The main legal point established in the judgment is the requirement for written and mutually agreed amendments to a contract, and the recognition of mitigation of loss by the plaintiff.

JUDGMENT

Neena Bansal Krishna, J.

1. A suit for Damages amounting to Rs.5,79,59,550.65/- along with pendent lite and future interest @ 18% per annum has been filed by the plaintiff.

2. The facts in brief are that the plaintiff Company is engaged in the business of trading in Iron Ore. It purchases Iron Ore from various mine owners and thereafter supply it to various suppliers aside from being diversified into Infrastructure, Real Estate and Beverage Industry. The defendant No.1, a Company which is a part of defendant No.2 Group of Companies, is carrying on business of sale/purchase of various metals like Iron Ore, etc. The Defendant No.1 comprises of Pisces Exim India Private Ltd., Pisces Steel Private Ltd. and the defendant No.1 PS Exim (HK) Ltd. The defendant No.2 deals in sale/purchase, chartering, quality control and logistics, while defendant No.1 deals with marketing, documentation and financing of defendant No.2 Group. The defendant No.2 on its Letter Head deposited the amount in the bank account of plaintiff Company. Furthermore, on the website of Pisces Exim both defendant No.1 and 2 are reflected as closely related to each other with common Management. Defendant No.3 is the Managing Director of defendant No.1 and is actively involved in the present issue. (Defendant No.2 & 3 were deleted vide Order Dated 21st March, 2014)

3. It is asserted that the plaintiff Company entered into a Contract dated 12th May, 2011 with defendant No.1 Company which was signed by the plaintiff Company at Delhi. As per Clause 3 of the Contract, the defendant Company agreed to purchase 86000 Wet Metric Tons (Wet means Iron Ore in its Natural Wet State) (+/- 5% buyer's option) of Iron Ore Fines @ 162 U.S. Dollar (USD) Per Metric Ton FOB (Free on Board) (hereinafter referred to as "PMT") from the plaintiff Company. It was agreed that the loading port of cargo would be Visakhapatnam Port, India. The shipment of this cargo was to be delivered at any main port in China (to be specified by the buyer). It was further agreed in terms of Clause 7 of the Contract that defendant No.1 shall pay a sum of $2.25 million to the plaintiff Company as advance before loading the cargo. It was further agreed that for the balance amount, an irrevocable Letter of Credit with an International Bank shall be opened by defendant No.1 within ten working days from the date of signing of the Contract i.e. by or on 22nd May, 2011. Clause 22 of the Contract specifically provided that any amendment or modification to the Contract shall be made in writing and would be subject to confirmation by the contracting parties. Clause 24 stated that the entire Agreement between the parties and the terms and conditions set forth therein constituted the sole terms and conditions. No other terms and conditions whether contained in Buyer's Purchase Order, Shipping Releases or elsewhere shall be binding upon the Seller. It further stated that all proposals, negotiations and representations made prior to the date hereof were merged herein and no modification or assignment shall be effective unless agreed to in writing. The Letter of Credit was to be opened by the defendant Company with all the specific conditions incorporated in the Agreement. No unilateral modification could be done by either party. However, after signing the Contract, defendant No.1 Company kept silent and failed to abide by the terms of the Contract.

4. It is stated that on 21st May, 2011 defendant No.2 deposited a sum of Rs.1 Crore directly into the bank account of the plaintiff which shows that both defendant No.1 and defendant No.2 were having common management. Defendant No.2 further deposited a sum of Rs.3 Crores on 08th June, 2011. However, this deposit of total Rs.4 Crores by defendant No.2 was not in accordance with the Contract, but was merely an illusion of performance. As per the Contract, a sum of $2.25 million was to be paid in advance before loading the cargo. However, the defendant No.1 Company merely