Court has discretion to award reasonable compensation.

A. KULASEKARAN, J. :- Plaintiff is the appellant.

2. The suit was filed for recovery of a sum ofRs.1,87,322.40 together with interest on Rs.1,11,335.75 at 19.5% per annum, from the date of plaint till the date of realisation. The factual matrix of the case is as follows :-

The defendant has placed orders on 20-2-1985 and 28-2-1985 for supply of five machines with the plaintiff, subject to the terms and conditions that if supply was not effected on or before 15-3-1985, penalty of 1% on the total value of the supply would be imposed for every three days of delay subject to the maximum of 10%. The plaintiff has also intimated by letter dated 5-3-1985 that the penalty clause was not agreeable to them as the machines ordered are special in nature, however, agreed to supply the same within the stipulated period and the defendant has sent a reply dated 15-3-1985 intending to relax the penalty clause provided the machines were kept ready for inspection within three months. The Plaintiff has sent a letter dated 14-6-1985 and sought for further extension and not to apply penalty clause. On 1-7-1985, the defendant has sent a letter to the plaintiff extending the time for supply of the machines upto 15-7-1985, in the default they would impose penalty clause. On 2-7-1985, the plaintiff informed the defendant that the machines were ready for inspection. The inspection was also done by the defendant. The defendant has sent a letter dated 7-8-1985 demanding to rectify some defects pointed by the Engineers, before despatching the machines, which were rectified. The machines were supplied between 29-8-1985 and 23-1-1986. It is the case of the defendant that there was delay of 44 to 215 days. The defendant settled the bills after deducting the penalty amount of 10%. Hence, the suit is filed.

3. The trial court framed the below mentioned issues :-

(i) Whether the defendants have accepted the amendment clause by their letter dated 15-3-1985?

(ii) whether the defendants can withhold the suit claim by way of liquidated damages?

(iii) Whether the plaintiff is entitled to loading charges of Rs.11,800/- ?

(iv) Whether the plaintiff is entitled to the suit claim?

(v) Whether the plaintiff is entitled to interest as it is a commercial transaction?

(vi) To what relief are the parties entitled?

4. The plaintiff examined PW1 and marked Exs. P1 to P21. No oral evidence was let in by the defendant, but marked Ex. D1. the trial Court has decided all the issues against the plaintiff.

5. Learned counsel appearing for the appellant/plaintiff argued that in the very first letter dated 5-3-1985, the plaintiff has communicated to the defendant that the penalty clause was not agreeable, that penalty clause was not binding on the plaintiff as the same was illegal, unlawful and onerous and that the delay in supply of machines was due to severe power cut in their area and curfew was clamped by Government for ten days which was beyond their control, however, the machines were supplied in the year 1985 itself; and that even if the plaintiff had supplied the machines earlier, the defendant could not have used as no electricity connection in their factory. The learned counsel further argued that the defendant has not let in evidence to show the alleged loss or damages suffered by them due to delay in supply of machines while so, the penalty levied was unjustifiable. The learned counsel for the appellant/plaintiff further argued that time was not the essence of the contract. It is also submitted on behalf of the plaintiff that crane charges and lorry detention charges incurred by the plaintiff were to be reimbursed by the defendant as they have not provided crane to unload the machines which were brought to their factory. The learned counsel for the appellant/plaintiff further submitted that advocate notice dated 3-4-1980 was sent calling upon the defendant to pay the entire amounts. The defendant though sent reply dated 16-2-1989 stating that the matter was under examination