IMPORTANT POINT
At the time of contracting, parties contemplate not breach of contract but its performance.

Ramesh Ranganathan, J.

CCCA No.104 of 2002 has been filed by the A.P. Mineral Development Corporation Limited against the judgment and decree passed by the II Senior Civil Judge, City Civil Court, Hyderabad in O.S. No.496 of 1994 dated 22.02.2002. The appellant herein is the defendant in O.S.No.496 of 1994 filed by M/s. Pottem Brothers, Hyderabad seeking payment of Rs.39,49,657.23, future interest at 18% per annum from the date of the suit till realisation, and the costs of the suit.

C.C.C.A.No.138 of 2003 is filed by the Plaintiff in O.S.No.496 of 1994 aggrieved by the judgment and decree passed therein to the extent the Court below deducted an additional sum of Rs.30/- per metric tonne as expenditure incurred by the plaintiff for excavating the ore from the mine. Parties in these two appeals shall, hereinafter, be referred to as they are arrayed in O.S.No.496 of 1994.

In the plaint filed in O.S. No.496 of 1994, the plaintiff stated that an agreement was executed on 05.12.1992 for a period of two years effective from 16.12.1992 for raising-cum-sale of manganese ore; the agreement required them to raise a minimum 4500 metric tonnes of manganese ore in the first year, and 6000 metric tonnes during the second year; the consideration to be paid by them to the defendant was a minimum of Rs.17,500/- per month for 500 metric tonnes at Rs.35/- per metric tonne for the first year; the minimum consideration for the second year was fixed at Rs.20,000/- per month for 500 metric tonnes at Rs.40/- per metric tonne; Clause 3.2 of the agreement exempted the plaintiff from paying minimum consideration during the gestation period of three months from the date of commencement of the contract; the plaintiff had brought to the knowledge of the defendant, at the time of submission of the tender and while entering into the contract, the bad condition of the mine and the haphazard and illegal manner in which mining was done earlier; right from the inception of the agreement, the defendant made it difficult for the plaintiff to carry out mining work; they were restricted to the old pits, qualified staff were not deputed to the site, and mining and working plans were not supplied; the defendant deliberately delayed issuing permits for transporting the mined ore; they undertook backlog work after taking necessary precautions as required under the law; the defendant reviewed their mining activity from time to time, and reported its satisfaction; after entering into the contract, the plaintiff informed the defendant that they had secured supply orders from four companies/firms for the first year; these four parties had also agreed that the supply orders would be on the same terms and conditions in the second year also; the plaintiff produced 2,798.60 metric tonnes of manganese ore by the end of July, 1993, and supplied 1252 metric tonnes of Ore to their customers; they could not, subsequently, keep up supplies to their customers on account of the breach of the contract by the defendant, including their deliberate failure to issue necessary permits for transporting the pit-head stock of 1546.60 metric tonnes, inspite of payment of royalty and labour cess; on account of heavy rains during the intervening night of 02.08.1993 and 03.08.1993, and due to existence of old dumps of the earlier working, there was a huge landslide on the hang wall side of the working area near bore hole No.5 resulting in stoppage of mining activity thereat; in compliance with Clause No.17 of the agreement, while bringing these facts to their notice within 72 hours, the defendant was requested to take immediate action and permit the plaintiff to commence work in new areas to enable them to keep up supplies to their customers; the defendant, by their letter dated 13.08.1993, directed the plaintiff to take up work near bore hole No.7 suspending all operations near bore hole No.5; the plaintiff continued to work at bore hole No.7 though they had requested the defendant t