RSA No.2432 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2432 of 2007 Date of Decision: 22.01.2009 Food Corporation of India ..Appellant Vs. M/s Bhupinder Singh Jugal Kishore & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.H.S.Dhandi, Advocate, for the appellant. --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgments and decree dated 31.1.2005 and 2.12.2006 passed by the learned courts below vide which suit filed by the plaintiff-appellant stands dismissed. The plaintiff corporation brought a suit for the recovery of Rs.2,87,174/- along with interest at the rate of 12 per cent per annum from the date of filing the suit till realization on the plea that the defendant/respondents had entered into a contract to supply trucks for transporting the food-grains for two years i.e.10.4.1995 to 9.4.1997. One of RSA No.2432 of 2007 2 the stipulations in the contract was that in case the defendant/respondents failed to supply the trucks as per the contract, they would be liable to pay Rs.100/- as penalty per truck. It is not in dispute that from 25.12.1995 the defendant-respondents committed breach of the terms of the agreement and failed to supply the trucks. The plaintiff corporation claimed that it was entitled to decree for an amount of Rs.2,87,174.- with interest after deducting an amount of Rs.84,400/- deposited as security. Learned courts below held that there was breach of contract by the defendant/respondents. However, suit was not decreed in toto, as the plaintiff/appellant failed to produce on record the proof of damages suffered due to the breach. In support of finding learned courts below placed reliance on the judgment of Hon'ble Supreme Court in the case of Maula Bux Vs. Union of India AIR 1970 SC 1955, wherein Hon'ble Supreme Court has been pleased to lay down as under:- “ In every case of breach of contract the person aggrieved by the breach is not required to prove actual loss or damage suffered by him before he can claim a decree, and the court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequence of the breach of the contract. But the expression “Whether or not actual damages or loss is proved to have been caused thereby?” is intended to cover different classes of contracts which come before the Courts. In case of breach of some contracts it may be impossible for the court to assess compensation arising from breach, while in other cases RSA No.2432 of 2007 3 compensation cannot be calculated in accordance with established rules. Where the court is unable to assess the compensation the sum named by the parties if it be regarded as a genuine pre-estimate may be taken into consideration as the measure of reasonable compensation, but not if the sum named is in the nature of a penalty. Where loss in terms of money can be determined, the party claiming compensation must prove the loss suffered by him.” Learned counsel for the appellant contends that the learned courts below wrongly placed reliance on the judgment of Hon'ble Supreme court. The authority was not applicable, as in the present case admittedly, the parties to the contract had by consent determined the damages payable i.e. Rs.100/- per truck which is to be treated as predetermined damage. Learned counsel for the appellant contends that following substantial question of law arises for consideration in this appeal:- “ Whether the learned courts below were in error in non- suiting the plaintiff/appellant by misapplying the judgment of Hon'ble Supreme Court in the case of Maula Bux Vs. Union of India (supra).” In support of the substantial question of law, the learned counsel for the appellant contends, that once the learned courts accepted the calculation proved in evidence, showing proof of trucks used, there was no ground to non-suit the appellant. The judgment of Hon'ble Supreme court was not applicable to the facts of the present case. The contention raised by the learned counsel for the appellant cannot be acquitted. Learned courts below rightly applied the judgment of RSA No.2432 of 2007 4 Hon'ble Supreme Court. Admittedly, the imposition of Rs.100/- per truck was in the nature of penalty and not pre-estimate of damages as contended. The contract between the parties was of a nature, where the plaintiff could easily prove that the damages actually suffered. Once plaintiff/appellant failed to prove the actual damages learned courts below were right in not decreeing the suit in toto. The substantial question of law is answered against the appellant/plaintiff. No ground is thus made out to interfere with concurrent finding of fact. No merit. Dismissed. 22.01.2009 (Vinod K.Sharma) rp Judge