R.P. DHOLARIA, J.

1. The present appeal has been preferred by the appellant under Section 96 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 29/10/2002, passed by the learned Principal Judge, City Civil Court, Ahmedabad, in Civil Suit No. 3506 of 1989, whereby the learned Judge has allowed the suit and directed the defendant to pay Rs. 19,58,457/- towards the damages after deducting the amount of counterclaim granted to the defendant.

2. The appellant is the original defendant and the respondent is the original plaintiff. Therefore, they have been referred to herein as they appeared in the Suit as plaintiff and defendant for the sake of convenience and brevity.

3. The plaintiff is the company engaged in business of developing industries based upon Agro Products, inter-alia, established Castor Oil Milling and Refinery Project at Jagana, Taluka - Palanpur, District - Banaskantha in the State of Gujarat. The defendant is a Company engaged in supplying machineries and equipments. The plaintiff company placed an order on 25/3/1985 for supply, erection, testing and commissioning of plant and machinery for the aforesaid project at Jagana. The aforesaid contract also contained terms and conditions with regard to standard of performance of machinery commissioned by the defendant, which was accepted by the defendant that the plant shall yield performance of 100 metric tons crushing capacity per day of 24 hours to produce residual oil in the cake of ISI standard. The residual oil of the cake shall not exceed 6% of its weight.

4. In pursuance of the contract, the defendant company commissioned the plant as per the requirement of the plaintiff in the month of March 1987 and it was also made functional. Subsequently, the plaintiff raised certain issues regarding the low performance of the machineries commissioned by the defendant and also raised the dispute regarding the plants having only 50% capacity instead of 100% as guaranteed by the defendant. It is also contended that the residual oil in the cake remained more than 7.5% instead of 6% as guaranteed.

5. In view of the aforesaid issue raised by the plaintiff, the defendant showed willingness to demonstrate the performance trial as agreed in the terms and conditions of the contract for a period of fifteen continuous days for twenty four hours in order to measure the performance of the machinery and production capacity as well as the measurement of residual oil in the cake. The defendant also assured that if opportunity of demonstration for performance is given, the defendant is ready to carry out the required modification, alteration and addition in the plant at their own cost.

6. The plaintiff, at its own, had taken certain piecemeal trial for about six times, for less than eight hours in a day of 24 hours and showed certain figures regarding performance as well as residual oil in the cake and raised dispute and instituted the suit for recovery of damages inter-alia indicating that the excess residual oil in the cake has incurred loss to the extent of Rs. 34,65,000/- as well as Rs. 12,00,000/- for excess burden of fixed costs due to lesser capacity utilization of plant and machinery and Rs. 8,00,000/- for process loss in oil milling and had claimed Rs. 64,65,000/- loss from the defendant and the said loss was restricted to Rs. 54,00,000/- as the plant and machinery was supplied by the defendant company at that price.

7. The defendant, against the aforesaid claim for damages raised by the plaintiff, filed written statement inter-alia contending that the defendant has not committed any breach of the contract. The defendant has further alleged that the defendant was always ready and willing to give the trial run continuously for fifteen days as per the terms and condition of the contract. The defendant has alleged that due to non availability of electricity supply for 24 hours and raw materials, the plaintiff never allowed to perform the demonstration as