Whether court should grant relief of damages in suit for specific performance of contract in absence of documentary evidence?

16(ii). In my opinion, however, even the relief of grant of damages of Rs. 36,37,500/- cannot be granted to the respondent/plaintiff because damages are granted of a specific amount on the principles contained under Section 73 of the Indian Contract Act, 1872. The requirement of Section 73 of the Contract Act is to prove the loss of a specific amount. It is a loss of a specific amount which is awarded as damages as a money decree. Ordinarily in a suit seeking specific performance with the alternative relief of damages, damages are granted on account of increase of the price of the suit property from the date of the agreement to the date fixed for performance, and this is because the reason is that if a buyer would go to purchase a similar property in the market, a higher price would have to be paid, and therefore the difference between the contract price and the higher price as on the date of the performance are granted as damages. There is no documentary evidence in this case led on behalf of the respondent/plaintiff of any sale deed of a sale of a similar property at a higher price totaling to Rs. 72,75,000/- for the respondent/plaintiff be awarded damages of Rs. 36,37,500/-. Though the ld. counsel for the respondent/plaintiff did seek to argue that the appellants/defendants have admitted in the written statement that prices of the property have gone up to between Rs. 40,00,000/- to Rs. 45,00,000/-, however the figure of "between Rs. 40,00,000/- to Rs. 45,00,000/-" is a vague statement inasmuch as in law when damages are awarded, the damages are awarded of a specific amount as claimed and this specific amount which is claimed by the respondent/plaintiff is a sum of Rs. 36,37,500/-. As already stated in para 15 above that appellants/defendants did make an offer to pay a sum of Rs. 10,00,000/- to the respondent/plaintiff, but the respondent/plaintiff has refused to receive the amount.

IN THE HIGH COURT OF DELHI

RFA No. 108/2017

Decided On: 29.01.2019

 Asha Verma  Vs. Monika Singla

Hon'ble Judges/Coram:

Valmiki J. Mehta, J.

Citation: AIR 2019 Delhi 109

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Whether a plea can be taken in argument in appeal in absence of pleading?

As far as argument of discrimination is concerned, there are no foundational facts in support of this argument. No such plea was taken either before the AFT or in the instant appeal. Only with the additional documents, communication dated February 6, 2014 is enclosed which the Appellant has received under the Right to Information Act, 2005 in respect of Surg Cdr Haresh Maini. On the basis of this document, oral submission was made at the time of arguments. It is not known as to under what circumstances recovery of proportionate cost was made in his case. Moreover, in the absence of pleadings, the Respondents did not have any opportunity to explain the same. Therefore, such a plea cannot be allowed in the facts of this case.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1491 of 2018 (Arising out of Diary No. 35797 of 2017)

Decided On: 01.02.2018

Ashwini Kumar Handa Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: 2018(6) MHLJ 25

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How to calculate damages for breach of contract in case of govt contract?

In McDermott International Inc. v. Burn Standard Co. Ltd. 
(supra), the Court specifically dealt with the method for computation
of damages. The Court prefaced its discussion with the remarks that
“In the assessment of damages, the Court must consider only strict
legal obligations, and not the expectations, however reasonable, of
one contractor that the other will do something that he has assumed
no legal obligation to do.” The Court then explained each of the
formulae commonly adopted. The Court noted the criticisms of the
Hudson‟s formula observing that “it adopts the head office overhead
percentage from the contract as the factor for calculating the costs and
this may bear little or no relation to the actual head office costs of the
contractor.” The Emden formula which has received judicial support
in a number of cases has the advantage of using the “contractor‟s
actual head office and profit percentage rather than those contained in
the contract.” The Eichleay formula is used “where it is not possible
to prove loss of opportunity and the claim is based on actual cost.”
The Court did not endorse any one particular formula since “it is an
accepted position that different formulas can be applied in different
circumstances and the question as to whether damages should be
computed by taking recourse to one or the other formula, having
regard to the facts and circumstances of a particular case, would
eminently fall within the domain of the arbitrator.” What is significant
as far as the above discussion is concerned is that it is only concerned
with the application of formulae and not whether the formulae would
apply notwithstanding there is no proof of the contractor having
suffered overhead charges or loss of profit.
The net result of the discussion is that nowhere in the decision in
McDermott International Inc (supra) did the Supreme Court hold
that even without producing any material to show loss of overheads or
profit, the Arbitrator could apply one of the formulae to award the
claims.
IN THE HIGH COURT OF DELHI AT NEW DELHI O.M.P. 249/2013
Decision on: March 25 2015 NATIONAL HIGHWAYS AUTHORITY OF INDIA..... Petitioner
versus BUMI HIWAY (M) SDN BHD ..... Respondent
CORAM: JUSTICE S. MURALIDHAR Dated; 25.03.2015  
Citation;AIR 2015(NOC)877 Delhi

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Whether claim for loss of profit can be allowed to contractor when it is not proved that he suffered loss of profit?

 On the other hand, the Court finds that it has been repeatedly

stressed in the decisions of the Court that some basic material has to

be placed on record by the contractor to demonstrate loss of profits. It

is one thing to say that on account of the premature termination of a

contract, losses would be suffered and such in such instances it will

be possible to demonstrate loss of profit. However, that is not the case

here. Extension of time was given by NHAI up to 30th September

2004 without levy of LD. As the AT itself noted, BHSB did earn

profits but over an extended period of time. Secondly, as the AT itself

noted, BHSB did not produce any material to show that it had  

suffered any overhead costs or loss of profit. Therefore, the question

of the AT simply applying the formulae did not arise. 

IN THE HIGH COURT OF DELHI AT NEW DELHI

O.M.P. 249/2013

Decision on: March 25 2015

NATIONAL HIGHWAYS AUTHORITY OF INDIA.

Vs

BUMI HIWAY (M) SDN BHD 

CORAM: JUSTICE S. MURALIDHAR

Dated; 25.03.2015

Citation;AIR 2015(NOC)877 Delhi

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How to ascertain damages in respect of breach of contract in respect of immovable property?

 There remains the question of the amount of damages. The plaintiff was clearly entitled to sue at his option either for specific performance or for compensation for breach of contract or for both. He has chosen to sue for compensation. It has been pointed out in 40 Mad. 338, 38 Cal. 455 and 32 Bom. 165 that the law of India in respect of breaches of contract for the sale of immovable property differs from that of England and that the ordinary rule laid down in Section 73 of the Contract Act applies to such breaches. The Calcutta and Bombay cases also lay it down that the measure of damages ordinarily should be the difference between the contract price and the market value at the date of breach though it is remarked in 32 Bom. 165 that each case has to be considered on its own merits.

IN THE HIGH COURT OF LAHORE

F.A. No. 1139 of 1917

Decided On: 10.04.1923

Appellants: Akhtar Beg and others

Vs.

 Haq Nawaz, Advocate, High Court Lahor Haq Nawaz, Advocate, High Court Lahore, Bashir Ahmed, Bar-at-law, son and legal representative of the Hon'ble Mr. Muhammad Shah Din, C.J.

Hon'ble Judges/Coram:
Campbell and Moti Sagar, JJ.

Citation: 78Ind. Cas.87,(1924)Lah709

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Whether S.73 Contract Act is applicable to breaches of contract relating to immovable property?

It is next urged that the plaintiffs were not entitled to claim damages for breach of a contract relating to immoveable property and that in any case they had no right to re-sell the property. Ordinarily the remedies which are available to a person who is injured by breach of a contract of sale are these. He can either rescind the contract and sue for restitution to his former position or he can affirm the contract and sue either for damages for the breach or for the specific performance of the agreement : see Halsbury's Laws of England, Vol. 25, Part 7, Ss. 3, 5 and 6. It is true that in England the rule enunciated in 2 W.B 1. 1078 Flureau v. Thornhill, (1776) 2 W.B. 1 1078 and confirmed in 7 H.L. 158 Bain v. Fothergill, (1875) 7 H.L. 158=13 L.J. Ex 243=31 L.T. 387=23 W.R. 261, does not permit the purchaser to recover damages for breach of a contract of sale relating to immoveable property, but that rule is of an exceptional nature devised in view of the peculiar difficulties of conveyancing due to the complicated system of titles under which immoveable property is held in England. That rule was no doubt applied in 11 Bom 272 Pitambar Sundarji v. Cassibai, (1887) 11 Bom 272, but in a series of subsequent cases it was held not applicable in India in face of the express provisions of S. 73, Contract Act, which were held to be comprehensive enough to apply to breaches of contracts arising from the sale of moveable and immoveable property : see 32 Bom 165 Ranchhod v. Manmohandas,(1908) 32 Bom 165=9 Bom L.R. 1087, 38 Cal 458 Nabinchandra Saha v. Krishna Barana Dasi, (1911) 38 Cal 458=9 I.C. 525 and 40 Mad 338(4). It is now well settled that S. 73, Contract Act, is applicable to breaches of contract relating to immoveable property. 

IN THE HIGH COURT OF NAGPUR

Second Appeal No. 301 of 1933

Decided On: 16.09.1935

Appellants: Motilal
Vs.
Respondent: Seth Jamnadas and others

Hon'ble Judges/Coram:
Niyogi, A.J.C.

Citation: AIR1936Nag4

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