BABOO LALL JAIN, J. ( 1 ) BHUPESH Metals and Chemicals (P) Ltd. have instituted this suit against The Indian Iron and Steel Co. Ltd. claiming a sum of Rs. 97,000/- as damages for non-delivery of 20 M. Tons of Zinc Dross which was sold to them in an auction sale held on 24-2-83, and also claiming interest on the sum of Rs. 2,21,260/- for 18 weeks @ Re. 1/- per cent per week amounting to rs. 39,826. 80 P. and further interest on the earnest money of Rs. 47,000/- from May 17, 1983 to Nov. 1, 1983 at the aforesaid rate amounting to Rs. 11,750/- and for costs. ( 2 ) THE plaintiff's case is that he participated in an auction sale held, on 24-2-83 at Hotel New Kenilworth, in Calcutta and his highest bids in respect of 3 lots of zinc dross of 10 tons were accepted and he duly paid the earnest money in respect thereof immediately on such acceptance. ( 3 ) THE conditions of sale as advertised by the Government auctioneers provided inter alia as follows : "on the fall of hammer the purchaser shall have to pay the earnest money at the rate of 20% of the sale value up to Rs. 2 lakhs for each lot and for value of over Rs. 2 lakhs, at the rate of 20%, on the first Rs. 2 lakhs value and at the rate of 10 per cent on the rest of the amount exceeding Rs. 2 lakhs of each lot. The balance money for value of lots up to Rs. 2 lakhs should be paid within 15 days and for lots over value of Rs. 2 lakhs, an amount of Rs. 2 lakhs should be paid within 30 days and remaining within 45 days from the date of auction, in one or more instalments as decided by M. S. T. C. Ltd. (the auctioneers ). The Customers failing to pay first instalment up to Rs. 2 lakhs within 30 days can pay the same subject to payment of an additional amount at the rate of 1% per week or part thereof within further period of 15 days. The earnest money will stand forfeited in the event of failure to deposit the first instalment up to Rs. 2 lakhs within such extended period without further reference to the customers. The earnest money will stand forfeited in the event of failure to deposit the first instalment up to Rs. 2 lakhs within such extended period without further reference to the customers. " ( 4 ) IN the auction sale the plaintiff made its bids for lot Nos. B/3158, B/3159 and B/3160. The plaintiff was declared the highest bidder for the said 3 lots of Zinc Dross of 10 M. ts. each. The plaintiff duly paid the earnest money. On Mar. , 7, 1983, the plaintiff paid the balance price in respect of lot No. B/3158. It was found by the plaintiff that the defendant did not have the goods in respect of any of the said lots namely B/3158, B/3159 and B/3160. The further case of the plaintiff is that in spite of repeated requests the delivery in respect of first lot being lot No. B/3158 was not made until April 11, 1983. The fact being that the lots were not available and ultimately, after much delay delivery was made on April 11, 1983, of substituted quantity of same material, as the original lot was not there. It is quite apparent from the correspondence that this was done by consent of the parties. ( 5 ) BETWEEN March and April, 1983, the plaintiff discovered that the defendant did not retain the lots in intact position and also had no stocks of Zinc Dross in casted big lumps, for delivery against lot Nos. B/3159 and B/3160. Although according to the plaintiff the defendant through its representative agreed to deliver the 20 Metric tons of Zinc Dross along with Zinc ash, which was not kept in the shape of original lots, the defendant refused to deliver the balance goods as was contained in the original lots. On May 5, 1983 the plaintiff understood that the defendant was in a position to deliver 20 Metric tons of Zinc Dross in lumps out of fresh raisings against lot Nos. B/3159 and B/3160 and as such the plaintiff forwarded a Pay Order in favour of the defendant for Rs. 2,21,260/- being the balance of the price payable. The defendants received and retained the said Pay Order of Rs. 2,21,260/- and thereafter returned the same after about 4 and half months. The defendant returned the earnest money on/or about 1-11-1983. The plaintiff is, therefore, claiming damages for non-delivery of goods amounting to Rs. 2,21,260/- being the balance of the price payable. The defendants received and retained the said Pay Order of Rs. 2,21,260/- and thereafter returned the same after about 4 and half months. The defendant returned the earnest money on/or about 1-11-1983. The plaintiff is, therefore, claiming damages for non-delivery of goods amounting to Rs. 97,000/-, interest on the sum of Rs. 2,21,260/- from 7th of May, 1983 to l5th Sept. , 1983 when the same was returned @ 1% per week and further and also further interest on Rs. 47,000/- being the earnest money from 5-5-1983 to 1-11-1983 at the same rate, when the same were returned. This rate of interest has been claimed on the same basis as provided for in the contract, in case of delay in payment of purchase price. ( 6 ) THE case of the defendant, on the other hand, is that the plaintiff after payment of the earnest money failed to pay the balance price within the stipulated time and as per terms of the contract the said earnest sum of Rs. 47,000/-, stood forfeited. The defendant further states that there is no question of the plaintiff being entitled to claim any damages for non-delivery of the goods or of any interest on the amount of the balance price or on the earnest amount. According to the defendant the terms and conditions of the sale provided that no interest would be payable on the earnest amount. Furthermore, according to the defendant, the plaintiff having failed to deposit the balance price within the stipulated time was not entitled either to damages or any interest on the Bank Draft amount made over on account of balance price on 07-05-1983 which was a date beyond the stipulated time. The defendant has made a counter claim for the sum of Rs. 47,000/- which according to the defendant was refunded by the defendant under mistaken belief. The plaintiff is also claiming interest on the said sum of Rs. 47,000/- on and from the date of payment by the defendant to the plaintiff @ 18 per cent per annum. ( 7 ) AT the trial of the suit the following issues were framed : : ISSUES :1. Were the two lots of Zinc dross being lots Nos. B/3159 and B/3160 not available on or prior to the due date for the payment of the balance purchase price? 2. ( 7 ) AT the trial of the suit the following issues were framed : : ISSUES :1. Were the two lots of Zinc dross being lots Nos. B/3159 and B/3160 not available on or prior to the due date for the payment of the balance purchase price? 2. Was the defendant entitled to or forfeited the earnest money of Rs. 47,000/-? 3. Did the defendant commit any breach of the contract for sale as alleged by the plaintiff and if so, has the plaintiff suffered any damages? 4. Is the plaintiff entitled to any interest as claimed for at all? 3. Was the repayment of the sum of Rs. 47,000/- by the defendant to the plaintiff, under mistaken belief? 6. , To what relief, if any, are the parties entitled?" ( 8 ) THE plaintiff examined Baboolal Maheswari, one of its Directors and one Fulchand Gupta, a broker. So far as the defendant is concerned, one S. K. Basu working in the Scrap and Salvage Department of the defendant at Burnpur was examined. Taposh Kumar Ghosh, the Manager and incharge of Finishing Section was also examined. ( 9 ) FROM the documentary evidence as also from the oral evidence of the parties it transpires on 7-3-1983 the plaintiff paid the balance purchase price on account of lot No. B/3159 amounting to Rs. 1,05,705/- and a delivery order (Ext. B-1) was issued in favour of the plaintiff. After the payment the plaintiff's representatives visited the Burnpur Workshop on 1lth Mar. , and 14th Mar. when they were told that the delivery order advice had not been received from the Head Office. On 16th Mar. Mr. Maheshwari went to the Burnpur Factory when he was told that the delivery order advice had duly been received. Arrangements were made by Mr. Maheswari to take a delivery on 17th Mar. , 1983. However, on 17th Mar. the Officer-in-charge of Sheet Mill Galvanising Section stated that it was not possible to deliver the Zinc Dross as there was no sufficient stock. Lot Nos. B/3158, B/3159 and B/3160 were not found to be there by Mr. Maheswari. Some other lots containing zinc dross chips and broken chips and zinc ash marked as Lot Nos. B/3104 and B/3105 were offered if acceptable and the plaintiffs representative, Mr. Maheswari, was not ready to accept the same. Mr. B. L. Maheshwari then on 17th Mar. Lot Nos. B/3158, B/3159 and B/3160 were not found to be there by Mr. Maheswari. Some other lots containing zinc dross chips and broken chips and zinc ash marked as Lot Nos. B/3104 and B/3105 were offered if acceptable and the plaintiffs representative, Mr. Maheswari, was not ready to accept the same. Mr. B. L. Maheshwari then on 17th Mar. contacted the Calcutta Office of the defendant and made representations and the Calcutta Office sent a message to the Works. this message dated 18th Mar. , 1983 of the Calcutta Office finds reference in Ext. 1 which has not been disclosed or tendered in evidence on behalf of the defendant. ( 10 ) IT is quite natural in the facts of this cast that the plaintiff's grievance from the very inception i. e. about middle of March, was that the lots which were sold to him were not there in existence and that he wanted delivery of substituted material of similar description. ( 11 ) THE said communication of the Burnpur Office dated 18th Mar. , 1983, discloses some, facts. Firstly, it is not stated in the said communication that the 3 lots are lying intact or that Lot No. B/3158 was lying intact. It further states that some zinc dross has also been sold against Sale Order apparently by private treaty. The defendant relied on Ext. 4 which is a register keeping an account of zinc dross. This register discloses some further facts. The plaintiff had inspected the lots on Feb. , 1983, i. e. , 3 lots of 10 tons each of zinc dross. It appears from the said register that on 22nd Feb. itself about 40 tons of zinc dross was delivered in 4 trucks. There was new zinc dross arising on 26th Feb. amounting to 6. 9 M. T. On 28th Feb. another 2. 5 M. T. of zinc dross were delivered and the balance as on 28th Feb. appears to be 21. 570 M. T. If that is so, then it is quite clear that the 3 lots containing 30 tons of zinc dross were not preserved in 'as it is' condition by the defendant. I find that after the entry up to 28th Feb. there is an entry for 50 tons with an asterisk mark. This asterisk mark has been explained at the back of the previous page which shows that after 28th Feb. I find that after the entry up to 28th Feb. there is an entry for 50 tons with an asterisk mark. This asterisk mark has been explained at the back of the previous page which shows that after 28th Feb. and before lst Mar. 50 M. T. of dross was reclaimed from the scrap pot. With this recovery of 50 M. T. from the scrap pot the stock as on lst Mar. , 1983 has been shown to be 71. 570 M. T. ( 12 ) THE said register being Ext. 4 also shows that on 17th Mar. , 1983 another 30 tons of zinc dross in 3 truck loads were delivered. All these deliveries of zinc dross amounting to 95 tons were made to other parties. It is quite natural that during the visits on behalf of the plaintiff on 11th Mar. , 14th Mar. and 16th Mar. , none of the old stocks of zinc dross was there. The balance in stock even including fresh raisings of zinc dross as on 8th Mar. would be about 44 M. T. and Mr. Maheshwari's evidence that on the 16th Mar. and 17th Mar. , 1983 none of the lots of zinc dross were there appears to me to be quite correct. It appears to me that what was left and/or shown to Mr. Maheshwari on the 16th and on the 17th Mar. , 1983 was a part of the dross reclaimed from the scrap pot after 28th Feb. , 1983. This was certainly not the lot which was auctioned on 24th Feb. , l983 and was inspected by him on 22nd Feb. , 1983. I am also inclined to accept the evidence of Mr. Maheshwari that the other two lots, namely, Lot Nos. B/3159 and B/3160, were also not found to be there. Mr. Maheshwari by his letter dated 25th Mar. , 1983, written on behalf of the plaintiff, mentioned all the facts including the fact that the Lots Nos. B/3158, B/3159 and B/3160 were nowhere to be found. I do not find any reply to the plaintiff's said letter dated 25th Mar. , 1983. In the said letter Mr. Maheshwari had also mentioned that though he was holding the Delivery Order for 10 M. T. , yet on 21st Mar. B/3158, B/3159 and B/3160 were nowhere to be found. I do not find any reply to the plaintiff's said letter dated 25th Mar. , 1983. In the said letter Mr. Maheshwari had also mentioned that though he was holding the Delivery Order for 10 M. T. , yet on 21st Mar. 10 M. T. of zinc dross had been delivered against a negotiated contract sale, although the Deputy C. F. A. at the Calcutta Office had conveyed in its message to the Works and also advised that the deliveries of zinc dross to the plaintiff were to be made on a priority and preferential basis as he had purchased the same through auction and had paid for the same. This story of the plaintiff also finds support from Ext. 4, tendered on behalf of the defendant, which shows the delivery of 10 M. T. on 21st Mar. , 1983 which naturally relates to some other contract entered into by private negotiation. ( 13 ) EXT. 4 discloses one further fact. After the entry dated 14th Mar, and before the entry dated 19th Mar. , 1983 I find that there is an entry dated 22nd Feb, showing that a delivery of 10 M. T. was made in Feb. The word 'february' seems to be dearly written in so many words. This proves that this register was also not written from day-to-day and if this delivery is to be taken into account, in the month of Feb. , then the balance outstanding as on 28th Feb. should have been further reduced by 10 tons bringing it to 11. 570 M. T. including the raisings of 6. 9 M. T. ( 14 ) THERE is another letter which has been disclosed and tendered on behalf of the defendant, i. e. , the letter dated 22nd Mar. , 1983, from the Calcutta Office to the Burnpur Office. This letter also shows that the Calcutta Office asked the Manager, Scrap and Salvage, Burnpur, to examine the correct position and to advise the Calcutta Office. The Calcutta Office was not inclined to believe that the 3 lots were not kept intact by the Burnpur people. ( 15 ) EXT. 3 is a teleprinter message from M. Chowdhury, A. G. M. (Works), Burnpur, to Shri P. Gupta, Deputy C. F. A. , Calcutta. This is in reply to the teleprinter message dated 17th March, 1983. The Calcutta Office was not inclined to believe that the 3 lots were not kept intact by the Burnpur people. ( 15 ) EXT. 3 is a teleprinter message from M. Chowdhury, A. G. M. (Works), Burnpur, to Shri P. Gupta, Deputy C. F. A. , Calcutta. This is in reply to the teleprinter message dated 17th March, 1983. This teleprinter message shows that according to the A. G. M. , the plaintiff himself gave the delivery date as 17th Mar. , 1983 and failed to report and take delivery on that date. This letter is quite contradictory to the letter of the Chief Superintendent, Sheet Mills, which says that the party did report and refuse to take delivery as he preferred slab only and not mixed lot including dross-chips. Neither Mr. Chowdhury nor the Chief Superintendent, Sheet Mills had come to give evidence in this case. ( 16 ) IN the letter dated 18th March 1983 the Chief Superintendent did not assert that the lot No. B/3158 was lying intact and he also wrote that the party had refused to take delivery of the lot including dross chips and party preferred the slabs. The letter of Mr. Choudhary A. G. M. (Works) Burnpur, which , has been written about 7 days after, the earlier letter of the Chief Superintendent Sheet Mills gives different picture as if the party failed to return and to take delivery on 17-3-83. It also requests to advise the party to collect the lot number B/3158 on or before 30th March 1983. Neither of the said two persons have come to depose before me in this case and I have no reasons to disbelieve the evidence of Maheswari according to which lots were not there and the goods were being sold and delivered to other parties by private negotiations. It appears to me that some officers at the Bumpur factory were interested in sales by private negotiations and delivered the goods to them and that they even disposed of original lots which was in violation of the auction sale conducted at Calcutta and the terms of the sale and/or directions of the Calcutta Office. It appears to me that some officers at the Bumpur factory were interested in sales by private negotiations and delivered the goods to them and that they even disposed of original lots which was in violation of the auction sale conducted at Calcutta and the terms of the sale and/or directions of the Calcutta Office. From the letter written on behalf of Indian Iron and Steel it appears that pursuant to the complaint made by plaintiff an enquiry was commenced by the Calcutta Office to find out the availability of delivery position in respect of lot Nos. B/3159 and B/3160. The Calcutta Office further mentioned that they have to accept the payment and extend the free delivery time in the situation. It appears that on the 21st April, 1983, M. Chudhury, A. G. M. (Works) I. I. S. Co. Burnpur stated that the materials against the three lots were available and the free time for payment should not be extended. The letter of the 18th March, written by Burnpur office being Ext. 1 and the register being Ext. 4 give a different picture of the position. It is apparent that sales were being made to other parties and delivery was being made to those other parties and the delivery of the balance goods to the plaintiff in respect of lot No. B/3158 was held up until 11th April 1983 from 17th March 1983. It is also clear that after 21st March and up to 8th April 1983, there was fresh raising of about 14 Mts. of zinc dross and delivered to the plaintiff on 11th April, 1983 was from out of the fresh raising. The balance stock as shown in the Register in my opinion must have contained the part of the 50 Mts. re-claimed from the scrap pot after 28th Feb. , 1983. On a consideration of the facts and circumstances of the case I am also inclined to believe the case of the plaintiff that Indian Iron and Steel had agreed to deliver the goods from out of the fresh raisings instead of the original lots which were wrongfully sold and/or delivered to third parties. I am further inclined to believe the evidence of the plaintiff that the defendant did not have sufficient stocks of zinc dross slabs until about 5th may, 1983 to deliver to the plaintiff the outstanding 20 Mts, against the lot Nos. I am further inclined to believe the evidence of the plaintiff that the defendant did not have sufficient stocks of zinc dross slabs until about 5th may, 1983 to deliver to the plaintiff the outstanding 20 Mts, against the lot Nos. B/3159 and B/3160. ( 17 ) IN my opinion, in the facts and circumstances of this case, the defendant's officers at Burnpur had wrongfully sold and delivered the contents of the actual lots which were offered for inspection on 22-2-1983 to the plaintiff and the plaintiff came to know of the said fact in course of the visits of its officers on and prior to 16-3-1983. Having dealt with the actual lots Indian Iron and Steel Co. Ltd. , was not ready and willing to perform their reciprocal promise of delivery and in that view of the matter, the plaintiff was excused from making payment of the balance amount in respect of lot Nos. B/3159 and B/3160 within the stipulated time mentioned in the conditions of sale. ( 18 ) I am also inclined to belive that sometime prior to 5-5-1983 the plaintiff came to understand from the defendant's officers that fresh stocks of Zinc Dross had arisen and that the defendant was in a position to give delivery of 20 metric tons of zinc dross out of such fresh raisings, in place of the two lots. It appears that on 7th May, the plaintiff made a payment by Pay Order of the balance sum of Rs. 2,21,206/- by making over the said Pay Order to the defendant through their agent. I am also inclined to believe the plaintiffs testimony that Sri C. D. Chatterjee, Superintendent, Order Department, agreed to deliver to the plaintiff 20 Metric Tons of zinc dross out of the new raisings. Mr. Chatterjee has not been called to give evidence before me. In view of the aforesaid facts, I find that instead of honouring the obligation already incurred under the Auction sale and under the further agreement, fresh deliveries of about 19. 3 metric tons of Zinc Dross were made to other parties on 10-5-1983 and 19-5-1983. Needless to say that the officers of the defendant at Calcutta were ready and willing to offer to the plaintiff alternative quantity of Zinc Dross, in case the original lots were not kept intact. 3 metric tons of Zinc Dross were made to other parties on 10-5-1983 and 19-5-1983. Needless to say that the officers of the defendant at Calcutta were ready and willing to offer to the plaintiff alternative quantity of Zinc Dross, in case the original lots were not kept intact. The letter of the Calcutta Office dated 22-3-1983 as also the uncontradicted statement made on behalf of the plaintiff in its various letters and also in the oral evidence before me, lend support to the above fact. ( 19 ) CONSIDERING the entire facts and circumstances of the case, I feel that some officer of the Burnpur office was bent upon to see that the Zinc Dross is sold and delivered to the purchasers by private negotiations and also to see that the same is not delivered to the Auction Purchaser who unfortunately purchased it in the auction sale held at Calcutta. ( 20 ) IT is further peculiar that the plaintiff had purchased @ Rs. 13,150/- and he had deposited money on account. of 20 tons @ 13,150/- on 7-5-1983. Though the officers at Calcutta and at Burnpur wanted delivery to be made to the plaintiff and though the stocks were there on/or about 8th May, 1983, out of fresh raisings between 8th May, to 19th May, i. e. 20 Metric tons, yet, it appears that a sale by private negotiations has been done at the same rate of Rs. 13,150/ -. The price mentioned as against the entry dated 10th May in respect of 10 torn delivered on that day shows that the rate at which the same was sold, was Rs. 13,150/- and there is another entry in the Register dated 26th July which also shows that the rate in respect of 12. 320 metric tons of Zinc Dross sold on that day was also Rs. 13,150/ -. It is quite probable that the rate in respect of the same in respect of 9. 3 M. T. sold and delivered on 19th May was also Rs. 13,150/- though the rate is not specifically mentioned against the entry. ( 21 ) BE that as it may, it is quite clear to me that Indian Iron and Steel Co. It is quite probable that the rate in respect of the same in respect of 9. 3 M. T. sold and delivered on 19th May was also Rs. 13,150/- though the rate is not specifically mentioned against the entry. ( 21 ) BE that as it may, it is quite clear to me that Indian Iron and Steel Co. was not standing to gain anything by this wrongful delivery to other party whereas so long as the contractual obligations, in spite of assurances and agreements by the higher Officers of Indian Iron and Steel Co. , was being floated at the instance of some one in control or charge of the sale by private negotiations. For whose gain or advantage the sales and deliveries were being made is difficult to appreciate, but it was certainly not to any better financial gain of Indian Iron and Steel Co. Ltd. ( 22 ) THE case of the plaintiff is that the breach was committed on. 15-9-1983 and for the purpose of claiming the market difference the plaintiff has taken into account the market rate prevailing on 15-9-1983 which according to the plaintiff was Rs. 18000/- per metric ton. However, I find that there is a letter dated June 3, 1983 written by the defendant to the plaintiff, wherein it is clearly mentioned in no uncertain terms that they were not willing to accept the payment beyond stipulated time or for extension of free delivery time. By that letter it is on record that Indian Iron and Steel Co. unequivocally committed the breach of the agreement, by that letter. This is, of course, the breach of the further agreement whereby the Indian Iron and Steel had agreed to substitute fresh quantities of zinc dross out of 20 M. T. of new raisings in place of the original lots which had already been dealt with and/or disposed of by or at the instance of the Officers at Burnpur. The fact remains that after the letter dated June 3, 1983, was written there was no question of any further extension of the delivery period and the breach of the contract had been committed by the defendant by the said letter. ( 23 ) THE defendant has given evidence with regard to the market rate of Zinc Dross as on June 3, 1983, which was according to the defendant's witness Rs. ( 23 ) THE defendant has given evidence with regard to the market rate of Zinc Dross as on June 3, 1983, which was according to the defendant's witness Rs. 1640/- per quintal i. e. Rs. 16. 4 per kg. or Rs. 16,400/- per M. T. The contract rate was Rs. 13. 15 per kg. In the premises, the plaintiff suffered loss @ 3. 25 per kg. in respect of balance 20000 kgs. This figure or loss comes to Rs. 65,000/ -. ( 24 ) IT was sought to be argued that the defendant failed to prove market rate as on June 3, 1983 or as on 15-9-1983. Fulchand Gupta, a broker in answer to question 26 states that the market rate of Zinc Dross on june 3, 1983 was Rs. 16,400/ -. Fulchand Gupta also produced a copy of the Financial Express dated June 3, 1983 where also the rate of Zinc Dross mentioned is Rs. 1640 per quintal Apart from that Fulchand Gupta also produced two documents which show that there was a transaction for sale of Zinc Dross between Mahajan and Co. and Ram Swarup Industrial Corporation whereby 2. 5 metric tons of Zinc Dross was sold @ Rs. 16,000/- per metric ton on 16-6-1983. From the endorsement on the bill it appears that the payments were made by cheque. Fulchand Gupta in his evidence has said that he acted as a broker in the said transaction. The defendant has not come out with any evidence to prove the market rate either on June 3, 1983 or Sept. 15, 1983 and I have no reason to disbelieve the evidence given on behalf of the plaintiff that the rate of Zinc Dross as on June 3, 1983 was Rs. 16,400/- per metrict on. ( 25 ) SO far as the claim of the plaintiff for interest on the pay order is concerned it appears that pay order was made over by the plaintiff to the defendant through its agent on 7th May, 1983 and the said pay order was held up by or on behalf of the defendant up to 15th Sept. 1983. ( 25 ) SO far as the claim of the plaintiff for interest on the pay order is concerned it appears that pay order was made over by the plaintiff to the defendant through its agent on 7th May, 1983 and the said pay order was held up by or on behalf of the defendant up to 15th Sept. 1983. In my opinion after the defendant's letter dated 3rd June, 1983 there could be no possible justification for detaining the said Bank draft by or on behalf of the defendant and the retention of the said pay order on or after 3rd June, 1983 was wrongful and the plaintiff is entitled to damages for wrongful detention of the said money belonging to the plaintiff on and from 3rd June, 1983 until 15th Sept. 1983. So far as the question as to the rate of interest to be awarded is concerned the defendant has claimed interest at the rate of 18% per annum on the amount claimed by the defendant. I am not inclined to grant interest at the rate of 1% per week, as claimed by the plaintiff. I hold that the plaintiff is entitled to interest at the rate of 18% per annum on the said sum of Rs. 2,21,260/- on and from 3rd June, 1983 until 15th Sept. 1983 as and by way of damages for wrongful detention of the Pay Order. So far as the earnest money of Rs. 47,000/- is concerned, I am of the opinion that the defendant was obliged to return the same to the plaintiff on or about 3rd June, 1983. In my opinion the defendant was obliged to return the said earnest amount to the plaint if at or about the time of the breach of the agreement by the defendant that is on 3rd June, 1983. The plaintiff, is in my opinion entitled to interest on the said sum of Rs. 47,000/- from 3rd June, 1983 until 1st Nov. 1983 when the said money was actually returned to the plaintiff. In my opinion return of the said sum of Rs. 47,000/- by the defendant to the plaintiff was quite justified in the facts and circumstances of the case. There is no plausible evidence before me to prove any mistake on the part of the defendant. 1983 when the said money was actually returned to the plaintiff. In my opinion return of the said sum of Rs. 47,000/- by the defendant to the plaintiff was quite justified in the facts and circumstances of the case. There is no plausible evidence before me to prove any mistake on the part of the defendant. On the other hand, it appears that the said sum was returned to the plaintiff after due consideration of all the facts and circumstances of the case and the contentions of the plaintiff, by or on behalf of the defendant. In the facts and circumstances of the case it cannot be said that the money was not refundable to the plaintiff and furthermore it cannot be said that the said amount was paid to the plaintiff under any mistake. ( 26 ) I also hold that this amount of Rs. 47,000/- never had stood forfeited to the defendant. The defendant's officers had agreed with the plaintiff that they will deliver alternative goods, instead of the original lots, and the defendant having itself dealt with the original lots, could not possibly have any right to forfeit the said amount which was deposited with the defendant as and by way of earnest money. The defendant did not even purport to forfeit the said money at any point of time or to intimate such forfeiture to the plaintiff. The defendant itself was in the wrong all throughout since it wrongfully dealt with the original lots, otherwise than as warranted by the auction sale. The defendant even refunded the said amount to the plaintiff after considering the pros and cons. In such circumstances it is difficult for me to accept the contention of Mr. Dutt that the amount automatically stood forfeited in favour of the defendant. ( 27 ) UNDER the circumstances aforesaid I answer the issues as hereunder. 'issue No. 1 : Yes. The two lots were not available. Issue No. 2 : No. Issue No. 3 : Yes. However, the damages suffered by the plaintiff were Rs. 65,000/- and not Rs. 97,000/- as claimed. Issue No. 4 : Yes, So far as the sum of Rs. 2,21,260/- is concerned, the plaintiff is entitled to interest by way of damages, on and from June 3, 1983 until 15th Sept. 1983 at the rate of 18% per annum and so far the said sum of Rs. 65,000/- and not Rs. 97,000/- as claimed. Issue No. 4 : Yes, So far as the sum of Rs. 2,21,260/- is concerned, the plaintiff is entitled to interest by way of damages, on and from June 3, 1983 until 15th Sept. 1983 at the rate of 18% per annum and so far the said sum of Rs. 47,000/- is concerned, the plaintiff is entitled to interest at the rate of 18% on and from June 3, 1983 until 1st Nov. 1983. Issue No. 5: No. The repayment of Rs. 47,000/- by the defendant to the plaintiff was not under mistaken belief and in any event the plaintiff was entitled to repayment of the said sum of Rs. 47,000/ -. Issue No. 6 : So far as the reliefs as mentioned in Issue No. 6 are concerned, there would be a decree in favour of the plaintiff for the sum of Rs. 65,000/- on account of damages suffered by the plaintiff. There will be a further decree in favour of the plaintiff for interest only at the rate of 18% per annum on the sum of Rs. 2,21,260/- on and from June 3, 1983 till Sept. 15, 1983 and there will be a further decree for interest only in favour of the plaintiff on the sum of Rs. 47,000/- at the rate of 18% on and from June 3, 1983 until 1st Nov. 1983. The defendant is not entitled to any counter claim and the counter claim of the defendant is hereby dismissed. The plaintiff is to be entitled to interim interest and interest on judgment at the rate of 9% per annum on the aforesaid decretal amount. ( 28 ) THE plaintiff is also entitled to costs of this suit. Certified to be a fit case for engagement of two counsel. Order accordingly. .