Point of law: When a contract has been broken, if a sum is named in the contract as the amount be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.

JUDGMENT :

A.P. THAKER, J.

1. The present Appeal has been filed under the provisions of Section 96 of the Code of Civil Procedure, 1908 against the judgment and decree dated 20.11.1998 passed in Civil Suit No. 106 of 1988 whereby the plaintiff-appellant's suit has been partly allowed as well as counter claim put up by the defendant-respondent is also allowed by the learned City Civil Court No. 18.

2. Being aggrieved and dissatisfied with the impugned judgment and decree, the original plaintiff has filed the present appeal on the ground that the trial Court has not appreciated the oral as well as documentary evidences rendered by both the sides in proper perspective and has committed serious error in exercising the jurisdiction vested in it and has exceeded its jurisdiction. It is also contended that the learned trial Court has wrongly come to the conclusion that the Appellant is guilty of breach of contract. According to him, the learned trial Court ought to have held that the plaintiff-appellant has not left the work unfinished. It is also contended that the contention of the plaintiff regarding non-supply of cement and steel by the defendant-respondent is ought to have been believed by the trial Court and thereby has committed serious error. It is further contention of the appellant that though there was no item-wise programme given by the respondent to the plaintiff, this fact is not considered by the learned trial Court and has wrongly come to the conclusion that due to alleged breach on the part of the appellant, contract could not be completed. It is also the contention that the trial Court has wrongly relied upon the various Clauses of the contract and has wrongly held against the plaintiff that he was not ready and willing to perform his part of the contract. The other contention is that in granting relief to the respondent, in a counter-claim is also not proper. It is further submitted that the impugned judgment and decree passed by the learned trial Court to the extent which is not allowed by the trial Court, be set-aside and at the same time, the counter-claim put up by the respondent be dismissed.

3. Heard Mr. K.G. Sukhwani, learned advocate for the appellant and Mr. Uday Bhatt, learned advocate for the defendant at length through video-conferencing.

4. Mr. K.G. Sukhwani, learned advocate for the appellant has vehemently submitted that the plaintiff has filed suit before the trial Court for damages as there was a breach of contract by the respondent. He has also contended that the defendant has not provided the site as well as not supplied requisite material and other items as per the Clause of the contract and due to the delay on the part of the defendant, the plaintiff could not complete the work of the contract in stipulated period. According to him, the contract was repudiated by the defendant. He has also contended that the plaintiff has put up his case regarding return of security as well as loss of profit and other ancillary benefit. He has further submitted that though there was ample evidence on record to substantiate the claim of the plaintiff, the trial Court has not properly appreciated and has wrongly held against the plaintiff and has wrongly observed that at the instance of the plaintiff, the contract has been breached. He has also contended that the counter-claim put up by the defendant has not basis and it ought to have been rejected by the trial Court instead of granting it. He has submitted that considering the material placed on record, the impugned judgment and order of the trial Court granting the counter-claim of the defendant and rejecting the amount on various heads in favour of the plaintiff, be seta-side and entire suit amount be awarded to the appellant-plaintiff and the counter-claim be rejected. He has also prayed that cost be awarded to the respondent throughout.

5. Per contra, Mr. Uday