A party's entitlement to damages in breach of contract cases must correlate with actual damages suffered; security deposits can be refunded when no loss is incurred by the other party.

JUDGMENT :

HEMANT M. PRACHCHHAK, J.

1. Present appeal is directed against the impugned judgment and order dated 15.07.2005 passed by the learned Principal Senior Civil Judge, Civil Court (S.D.), Dhrangadhra, (hereinafter be referred to as “the trial Court”) in Special Civil Suit No. 23 of 1996 whereby the trial Court has dismissed the suit filed by the appellant – original claimant.

2. Facts of the present case, in nutshell, are that the appellant has undertaken construction work of Ganjela – Ghanad Road by hot mix plant and paver finishing work and for such construction, the respondents invited tender and estimated cost was Rs.9,14,066/- and the tender of the appellant was accepted being lowest amount at Rs.10,37,464.10. It is the case of the appellant that as per the terms and conditions of the agreement, the appellant had deposited Rs.18,300/- towards requisite fixed deposit and the work order was issued and the work was to be completed within twelve months. It is also the case of the appellant that the respondents have failed to hand over the possession of the site within reasonable time, for which the appellant has drawn the attention to the respondents, however, respondent No.3 was unable to handover the site of construction because of monsoon and rainy water the road was damaged. It is alleged that some farmers raised objection towards the road and not permitted the appellant to carry out the work and obtained stay from the concerned Civil Court. That the raw material of the work was not supplied by the respondents as and when asked by the appellant and watering work was not completed by the respondents before monsoon, so the appellant was not in a position to start and complete the work as per the contract. It is the case of the appellant that as per the agreement, the appellant was not in a position to start this work because of the fault on the part of the respondents and for considerable long time, it was not started and because of delay occurred on the part of the respondents and, therefore, the appellant is entitled to get revised rates. It is the case of the appellant that the running bills were not paid within time to the appellant, so the appellant was not in a position to complete the work in time and, therefore, the appellant suffered loss in profit.

2.1 After considering the details, the trial Court framed the issues at Exhibit 19 which reads as under:-

1. Whether plaintiff proves debt as averred in plaint against defendants?

2. Whether plaintiff is entitled to get interest on suit amount? If yes, at what rate and from which date?

3. What order and decree?

2.2 The trial Court answered to aforesaid issue Nos.1 and 2 in negative and issue No.3 as per final order.

2.3 The trial Court has, after considering the documents produced by the appellant and documents produced by the respondents and after evaluating the evidence, dismissed the suit of the appellant.

3. Being aggrieved and dissatisfied with the impugned judgment and order, the present appeal is filed by the appellant.

4. Heard Mr.K. G. Sukhwani, learned counsel appearing for the appellant, Ms.Krishna Desai, learned Assistant Government Pleader appearing for the respondent No.1 and Mr.H. S. Munshaw, learned counsel appearing for respondents No.2 and 3 at length.

5. Mr.Sukhwani, learned counsel appearing for the appellant has submitted that the appellant could not complete the work for which the contract was allocated because of the dispute arose between the authority and the farmers whose lands were used for laying down the road between the Village Ganjela – Ghanad and, therefore, the appellant has prayed for the damages and the amount which is kep