JUDGMENT 1. - Plaintiff-appellant has filed this appeal against the judgment and decree dated 8.3.1990 of the District Judge, Jaipur City, Jaipur by which his Civil Suit No. 828/1984 was decreed only to the extent of Rs. 11,692/- together with interest @ 6% per-annum. The suit was filed for the recovery of Rs. 1,95,802/-. 2. Briefly stated the facts as disclosed in the plaint are that the plaintiff purchased D.G. Sets and their accessories lying at Alwar, Rajgarh and Deeg Power Houses of the defendant-respondent for Rs. 5,81,100/- in accordance with the tender specification No. RSEB/COS/S&D/87/79. The plaintiff deposited Rs. 7,07,237.73 with the defendant including Rs. 5,81,100/- as purchase price and Rs. 58,110/- as security deposit. The defendant issued delivery order on 25.1.1980 in favour of the plaintiff and as per the delivery order the total material sold to the plaintiff was to be lifted by the plaintiff upto 25.03.1980. According to the tender specification, if the buyer having paid full amount of his purchase money shall fail to remove the plant and machinery within the prescribed period, the Board may keep the goods at the buyer's risk and charge the buyer in respect of room space @ 21/2% of first Rs. 2000/- and 1% thereafter on the value of the goods so remaining for every week or part of a week during which failure to take delivery continues. The total material lying at Alwar, Rajgarh and Deeg Power House including Phoolbagh power House, Alwar was 2040 KVA out of which 500 KVA lying at Rajgarh Power House was lifted by the plaintiff upto 28.2.1980 well before the due date. Out of the balance 1540 KVA, 1477 KVA was in Alwar Power house including 40 KVA lying at Phoolbagh. 502 KVA material out of the total Alwar material of 1477 KVA lying in the open was lifted by the plaintiff upto 12.5.1980 while the Phoolbagh Power House D.G. Set of 40 KVA was not found at the proper place. The balance 875 KVA material lying in the rooms of Alwar Power House was lifted by the plaintiff on 5.1.1981 (312 KVA), 8.2.1981 (313 KVA) and 3.3.1981 (250 KVA). The remaining 63 KVA material lying in the open at Deeg Power House was lifted on 5.1.1982. The defendant recovered Rs. The balance 875 KVA material lying in the rooms of Alwar Power House was lifted by the plaintiff on 5.1.1981 (312 KVA), 8.2.1981 (313 KVA) and 3.3.1981 (250 KVA). The remaining 63 KVA material lying in the open at Deeg Power House was lifted on 5.1.1982. The defendant recovered Rs. 85,000/- as room space rent which the plaintiff deposited under protest and in addition to this the defendant- respondent did not return the security amount of Rs. 58,110/-. The defendant charged room space rent at the rate of Rs. 18,000/- per month which is clearly a penal rent and the defendant is not entitled to charge it in spite of the condition contained in the tender specification. The D.G. Sets were kept in a tin shed measuring about 1,500 square feet and its monthly rent could not exceed Rs. 750/- per month and thus only Rs. 9,000/- could have been charged. The defendant failed to deliver the D.G. Set of 40 KVA lying at Phoolbagh, Power i House, Alwar which was sold by the plaintiff to Everest Engineering, Delhi for Rs. 50,000/- and thus the plaintiff suffered a loss of Rs. 50,000/-. As regards the interest the defendant charged the penal interest @ 1/2% per week on some delayed payments whereas the defendant was not entitled to charge above the bank rate which is 18% per-annum and thus the plaintiff paid Rs. 11,692/- in excess. The plaintiff, therefore, filed a suit to recover Rs. 50,000/- as a claim against the non-delivery of the D.G. Set lying at Phoolbagh Power House, Rs. 76,000/- as excess penal room space rent, Rs. 58,110/- as security amount and Rs. 11,692/- as penal interest total Rs. 1,95,802/-. 3. The defendant filed written statement wherein it was pleaded that the plaintiff failed to lift the D.G. Sets along with their assessories within stipulated time and, therefore, room space rent was charged in accordance with the tender specification. The total amount of room space rent came to Rs. 1,46,000/- out of which the plaintiff deposited Rs. 85,000/- only and, therefore, the security amount of Rs. 58,110/- was adjusted against the due room space rent. As a matter of fact the defendant was still entitled to recover Rs. 2,890/- from the plaintiff. The price of the D.G. Set lying at the Phoolbagh Power House was Rs. 1,46,000/- out of which the plaintiff deposited Rs. 85,000/- only and, therefore, the security amount of Rs. 58,110/- was adjusted against the due room space rent. As a matter of fact the defendant was still entitled to recover Rs. 2,890/- from the plaintiff. The price of the D.G. Set lying at the Phoolbagh Power House was Rs. 11,200/- only and some parts from it were stolen before issue of the tender and it was sold in the condition as it was lying there. The defendant denied that it failed to hand over the D.G. Set lying at the Phoolbagh to the plaintiff. According to the written statement the defendant 1 charged interest in accordance with the tender specification. 4. The trial Court framed following issues : 1- D;k izfroknh us oknh dks okn ds vuqPNsn dze&8 esa of.kZr lsV ftldk ewY; 50]000@& :i;s Fkk ugha fn;k blfy;s oknh mDr ewY; izkIr djus dk vf/kdkjh gS\ 2- D;k izfroknh us oknh ls 76]000@& :i;s :e Lisl jsaV isuy nj ls izkIr fd;s ftldk vf/kdkj izkIr ugha Fkk\ 3- D;k oknh izfroknh ls izfrHkwfr dh jkf'k 58]110@& :i;k izkIr djus dk vf/kdkjh gS\ 4- D;k izfroknh oknh ls 11]692@& :i;s C;kt isuYVh ds :i esa izkIr fd;s\ 5- D;k izfroknh oknh ls fo'ks"k O;; izkIr djus dk vf/kdkjh gS\ 6- izfrdkj D;k gS\ 5. The trial Court decided Issues Nos. 1, 2, 3 against the plaintiff. However, the trial court decided Issue No. 4 in favour of the plaintiff and decreed his suit to the extent of Rs. 11,692/- only. 6. Aggrieved by this judgment the plaintiff-appellant has filed this appeal. 7. While assailing the findings of the learned trial court on Issues Nos. 1, 2, 3 learned counsel for the appellant has argued that the D.G. Set lying at Phoolbagh Power House was never delivered to the appellant and, therefore, the appellant is entitled to recover Rs. 50,000/- from the respondent. He has further argued that the respondent was not entitled to charge Rs. 76,000/- as room space rent because it was penal and on the same ground the appellant is also entitled to recover the security amount of Rs. 58,110/- from the respondent as it was wrongly adjusted against the penal room space rent. 8. 50,000/- from the respondent. He has further argued that the respondent was not entitled to charge Rs. 76,000/- as room space rent because it was penal and on the same ground the appellant is also entitled to recover the security amount of Rs. 58,110/- from the respondent as it was wrongly adjusted against the penal room space rent. 8. Learned counsel for the respondent has submitted that the D.G. Set lying at Phoolbagh Power House was sold in the condition as it was lying there and the respondent never refused to deliver it to the appellant and, therefore, the learned trial court has rightly decided Issue No. 1 in favour of the respondent. He has further submitted that there is absolutely no evidence on record to show that the room space rent agreed by the parties was in any way penal. He has said that the total amount of room space rent came to Rs. 1,46,000/- and since the appellant deposited Rs. 85,000/- only the respondent rightly adjusted the security amount of Rs. 58,110/- against the remaining due space rent. He has said that therefore, the decision of the learned trial court on Issues Nos. 2 & 3 is also correct. 9. The burden to prove Issue No. 1 is on tide plaintiff. The plaintiff Hari Shankar Singhania P.W. 3 nowhere states in his examination in chief that he was not allowed lift the D.G. Set lying at Phoolbagh Power House. Pyare lqbal Ahmad P.W. 1 to whom the D.G. Set lying at Phoolbagh Power House was sold has stated in his cross-examination that nobody forbade him from lifting the D.G. Set. It appears that the D.G. Set lying at Phoolbagh Power House was not lifted by Pyare lqbal Ahmad P.W. 1 to whom the D.G. Set was sold by the plaintiff because certain parts of it were not there in it as they were stolen. Those parts were stolen before the tender was issued and the D.G. Set was sold in the condition as it was. Therefore, if the appellant did not lift it then he can blame only himself. There is no evidence to prove that the respondent did not hand over the possession of the D.G. Set lying at Phoolbagh Power House to the appellant. The learned lower Court has, thus, not committed any error in deciding Issue No. 1 against the plaintiff. 10. Therefore, if the appellant did not lift it then he can blame only himself. There is no evidence to prove that the respondent did not hand over the possession of the D.G. Set lying at Phoolbagh Power House to the appellant. The learned lower Court has, thus, not committed any error in deciding Issue No. 1 against the plaintiff. 10. There is no dispute that the room space rent has been charged in accordance with the tender specification. The case of the appellant is that the condition regarding room space rent in the tender is penal and the defendant is only entitled to charge just and reasonable room space rent which is Rs. 9,000/- for one year (Rs. 750/- per month). 11. It is well settled that no Court is to make any contract for a party. Therefore; if a contract has been entered into by the parties with their eyes wide open and is not vitiated by undue influence, fraud or coercion, it must be given effect to, even if it operates as a hardship on any of the contracting parties. It is difficult, for the Court to give relief on the ground of simple hardships in the absence of any evidence to show that the other party had unduly taken advantage of its position. 12. In this case, the plaintiff has not led any evidence whatsoever to show that the room space rent agreed by him is penal. When the plaintiff himself does not utter a word as to what should be the just and reasonable rate of room space rent then in that situation, it is not possible for the court to hold that the agreed room space rent is penal. Therefore, no relief can be granted to the appellant under the provisions of Section 74 of the Indian Contract Act. 13. There is no dispute that as agreed by the parties the total amount of room space rent came to Rs. 1,46,000/-. Since the appellant deposited Rs. 85,000/- only, the respondent adjusted the security amount of Rs. 58,110/- against the remaining room space rent. The appellant has not been able to establish that the respondent was not entitled to make the above adjustment. 14. It is thus clear that Issues Nos. 2 & 3 have been rightly decided against the appellant. 15. Since the appellant deposited Rs. 85,000/- only, the respondent adjusted the security amount of Rs. 58,110/- against the remaining room space rent. The appellant has not been able to establish that the respondent was not entitled to make the above adjustment. 14. It is thus clear that Issues Nos. 2 & 3 have been rightly decided against the appellant. 15. For the fore-going reasons, I affirm the findings of the learned District Judge, Jaipur City, Jaipur. 16. In the result, the appeal fails, which is hereby dismissed. In the circumstances of this case there is no order as to costs.Appeal Dismissed. *******