Supreme Court: Six pre-requisites for an arbitral award to be recognized as a foreign award under Section 44 of the Act

The Supreme Court of India has identified six pre-requisites for a foreign award to be recognized and enforceable under Section 44 of the Arbitration and Conciliation Act, 1996. These prerequisites are:

1. Arbitral Award on Differences: The award must be an arbitral award concerning differences arising out of legal relationships between parties.

   

2.Nature of Differences : The differences can arise from contractual obligations or non-contractual situations, such as torts.

3. Commercial Relationship: The legal relationship involved must be considered "commercial" under Indian law.

4. Date of Award: The award must have been made on or after October 11, 1960.

5.New York Convention Award: The award must qualify as a New York Convention award, meaning it should arise from an agreement in writing that falls under the New York Convention's jurisdiction.

6.Territorial Application: The award must be made in a territory that is a signatory to the New York Convention. 

These criteria establish the framework for recognizing and enforcing foreign arbitral awards in India, providing clarity on the conditions necessary for such enforcement.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 8343-8344 of 2018 and 8345-8346 of 2018

Decided On: 10.08.2021

Gemini Bay Transcription Pvt. Ltd. Vs. Integrated Sales Service Ltd. and Ors.

Hon'ble Judges/Coram:

Rohinton Fali Nariman and B.R. Gavai, JJ.

Author: Rohinton Fali Nariman, J.

Citation:  MANU/SC/0517/2021, AIR 2021 SUPREME COURT 3836, AIRONLINE 2021 SC 481

Print Page

Supreme Court: Motor accident claim tribunal can not grant compensation under the head of pain and suffering by family members of the claimant

 It is perceptible that the High Court has deleted the amount awarded under the head of pain and suffering by family members of the claimant and the amount granted towards loss of marital life. There is no iota of evidence with regard to loss of marital life, hence, we do not find any error in the said deletion. As far as grant of compensation on the score of pain and suffering suffered by the family members of claimant is concerned, the same is not permissible and, accordingly, we hold that that has been correctly deleted. {Para 30}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7603 of 2012.

Decided On: 19.10.2012

K. Suresh Vs. New India Assurance Company Ltd. and Ors.

Hon'ble Judges/Coram:

K.S. Panicker Radhakrishnan and Dipak Misra, JJ.

Author: Dipak Misra, J.

Citation:  MANU/SC/0908/2012, (2012) 12 SCC 274.

Read full Judgment here: Click here. 

Print Page

Supreme Court: Motor accident claim tribunal can not grant compensation to claimant for his inability to participate in public functions

 The High Court has deleted an amount of Rs. 3,00,000/- and a sum of Rs. 2,00,000/- towards mental agony and inability on the part of the claimant to participate in public functions respectively. We have already determined Rs. 2,00,000/- under the heading of pain and suffering already suffered and to be suffered and Rs. 2,50,000/- under the heading of permanent disability and hence, no different sum need be awarded under the heading of mental agony. As far as participation in public functions is concerned, there is no evidence in that regard and, therefore, we are disposed to think that the finding of the High Court on that score is totally justified and does not call for any interference. {Para 31}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7603 of 2012.

Decided On: 19.10.2012

K. Suresh Vs. New India Assurance Company Ltd. and Ors.

Hon'ble Judges/Coram:

K.S. Panicker Radhakrishnan and Dipak Misra, JJ.

Author: Dipak Misra, J.

Citation:  MANU/SC/0908/2012, (2012) 12 SCC 274.

Read full Judgment here: Click here. 

Print Page

Supreme court: While computing compensation, the approach of the Motor accident claim Tribunal should be broad-based

It is noteworthy to state that an adjudicating authority, while determining quantum of compensation, has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. Hence, while computing compensation the approach of the tribunal or a court has to be broad based. Needless to say, it would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of compensation the fundamental criterion of "just compensation" should be inhered. {Para 10}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7603 of 2012.

Decided On: 19.10.2012

K. Suresh Vs. New India Assurance Company Ltd. and Ors.

Hon'ble Judges/Coram:

K.S. Panicker Radhakrishnan and Dipak Misra, JJ.

Author: Dipak Misra, J.

Citation:  MANU/SC/0908/2012, (2012) 12 SCC 274.

Print Page

Important Notes on contract law

 

1) Twelve Golden Rules governing ratification of act of agent by principal.

https://www.lawweb.in/2020/07/ratification-by-principal-of-act-of.html

2) Difference between Liquidated and unliquidated damages

https://www.lawweb.in/2020/07/difference-between-liquidated-and.html

3) What is basic concept of doctrine of frustration with reference to Indian contract act? 

https://www.lawweb.in/2024/06/what-is-basic-concept-of-doctrine-of.html

4) What are the basic concept of indemnity and guarantee with reference to Indian Contract Act?

https://www.lawweb.in/2024/06/what-are-basic-concept-of-indemnity-and.html

Print Page

Is every claim for a license fee for the remainder of a lock-in period in a leave and license agreement considered a claim for damages?

 (e) Every claim for license fee for the remainder of a lock-in period in a leave and license agreement is not per se a claim for damages, liquidated or unliquidated. In a given case, it may be in the nature of either, or in the nature of a penalty, or it may simply be a component of the contractual consideration and therefore a debt properly so-called when the contingency in contemplation comes to pass. This will depend on an interpretation of the contract in question and an assessment of the conduct of the parties.

 IN THE HIGH COURT OF BOMBAY

Company Petition No. 496 of 2013

Decided On: 28.02.2014

 Indiabulls Properties Pvt. Ltd.  Vs. Treasure World Developers Pvt. Ltd.

Hon'ble Judges/Coram:

G.S. Patel, J.

Citation: MANU/MH/0249/2014,2014 SCCOnLine Bom 4768.

Read full Judgment here: Click here

Print Page

Whether application for Summary Judgment is maintainable if Summary suit is converted into Commercial suit?

Assuming that plaintiffs' suit is initially filed as a summary suit under Order XXXVII of the Code, thereby taking it out of ambit of provisions of Order XIII-A of the Code, would it's subsequent conversion as commercial suit entail loss of both the rights viz. (i) to seek summary judgment under Order XIII-A as well as (ii) pronouncement of judgment under Order XXXVII, Rule 3 of the Code?. To paraphrase, would conversion of summary suit into a commercial suit would put a Plaintiff in a disadvantageous position where he loses right to seek pronouncement of judgment under Order XXXVII, Rule 3 of the Code as well as attracts the bar for seeking summary judgment under sub rule 3 of Rule 1 of Order XIII A of the Code?

15. Through Mr. Dawar strenuously pressed his objection about non-applicability of provisions of Order XIII-A to Plaintiff's application, upon being confronted with the above conundrum, he fairly concedes to the position that a Plaintiff in summary suit cannot be put to a disadvantageous position merely because his summary suit is converted into a commercial suit. The objective behind incorporating provision of sub-rule 3 of Rule 1 of Order XIII A of the Code is to prevent Plaintiff who once attempts pronouncement of judgment under Order XXXVII Rule 3 of the Code and upon conversion of his summary suit into commercial one, seeks to have another bite at the cherry by seeking pronouncement of judgment under Order XIII-A of the Code. The provisions of sub-rule 3 of Rule 1 of Order XIII A cannot be interpreted to mean that Plaintiff in a summary suit which is converted into commercial suit would loose both rights of pronouncement of judgment under Order XXXVII Rule 3 of the Code as well as seeking summary judgment under Order XIII A of the Code. Thus, the objection about non-maintainability of application for Summary Judgment filed by the Petitioners is repelled.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 10573 of 2022

Decided On: 31.01.2023

Ashok Commercial Enterprises and Ors. Vs.  Rajesh Jugraj Madhani

Hon'ble Judges/Coram:

Sandeep V. Marne, J.

Citation: MANU/MH/0251/2023,2023 Lawweb (Bom HC ) 10.

Print Page

Questions and answers on law(Part 49)

Q 1:-  Whether Safari park project is infrastructure project as per amended specific relief Act?

Ans:- In my opinion, it comes under tourism infrastructure in entry 5 social and commercial infrastructure of Schedule of specific relief Act.

Q 2:- Whether court must issue notice to legal heirs of deceased defendant if application for taking his legal heirs is made after expiry of limitation period? If yes under which section or order?

Ans:- Court must issue notice to legal heirs of deceased defendant as per O 22 R 4 of CPC if application is made after expiry of limitation period.

Print Page

Supreme Court: Court should not grant an injunction in case of tender of infrastructure project; Instead, Relegate Party To Seek Damages

If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfer- ing in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.

26. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good. The grant of interim injunction by the learned Single Bench of the High Court has helped no-one except a contractor who lost a contract bid and has only caused loss to the State with no corresponding gain to anyone.

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NO. 1846 OF 2022 

 M/S. N.G. PROJECTS LIMITED VERSUS M/S. VINOD KUMAR JAIN & ORS.

Coram: HEMANT GUPTA; V. RAMASUBRAMANIAN, JJ.

HEMANT GUPTA, J.

Dated: MARCH 21, 2022

Print Page

Whether the Small cause court has jurisdiction to try a claim for recovery of security deposit or damages or is said dispute arbitrable?

As held by this Court in the case of Brainvisa Technologies Pvt. Ltd. (supra) license fee, charges and rent are periodical payments made for use and occupation. A claim for recovery of the same, legitimately falls within the exclusive jurisdiction of the Court of Small Causes. In the case at hand, the respondent professes to withhold the security deposit on the ground that the applicant is liable to pay damages. Such a claim, in my considered view, does not fall within the exclusive jurisdiction of the Court of Small Causes, and is amenable to arbitration. 

{Para 45}

 IN THE HIGH COURT OF BOMBAY

Arbitration Application No. 340 of 2019

Decided On: 05.05.2022

 Bafna Motors Private Limited  Vs.  Amanulla Khan

Hon'ble Judges/Coram:

N.J. Jamadar, J.

Citation: MANU/MH/1583/2022

Print Page

Whether arbitrator can award Liquidated Damages Over & Above Actual Damages?

 The expression “whether or not actual damage or loss is proved to have been caused thereby” means that where it is possible to prove actual damage or loss, such proof is not dispensed with. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the contract, if a genuine pre-estimate of damage or loss, can be awarded. {Para 43.6. }

22. In the present case as the actual damages suffered by the respondent were proven and accepted by the learned Sole Arbitrator, liquidated damages over and above such actual damages could not have been awarded. Accordingly, the Arbitral Award insofar as it grants Rs.8,38,656/- in favour of the respondent is set aside.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

FAO(OS) 415/2011& CM APPLs. 44584-5/2021

BHOPAL DAL UDYOG Vs FOOD CORPORTION OF INDIA 

CORAM:

HON'BLE MR. JUSTICE MANMOHAN

HON'BLE MR. JUSTICE NAVIN CHAWLA

Author: NAVIN CHAWLA, J.

Date of Decision: 04.01.2022

Print Page

When should a party prove loss or damages for breach of contract if there was a contract for grant of liquidated damages?

 Mr. Raheja's contention that HPCL was not required to either plead or prove any loss is difficult to accept. In Kailash Nath Associates v. Delhi Development Authority (supra), the Supreme Court had referred to Section 74 of the Indian Contract Act, 1872 and had held as under:—

“43. On a conspectus of the above authorities, the law on compensation for breach of contract under Section 74 can be stated to be as follows:

43.1. Where a sum is named in a contract as a liquidated amount payable by way of damages, the party complaining of a breach can receive as reasonable compensation such liquidated amount only if it is a genuine pre-estimate of damages fixed by both parties and found to be such by the court. In other cases, where a sum is named in a contract as a liquidated amount payable by way of damages, only reasonable compensation can be awarded not exceeding the amount so stated. Similarly, in cases where the amount fixed is in the nature of penalty, only reasonable compensation can be awarded not exceeding the penalty so stated. In both cases, the liquidated amount or penalty is the upper limit beyond which the court cannot grant reasonable compensation.

43.2. Reasonable compensation will be fixed on well-known principles that are applicable to the law of contract, which are to be found inter alia in Section 73 of the Contract Act.

43.3. Since Section 74 awards reasonable compensation for damage or loss caused by a breach of contract, damage or loss caused is a sine qua non for the applicability of the section.

43.4. The section applies whether a person is a plaintiff or a defendant in a suit.

43.5. The sum spoken of may already be paid or be payable in future.

43.6. The expression “whether or not actual damage or loss is proved to have been caused thereby” means that where it is possible to prove actual damage or loss, such proof is not dispensed with. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the contract, if a genuine pre-estimate of damage or loss, can be awarded.

43.7. Section 74 will apply to cases of forfeiture of earnest money under a contract. Where, however, forfeiture takes place under the terms and conditions of a public auction before agreement is reached, Section 74 would have no application.”  {Para 52}

53. HPCL had neither pleaded that it was not feasible to establish the loss nor had led any material to establish that it had suffered loss on account of non-supply of ethanol by DSM. There is also no pleading to the effect that ethanol was otherwise not readily available or available at a price higher than as agreed between DSM and HPCL. DSM's contention that HPCL had failed to establish any loss was contested on an erroneous premise that HPCL was not required to establish the same.

54. In the given circumstances, this Court is of the view that the award of Rs. 88,14,785/- in favour of HPCL, is not sustainable.

In the High Court of Delhi at New Delhi

(Before Vibhu Bakhru, J.)

O.M.P. (COMM) 164/2020 and I.A. No. 2870/2015

Hindustan Petroleum Corporation Ltd.  Vs Dhampur Sugar Mills Ltd.

O.M.P. (COMM) 164/2020, I.A. No. 2870/2015 and O.M.P. (COMM) 190/2020

Decided on January 6, 2022

Citation: 2022 SCC OnLine Del 42

Print Page

Can the plaintiff claim damages on a normative basis without proof of loss or damages?

32. It is the petitioner's contention that its claim for damages and overhead charges (Claim no. 2) was liable to be allowed on normative basis as 5% of the contract value was attributable to overhead charges under the Agreement. The petitioner contends that the impugned award is vitiated by patent illegality as the Arbitral Tribunal has not accepted the same. This contention is, plainly, unmerited. The Arbitral Tribunal's decision to not accept the petitioner's claim as the petitioner had failed to produce proof of actual damages, cannot be faulted. There is no principle of law that mandates that damages must be allowed on normative basis in all cases. The question as to whether the petitioner has sufficiently established that it had incurred any loss or damage is a question of fact and the Arbitral Tribunal's decision in this regard is final. The petitioner's claim for loss of profit was also disallowed on similar grounds. The Arbitral Tribunal had referred to the decisions of this Court in Union of India v. Om Construction Company : 2019 SCC OnLine Del 9037 and GTM Builders and Promoters Pvt. Ltd. v. Sneh Developers Pvt. Ltd. : 2018 SCC OnLine Del 9653 and, the decision of the Supreme Court in Kailash Nath Associates v. DDA : (2015) 4 SCC 136 and had held that the petitioner was required to prove actual proof of loss of damages. The said view cannot by any stretch be stated to be patently erroneous or one that vitiates the impugned award on the ground of patent illegality.

 In the High Court of Delhi at New Delhi

(Before Vibhu Bakhru, J.)

Siddharth Constructions Co. Vs India Tourism Development Corporation Ltd.

O.M.P. (COMM.) 184 of 2021

Decided on September 14, 2021

Citation: 2021 SCC OnLine Del 4373

Print Page

Whether the aggrieved party can claim specific performance in case of anticipatory breach of contract?

It is settled in law that where a party to a contract commits an anticipatory breach of the contract, the other party to the contract may treat the breach as putting an end to the contract and sue for damages, but in that event he cannot ask for specific performance. The other option open to the other party, namely, the aggrieved party, is that he may choose to keep the contract alive till the time for performance and claim specific performance but, in that event, he cannot claim specific performance of the contract unless he shows his readiness and willingness to perform the contract.

Supreme Court Of India

SABYASACHI MUKHARJI, M. H. KANIA AND S. RANGANATHAN, JJ.

Jawahar Lal Wadhwa and anotherAppellants v.Haripada ChakrobertyRespondent.

Civil Appeal No. 2678 of 1985

14th October, 1988.

 Citation: AIR1989SC 606, 1989(1)ARBLR403(SC ), JT1988(4)SC 138, 1988(2)SC ALE1033, (1989)1SC C 76, [1988]Supp3SC R513,MANU/SC/0208/1988,1988 ALLMR ONLINE 577 (S.C.)

1989(1)UJ111

Print Page

Whether a party can refuse to pay damages for delay caused in the performance of the contract due to its conduct taking the defence of contractual term?

 Clause 59 prima facie prohibits the claim for compensation by the Contractor on account of the delays and defaults or whatever reasons and that only reasonable extension of time is permissible. The learned Arbitrator considering this issue interpreted the same to mean the escalation of prices is not covered by Clause 59 and what is contemplated under Section 59 is only compensation for the delays committed and it never prohibited the Contractor from claiming the escalation charges. When once the term of the contract has been interpreted, which is always permissible for the Arbitrator under Clause 73, which is widely worded, the interpretation placed by the Arbitrator has to be accepted. Therefore, when once the Arbitrator is clothed with the jurisdiction by virtue of Clause 73, temporary injunction is always open for him to interpret and construe the terms of the contract. The Department having failed to handover the site properly in accordance with the terms and conditions of the contract and having disabled the Contractor from executing the work as per the schedule on account of the various obstacles created including the non-initiation of the Land Acquisition proceedings, can it be said that still Clause 59 can be successfully invoked by the Department. It is well settled law that a person, who breaches the contract or who violates the contract is liable for damages or consequences and this clause cannot be interpreted to mean that whatever the defaults or breaches committed by the Department, the Department becomes immune from consequences. Such stipulation in the contract is highly arbitrary and unreasonable and the Division Bench of this Court has already held such a stipulation, even though it was agreed by the parties, but at the same time, when it is patently one sided and suppressed the Contractor, it cannot be said to be valid contract. Such a contract can be said to be opposed to the public policy. Obviously, it goes to establish that the Department cannot interfere with the integrity of the contract. While at the same time the Contractor cannot be allowed to interfere with the integrity of the contract, the primary intendment of the Clause 59 is not to allow the Contractor to go for compensation. On the other hand, the Department is entitled to grant reasonable extension which implies that reasonable extension of time without disturbing the work schedule is permissible, but when unreasonable extension is granted, it cannot be said that the Clause 59 also covers the situation. In case of a contract, which is liable to be executed within 12 months, a reasonable extension of one or two months can be granted by the authorities in which event, the Contractor will not be liable to claim compensation. But, if the extension is granted for a wholly unreasonable period and left asking the Contractor not to claim compensation is not contemplated under Section 59. The reasonable extension of time is sine qua non for invoking Clause 59, if the extension is unreasonable, Clause 59 will come into play. Admittedly, in the instant case, it was completed in 1985 and the work which was scheduled to be completed within 15 months has taken 5 years and which was accepted and the learned Arbitrator found that the delays were completely attributable to the Department. Therefore, even though extension was granted, since the extension is not a reasonable extension and in the guise of extending the time, the Contractor cannot be allowed to suffer the loss of escalation of the prices and connected liabilities. {Para 93}

Andhra High Court

T.A. Choudhary vs State Of A.P. And Ors. on 1 May, 2003

Print Page

Whether filing of civil suit for defamation amounts to violation of freedom of speech and expression?

In my view there is merit in the plea of the plaintiff's counsel. Article 19(2) is a negative covenant i.e., a bar on the restrictions imposable upon the otherwise unfettered right of freedom of speech and expression, guaranteed by Article 19(1)(a) of the Constitution. There is no requirement or restriction in Article 19(2) that unless and until permitted by Article 19(2), no suits for defamation can be filed, as contended and in my view erroneously by the learned senior counsel for the defendant,Shri Tripathi. To accept Mr. Tripathi's plea would tantamount to rewording the Constitution. A plain reading of the Constitution makes it clear that at present there is no fetter/bar on filing of suits based on defamation and therefore the plea of theefendant under Order VII Rule 11 that the suit is barred by any law i.e., Article 19 as the Parliament has not enacted any law permitting suits for defamation is not tenable and is accordingly rejected. There is also substance in the plea of the plaitiff's counsel that Section 9 of the CPC permits the trial of all civil suits unless expressly or impliedly barred. Admittedly there is no express bar against suits for defamation. The plea of the implied bar under Section 9 by virtue of the non-enactent of a statute under Article 19(2) permitting defamation suits has already been rejected. Consequently the suit is also maintainable under Section 9 CPC.

 Delhi High Court

Ashoke Ghosh vs Urmi A. Goswami on 7 January, 2005

Bench: M Mudgal

Print Page

Whether the employer will be liable for defamation of employee if he conducts departmental enquiry against him?

 In the present case, the defendant has taken the defence of privilege. The question is whether the charge-sheet issued against the plaintiff, the enquiry report and the letter of dismissal of the plaintiff can be said to be protected by absolute privilege or qualified privilege?

37. The enquiry proceeding was initiated by the defendant by issuing the charge-sheet on the basis of information received that the matriculation certificate and mark-sheet submitted by the plaintiff at the time of his appointment were not genuine. The information was received from a reliable source and in my opinion could not be brushed aside as frivolous. If it was finally established that the information was true, that would have amounted to a criminal offence on the part of the plaintiff. Having got such information, it was incumbent upon the management of the defendant to hold an enquiry into the matter. Such enquiry was held as part of the management's duty and in larger public interest. As such, in my considered opinion, the enquiry proceedings and all publications made in connection therewith were privileged. As Lord Finlay L.C. observed in Adam vs. Ward, (1917) Appeal Cases 309, if a communication is made in pursuance of a duty, the same would be privileged. His Lordship was of the view that this privilege is qualified and may be rebutted by proof of express malice. In the present case, no case of malice has been established by the plaintiff. Hence, at least, the defence of qualified privilege would be available to the defendant.

38. The law is fairly clear that any step which is essentially a step in a judicial or quasi-judicial proceeding would be immune from liability for defamation as it gives rise to an occasion for privilege.  In O'Conor vs. Waldron, MANU/PR/0085/1934 : AIR 1935 PC 3, Lord Atkin observed that proceedings before an executive or administrative authority or a step to initiate such proceedings can only give rise to an occasion for qualified privilege. Gatley on Libel and Slander (5th Ed., page 181) states that no action will lie for defamatory statements contained in any document which is incidental to the proper initiation of judicial or quasi-judicial proceedings, information, complaint, writ or petition by which the quasi-judicial Tribunal is set in motion.

39. I have no doubt in my mind that the protection of privilege should extend to enquiry proceedings conducted by an employer against an employee. It would definitely not be desirable if an employer in spite of receiving information that an employee is allegedly committing a crime or other wrongful act detrimental to the public interest, refrains from holding an enquiry into the matter for the fear of being exposed to a defamation suit. Such a position would be extremely harmful to the interest of the public at large.

40. The question is whether such privilege should be absolute or qualified. I am of the view that the privilege should be qualified. This means that if the plaintiff is able to establish malice on the part of the defendant in conducting an enquiry proceeding against him by issuing charge-sheet, the defence of privilege will not be available to the defendant. However, in the present case, the plaintiff has been unable to establish malice on the part of the defendant in conducting the enquiry proceeding against him by issuing charge-sheet which culminated in his dismissal order. I am of the considered view that the materials complained of by the plaintiff and forming the basis of the present defamation suit are protected by qualified privilege. The fact that at a subsequent point of time due to intervention of the Hon'ble President of India, the order of dismissal was withdrawn and the plaintiff was reinstated in service, does not change the situation.

 IN THE HIGH COURT OF CALCUTTA

CS 11 of 2006

Decided On: 17.02.2017

 Manik Lal Bhowmik  Vs.  Bharat Sanchar Nigam Limited

Hon'ble Judges/Coram:

Arijit Banerjee, J.

Citation: MANU/WB/0098/2017

Print Page

Difference between Liquidated and unliquidated damages

1) Contracts generally include a provision for the one party to pay liquidated damages (or liquidated and ascertained damages, ) to the other party in the event that the contract is breached. Liquidated damages are a pre-agreed amount of money that is set out in advance in the contract, that fixes the sum payable as damages if the one party breaches the contract - typically by failing to perform contract.

Unliquidated damages are damages that are payable for a breach, the exact amount of which has not been pre-agreed. The sum to be paid as compensation is said to be ‘at large’ and is determined after the breach occurs by a court.

Print Page

Whether court should allow amendment of pleading if claim for damages has become barred by limitation?

Reliance is placed by the learned counsel for the respondent/defendant on the decision of the Supreme Court in Pankaja MANU/SC/0590/2004 : (2004) 6 SCC 415 (supra) in support of his contention that there is no absolute bar that in every case where a relief is barred by limitation, an amendment should not be allowed. But it is of no assistance to the respondent/defendant. Even in Pankaja MANU/SC/0590/2004 : (2004) 6 SCC 415 (supra), the Supreme Court gave leverage to the Courts to exercise the discretion conferred upon them on a judicious evaluation of the facts and circumstances in which the amendment was sought. Where the delay had extinguished the right to make a claim, the same could not have been allowed. In paragraph No. 14 of its decision in Pankaja MANU/SC/0590/2004 : (2004) 6 SCC 415 (supra) the Supreme Court made it clear that two tests can be applied, viz., (i) whether the grant of amendment would sub-serve the ultimate cause of justice; and (ii) whether the amendment would avoid further litigation. If these two tests are applied, it will be clear that the case on hand would not pass these tests.

IN THE HIGH COURT OF STATE OF TELANGANA

C.R.P. No. 6745 of 2018

Decided On: 10.04.2019

M.V. Ramana Rao  Vs.  N. Subash

Print Page

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

Print Page