Ester Industries Limited vs Amarsons Commercials Pvt. Ltd.
2011 Latest Caselaw 1417 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 374/1998
%                                                 10th March, 2011

ESTER INDUSTRIES LIMITED                                     ...... Appellant
                                Through:    Mr. Paritosh Budhiraja, Advocate
                                            with Mr. Neeraj Gupta, Advocate.

                          VERSUS


AMARSONS COMMERCIALS PVT. LTD.                             ...... Respondent
                       Through:             Mr. M.C. Dhingra, Advocate with
                                            Ms. Gita Dhingra, Advocate.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?

    3.   Whether the judgment should be reported in the Digest?


VALMIKI J. MEHTA, J (ORAL)

1.            The challenge by means of this Regular First Appeal under

Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment      and   decree   dated   31.3.1998    whereby   the   suit   of    the

respondent/plaintiff was partially decreed for recovery of damages on

account of breach of the appellant/defendant to honour its contract to sell to

the respondent/plaintiff 600 unsecured redeemable Bank of Baroda Bonds of

Rs.5,000/- each.


2.            The matter has been heard at length.      The main argument on

behalf of the learned counsel for the appellant is that the damages which

should be allowed have to be those on the date of the breach, and which

RFA No.374/1998                                                   Page 1 of 3
 date was in and around 19.11.1996. Learned counsel for the appellant

argues that however the amount of damages which have been awarded by

the trial Court are those on the basis of purchasing of bond at the prevailing

market rate much later in March, 1997. In response, learned counsel for the

respondent/plaintiff contends that the bonds were not easily available in the

market and therefore they were ultimately purchased in March, 1997.


3.          I have gone through the evidence led on behalf of the both the

parties in the trial Court and counsel for the parties agree that though there

is certain evidence on this aspect, however, there is no substantial evidence

led as to the lack of availability of bonds in the market for purchase before

March, 1997 by the respondent/plaintiff.      If the respondent could have

purchased the bonds earlier, then, the amount of damages which would be

allowed will be on that earlier date and not on later date of March, 1997.

Evidence is thus required as to whether the bonds could have been available

earlier than March, 1997 and if yes then at what rate.


4.          Learned counsel for the respondent also states that the trial

Court refused to grant the interest claimed in the suit and which the

respondent had claimed, would have accrued to it, had the transaction gone

through.


5.          In view of the above, the counsel for the parties have agreed

that the matter be remanded back to the trial Court for leading evidence

with regard to the loss which would be caused to the respondent/plaintiff on

account of the failure of the appellant/defendant to honour the contract i.e.

the loss caused to the respondent/plaintiff in and around the date of the


RFA No.374/1998                                                 Page 2 of 3
 breach, coupled with the fact of the entitlement of the respondent/plaintiff to

establish that in spite of its best efforts the subject bonds were not available

for purchase prior to March, 1997 or if available earlier than March, 1997

then what was the rate prevailing at that earlier date.          Since the case is

being   remanded    in   order     to   determine   the   loss   caused   to   the

respondent/plaintiff in and around the date of the breach or earlier when the

subject bonds could have been purchased, the trial Court will also decide the

issue afresh with respect to the claim of the respondent/plaintiff for grant of

accrued interest, if any, on the subject bonds for the period from 1.7.1996 to

31.12.1996 less the period of 134 days.


6.          Parties to appear before the trial Court on 28th April, 2011. Trial

Court to allow the parties to lead the evidence with respect to quantification

of the loss and as per the observations made above and also give the

judgment thereafter on the entitlement of the respondent/plaintiff including

the entitlement towards the accrued interest.


            With the aforesaid observations, the appeal stands disposed of.

Trial Court record be sent back.




MARCH 10, 2011                                            VALMIKI J. MEHTA, J.

Ne