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delay in executing the work resulted in loss for which the respondent was entitled to reasonable compensation. Evidence of precise amount of loss may not be possible but in absence of any evidence by the party committing breach that no loss was suffered by the party complaining of breach, the Court has to proceed on guess work as to the quantum of compensation to be allowed in the given circumstances. Since the respondent also could have led evidence to show the extent of higher amount paid for the work got done or produce any other specific material but it did not do so, we are of the view that it will be fair to award half of the amount claimed as reasonable compensation. 19. Accordingly, this appeal is partly allowed and the decree granted by the High Court is modified to the effect that the respondent-plaintiff is entitled to half of the amount claimed with rate of interest as awarded by the High Court. Out of the amount deposited in this Court, the respondent will be entitled to withdraw the said decretal amount and the appellant will be entitled to take back the remaining . 20. The appeals are disposed of accordingly.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS…1440-1441 OF 2015
(ARISING OUT OF SLP (C) NOS.35365-35366 OF 2012)
M/S. CONSTRUCTION & DESIGN SERVICES …APPELLANT

VERSUS

DELHI DEVELOPMENT AUTHORITY …RESPONDENT

J U D G M E N T

ADARSH KUMAR GOEL, J.
1. Leave granted.
2. These appeals have been preferred against final judgment
and order dated 10th February, 2012 in RFA(OS) No.35 of 2010 and dated 1st
June, 2012 in R.P. No.369 of 2012 in RFA (OS) No.35 of 2010 passed by the
High Court of Delhi at New Delhi.
3. The question raised for our consideration is when and to what extent
can the stipulated liquidated damages for breach of a contract be held to
be in the nature of penalty in absence of evidence of actual loss and to
what extent the stipulation be taken to be the measure of compensation for
the loss suffered even in absence of specific evidence. Further question
is whether burden of proving that the amount stipulated as damages for
breach of contract was penalty is on the person committing breach.
4. The respondent – Delhi Development Authority awarded a contract vide
agreement dated 4th October, 1995 to the appellant for constructing a
sewerage pumping station at CGHS area at Kondli Gharoli at Delhi. Clause 2
in the agreement provided as follows:
“the contractor shall comply with the said time schedule. In the event of
the contractor failing to comply with this condition, he shall be liable to
pay as compensation an amount equal to one percent or such smaller amount
as the Superintending Engineer Delhi Development Authority (whose decision
shall be final) may decide on the said estimated cost of the whole work for
everyday that the due quantity of work remains incomplete; provided always
that the entire amount of compensation to be paid under the provisions of
this clause shall not exceed ten percent of the estimated cost of work as
shown in the tender.”

Since the work proceeded at slow pace and the appellant-defendant failed to
complete the same, the contract was terminated on 17th September, 1999.
Under Clause 2 of the agreement, the Superintending Engineer of the
respondent levied compensation of Rs.20,86,446/- for delay in execution of
the project by an order of penalty dated 21st July, 1999 and called upon
the appellant to deposit the same. The said order reads thus :
“The work was being executed by you at extremely slow pace. You had to
complete the job by 7.1.97. You had failed to complete the work even after
expiry of 2 years six months after stipulated date of completion. Despite
the clear direction from Hon’ble Supreme Court to expedite the work and
complete the job by June-99, you have failed to comply the direction of
Court and have rather abandoned the work since 6.4.99 and you failed to
complete the work till date.

In exercise of the power conferred on me under clause-2 of the agreement,
I, R.C. Kinger, the SE/CC-10/DDA decide and determine that you are liable
to pay Rs.20,86,446/- (Rs. Twenty lacs eighty six thousand four hundred
forty six only) as and by way of compensation as stipulated in clause-2 of
the agreement.”

5. On failure of the appellant to respond to the above order, the
respondent filed suit No.1311 of 2002 before the Delhi High Court for
recovery of the said amount with interest. The appellant-defendant failed
to contest the suit inspite of service but made an application raising
objection to the maintainability of the suit on the ground that vide order
dated 19th December, 2001, a former Judge of Delhi High Court had been
appointed arbitrator to decide the disputes arising out of the contract.
The said application was, however, dismissed on the ground that the matter
in the suit was not within the purview of the arbitration. The Court
proceeded to decide the suit on merits.
6. Learned single Judge dismissed the suit holding that the plaintiff
had not treated the time fixed for performance of the contract as of
essence and the compensation stipulated in Clause 2 of the agreement was in
the nature of penalty. The basis for levy of compensation had not been
indicated so as to determine whether the compensation claimed was
reasonable. Reliance was placed on the judgment of this Court in M/s.
Arosan Enterprises Ltd. vs. Union of India and another[1] in support of the
view that the time stipulated in the agreement was not treated to be of
essence. It was further observed that since the claim for compensation was
based on sole discretion and not on the basis of loss suffered, the same
was in the nature of penalty and thus, the said Clause could not be
enforced in view of Section 74 of the Contract Act as laid down in Fateh
Chand vs. Bal Kishan Das[2], Maula Bux vs. Union of India[3], M.L. Devendra
Singh vs. Syed Khaja[4], P. D’Souza vs. Shondrilo Naidu[5] and Oil and
Natural Gas Corporation Ltd. vs. Saw Pipes Ltd.[6]. Learned single Judge
concluded as follows:-
“20. The Court is of opinion that the plaintiff having not treated the
contract as of the essence, and having extended the time for performance on
several occasions, cannot now fall back on a presumptive condition to
impose the maximum compensation leviable; enforcement of such action would
be giving effect to a penalty clause. As far as granting reasonable
compensation is concerned, the plaintiff has not shown even the basis for
levying the compensation that it did in this case. As said earlier, this
aspect assumes significance, because the plaintiff was aware what extent of
the contract was performed, as well as what was the exact extent of loss,
in monetary terms, either by way of payment to another contractor, or the
amount spent for completing the work. In the circumstances, the Court is
of opinion that the relief sought cannot be granted.”

7. On appeal, the Division Bench reversed the view taken by the learned
single Judge. It was held that delay in a contract of construction of a
public utility service could itself be a ground for compensation without
proving the actual loss. Accordingly, the suit was decreed for payment of
Rs.20,86,446/- with pendente lite and future interest @ 9% per annum. It
was observed:
“5. The respondent had been proceeded against ex-parte at the trial and
has chosen not to appear even before us. The evidence led by the appellant
has remained unrebutted.

6. Suffice would it be to state that the observations of the Supreme
Court in para 68 of the decision reported as AIR 203 SC 2629 ONGC v. Saw
Pipes Ltd. are squarely applicable in the instant case as per which delayed
constructions such as completing construction of road or bridges within
stipulated time would be difficult to be linked with actual loses suffered
by the State and in such cases the pre-estimated damages envisaged in the
contract have to be paid.

7. Now, a Sewage Pumping Station is not something from which Revenue
would be generated by the State. It is a public utility service and has a
role to play in maintaining or preserving clean environment. If Sewage
Pumping Station are not set up, sewage would stagnate as cess pools in low
lying areas and would cause environmental degradation, both air and soil.
That apart, in a delayed project, interest on blocked capital would
obviously be a measure of damages.

8. The learned Single Judge has ignored as aforesaid and held that in
the absence of proof of damages, compensation levied under clause-2 cannot
be recovered. The learned Single Judge is incorrect in view of the law
declared by the Supreme Court and thus we allow the appeal and set aside
the impugned decree. Suit filed by the appellant is decreed in sum of
Rs.20,86,446/- with pendente lite and future interest @ 9% per annum from
date of suit till realization and the suit filed by the appellant is
disposed of accordingly with costs all throughout.”

8. The appellant filed a review petition which was dismissed.
9. We have heard learned counsel for the parties.
10. On 19th November, 2012 notice was issued subject to the appellant
depositing the entire decretal amount in this Court and by a subsequent
order, the amount was directed to be kept in term deposit for a period of
one year to ensure for the benefit of the successful party. Accordingly,
the amount of Rs.20,86,500/- is said to have been deposited which has been
kept in FDR which is going to mature on 8th February, 2015.
11. Learned counsel for the appellant submitted that the Division Bench
erred in holding that the entire amount of stipulated damages was genuine
measure of compensation when instead of any fixed amount, only the maximum
amount of compensation was stipulated. The contract in question only
envisaged the upper limit of damages which could be claimed. It is
submitted that the agreement quoted in earlier part of the order clearly
shows that what is stipulated is that the compensation shall not exceed 10%
of the estimated cost and the amount to be recovered as compensation was
required to be determined by the Superintending Engineer. The respondent-
plaintiff has failed to show the actual amount of loss suffered in getting
the work executed from any other contractor. In these circumstances, at
best a part of it could be taken to be compensation and the remaining
penalty. He submitted that the judgment of this Court in Saw Pipes Ltd.
(supra) relied upon by the High Court is distinguishable in the fact
situation of the present case. Without determining that the stipulated
compensation was reasonable, the maximum amount stipulated could not be
treated as compensation.
12. Learned counsel for the respondent-plaintiff on the other hand
submitted that even though in the order passed by the Superintending
Engineer no specific basis has been shown, notice was duly issued to the
appellant defendant before determining the reasonable amount of
compensation and claiming 10% of the project cost which was stipulated to
be the maximum compensation, on account of delay in execution of the
project. On failure of the appellant to respond, the entire amount has
been rightly held to be the estimate of damages for the loss. Burden was
on the defendant to show that no loss or lesser loss was suffered by the
plaintiff.
13. We have given due consideration to the rival submissions.
14. There is no dispute that the appellant failed to execute the work of
construction of sewerage pumping station within the stipulated or extended
time. The said pumping station certainly was of public utility to maintain
and preserve clean environment, absence of which could result in
environmental degradation by stagnation of water in low lying areas.
Delay also resulted in loss of interest on blocked capital as rightly
observed in para 7 of the impugned judgment of the High Court. In these
circumstances, loss could be assumed, even without proof and burden was on
the appellant who committed breach to show that no loss was caused by delay
or that the amount stipulated as damages for breach of contract was in the
nature of penalty. Even if technically the time was not of essence, it
could not be presumed that delay was of no consequence.
15. Thus, even if there is no specific evidence of loss suffered by
the respondent-plaintiff, the observations in the order of the Division
Bench that the project being a public utility project, the delay
itself can be taken to have resulted in loss in the form of environmental
degradation and loss of interest on the capital are not without
any basis.
16. Once it is held that even in absence of specific evidence, the
respondent could be held to have suffered loss on account of breach of
contract, and it is entitled to compensation to the extent of loss
suffered, it is for the appellant to show that stipulated damages are by
way of penalty. In a given case, when highest limit is stipulated instead
of a fixed sum, in absence of evidence of loss, part of it can be held to
be reasonable, compensation and the remaining by way of penalty. The party
complaining of breach can certainly be allowed reasonable compensation out
of the said amount if not the entire amount. If the entire amount
stipulated is genuine pre-estimate of loss, the actual loss need not be
proved. Burden to prove that no loss was likely to be suffered is on party
committing breach, as already observed.
17. It is not necessary to refer to all the judgments on the point in
view of categorical pronouncement of this Court in Saw Pipes (supra),
laying down as follows:-
“64. It is apparent from the aforesaid reasoning recorded by the Arbitral
Tribunal that it failed to consider Sections 73 and 74 of the Indian
Contract Act and the ratio laid down in Fateh Chand case wherein it is
specifically held that jurisdiction of the court to award compensation in
case of breach of contract is unqualified except as to the maximum
stipulated; and compensation has to be reasonable. Under Section 73, when a
contract has been broken, the party who suffers by such breach is entitled
to receive compensation for any loss caused to him which the parties knew
when they made the contract to be likely to result from the breach of it.
This section is to be read with Section 74, which deals with penalty
stipulated in the contract, inter alia (relevant for the present case)
provides that when a contract has been broken, if a sum is named in the
contract as the amount to be paid in case of such breach, the party
complaining of breach is entitled, whether or not actual loss is proved to
have been caused, thereby to receive from the party who has broken the
contract reasonable compensation not exceeding the amount so named. Section
74 emphasizes that in case of breach of contract, the party complaining of
the breach is entitled to receive reasonable compensation whether or not
actual loss is proved to have been caused by such breach. Therefore, the
emphasis is on reasonable [pic]compensation. If the compensation named in
the contract is by way of penalty, consideration would be different and the
party is only entitled to reasonable compensation for the loss suffered.
But if the compensation named in the contract for such breach is genuine
pre-estimate of loss which the parties knew when they made the contract to
be likely to result from the breach of it, there is no question of proving
such loss or such party is not required to lead evidence to prove actual
loss suffered by him. Burden is on the other party to lead evidence for
proving that no loss is likely to occur by such breach. Take for
illustration: if the parties have agreed to purchase cotton bales and the
same were only to be kept as a stock-in-trade. Such bales are not delivered
on the due date and thereafter the bales are delivered beyond the
stipulated time, hence there is breach of the contract. The question which
would arise for consideration is – whether by such breach the party has
suffered any loss. If the price of cotton bales fluctuated during that
time, loss or gain could easily be proved. But if cotton bales are to be
purchased for manufacturing yarn, consideration would be
different………..

67. Take for illustration construction of a road or a bridge. If there is
delay in completing the construction of road or bridge within the
stipulated [pic]time, then it would be difficult to prove how much loss is
suffered by the society/State. Similarly, in the present case, delay took
place in deployment of rigs and on that basis actual production of gas from
platform B-121 had to be changed. It is undoubtedly true that the witness
has stated that redeployment plan was made keeping in mind several
constraints including shortage of casing pipes. The Arbitral Tribunal,
therefore, took into consideration the aforesaid statement volunteered by
the witness that shortage of casing pipes was only one of the several
reasons and not the only reason which led to change in deploym7ent of plan
or redeployment of rigs Trident II platform B-121. In our view, in such a
contract, it would be difficult to prove exact loss or damage which the
parties suffer because of the breach thereof. In such a situation, if the
parties have pre-estimated such loss after clear understanding, it would be
totally unjustified to arrive at the conclusion that the party who has
committed breach of the contract is not liable to pay compensation. It
would be against the specific provisions of Sections 73 and 74 of the
Indian Contract Act. There was nothing on record that compensation
contemplated by the parties was in any way unreasonable. It has been
specifically mentioned that it was an agreed genuine pre-estimate of
damages duly agreed by the parties. It was also mentioned that the
liquidated damages are not by way of penalty. It was also provided in the
contract that such damages are to be recovered by the purchaser from the
bills for payment of the cost of material submitted by the contractor. No
evidence is led by the claimant to establish that the stipulated condition
was by way of penalty or the compensation contemplated was, in any way,
unreasonable. There was no reason for the Tribunal not to rely upon the
clear and unambiguous terms of agreement stipulating pre-estimate damages
because of delay in supply of goods. Further, while extending the time for
delivery of the goods, the respondent was informed that it would be
required to pay stipulated damages.”

18. Applying the above principle to the present case, it could certainly
be presumed that delay in executing the work resulted in loss for which the
respondent was entitled to reasonable compensation. Evidence of precise
amount of loss may not be possible but in absence of any evidence by the
party committing breach that no loss was suffered by the party complaining
of breach, the Court has to proceed on guess work as to the quantum of
compensation to be allowed in the given circumstances. Since the
respondent also could have led evidence to show the extent of higher amount
paid for the work got done or produce any other specific material but it
did not do so, we are of the view that it will be fair to award half of the
amount claimed as reasonable compensation.
19. Accordingly, this appeal is partly allowed and the decree granted by
the High Court is modified to the effect that the respondent-plaintiff is
entitled to half of the amount claimed with rate of interest as awarded by
the High Court. Out of the amount deposited in this Court, the respondent
will be entitled to withdraw the said decretal amount and the appellant
will be entitled to take back the remaining .
20. The appeals are disposed of accordingly.
……………………………………………J.
(T.S. THAKUR)
……………………………………………J.
(ADARSH KUMAR GOEL)

NEW DELHI
FEBRUARY 4, 2015

———————–
[1] (1999) 9 SCC 449
[2] (1964) 1 SCR 515
[3] (1969) 2 SCC 554
[4] (1973) 2 SCC 515
[5] (2004) 6 SCC 649
[6] (2003) 5 SCC 705

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