disclosing that the Engineer Incharge had computed
“actual loss or damage caused by such delay/breach.” In order to justify the
withholding of this payment, it was essential for the Appellant to provide
proof before the Arbitrator that the Engineer Incharge had consciously gone
into this question and was satisfied that the loss or damage had actually
occurred in circumstances where the owner/appellant was not blameworthy,
and also that force majeure had not occurred. There is not even a shred or
iota of proof sustaining this claim. It is wholly insufficient for the Appellant
to merely assert that delay had occurred. The appropriate adjudicating forum
was legally bound to arrive at an informal conclusion. Clause 27 accords
finality to the decision of the Engineer Incharge in clear contradistinction to
the Arbitrator whose jurisdiction with regard to this determination has been
removed. The decision of the Engineer Incharge has been rendered
impervious to any challenge before the Arbitral Tribunal. Stipulations such
as those articulated in Clause 27 are variously termed as ‘excluded’ or
‘exempted’ matters which, simply stated, remove their consideration or
determination from the Arbitral Tribunal or the Court and place them in the
exclusive province of the nominated/indicated adjudicator that the party
claiming liquidated damages was not itself responsible for the breach of the
contract and that the said claimant was not acting in terrorem by enforcing a
penalty. This does not, however, mean that even in the absence of any
determination, the principal can unilaterally withhold amounts masquerading
them to be within the domain of damages.
8. In other words, had the Engineer Incharge made a determination of
damages which were payable by the Respondent to the Appellant because of
delay caused by and attributable to the Respondent, and if such exercise has
been rendered futile by a contrary conclusion of either the Arbitral Tribunal
or the learned Single Judge, the decision of the Engineer Incharge would
have to be upheld since it holds the field. This is not what has happened in
the case before us.
9. Furthermore, admittedly, the Contract was delayed for a period of
eleven weeks. If Clause 27 is to be applied, only 5.5 per cent of the value of
the Contract could have been ascertained as damages, not unilaterally and
without authority by the Appellant, but we reiterate by the Engineer
Incharge. The highhandedness of the Appellant is manifest from the fact that
the sum of ` 22,29,840/- corresponds to ten per cent of the value of the
subject contract which was accordingly incorrect and, therefore,
unsustainable by any determination.
10. For these manifold reasons, we find no error in the impugned Order or
in the impugned Award. The Arbitrator has awarded interest at the rate of
eighteen per cent per annum which has been reduced by the learned Single
Judge to eight per cent per annum, predicated on Krishna Bhagya Jal Nigam
Ltd. –vs- G. Harschandra Reddy, AIR 2007 SC 817.
11. The Appeal is wholly devoid of merit and is dismissed with costs of `
50,000/-. Public Sector Undertakings such as the Appellant should not
needlessly exhaust the scarce time of the courts by filing frivolous appeals.
Costs should have been punitive but we restrict them to the aforesaid sum.
The amount deposited by the Appellant with the Registrar-General of this
Court be released to the Respondent forthwith.
Sd/-
( VIKRAMAJIT SEN )
JUDGE
Sd/-
( SIDDHARTH MRIDUL )
JUDGE
Print Page
specifically held that it is true that in every case of breach of contract the
person aggrieved by the breach is not required to prove actual loss or
damage suffered by him before he can claim a decree and the Court is
competent to award reasonable compensation in a case of breach even if no
actual damages is proved to have been suffered in consequence of the breach
of contract. The Court has also specifically held that in case of breach of
some contracts it may be impossible for the Court to assess compensation
arising from breach.
Take for illustration construction of a road or a bridge. If there is delay in
completing the construction of road or bridge within stipulated time, then it
would be difficult to prove how much loss is suffered by the Society/State.
Similarly in the present case, delay took place in deployment of rigs and on
that basis actual production of gas from platform B-121 had to be changed.
It is undoubtedly true that the witness has stated that redeployment plan was
made keeping in mind several constraints including shortage of casing pipes.
Arbitral Tribunal, therefore, took into consideration the aforesaid statement
volunteered by the witness that shortage of casing pipes was only one of the
several reasons and not the only reason which led to change in deployment
of plan or redeployment of rigs Trident-II platform B-121. In our view, in
such a contract, it would be difficult to prove exact loss or damage which the
parties suffer because of the breach thereof. In such a situation, if the parties
have pre-estimated such loss after clear understanding, it would be totally
unjustified to arrive at the conclusion that party who has committed breach
of the contract is not liable to pay compensation. It would be against the
specific provisions of Section 73 and 74 of the Indian Contract Act. There
was nothing on record that compensation contemplated by the parties was in
any way unreasonable. It has been specifically mentioned that it was an
agreed genuine pre-estimate of damages duly agreed by the parties. It was
also mentioned that the liquidated damages are not by way of penalty. It was
also provided in the contract that such damages are to be recovered by the
purchaser from the bills for payment of the cost of material submitted by the
contractor. No evidence is led by the claimant to establish that stipulated
condition was by way of penalty or the compensation contemplated was, in
any way, unreasonable. There was no reason for the tribunal not to rely upon
the clear and unambiguous terms of agreement stipulating pre-estimate
damages because of delay in supply of goods. Further, while extending the
time for delivery of the goods, respondent was informed that it would be
required to pay stipulated damages.
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CONTRACT ACT
FAO(OS) No.240/2008
Date of Decision: August 30, 2011
GAIL(INDIA) LIMITED ...
versus
GEO MILLER & COMPANY LTD. ...
CORAM:
HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
1. The neat question which arises for our consideration in this Appeal is
whether the Arbitrator as well as the learned Single Judge fell into error in
awarding the sum of ` 22,29,840/-, avowedly withheld by the Appellant on
account of liquidated damages. According to Mr. Jagjit Singh, learned
counsel for the Appellant, the Award was facially in excess of the
jurisdiction and the powers reposed in the Arbitrator as it transgressed
Clause 27 of the Contract dealing with compensation for delay (liquidated
damages). Learned counsel for the Appellant has relied on – (i) Bharat
Coking Coal Limited –vs- Annapurna Construction, (2003) 8 SCC 154
where Their Lordships had found that the Arbitrator had exceeded his
jurisdiction inasmuch as it had not taken into consideration relevant clauses
of the contract for purposes of determining the fact situation. (ii) In West
Bengal State Warehousing Corporation –vs- Sushil Kumar Kayan, AIR 2002
SC 2185 the finding is to the effect that the Arbitrator rejected the plea that
the value of the stolen goods should be restricted to their declared value.
Clearly, however, this is not the factual matrix before us. (iii) In Rajasthan
State Mines & Minerals Ltd. –vs- Eastern Engineering Enterprises, (1999) 9
SCC 283 the Supreme Court opined that if the fundamental terms of an
agreement are ignored by the arbitrator, he acts in excess of his jurisdiction.
This is again of no relevance to the contentions raised before us. (iv) In Steel
Authority of India Ltd. –vs- J.C. Budharaja, AIR 1999 SC 3275 the
arbitrator awarded damages or compensation ignoring the prohibition
contained in that contract. It was held that the Arbitrator had travelled
beyond his jurisdiction.(v) Finally, the following paragraphs from Oil &
Natural Gas Corporation Ltd. –vs- Saw Pipes Ltd., (2003) 5 SCC 705 have
been pressed for our consideration:-
66. In Maula Bux –vs- Union of India, (1969) 2 SCC 554, the Court has
specifically held that it is true that in every case of breach of contract the
person aggrieved by the breach is not required to prove actual loss or
damage suffered by him before he can claim a decree and the Court is
competent to award reasonable compensation in a case of breach even if no
actual damages is proved to have been suffered in consequence of the breach
of contract. The Court has also specifically held that in case of breach of
some contracts it may be impossible for the Court to assess compensation
arising from breach.
67. Take for illustration construction of a road or a bridge. If there is delay in
completing the construction of road or bridge within stipulated time, then it
would be difficult to prove how much loss is suffered by the Society/State.
Similarly in the present case, delay took place in deployment of rigs and on
that basis actual production of gas from platform B-121 had to be changed.
It is undoubtedly true that the witness has stated that redeployment plan was
made keeping in mind several constraints including shortage of casing pipes.
Arbitral Tribunal, therefore, took into consideration the aforesaid statement
volunteered by the witness that shortage of casing pipes was only one of the
several reasons and not the only reason which led to change in deployment
of plan or redeployment of rigs Trident-II platform B-121. In our view, in
such a contract, it would be difficult to prove exact loss or damage which the
parties suffer because of the breach thereof. In such a situation, if the parties
have pre-estimated such loss after clear understanding, it would be totally
unjustified to arrive at the conclusion that party who has committed breach
of the contract is not liable to pay compensation. It would be against the
specific provisions of Section 73 and 74 of the Indian Contract Act. There
was nothing on record that compensation contemplated by the parties was in
any way unreasonable. It has been specifically mentioned that it was an
agreed genuine pre-estimate of damages duly agreed by the parties. It was
also mentioned that the liquidated damages are not by way of penalty. It was
also provided in the contract that such damages are to be recovered by the
purchaser from the bills for payment of the cost of material submitted by the
contractor. No evidence is led by the claimant to establish that stipulated
condition was by way of penalty or the compensation contemplated was, in
any way, unreasonable. There was no reason for the tribunal not to rely upon
the clear and unambiguous terms of agreement stipulating pre-estimate
damages because of delay in supply of goods. Further, while extending the
time for delivery of the goods, respondent was informed that it would be
required to pay stipulated damages.
68. From the aforesaid discussions, it can be held that:--
(1) Terms of the contract are required to be taken into consideration before
arriving at the conclusion whether the party claiming damages is entitled to
the same;
(2) If the terms are clear and unambiguous stipulating the liquidated
damages in case of the breach of the contract unless it is held that such
estimate of damages/compensation is unreasonable or is by way of penalty,
party who has committed the breach is required to pay such compensation
and that is what is provided in Section 73 of the Contract Act. (Emphasis
supplied).
(3) Section 74 is to be read along with Section 73 and, therefore, in every
case of breach of contract, the person aggrieved by the breach is not required
to prove actual loss or damage suffered by him before he can claim a decree.
The Court is competent to award reasonable compensation in case of breach
even if no actual damage is proved to have been suffered in consequence of
the breach of a contract.
(4) In some contracts, it would be impossible for the Court to assess the
compensation arising from breach and if the compensation contemplated is
not by way of penalty or unreasonable, Court can award the same if it is
genuine pre-estimate by the parties as the measure of reasonable
compensation.
2. We had considered the law on this subject in Bharat Sanchar Nigam
Limited –vs- BWL Limited, 2011 IV AD (Delhi) 302 and we remained
steadfast to our appreciation of the law in that decision.
3. Both Maula Bux –vs- Union of India, (1969) 2 SCC 554 (Three-Judge
Bench) as well as Saw Pipes Ltd. (Two-Judge Bench) are constrained to
charter a course in consonance with the enunciation of law by the
Constitution Bench in Fateh Chand –vs- Balkishan Dass, AIR 1963 SC
1405. After reproducing Section 74 of the Indian Contract Act, 1872, the
Constitution Bench had expounded the law in the following words:-
8. …..
The section is clearly an attempt to eliminate the somewhat elaborate
refinements made under the English common law in distinguishing between
stipulations providing for payment of liquidated damages and stipulations in
the nature of penalty. Under the common law a genuine pre-estimate of
damages by mutual agreement is regarded as a stipulation naming liquidated
damages and binding between the parties : a stipulation in a contract in
terrorem is a penalty and the Court refuses to enforce it, awarding to the
aggrieved party only reasonable compensation. The Indian Legislature has
sought to cut across the web of rules and presumptions under the English
common law, by enacting a uniform principle applicable to all stipulations
naming amounts to be paid in case of breach, and stipulations by way of
penalty.
9. The second clause of the contract provides that if for any reason the
vendee fails to get the sale-deed registered by the date stipulated, the amount
of Rs. 25,000/- (Rs. 1,000/- paid as earnest money and Rs. 24,000/- paid out
of the price on delivery of possession) shall stand forfeited and the
agreement shall be deemed cancelled. The covenant for forfeiture of Rs.
24,000/- is manifestly a stipulation by way of penalty.
10. Section 74 of the Indian Contract Act deals with the measure of damages
in two classes of cases (i) where the contract names a sum to be paid in case
of breach and (ii) where the contract contains any other stipulation by way of
penalty. We are in the present case not concerned to decide whether a
covenant of forfeiture of deposit for due performance of a contract falls
within the first class. The measure of damages in the case of breach of a
stipulation by way of penalty is by s. 74 reasonable compensation not
exceeding the penalty stipulated for. In assessing damages the Court has,
subject to the limit of the penalty stipulated, jurisdiction to award such
compensation as it deems reasonable having regard to all the circumstances
of the case. Jurisdiction of the Court to award compensation in case of
breach of contract is unqualified except as to the maximum stipulated; but
compensation has to be reasonable, and that imposes upon the Court duty to
award compensation according to settled principles. The section
undoubtedly says that the aggrieved party is entitled to receive compensation
from the party who has broken the contract, whether or not actual damage or
loss is proved to have been caused by the breach. Thereby it merely
dispenses with proof of "actual loss or damages"; it does not justify the
award of compensation when in consequence of the breach no legal injury at
all has resulted, because compensation for breach of contract can be awarded
to make good loss or damage which naturally arose in the usual course of
things, or which the parties knew when they made the contract, to be likely
to result from the breach.
11. Before turning to the question about the compensation which may be
awarded to the plaintiff, it is necessary to consider whether s. 74 applies to
stipulations for forfeiture of amounts deposited or paid under the contract. It
was urged that the section deals in terms with the right to receive from the
party who has broken the contract reasonable compensation and not the right
to forfeit what has already been received by the party aggrieved. There is
however no warrant for the assumption made by some of the High Courts in
India, that s. 74 applies only to cases where the aggrieved party is seeking to
receive some amount on breach of contract and not to cases where upon
breach of contract an amount received under the contract is sought to be
forfeited. In our judgment the expression "the contract contains any other
stipulation by way of penalty" comprehensively applies to every covenant
involving a penalty whether it is for payment on breach of contract of money
or delivery of property in future, or for forfeiture of right to money or other
property already delivered. Duty not to enforce the penalty clause but only to
award reasonable compensation is statutorily imposed upon courts by s. 74.
In all cases, therefore, where there is a stipulation in the nature of penalty for
forfeiture of an amount deposited pursuant to the terms of contract which
expressly provides for forfeiture, the court has jurisdiction to award such
sum only as it considers reasonable, but not exceeding the amount specified
in the contract as liable to forfeiture.
4. We must immediately advert to Clause 27 of the Contract, which is at
the fulcrum of this fight, and hence requires reproduction:-
27.0 COMPENSATION FOR DELAY (LIQUIDATED DAMAGES)
27.1 Time is the essence of the contract. In case the Contractor fails to
complete the work within the stipulated period then, unless, such failure is
due to force majeure as defined in clause 26 hereinabove or due to owner’s
default, the contractor shall pay to the owner by way of compensation for
delay and not as penalty, a sum @ 1/2% (half percent) of the value of
contract for delay per week on pro-rata or part thereof subject to a maximum
of 10% (ten percent) of the value of contract. The parties agree that this is a
genuine pre-estimate of the loss/damage which will be suffered on account
of delay/breach on the part of the contractor and the said amount will be
payable on demand without there any being any proof of the actual loss or
damages caused by such delay/breach.
The decision of the Engineer in charge in regard to applicability of
compensation for delay shall be final and binding on the contractor.
27.2 All sums payable by way of compensation under any of the conditions
and shall be considered as reasonable compensation without reference to the
actual loss or damage which shall have been sustained.
The Clause ordains firstly that time is of the essence which is significant
because it runs counter to the assumption that in building or construction
contracts time is not usually or normally of the essence. Secondly, it
postulates that if delay or failure is due either to force majeure or to the
owners’ default, compensation will not be imposable. Thirdly, it reiterates
the legal position obtaining in India that a penalty cannot be inflicted, which
appears to be what has actually transpired. Fourthly, the clause stipulates a
ceiling of damage at ten per cent of the value of the contract. Fifthly, only
half per cent of the value of the contract can be imposed for each week’s
delay. Sixthly, it reiterates that these liquidated damages are in the nature of
a genuine pre-estimate of loss, thus obviating the need to compute, with
exactitude, the actual damages suffered by the owners. Lastly and seventhly,
it gives finality to the decision of the Engineer Incharge with regard to the
applicability of compensation. It appears to us that all these concomitants
have not occurred in the circumstances of the present case.
5. We have perused the Award which had been unsuccessfully assailed
by the Appellant before the learned Single Judge. The Claim with which we
are concerned has been formulated and tabulated by the Arbitrator thus:-
Withheld as liquidated damages.
In (Rupees)
Value of Civil contract 4withheld for delay @ 9.78% of 86,60,000
8,46,948
Value of mechanical work withheld for delay @9.78% of 1,41,40,000
13,82,892
Total withheld as LD
22,29,840
6. The findings in the Award, so far as delay is concerned, are as
follows:-
4. The Claimants also submitted that various other reasons such as delay in
approval of basic engg. Package, quality plan, data sheets and approval of
vendor also contributed to delay from time to time.
On going through the documents attached to the Statement of Claim, I hold
that delay has taken place on these counts which has a cascading effect on
the progress of the work.
It is apparent that various reasons as above, such as the major delay in
release of mobilization advance and delay in commencement of work due to
Claimants inability to carry out necessary extra work arising out of shifting
of site agitation and unusual monsoon etc. had serious implications on the
completion of the contract which was required to be completed within a
short period of 10 months. Accepting these realities, EIL, Engineer Incharge
of the Respondents, had recommended extension for delay upto 22.10.1998
(actual date of completion). It is worthwhile to mention here that in terms of
Clause No.27.1 of Tender documents dealing with liquidated damages, the
decision of the Engineer Incharge regarding the applicability of
compensation for delay, shall be final and binding on the contractor.
I hold that because of delays beyond control of the Claimants for which
Respondents were fully responsible and because of the recommendations of
the Engineer Incharge for extension of delay, the liquidated damages
amounting to Rs.22,29,840/- cannot be imposed on the Claimants by the
Respondents.
7. The learned Single Judge has concluded that Clause 27 of the
Contract has not been violated, and we think rightly so. The Claim of the
Respondent, simply stated, is for payment of amounts illegally withheld by
the Appellant. No evidence has been led before the Engineer Incharge or the
Arbitrator, or for that matter before the learned Single Judge (as it could not
have been done), disclosing that the Engineer Incharge had computed
“actual loss or damage caused by such delay/breach.” In order to justify the
withholding of this payment, it was essential for the Appellant to provide
proof before the Arbitrator that the Engineer Incharge had consciously gone
into this question and was satisfied that the loss or damage had actually
occurred in circumstances where the owner/appellant was not blameworthy,
and also that force majeure had not occurred. There is not even a shred or
iota of proof sustaining this claim. It is wholly insufficient for the Appellant
to merely assert that delay had occurred. The appropriate adjudicating forum
was legally bound to arrive at an informal conclusion. Clause 27 accords
finality to the decision of the Engineer Incharge in clear contradistinction to
the Arbitrator whose jurisdiction with regard to this determination has been
removed. The decision of the Engineer Incharge has been rendered
impervious to any challenge before the Arbitral Tribunal. Stipulations such
as those articulated in Clause 27 are variously termed as ‘excluded’ or
‘exempted’ matters which, simply stated, remove their consideration or
determination from the Arbitral Tribunal or the Court and place them in the
exclusive province of the nominated/indicated adjudicator that the party
claiming liquidated damages was not itself responsible for the breach of the
contract and that the said claimant was not acting in terrorem by enforcing a
penalty. This does not, however, mean that even in the absence of any
determination, the principal can unilaterally withhold amounts masquerading
them to be within the domain of damages.
8. In other words, had the Engineer Incharge made a determination of
damages which were payable by the Respondent to the Appellant because of
delay caused by and attributable to the Respondent, and if such exercise has
been rendered futile by a contrary conclusion of either the Arbitral Tribunal
or the learned Single Judge, the decision of the Engineer Incharge would
have to be upheld since it holds the field. This is not what has happened in
the case before us.
9. Furthermore, admittedly, the Contract was delayed for a period of
eleven weeks. If Clause 27 is to be applied, only 5.5 per cent of the value of
the Contract could have been ascertained as damages, not unilaterally and
without authority by the Appellant, but we reiterate by the Engineer
Incharge. The highhandedness of the Appellant is manifest from the fact that
the sum of ` 22,29,840/- corresponds to ten per cent of the value of the
subject contract which was accordingly incorrect and, therefore,
unsustainable by any determination.
10. For these manifold reasons, we find no error in the impugned Order or
in the impugned Award. The Arbitrator has awarded interest at the rate of
eighteen per cent per annum which has been reduced by the learned Single
Judge to eight per cent per annum, predicated on Krishna Bhagya Jal Nigam
Ltd. –vs- G. Harschandra Reddy, AIR 2007 SC 817.
11. The Appeal is wholly devoid of merit and is dismissed with costs of `
50,000/-. Public Sector Undertakings such as the Appellant should not
needlessly exhaust the scarce time of the courts by filing frivolous appeals.
Costs should have been punitive but we restrict them to the aforesaid sum.
The amount deposited by the Appellant with the Registrar-General of this
Court be released to the Respondent forthwith.
Sd/-
( VIKRAMAJIT SEN )
JUDGE
Sd/-
( SIDDHARTH MRIDUL )
JUDGE
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