JUDGMENT B. D. Agarwal, J. 1. This is plaintiff's appeal. 2. The plaintiff is a registered partnership firm engaged in the business of manufacture and sale of biscuits in Kanpur under the name and style of M/s. Sind Biscuits Manufacturing Company. The defendant no. 2 was the sole proprietor of the business run in Moradabad in the name of the Delight Engineering Works. The defendant no. 3 is his father. Later with effect from April 11, 1966 the defendant no. 2 has constituted a partnership firm the other partners being his mother and the father's sister. On September 20, 1965 the defendant no. 2 entered into a contract with the plaintiff by exchange of letters where under the defendant no. 2 undertook to supply to the plaintiff one travelling oven 60' long x 4-1/2' wide baking chamber oil fired having automatic heat control with standard specifications. The machinery was to be insulated on all sides with three inches thick glass woo) enclosed in 1/16" sheet. The chain was to be manufactured from l"xl/4" thick m.s. flat -2-1/2 shaft and rolls on both sides. It was to be completed with its driving arrangement and electric motors etc. The defendant no. 2 had also to instal the machinery at the plaintiff's premises in Kanpur. Firing chamber was to be specially designed as per the defendants specifications. Brick work for the foundation and the laying of fire bricks in the floor was to be done by the plaintiff. Unskilled labour was to be supplied by the plaintiff during the process of erection. The delivery was to be made by the defendant no. 2 within six months from the receipt of the order dated September 20, 1965. The cost was Rs. 40,000/-; 33% being the advance. Of the advance amount a sum of Rs. 5,000/- was to be paid by the plaintiff at the time when the order was placed and the balance of Rs. 8,000/- after 1-1/2 months when the work nearly 50% had been done. For the rest the stipulation was that Rs. 18,000/- were to be paid against the delivery and the remaining sum of Rs. 9000/-after installation at Kanpur to the satisfaction of the buyer. The defendant no. 3 furnished guarantee for good performance of the oven. The delivery was initially agreed to be made ex-factory Moradabad but later by mutual consent this was changed to F. O. R. Kanpur. 18,000/- were to be paid against the delivery and the remaining sum of Rs. 9000/-after installation at Kanpur to the satisfaction of the buyer. The defendant no. 3 furnished guarantee for good performance of the oven. The delivery was initially agreed to be made ex-factory Moradabad but later by mutual consent this was changed to F. O. R. Kanpur. The defendant no. 2 despatched the oven in dismantelled and unassembled condition to the plaintiff on June 29, 1966. The assembly and the erection was to take place in Kanpur. This was completed by the defendant no. 2 on July 8, 1967, plaintiff paid in all Rs. 39533.82 towards this account leaving a balance of Rs. 466.18 only. 3. The plaintiff contends that six months commencing from September 29,1965 to the date of the contract was of the essence. The defendant no. 2 committed "breach in this behalf. Further according to the plaintiff the oven suffered from numerous defects which made this unworkable :- (a) The first furnace attached to the oven was not properly constructed and the method of giving hot air blast to six square pipes had not been properly arranged so as to deliver uniform heat to each pipe and there was no space or way to regulate the hot air during the process. No baffe walls had been provided to retain back some heat to make the heat uniform in all the pipes prior to fixing the exhaust fan and chimney. No provision had been made to clean the passages and remove the soot out of these pipes. This applied to all the three furnaces attached to the oven. (b) The automatic temperature controlling equipment complied with the oil fired furnace was defective and was not working properly. (c) 3 pyrometers along with their proper theremocouples were required to measure the temperature of the oven at three different places, so that the temperature of entire continuous furnace might be known and there may not be any likelihood of burning of the biscuits during the process. (d) The method of providing heat to six boxes was also defective and biscuits got burnt due to excessive heat. (e) The conveyor chain arrangement for carrying biscuits trays for baking inside oven was not working in proper direction. (d) The method of providing heat to six boxes was also defective and biscuits got burnt due to excessive heat. (e) The conveyor chain arrangement for carrying biscuits trays for baking inside oven was not working in proper direction. The biscuits carrying trays were being carried to the oven on the slack side of the chain and as result or which the bricks of the chain conveyor were being subjected to compression and they were interfering with the frame work of the oven barring the smooth movement. (f) The motor and gear boxes had been installed at wrong places so they hampered the proper direction of the movement of the chain conveyor. (g) The oven did not function and regulated uniform heat was not generated and the automatic fire was, not uniform, stationary, regular and under control. (h) Welding was of unapproved type. Smoke was leaking out. (i) No fire bricks had been laid in the chambers-one of the chamber had burst and the chain had broken. 4. Despite being repeatedly asked for the defendants did not rectify these defects. The suit giving rise to the appeal was instituted by the plaintiff with these allegations on September 26,1967 claiming a sum of Rs. 22490.82 as damages. The break up for this amount as specified in the plaint is as under :- (a) Business loss of profit Rs. 720275/- at the rate of 1275/- per day from 21-3-1966 to 26-9-1967 (565 days). However the plaintiff claims only Rs. 12256.82 Ps. The rest of the claim is given up. Net claim Rs. 12256.82 (b) Loss of interest at Rs. 1% on the capital investment of One Lac-fifty thousand rupees from 21-3-66 to 26-9-67 Rs. 27500/-. However, the plaintiff claims only Rs. 9000/-. The rest of the claim is given up. Net claim. ...Rs. 9000.00 (c) Consumption of oil and wastage of biscuits and repairs upto 9-9-67 Rs. 1700.18 Rs. 2295700 The entire amount claimed in this manner comes to Rs. 22,957.00. Against this the plaintiff has adjusted Rs. 466.18 due to the defendant no. 2 and the relief claimed is for the balance namely Rs. 22,490.82. 5. The defendants have resisted the suit. The terms and conditions of the contract as specified above are not in controversy. It is refuted however, that time was of the essence. 22,957.00. Against this the plaintiff has adjusted Rs. 466.18 due to the defendant no. 2 and the relief claimed is for the balance namely Rs. 22,490.82. 5. The defendants have resisted the suit. The terms and conditions of the contract as specified above are not in controversy. It is refuted however, that time was of the essence. The plea taken further is that the delay occurred due to the failure of the plaintiff to make payment as per agreed time schedule. The Schedule had to be changed from time to time in order to accommodate the plaintiff. The delivery of the oven was taken by the plaintiff without reserving any right to claim compensation on the ground of delay. The oven was manufactured in accordance with the specifications agreed upon between the parties and it was, the defendants assert, in perfect working condition at the time when the final trial was given. Subsequent to the erection the plaintiff interfered with its working by undertaking repairs behind the back of the defendant and by doing so the defendants cannot be held liable on the basis of the guarantee given for satisfactory working for one year. The amount paid by the plaintiff was in all Rs. 30,542.94 only. The plaintiff did not intimate the defendants of the investment over the factory ; the contract entered into between the parties had no connection with the amount of investment proposed to be made by the plaintiffs and the alleged damages of the loss or profit on capital investment or interest had no connection with the contract between the parties and cannot be claimed from the defendants. 6. Learned I Civil Judge, Kanpur dismissed the suit on April 10, 1971. It was found that the defendant no. 1 was the sole proprietor of the concern impleaded as defendant no. 1 when the contract was entered into. The partnership referred to by the defendant no. 2 was formed subsequently with effect from April 11,1976. The defendant no. 3 who is the father of the defendant no. 2 stood guarantee for the satisfactory performance of the oven The liability to pay sales tax was not upon the buyer. This had to be borne by the seller. The plaintiff had to provide unskilled labour at Kanpur to assist the defendants in the process of erection but the skilled labour was to be arranged by the defendants themselves. 2 stood guarantee for the satisfactory performance of the oven The liability to pay sales tax was not upon the buyer. This had to be borne by the seller. The plaintiff had to provide unskilled labour at Kanpur to assist the defendants in the process of erection but the skilled labour was to be arranged by the defendants themselves. The plaintiff had to lay and bear the expenses for laying bricks in the foundation and also fire bricks on the floor whereof machinery was to be installed. The defendants did not dispute the course of evidence that a sum of Rs. 39,533.82 had been paid by the plaintiff towards this amount leaving a balance of Rs. 466.18 P. only. The finding moreover is that time was not of the essence of the contract. In the alternative the plaintiff had accepted the delivery after the expiry of six months from the date of the contract ; the schedule for payment had been departed from with the mutual consent of the parties ; the plaintiff had not given notice as contemplated under section 55 of the Contract Act when the delivery was accepted and no damages could, therefore, be claimed on the ground of delay. The machinery supplied was defective as contended by the plaintiff. It did not work in the condition the same was installed despite the plaintiff having employed skilled baker. The plaintiff was within its right in seeking the repair to be made to the machinery in order to make it workable but since in this process the oven had been dismantelled, the defendants were disabled from asserting as to what actually repairs were required. In face of dismantling done by the plaintiff the market value could not be ascertained and further it was held that the plaintiff could not recover any amount on the basis of loss of profit in business for non supply of oven since there was no such stipulation in the contract and it was not shown that the parties had settled that in case the oven supplied was defective, the plaintiff could recover damages for the loss in business. The plaintiff had not established moreover the quantum or valuation of the biscuits alleged to have been burnt or of the other raw material claimed to have been wasted. The plaintiff had not established moreover the quantum or valuation of the biscuits alleged to have been burnt or of the other raw material claimed to have been wasted. Sri B. D. Mandhyan learned counsel for the appellant disputed the finding of the court below to the effect that time was not of the essence of contract. Controversy is not raised before us with respect to the material terms and conditions of the contract which have been referred to above. The plaintiff invited quotation from the defendant no. 2 by letter dated 5th August, 1965. The quotation was given on 25th August, 1965. The matter was discussed verbally on September 20, 1965 between P. W. Sunder das the partner of the plaintiff firm, on the one hand, and D. W. Mahendra Pratap (the defendant no. 2) and his father on the other. The defendant no. 2 indicated the terms of supply in his letter dated 20-9-1965 (Ex. 1); the plaintiff placed order the same day by letter Ex. A-1 and also paid Rs. 5,000/-by cheque as advance. In the contract it was recited "Delivery within six months from the receipt of firm order". This means the period stipulated for delivery was upto March 19, 1966 computed from 20th September, 1965. The conduct of the parties leaves little room to doubt in our opinion that time was not intended to be of the essence of contract. 7. During the period of September 20, 1965 (when the contract was entered into) to June 29, 1966 (when the oven was despatched to Kanpur) the defendant no. 2 kept the plaintiff informed of the progress made towards the manufacture but we do not come across objection from the side of the plaintiff or an indication that the supply was not to be accepted if it took more than six months. In his letter dated 30th November, 1965 the defendant no. 2 intimated that the work was half done ; on 9-2-66 it was specified that 75% had been done with ; the intimation given on 4-3-66 was that the work was in full swing ; on 8-4-66 this was reported as nearly complete and on 24-4-66 it was intimated that the manufacture was complete vide Ex. A. 19. 37, A. 21, 5, 6. This was again reported as fit for delivery on 19-5-1966 (Ex. A. 19. 37, A. 21, 5, 6. This was again reported as fit for delivery on 19-5-1966 (Ex. A. 22) and on 18-6-66 it was stated that dismantling had been undertaken to enable despatch F. O. R. Kanpur by truck. The plaintiff not merely did not assert throughout this period that the delivery schedule was not adhered but also made payment of Rs. 5,000/- each by two cheques dated 14-12-65 and 19-2-66 respectively and a sum of Rs. 10,000/- by demand draft dated 11-6-66. All this shows that the plaintiff did not intend to refuse delivery or to charge damages on account of the delivery taking place beyond March 19, 1966. 8. The time taken in erection after June, 1966 was substantial no doubt but the plaintiff must share in part in any case the responsibility for this delay. On 20-7-66 the defendant no. 2 inquired from the plaintiff whether the roofing of the building where the oven was to be installed was complete stating that earlier the plaintiff had given out that this would be done within 15th July, 1966 (Ex. A-38). This inquiry was repeated on 1-9-66 (Ex. A-42). The plaintiff replied on 7-9-1966 wherein it was said "due to heavy rains roofing work could, not be completed earlier. You are, therefore, advised to come on any date suitable to you after September 11 for erection of the machine" (Ex. A-4). There is no denial that it was upto the plaintiff to have completed the civil work before which the machinery could not be erected. Time was then taken by the plaintiff as appearing from the defendant's letter dated 15-9-66 to complete the fire bricks flooring' (Ex. A-28). Adequate unskilled labour could not be arranged on certain dates thereafter and hence no progress was made (Ex. A-29/A-30). Difficulty arose in procuring 2 B. H. P. Electric Motors. The defendant wrote to the plaintiff on 8-12-66 to purchase three motors (Kirlosker make) from Delhi if available (Ex. 8). The plaintiff admitted non-availability of these motors in the letter dated 13-12-1966 (Ex. A-7). For nearly six months thereafter there appears slackness on the part of the defendant no. 2 in giving full trial to the machinery and completing its erection. 8). The plaintiff admitted non-availability of these motors in the letter dated 13-12-1966 (Ex. A-7). For nearly six months thereafter there appears slackness on the part of the defendant no. 2 in giving full trial to the machinery and completing its erection. The plaintiff kept on grumbling and writing to the defendants 2 and 3 complaining of delay in erection during this period as is revealed from its letter dated 10-2-67, 27-2-67, 29-4-67, 10-5-67, 3-6-67 and 16-6-67 (Ex 38, 40, 42, 43, 45, 46). It is significant, however, that time was all along extended by the plaintiff till the final trial which was given on July 9, 1967. The letters clearly speak of the plaintiff's intention to accept the erection without any claim for damages on ground of delay provided the performance of the oven was found upto the mark. The contract does not even specify that time was of essence nor does it contain a default clause. The law is settled that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong in this direction vide Govind Prasad Chaturvedi v. Hari Dutt Shastri, AIR 1977 SC 1005 ; Gomathinayagam Pillai v. Palaniswami Nadar, AIR 1967 SC 868 . The language used in the agreement under consideration before us is definitely not such as to indicate in unmistakable terms that the time was of the essence of the contract. The conduct of the parties serves further to fortify the conclusion that time was not intended to be of the essence. The plaintiff made no issue of this when the delivery was accepted in June, 1966 or in July, 1967 when the erection' was completed. Para (3) of Section 55 Contract Act enjoins that if the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by non performance of the time agreed, unless at the time of such acceptance, he gives notice to the promisee of bis intention to do so. No such notice was given by the plaintiff. No such notice was given by the plaintiff. For all these reasons it was rightly held by the court below that the plaintiff cannot recover damages on the basis of delay in delivery. 9. This takes us to the chief contention for the appellants that the oven was defective and on account of the non-functioning thereof the plaintiff suffered loss of profit in business. It is argued that on the facts and in the circumstances of the case the defendants must be held to have known when they made the contract that this was the loss or damage likely to result from the breach of contract. For the respondents Sri S. P. Mehrotra the learned counsel strenuously urged that the oven did not have any defect in its mechanism, that whatever developed was consequent to the plaintiff's interference with its functioning and that Section 73 Contract Act does not cover loss or damage on this count. 10. The factual matrix first. The defects noticed in the oven supplied by the defendants are catalogued in para 10 of the plaint which is referred to above. Upon close scrutiny of the evidence we find that the plaintiff's grievance on this score is well founded. The testimony of P.W. Sunder Das (the partner in the plaintiff firm) finds ample corroboration from the course of conduct and the Expert witnesses. On 27-2-67 he wrote to the defendants asserting that Mahendra Pratap (defendant no. 2) was there but he had failed to commission the oven despite his effort and hence the defendant no. 3 need to give the benefit of his expertise (Ex. 40). A trial was made it appears on April 15/16, 1967 but there is credible evidence to show that this was a failure and D.W. Mahendra Pratap is not right in asserting to the contrary. Almost immediately afterwards P.W. Sunder Das wrote on 29-4-1967 (Ex. 42) that the oven did not give regular heat from all sides and especially its lower portion gave no heat. He also pointed on 10.5 67. (Ex-43) that the defendants had left without removing the defects saying that their mystry will remove the same. He testifies that the defendants then arranged the trial on July 9, 1967 but with no better result. The defendant's assertion that no such trial took place is belied by the correspondence between the parties. He also pointed on 10.5 67. (Ex-43) that the defendants had left without removing the defects saying that their mystry will remove the same. He testifies that the defendants then arranged the trial on July 9, 1967 but with no better result. The defendant's assertion that no such trial took place is belied by the correspondence between the parties. The performance at this trial is referred to in the plaintiff's notice dated 18-7-67 (Ex.48) narrating that "The oven does not function at all and no adequate heat is generated and the automatic fire is not stationery and regular and under control. The biscuits are not baked properly ; the upper part of biscuits is burnt and the lower part thereof remains kachcha." The defendants attempted to brush this aside by taking the stand in their reply dated 22-7-67 that the plaintiff needs the services of a trained baker that they had left the oven in working order (Ex. A-44). This was factually incorrect. The operator employed by the plaintiff was highly experienced P. W. Chain Rai Meerchandani- the operator aged about 68 had been a foreman in the Railways for nearly 37 years. He was present personally on July 9, 1967 and diposes that the oven did not work. The automatic temperature controlling equipment was not in order; the pipe not being of steel it got burnt and gave rise to smoke; the chain too was not in order. There is no sound reason for not believing his testimony. Since the defendants failed to bring about satisfactory performance on 9th July, 1967 or earlier, P. W. Sunder Das contacted P. W. S. C. Abrol, Assistant Director, Small Industries Service Institute, Kanpur. He inspected the unit thrice on 11-8-67, 14-8-67 and 29-8-67 as part of his official duty and without charging fee for the purpose. A thorough check was made by him on 11th August, 1967 when the furnace was on and on the 14th in its cold state. The defects noticed to which he swears are noticed in the report which he gave in writing on 17th August, 1967 (Ex. A thorough check was made by him on 11th August, 1967 when the furnace was on and on the 14th in its cold state. The defects noticed to which he swears are noticed in the report which he gave in writing on 17th August, 1967 (Ex. 30):- "The first furnace attached to the oven is not properly constructed and the method of giving hot air blast to six square pipes has not been properly arranged so as to deliver uniform hot air to each pipe and there is no space or way to regulate the hot air during the process. No baffle walls have been provided to retain back, some heat to make the heat uniform in all the pipes prior to fixing the exhaust fan and chimney. No provision has been made to clean the passages and remove the soot out of the pipes. This applies to all the three furnances attached to this oven. The method of rectifying the defects was explained to your Foreman at the time of my visit and unles these modifications are made it is not possible to work this plant. In this connection, you can contact the supplier of this oil fired oven and he can also discuss with me the above defects." 11. On being apprised of this D. W. Mahendra Pratap made a bid to repair on August 23/24, 1967 but did not succeed. The oven was put into operation on August 26, 1967 but the chain got stuck in the immediate presence of the defendants 2 and 3; the biscuits were burnt and there was heavy smoke. The defendants gave up their effort. P. W. Sunder Das contacted again P. W. Abrol who made further inspection on 20th August, 1967 and gave the additional report dated 30/31-8-67 which also he affirmed on oath. In this report (Ex. 31) he said :- "In continuation of my letter of even number dated 17th August, 1967 and my further visit to your factory on 29th August, 1967, I have to inform you that the automatic temperature controlling equipment coupled with your oil-fired furnace is defective and is not working properly. In this report (Ex. 31) he said :- "In continuation of my letter of even number dated 17th August, 1967 and my further visit to your factory on 29th August, 1967, I have to inform you that the automatic temperature controlling equipment coupled with your oil-fired furnace is defective and is not working properly. Also 3 pyrometers along with their proper thermocouples are required to measure the temperature of your oven at 3 different places, so that, the temperature of entire continuous furnace may be known and there may not be any likelihood of burning of the biscuit during the process. The method of providing heat to six boxes is also defective and they may likely burn away due to excessive heat, which may kindly be rectified. It has been observed that the conveyor chain arrangement for carrying biscuits trays for baking inside oven is not working in proper direction. The biscuit carrying trays are being carried to the oven on the slack side of the chain and as a result of which the links of the chain conveyor are being subjected to compression and they are interfering with the frame work of the oven barring the smooth movement. Therefore, it is advised that the motor and the reduction gear boxes should be shifted from the present end to the other end in order to have the proper direction of the movement of the chain conveyor." 12. The basic defect lay it would appear in the automatic temperature controlling equipment being inoperative. The heat could not, therefore, be regulated. The pyrometer provided was only one instead of three. Heat could not be suitably provided to the six boxes and further the conveyor chain arrangement to carry the biscuit trays did not function in the right direction. P. W. Abrol has given a convincing account supported with dates of what he observed. His technical qualification was backed with the large experience of nearly 25 years in the heat treatment work. He has had no axe to grind the reliance may safely be placed on his deposition. In contrast the version of D. W. Mahendra Pratap- the defendant no. 2 that there was absolutely nothing wrong with the oven at any stage and that they left it in perfect working order is too fickle to inspire confidence. He has had no axe to grind the reliance may safely be placed on his deposition. In contrast the version of D. W. Mahendra Pratap- the defendant no. 2 that there was absolutely nothing wrong with the oven at any stage and that they left it in perfect working order is too fickle to inspire confidence. If this were so there was hardly any (sic) for grose of the plaintiff especially since the operation was in the hands of a trained employee. The plaintiff had already paid up substantial amount of Rs. 39,500/- and odd before July 9, 1967. It cannot be imagined that the plaintiff will have taken recourse to a device with the object to save a paltry sum of Rs. 466/-. The stand of the plaintiff is vindicated by the intrinsic evidence which the correspondence referred to above furnishes and this is of considerable corroborative Value. Nothing could be elicited of P. W. Abrol in cross-examination to suspect his expert opinion. D. W. Chandu Lal Sharma referred to by Sri Mehrotra the respondents' learned counsel is of little assistance. The defendants did not avail his services as an Expert nor has he given any report. He stated that he wanted to purchase an oven for his son and went to Moradabad for the purpose. The defendants suggested that he might watch the performance of the oven at the plaintiff's premises on 18th May, 1967 and accordingly, it is alleged, he came all the way to Kanpur and found the oven in perfect working order. There is no corroborative material to support this version; it is not consistent with all that transpired between the partiee after 18th May, 1967 and the conspicuous fact further is that the witness did not go in for any oven though, he tried to side track this stating that this was due to the financial difficulties. The plaintiff did not undertake any repairs on their own relating to this oven prior to September 1, 1967. Since the defendants failed to set the thing right and the advice of the expert had also been obtained it was reasonably prudent for the plaintiff to do the needful in order to mitigate the recurring loss. There is no basis to infer that the defects crept in due to interference or mishandling on the part of the plaintiff. Since the defendants failed to set the thing right and the advice of the expert had also been obtained it was reasonably prudent for the plaintiff to do the needful in order to mitigate the recurring loss. There is no basis to infer that the defects crept in due to interference or mishandling on the part of the plaintiff. Upon analysis we have absolutely no hesitation to observe in agreement with the trial court that in this behalf the evidence for the plaintiff is qualitatively much superior in comparison to that of the other side. 13. Section 73 of the Contract Act lays down the principles which govern the determination of the compensation for loss of damage caused by breach of contract. In so far as relevant it reads :- "When a contract has been broken the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach." 14. This incorporates the rule of the common law as laid down by the Court of Exchequer in the leading case of Hadley v. Baxendale, (1854)- "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be either such as may fairly and reasonably be considered arising naturally i.e. according to the usual course of things, from such breach of contract itself, or such as may be reasonably be supposed to have been in contemplation of both parties at the time they made the contract as the probable result of the breach of it". (Emphasis supplied). (Emphasis supplied). The fundamental basis is compensation for the pecuniary loss which naturally flows from the breach or, in other words, he who has proved a breach of a bargain to supply what he has contracted to get is to be placed as far as money can do it, in as good a situation as if the contract had been performed; this is qualified by the second which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach. British Westing house Electric and Manufacturing Co. Ltd. v. Underground Electric Railways Co. of London, 1912 AC 673. 15. In regard to the first part of Section 73 providing for any Joss or damage caused to the plaintiff "which naturally arose in the usual course of things" the settled view is that if there is an available market for the goods at the date of the breach the damages must be based on the difference between the market price and the contract price. (See B. N. Rly. Co. Ltd. v. Ruttamji Ramji, AIR 1938 PC 67; Enroll Mackey v. Maharajadhiraj Kameshwar Singh, AIR 1932 PC .196; Mis. Murlidhar Chiranji Lal v. Mis. Harish Chandra Dwarkadas, AIR 1962 SC 366 ; Manager Hardwara and Tools Ltd. v. Saree Smelting Pvt. Ltd., AIR 1983 Allahabad 329. 16. The case before us in so far as the plaintiff-appellant claims damages for loss of profits in business is to be considered in the light of the second part of Section 73 corresponding to the second limb of the rule in Hadley v. Baxendale (supra). Explaining the meaning of this rule Cheshire and Fifoot observe in Law of Contract, 6th Ed. at p. 516 :- "The position, therefore, is that the defendant is liable only for such loss as falls within the rule in Hadley v. Baxendale. When amplified, this means that he is liable for the actual loss caused, provided that in the light of the knowledge, actual or constructive, possessed by him at the time of the contract he ought reasonably to have foreseen that the loss was likely to occur. The only duty cast upon a party is to foresee the usual course of things. The only duty cast upon a party is to foresee the usual course of things. But the critical factor in all cases is the state of the defendant's knowledge at the time of the contract for obviously he must base his forecast upon the information then available to him. There may be exceptional circumstances calculated to enhance the loss if the contract is broken, but the question remains whether they were known or ought to have been known to the defendant. In the ultimate analysis, therefore, there is but one criterion the reasonable anticipation of the defendant in the light of the circumstances known to him and on the basis of which he must be taken to have made his contract." Adverting to the second branch of the rule the learned authors observe at page 520 : "What has to be proved here is that at the time of the contract the means of knowledge were available to the defendant from which he should have reasonably inferred, the probability of exceptional loss if the contract were broken. There is no need to prove that in the opinion of a reasonable man it would necessarily ensue. It is enough if he could foresee it was likely so to result." 17. In Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd., (1949) 1 All ER 997, the plaintiff required a boiler to expand their laundry. The defendants knew before and at the time of the contract that the plaintiffs were laundry men and dyers and required the boilers for purposes of their business as such. They also knew that the plaintiff wanted the boiler for immediate use. The boiler could not be delivered punctually and in sound condition. The plaintiffs laid claim to loss of profits in business. To make a particular loss recoverable, it was held, it need not be proved that on a given state of knowledge the defendant could, as a reasonable man foresee that a breach must necessarily result in that loss. It is enough if he could foresee it was likely so to result. The buyer must have communicated the special purpose to the seller and both the parties are presumed to know that the thing is brought for the purpose of being in some way or other profitably applied. 18. It is enough if he could foresee it was likely so to result. The buyer must have communicated the special purpose to the seller and both the parties are presumed to know that the thing is brought for the purpose of being in some way or other profitably applied. 18. The House of Lords in The Heron II Case, (1969) AIC 350 adopted the test of a higher degree of probability. In that case a shop was chartered to carry sugar from C to B. At the time of contracting the charter intended to sell the sugar as soon as it reached B. The shop owner did not actually know this; but he did knew that there was a market for sugar at B and "if he had thought about the matter he must have realised that at least was not unlikely that the sugar would be sold in the market price on arrival." It was held that the expression 'foreseability' refers to the higher degree of probability; "serious possibility" or "a real danger" that the loss will occur the probability must be "very substantial" The Supreme Court referred to the case of Victoria Laundry, (1919) 1 All ER 997 (supra) in Murlidhar Chiranji Lal v. Mis. Harish Chandra Dwarka Das, AIR 1962 SC 366 and commented that that was a case of special type; the goods were purchased by the party for his own business for a particular purpose which the sellers were expected to know and if any loss resulted from the delay in the supply the sellers would be liable for that loss also, if they had knowledge that such loss was likely to result. The principle laid therein was not attracted to the case before the Supreme Court which was distinct upon facts. Therein the buyer had purchased canvas for resale but it could not be inferred from the mere fact that the goods were to be booked for Calcutta that the seller knew that the goods were for resale in Calcutta only. Therefore it was found on this distinctive basis in the Supreme Court case that special damages were not claimable. In a case such as the present where the facts are substantially at par the principle that found favour in Victoria Laundry (supra) and the Heron II (supra) cases applies. 19. Therefore it was found on this distinctive basis in the Supreme Court case that special damages were not claimable. In a case such as the present where the facts are substantially at par the principle that found favour in Victoria Laundry (supra) and the Heron II (supra) cases applies. 19. Viewed in the light of the test recognized by the authorities discussed above, it would be observed that in the instant case the contract was for the supply of electric oven of special make. It is in the evidence of P. W. Sunder Das and not contradicted by the defendants that such oven could not be had in the market even places like Delhi, Jullundhar, Bombay, Patiala etc. The alternative could be to import this from abroad but that necessitated import licence. Both P. W. Sunder Das and P. W. Mahendra Pratap admit that prior to the exchange of letters on the 20th September, 1965 forming the contract, the defendant no. 2 (Mahendra Pratap) had come to Kanpur. He was taken to the plaintiff's clay furnace located in the Rambagh (Kanpur) and also, to the site where building was planned to be raised to instal the electric oven. It is argued too that on 20th September, 1965 both the defendants 2 and 3 came to Kanpur; the letters of contract were exchanged by hand at that place after negotiations. The defendants had thus been communicated the purpose for which the oven was required and they must be credited in these circumstances with the knowledge that the plaintiff intended to manufacture biscuits with the aid of the electric oven for sale with an eye upon profits. The law nowhere requires that the contract entered into between the parties has to incorporate a term that in the event of breach in supply special damages shall be payable to the buyer. Applying the test of reasonable foreseability or strong probability the conclusion, in our opinion, is irresistible that the defendants knew when they made the contract that loss or damage was likely )o result in business to the plaintiff from the breach of the contract. 20. In regard to the quantum of damages on this count there is not much of dispute. The plaintiff has laid claim to Rs. 20. In regard to the quantum of damages on this count there is not much of dispute. The plaintiff has laid claim to Rs. 12256.82 only although the loss is assessed in the plaint at Rs.72,0275/- for the period of 21-3-66 to 26-9-67 calculated at the rate of Rs. 1275 per day. P.W. Sunder Das testified that the loss sustained was approximately Rs.1200/- Rs.l300/-per day. Significantly there is no cross examination directed on this point nor have the defendants given evidence to rebut this. Even if we exclude the period preceding July 9,1967 (when the erection was completed) from consideration and make allowance for some exaggeration in this rate, the amount upto the date of the suit (26th September, 1967) would easily reach the figure of Rs. 12,000/-. We take this accordingly as the irreducible minimum. This disposes of the relief clause 13 (a) of the plaint. Under clause (b) the plaintiff has claimed Rs. 9000/- as loss of interest at the rate of 1% on the capital investment of Rs. 1.50 lakhs for the period of 21-3-66 to 26- 9-67. This in our view cannot be sustained. The defendants could not reasonably foresee when they entered into the contract on 20th September, 1965 nor could they imagine as probable that in case of failure on their part to adhere to the time schedule for the supply, they shall have as well to bear the burden of interest on capital investment which the plaintiff might make in the meantime. No such communication was made to them when the contract was made. The plaintiff is not entitled to compensation for remote or indirect loss sustained by it. In deciding whether damages claimed are too remote the test adopted is whether the damage is such as must have been in contemplation of parties as being a "possible" result of the breach. The damages are to be assessed on the basis of natural and probable consequences of breach (Polloc and Mulla : Contract Act (9th Ed. P. 553). The expenses the plaintiff has incurred are losses flowing from entering into the contract, not losses flowing from the defendants' breach. The law of contract compensates a plaintiff for damages resulting from the defendant's breach: it does not compensate a plaintiff for damages resulting from his making a bad bargin. P. 553). The expenses the plaintiff has incurred are losses flowing from entering into the contract, not losses flowing from the defendants' breach. The law of contract compensates a plaintiff for damages resulting from the defendant's breach: it does not compensate a plaintiff for damages resulting from his making a bad bargin. (see: Bowlay Logging Ltd. v. Domtar Ltd. (1878) 4 W.W.R. 105 ; C and P. Haulage (a firm) v. Middle ton (1983) 3 All. E.R. 94 at page 99. 21. Clause (c) of para 13 of the plaint also need not detain us. Thereunder a sum of Rs. 1700.18 is claimed on ground of "consumption of oil and wastage of biscuits and repairs upto 9-9-1967". No break up is given. In his deposition P.W. Sunder Das expressed inability to give any details regarding this item. No account is kept either. He did not say that any part of this pertains to repairs nor could he give any idea of the oil consumed or the biscuits wasted in the process. The trial court rightly, therefore, disallowed compensation against this item (c) as also item (b) discussed above. 22. In the result the plaintiff is entitled to compensation in the amount of Rs. 12, 000/- only against item (a) of this Rs. 466.18 have to be set off being due to the defendant no. 2 towards the price of the oven. The balance is Rs. 11,533.82 only. The liability for this amount is joint and several against the defendants nos. 2 and 3- the defendant no.3 being the guarantor having furnished the guarantee on 20-9-1965 for the good performance of the oven (Ex. 2). The appeal thus succeeds in part and is allowed accordingly. The suit shall stand decreed against the defendants respondents Nos. 2 and 3 for Rs 11533.82 only with proportionate costs. The defendants respondents shall bear their own costs. Appeal partly allowed.