JUDGMENT D.G.R. Patnaik, J. 1. This appeal by the appellant / plaintiff is directed against the judgment dated 6.10.1994 and its corresponding decree dated 16.11.1994 passed by the Sub- Ordinate Judge, 1 st, Bokaro at Chas in Money Suit No. 61 of 1985, whereby the plaintiffs suit was dismissed with cost. 2. Plaintiff namely the Steel Authority of India Ltd. had filed the suit against the defendant/respondent for recovery of money valued at Rs/ 13,76,278.80 together with interest pendente-lite and future till realization of the money. The case of the plaintiff is that in course of its business of manufacturing of steel, the rejected rolls, tender / skin pass rolls, Mill rolls, forged alloy steel, etc. were required to be cleared from the plant floors and the same were required to be disposed of from the various locations within the plaintiffs plant. For the purposes of clearance of the rejected materials, the plaintiff had invited sealed tender vide tender notice No. STCLA; DISP; 090; 81-82; 03 from different contractors for one year @ 30 MT per month. The defendant had submitted its tender in response to the aforementioned notice by its letter dated 17.7.1981 which was accepted by the plaintiff by letter dated 26 / 28.10.1981 for the sale of the said materials subject to the terms and conditions mentioned in the aforementioned tender notice. The defendant by its letter dated 3.11,1981 acknowledged the offer of the plaintiff and submitted the requisite security deposit of Rs. 25,000/- by a demand draft, The contract was to be strictly governed by Clause-12 (A) staled in the terms and conditions of the contract, Under the contract, defendant was required to pay value of the materials for one month @30 MT per month in advance and lift the same and so on for one year. The plaintiffs contention is that despite clear instruction, the defendant violated the terms and conditions of the contract and in most perfunctory manner, made payment of the value of the materials and lifted the same. The plaintiff explains that out of the total contracted quantity of 360 MT of materials to be lifted @ 30 MT per month, the defendant made payment and lifted only 41.5 MT of the materials during the period January 1982 to April 1982. The plaintiff explains that out of the total contracted quantity of 360 MT of materials to be lifted @ 30 MT per month, the defendant made payment and lifted only 41.5 MT of the materials during the period January 1982 to April 1982. The defendant was asked by the plaintiff through several letters to perform his obligation under the contract strictly according to the terms and conditions of the contract and to deposit the cost of the materials and lift the same as per the contract. The plaintiff by its several letters, had also issued warning that if the defendant fails to perform its part of the contract according to the terms and conditions of the contract, its security deposit would be forfeited and the materials will be resold to other party. In response to the plaintiffs last letter in this context dated 25.2.1982, the defendant replied by its letter dated 3.5.1982 expressing the reasons for the delay in depositing the cost of the materials and attributing the same to the labour problems. Even thereafter, the plaintiff had called upon the defendant to lift the stock of materials lying in its premises after depositing the cost thereof and in response, by its letter dated 15,4.1982, the defendant had assured to deposit the cost of materials by 18 th April 1982 and latest by 30 th April 1982. The plaintiff allowed time to the defendant to deposit the cost of the accumulated quantity of 150 MT of materials by 1 st June 1982 and to lift the materials within the stipulated time, failing which the security deposit of the defendant would be forfeited and materials will be resold to any other party at the cost of the defendant. By way of reminder when the defendant had failed to deposit the money by 1 st June 1982, the plaintiff sent a telegram on 15.7.1982 to the defendant reiterating its demand to the defendant to deposit the cost of 150 MT of materials by 24.7.1982. This with followed by another Idler dated 16,7.14X2 continuing the same contents together with the warning. Yet again, the defendant failed to deposit the money within the extended time. This with followed by another Idler dated 16,7.14X2 continuing the same contents together with the warning. Yet again, the defendant failed to deposit the money within the extended time. Ultimately, by its letter dated 11.10.1982, the plaintiff informed the defendant that since the defendant had failed to deposit the cost of the materials in spite of several opportunities given to them, the plaintiff has commenced its action for resale of the materials at the cost of the defendant and had also intimated that the request of the defendant for extension of the period of contract for one more year cannot be accepted. The plaintiff has further claimed that since the defendant has committed breach of contract, the plaintiff was entitled to forfeit the defendants security deposit of Rs. 65,000/- and also to resell the materials and recover the loss sustained on such resale from the defendant. The plaintiff has claimed that in order to remove the blockage of space within the floor of the plant, plaintiff issued a fresh tender notice of resale of the materials and alter scrutinizing the tenders received in response to the tender notice, had awarded the contract for reselling the materials to M/s Agarwal Iron and Steel Industries at the rate of Rs. 6,388.85 per MT on the basis of the offer made by the said firm. Difference in total cost of the materials after re- tendering was assessed at Rs. 13,76,278.80, details of which is mentioned in Schedule to the plaint. The plaintiff thereafter issued a demand notice to the defendant by its letter dated 11.9.1984 demanding the amount of Rs. 13,76,278.80 from the defendant within 15 days from the date of receipt of the notice. In reply to the notice, the defendant by its letter dated 25.9.1984 levelled false allegation against the plaintiff making a counter-claim that it was the defendant who had suffered loss to the extent of Rs. 18,95,166,00 due to less delivery of the materials to them against the previous contract dated 7.4.1979, although the previous contract had expired as back as on 6.4.1980. Plaintiff has therefore, filed the suit for a decree for the aforesaid amount against the defendant. 3. The defendant/respondent had contested the suit by filing its written statement and contending that the suit is not maintainable in its present form or for the relief(s) claimed and the suit is barred by waiver, estoppel and acquiescence. Plaintiff has therefore, filed the suit for a decree for the aforesaid amount against the defendant. 3. The defendant/respondent had contested the suit by filing its written statement and contending that the suit is not maintainable in its present form or for the relief(s) claimed and the suit is barred by waiver, estoppel and acquiescence. The defendant has pleaded that the plaintiff has not represented the facts of the case correctly and has in fact, tried to mislead the court. The case of the defendant, on the other hand, is that for the sale of the rejected rolls, the plaintiff had entered into a contract vide contract No. STO/A/DISP/090/78-79/17 dated 7.4.1979. This was the first contract. Under the terms and conditions of the first contract, the defendant had performed its part of the contract by depositing security money as also the cost of the materials, to be lifted every month, in advance, but after a few months, the plaintiff failed and neglected to deliver the materials to the defendant in terms of the contract on the pica that they had no stock. The plaintiff had thus, committed breach of the contract, which was a deliberate act on the part of the plaintiff, and the plea of no stock was only a false plea. As a matter of fact, on account of rise in the price of materials, the plaintiff was reluctant to perform its part of the contract and in order to make wrongful gain for itself, refused to extend the period of contract with the defendant. The officers of the plaintiff company had given verbal assurance to the defendant to compensate in future for the financial loss and damages and thereafter, invited tender for a fresh contract and in response to which, the defendant had submitted its tender offering to pay higher amount of price for the materials. Defendants tender was accepted and thereafter, defendant had commenced to perform its obligation under the contract. There was some default in the timely deposit of the cost of the materials. Defendants tender was accepted and thereafter, defendant had commenced to perform its obligation under the contract. There was some default in the timely deposit of the cost of the materials. The defendant had pleaded with the plaintiff to extend the period of the second contract so as to enable it to lift the materials for which it had offered enhanced rate and also reminding the plaintiff that the defendant had suffered loss on account of the fault of the plaintiff to perform its obligation under the previous contract The plaintiff has however refused to extend the period of contract or to allow any accommodation to the defendant. Further case of the defendant is that it was the plaintiff who had committed the breach of contract by inviting fresh tender for the resale of the materials even though the period of the contract with the defendant had not expired and had illegally terminated the contract even before the expiry of the contractual period. The defendant adds that if the plaintiff was aggrieved that the defendant had committed the breach of contract, then it should have filed the case for breach of contract on the first occasion i.e. first month of the commencement of the work, but the plaintiff waived all the purported breaches of contract as it had done earlier in the first contract. The defendant adds further that even during the third contract with M/s Agarwal Iron and Steel Industries, which was undertaken by the plaintiff on account of the purported breach of the second contract between the plaintiff and the defendant, the actual lifting of the materials by the other contractor, was much less than what was contracted for. Defendant asserts that the plaintiff is not entitled even to claim the difference in price of the actual sale which is liable to be set off in respect of the defendants claim for breach of the first contract committed by the plaintiff, Even otherwise, the plaintiff is not entitled for compensation for goods which were not sold and delivered, as admittedly, the third contractor had also not lifted the entire materials. 4. On the basis of the rival pleadings, the learned trial court had framed following issues. 1. Is the suit as framed maintainable? 2. Is there any cause of action for the present suit? 3. Is the suit barred by principle of waiver, estoppel, and acquiescence? 4. 4. On the basis of the rival pleadings, the learned trial court had framed following issues. 1. Is the suit as framed maintainable? 2. Is there any cause of action for the present suit? 3. Is the suit barred by principle of waiver, estoppel, and acquiescence? 4. Is the plaintiff entitled to get a decree of Rs. 13,76,278.80 as per details shown in the schedule of the plaint? 5. Is the plaintiff entitled to get the decree for interest pendentelite and future? 6. Is the plaintiff entitled to get any relief or reliefs as claimed for? 5. Plaintiff has relied upon the oral evidences of its witnesses besides certain documents which includes certain correspondence exchanged between the plaintiff and the defendant, papers relating to tender notice and tender awarded to M/s Agarwal Iron and Steel Industries and also comparative statement of tenders received in response to the third lender notice. The plaintiff has however, not adduced the tender notice and the terms of contract entered into with the defendant. The defendant in its turn, has also adduced oral evidence of the witnesses besides certain documents which includes correspondence exchanged between the plaintiff. 6. It may be relevant to mention here that though, not specifically stated in its pleadings vide its written statement, the defendant have brought in evidence that though under the contract with M/s Agarwal Iron and Steel Industries, the total quantity of 318.5 MT of materials was to be lifted by the contractor, but only 149.5 MT of materials was actually lifted by M/s Agarwal Iron and Steel Industries for which the said contractor had paid the agreed price and the rest of the materials out of the total quantity awarded under the contract, was sold by the plaintiff in public auction ate the rate of Rs. 17,000/- per MT. 7. Treating the issue No. 4 as to whether the plaintiff was entitled to a decree for a sum of Rs. 17,000/- per MT. 7. Treating the issue No. 4 as to whether the plaintiff was entitled to a decree for a sum of Rs. 13,76,278.80 paise, the trial court on considering the evidences adduced by the plaintiff as also the evidences adduced by the defendant, had observed that according to the admitted case of the plaintiff, out of the total quantity of 360 MT of materials, which was awarded to the defendant under the second contract, the defendant had lifted 41.5 MT and, therefore, the third contract was awarded to M/s Agarwal Iron and Steel Industries for the remaining quantity of the materials i.e. 318.5 MT of materials, but the actual quantity lifted by M/s Agarwal Iron and Steel Industries was 149.5 MT and not the entire contracted quantity. The trial court had also considered from the evidences adduced by the defendant that the remaining unsold quantity of materials left by M/s Agarwal Iron and Steel Industries, was sold in auction by the plaintiff at the rate of Rs. 17,000/" per. MT and this evidence has remained un-controverted and an rebulled by the plaintiff, The trial court had observed that the plaintiff has not suffered any loss on the resale of the materials left by the defendant and as a matter of fact, the plaintiff had earned profits by selling materials at much higher price than what was agreed to with the defendant and on the basis of such inference, the trial court has recorded its finding that the plaintiff has not established that it had suffered any loss at all much less to the tune of Rs. 13,76,278.80 and, therefore, the plaintiff is not entitled to claim the same from the defendant. The trial court had further observed that even according to the plaintiff, the breach of contract by the defendant was committed on or about October 1982. The plaintiff was, therefore, obliged to sell the balance quantity of 318.5 MT in the year 1982 itself. This obligation was in fact, a legal obligation under the law which the plaintiff ought to have undertaken for minimizing the losses. The plaintiff was, therefore, obliged to sell the balance quantity of 318.5 MT in the year 1982 itself. This obligation was in fact, a legal obligation under the law which the plaintiff ought to have undertaken for minimizing the losses. Yet, the plaintiff waited till February 1984 for disposal of the materials left over by M/s Agarwal Iron and Steel Industries and, therefore, the rate obtained from M/s Agarwal Iron and Steel Industries on the date of sale, cannot be said to be the market value prevailing on the date of breach of contract and on this ground also, the claim of the plaintiff cannot succeed. Amongst the other reasons assigned by the trial court for recording its finding on this issue against the plaintiff, the trial court has interpreted the contents of clause-12A of the contract between the plaintiff and the defendant and has inferred there from that in the event of the defendant failing to complete the payment of the value of the materials within the stipulated period, the plaintiff had right to cancel the sale, forfeit the security amount and resale or otherwise in the alternative, it had right to dispose of such materials without any notice to the purchaser and had a right for recovery of any loss by subsequent sale. The trial court has interpreted that the plaintiff has thus two options after canceling the contract. The first was to forfeit the security amount and resale of the left over materials and the other option was to dispose of the materials otherwise and recover the losses if any, in difference of prices on resale. From the pleadings of the plaintiff, the trial court has inferred that the plaintiff had exercised its first option by canceling the earlier sale to the defendant and by forfeiting the defendants security amount. As such, the plaintiff was not entitled to avail the second option of claiming loss sustained in subsequent resale and as such, on this ground also, the plaintiff is not entitled to claim and recover the amount as prayed for, against the defendant. As such, the plaintiff was not entitled to avail the second option of claiming loss sustained in subsequent resale and as such, on this ground also, the plaintiff is not entitled to claim and recover the amount as prayed for, against the defendant. Learned trial court has found further fault in the plaintiffs conduct of awarding contract to the third party namely M/s Agurwal Iron and Steel Industries for much lesser amount, although the defendant had agreed in its meeting with the plaintiff in December 1983 to execute the contract at higher rate than what was offered by M/s Agarwal Iron and Steel Industries. On issue No. 1 regarding the maintainability of the suit, the trial court has recorded its finding that the plaint as filed by the plaintiff, has neither been verified, nor is supported by any affidavit and this is in violation of mandatory provisions of Rule 15 Order 6 of the Code of Civil Procedure and, therefore, since the framing of the plaint is defective, the suit is not maintainable. Recording its finding on the other issues against the plaintiff, the trial court had dismissed the suit of the plaintiff. 8. The plaintiff/appellant in the instant appeal, has assailed the impugned judgement and decree of the trial court on the ground that the findings as recorded by the trial court on various issues and in particular, on issue No. 4. are totally against the weight of evidence and perverse and the relevant matters involved in the dispute have not been considered. Sri G.M. Mishra, learned Counsel for the appellant, while elaborating the grounds, has explained that the trial court has wrongly construed that the second contract awarded to the defendant was in continuation of the first contract. Learned Counsel explains that though the plaintiff had entered into contract referred to as the first contract with the defendant for lifting 725 MT of the scrap materials, but the contract was terminated with the consent of both the parties and the defendant had accepted refund of its security deposit, which it had deposited against the first contract. A fresh tender was thereafter invited and against which, the defendants tender was accepted and a fresh contract was thereafter executed by and between the plaintiff and the defendant without any nexus whatsoever with the previous contract. A fresh tender was thereafter invited and against which, the defendants tender was accepted and a fresh contract was thereafter executed by and between the plaintiff and the defendant without any nexus whatsoever with the previous contract. Under the terms of the fresh contract, the defendant was obliged to lift a minimum of 30 MT of scrap materials per month and to pay the cost of the materials in advance every month. The defendant failed in its obligation even from the first month and during the first four months after commencement of the contract from November 1981 to April 1982, the defendant lifted only 41.5 MT of materials against the required quantity of 120 MT. Defendant had pleaded its inability on the ground of labour trouble in its own factory and sought for accommodation and had assured to deposit the cost of the materials and to lift the accumulated quantity of materials by the end of April 1982, but even thereafter, had failed either to pay the cost of the monthly quota of materials or to lift the same. Learned Counsel argues that the trial court ought to have considered the admitted facts which were sufficient to indicate that that the defendant had committed breach of contract even from the date of commencement of the contract by failing to perform the contract in accordance with the terms and conditions stipulated. The trial court ought to have considered that even thereafter, the plaintiff had given ample opportunity to the defendant to perform its part of the contract by extending the period, but in spite of several opportunities, the defendant had failed and neglected to perform its part of the contract. Under such circumstances, and after giving an ultimatum to the defendant, the plaintiff had proceeded to take steps for resale of the materials left over by the defendant. Learned Counsel argues that the trial court ought to have considered that in view of the conduct of the defendant, plaintiff was entitled to terminate the contract with the defendant and to proceed with the resale of the left over materials and claim the loss on account of difference in price of resale. Learned Counsel argues that the trial court ought to have considered that in view of the conduct of the defendant, plaintiff was entitled to terminate the contract with the defendant and to proceed with the resale of the left over materials and claim the loss on account of difference in price of resale. Learned Counsel explains further that since the materials were such as could not be open for sale on regular basis, in the open market, it requires issuance of fresh lender notice and process of inviting and receiving tender and deciding upon the award to be given to the highest bidder, does naturally involve time and it could not be said that the plaintiff had suffered any loss of time or that it had failed to minimize the loss, Learned Counsel adds further that the trial court has seriously erred in accepting the evidence of the defendant on the issue which was never pleaded by the defendant in its written statement. Referring to the evidences adduced by the defendant, that the second bidder i.e. M/s Agarwal Iron and Steel Industries had lifted only a portion of the contracted quantity of materials and the remaining were sold by the plaintiff in auction at the rate of Rs. 17,000/- per MT, learned Counsel argues that the trial court should not have accepted this evidence of the defendant and even otherwise, the defendant has not brought on record any specific materials to prove either that any quantity of materials were sold in public auction or that such sale by public auction had fetched the rate of Rs. 17,000/- per MT to the plaintiff. Learned counsel argues further that the trial court has misconstrued the law in the context and has failed to consider that under the provisions of Section 73 of the Contract Act, the measure of damages would be the price prevailing on the date of breach of contract, is the price on which the difference and the loss could be assessed irrespective of whether the entire quantity of materials were actually sold or not. It is further argued that even after the contention of the defendant that substantial quantities of left over materials were sold in public auction, then benefit of difference in price, if any, would have accrued to the second contractor namely M/s Agarwal Iron and Steel Industries and not to the defendant. It is further argued that even after the contention of the defendant that substantial quantities of left over materials were sold in public auction, then benefit of difference in price, if any, would have accrued to the second contractor namely M/s Agarwal Iron and Steel Industries and not to the defendant. Learned Counsel argues further that the trial court has totally misconceived the terms and conditions of the contract as contained in Clause- 12C of the contract between the plaintiff and the defendant. Learned Counsel explains that the stipulation in Clause- 12C of the contract had reserved absolute right to the plaintiff not only to forfeit the security deposit of the defendant after canceling the contract, but also to proceed with the resale of the left over materials and claim loss of difference in price on resale from the defendant and there was no scope for interpreting the clause in terms of alternatives and optional rights, as inferred by the trial court, As regards the finding of the trial court on issue No. 4 regarding the maintainability of the suit on account of absence of affidavit to the plaint, learned Counsel explains that as a matter of fact, the plaint did contain the mandatory verification and affidavit at the foot of the plaint and this is evident from the copy of the plaint reserved by the plaintiff and it appears that the page containing the verification and affidavit has been detached from the original plaint from the judicial records in course of trial. Learned Counsel argues that had the plaint suffered any such defect, it would have been pointed out at the very first instance by the stamp reporter/seriestedar of the court and the plaint would not have been admitted by the trial court, nor registered for trial. Even otherwise, the defect could have been remedied by calling upon the plaintiff to remove the defect by complying with the mandatory requirements, but admittedly in the instant case, plaintiff was never called upon to rectify the plaint. 9. Even otherwise, the defect could have been remedied by calling upon the plaintiff to remove the defect by complying with the mandatory requirements, but admittedly in the instant case, plaintiff was never called upon to rectify the plaint. 9. Per contra, learned Counsel for the defendant / respondent while challenging the grounds advanced by the appellant as being misconceived and misleading and factually incorrect, would explain that the transaction between the plaintiff and the defendant had commenced from April 1979 when in response to the notice inviting tender issued by the plaintiff, for sale and lifting of 725 MT of steel roll scrap, the defendant had submitted its tender quoting the rate of Rs. 2611/- per MT and the same was accepted by the plaintiff, The defendant had performed its part of the contract by depositing the costs of the monthly quota of materials required to be lifted under the contract and had lifted 366 MT of the materials. The defendant was however deprived of the benefit of the contract by the plaintiffs willful withdrawal on account of its failure to supply the agreed quantity of scrap materials on the false plea that there was no stock available. The plaintiff unilaterally terminated the contract and persuaded the defendant to accept the refund of its security deposit with verbal assurances given by the representatives of the plaintiff that the loss suffered by the defendant would be compensated in the next year tender. The tender in the next year was floated afresh for the sale of the remaining 360 MT of the scrap materials and this time, the defendant had to quote a higher rate of Rs. 10,710/- per MT on account of the rise in the prices. This second contract, as per agreement between the plaintiff and the defendant, had commenced from 26th October 1981 for a period of one year till 26 th October 1982. On account of labour problems suffered by the defendant in its factory and on account of other unavoidable circumstances, the defendant could not lift more than 41.5 MT of scrap materials. This second contract, as per agreement between the plaintiff and the defendant, had commenced from 26th October 1981 for a period of one year till 26 th October 1982. On account of labour problems suffered by the defendant in its factory and on account of other unavoidable circumstances, the defendant could not lift more than 41.5 MT of scrap materials. The plaintiff took the opportunity to pressurize the defendant either to pay the cost of 150 MT of materials and lift the quantity within an unreasonably short period or else, to face consequences of termination of the contract and liability to pay the loss of difference of price on resale of the left over materials. Learned Counsel explains further that the conduct of the plaintiff would demonstrate amply that they were impelled by dishonest intention to cause wrongful gain for themselves at the cost of the defendant. This, according to the learned Counsel, is reflected from the act of the plaintiff in floating a fresh tender for the left over materials, even though the period of contract with the defendant had not expired. Learned Counsel points out further that under the first contract with the defendant, the plaintiff had resiled from its obligation on the plea that there was no block available for supply to the defendant and yet, within less than two months thereafter, the plaintiff had offered for sale of 366.5 MT of scrap materials vide the second tender. The obvious inference, according to the learned Counsel, is that the plaintiff had deliberately maneuvered by false plea and unilaterally terminated the first contract with the defendant with the sole intention of gaining advantage of higher price by way of floating fresh tender. Learned Counsel explains that the first tender followed by the second tender and followed yet by the third tender, have to be treated as a composite transaction in as much as, the quantity of scrap materials involved in all the three tenders are related to the original stipulated quantity of 725 MT and the second and the third tenders was therefore, in respect of the left over quantity after termination of the first contract. Learned Counsel argues that in this view of the matter, the plaintiff was liable to compensate the losses caused to the defendant on account of unilateral termination of the first contract Learned Counsel argues further that the plaintiff, in order to claim specific amount as compensation for the alleged losses suffered by it, has to prove and establish that it had actually suffered loss and then to prove the actual amount of loss, if any, which was occasioned to the plaintiff. On the basis of the facts and circumstances adduced through the evidences by the defendant, it has been established that the plaintiff has not suffered any less whatsoever. In fact, the third contract offered to M/s Agarwal Iron and Steel Industries was also terminated and the other contractor could lift only 149.5 MT of scrap materials at the rate offered by it, while the entire remaining quantity out of the 360 MT was again sold by the plaintiff in public auction at the rate of 17,000/- per MT and in this manner, the plaintiff could succeed in selling away the entire quantity of 725 MT of scrap materials and had in the process, gained heavy margin of profit. Learned Counsel argues that on account of earning huge margin of profit, the plaintiff cannot claim that it had suffered any loss on account of the alleged non-performance of the contract by the defendant. In fact, the defendant is entitled to claim and receive refund of his security deposit which the plaintiff has illegally misappropriated. Learned Counsel would explain further that as would be evident from the documentary evidence and the admission made by the plaintiffs own witnesses, under the terms and conditions of the tender of sale (Ext.-4B), the time for lifting the materials from the plaintiffs plant site could be extended either without making any extra payment or at the cost by paying charges on account of demurrage charge at the rate of 0.25% per diem on the sale price of such material or portion thereof remaining uncleared until the date of removal. Learned Counsel explains that on the same evidence adduced by the plaintiff, the defendant had requested for extension of the time expressing its difficulty on account of labour problems. Learned Counsel explains that on the same evidence adduced by the plaintiff, the defendant had requested for extension of the time expressing its difficulty on account of labour problems. The officers of the plaintiff, while on the one hand, showed inclination to extend the time and for which, by letter dated 22.12.1982 (Ext.-613), defendant was invited to attend the meeting of the tender committee on 30 th December 1982. The defendant appeared and offered to lift the remaining quantity of materials at the rate which the defendant had earlier offered i.e. Rs. 10,710/- per MT. Yet, while negotiating the matter with the defendant on one hand, the officers of the plaintiff proceeded to issue the third tender and decided on allotting the work to M/s Agarwal Iron and Steel Industries at the rate much lower than what was offered by the defendant. In this also, against the recommendation of the tender committee, to award the contract to M/s Bajrangwali Engineering Company Ltd., who had quoted the rate of Rs. 6250/- per MT, the contract was awarded to M/s Agarwal Iron and Steel Industries who had offered lesser rate of Rs. 6221/-. The decision taken by the plaintiff in awarding the contract was unlawful because, the decision to award the contract to the said party was taken by adopting dishonest methods and by practicing the system of cartel in which selected parties of the same locality were invited to submit their tenders and participants had deliberately offered lower rate so that the highest tendered amongst their own coterie gels the contract. Learned Counsel argues next that before claiming damages, the plaintiff should have shown that it had taken all reasonable steps for mitigating the loss consequent upon the breach and if the plaintiff fails in its duty to take all reasonable steps to mitigiate the loss, then such failure debars the plaintiff from claiming any part of the damage which has accrued on account of the neglect of the plaintiff to take reasonable steps. Learned Counsel explains that though the plaintiff has claimed that the defendant had caused breach of contract by its failure to perform the contract according to the terms and conditions stipulated, even from the first month of commencement of the contract, till June 1982, yet the plaintiff had allowed almost two years to lapse before it proceeded to sell the left over scrap materials to the other contractor M/s Agarwal Iron and Steel Industries. According to the learned Counsel, the price available for the scrap materials on the date of alleged breach was, in terms of the defendants own offer, at the rate of Rs. 10,710/- per MT. Instead of selling the left over stock at the available rate, the plaintiff continued to dilly-dally and waste two precious years and by dishonest methods, opted to sell the left over stock at much lesser price on a misleading plea that it was the price which was available in the market. Learned Counsel argues next that rule of mitigation relates to the potential loss which is nut actually suffered. If by Inking steps, which could not reasonably have been required of him, the plaintiff has in fact avoided loss resulting from the defendants breach of contract, then there could be no occasion for the plaintiff to recover any damages in respect of such potential loss. Learned Counsel explains that on assessment of the price which the plaintiff had fetched on sale of the entire quantity of 725 MT of the scrap materials, the plaintiff has earned a total profit of Rs. 11,08,816/- and, therefore, there was no occasion for the plaintiff to seek any compensation or damages from the defendant. Learned Counsel further argues that the entire claim as raised by the plaintiff vide its plaint, is liable to be dismissed because the plaintiff had failed and neglected to take prompt steps to mitigate the loss and had also unreasonably refused to accept the defendants offer which could have mitigated the loss. Learned Counsel next refers to the findings of the trial court on maintainability of the suit of the plaintiff and submits that the plaint was nut filed in accordance with the mandatory provisions of law under Rule 15 Order 6 CPC and, therefore, the learned trial court has rightly recorded its finding that the suit is not maintainable and is liable to be dismissed on this score alone. This defect, according to the learned Counsel, is not curable and is fatal. 10. Thus, on the basis of the rival arguments in respect of the dispute involved in the case between the parties, the main questions which need to be addressed are on two points: i. Whether the plaintiff is entitled to the damages as claimed for in the suit and represented in the schedule of the plaint? and ii. Whether the suit in the form in which it was filed, is maintainable? 11. Point No. - The defendant has consistently claimed that all the three tenders issued by the plaintiff were in fact related to a composite transaction for the sale of 725 MT of scrap materials and, therefore, all the three tenders and the corresponding contracts under each tender, are co-related since third is the extension of the second and second is the extension of the first contract, The plaintiff on the other hand, has disputed the claim by asserting that each of the tenders and the corresponding contracts were totally distinct and separate. This plea is on the ground that the first contract with the defendant was terminated by mutual consent and the fact that the defendant had consented to the termination is obvious from the acceptance of the defendant of the remind of its security deposit under the first contract. 12. The above rival contentions have to be assessed on the basis of the pleading and evidences adduced by the parties. Admittedly, under the first contract, the total quantly of scrap material offered for sale to the defendant, was 725 MT. The defendant had lifted approximately 360 MT out of the total quantity of 725 MT. On termination of the contract, which was done even before the expiry of the period stipulated therein, the second contract was floated for 360 MT which corresponds almost to the left over quantity of scrap materials under the first contract. After the first contract was terminated on account of willful breach on the part of the plaintiff, the defendant did have the right to claim damages for the breach of contract from the plaintiff. Admittedly, the defendant did not exercise this option promptly by claiming for damages or even putting forward any claim for damages. After the first contract was terminated on account of willful breach on the part of the plaintiff, the defendant did have the right to claim damages for the breach of contract from the plaintiff. Admittedly, the defendant did not exercise this option promptly by claiming for damages or even putting forward any claim for damages. On the contrary, by accepting the refund of its security deposit under the first contract, the defendant had acquiescence the termination of the contract suggesting thereby that it had waived its right to claim damages from the plaintiff for any breach of contract. It has to be deemed therefore, that the termination of the first contract was by way of mutual agreement between the plaintiff and the defendant. The fact that the second tender floated by the plaintiff was only for 360 MT which corresponds to approximate quantity of left over materials under the first contract, in itself, does not sustain any definite link between the first contract and the second contract. This is for the plain and simple reason that the first contract was terminated mutually by the parties, where-after the plaintiff was at liberty to float fresh tender for sale of any quantity of scrap materials which it could choose on its own. The defendants claim that the plaintiff had played fraud by dishonestly backing out from the first contract on false plea of non- availability of scrap materials for sale, cannot offer the defendant any help even if such claim is true. As regards the second contract between the plaintiff and the defendant, the contention of the defendant is that it was compelled to submit its tender at a much higher rate than what was agreed to in the first contract. For better understanding, it is necessary to study the nature of the contract between the parties. According to the contract, it was the plaintiff who had offered its scrap material for sale to the defendant at the rate of which was quoted by the defendant in its tender. Under the first contract, the defendant had the privilege of purchasing the materials at the agreed price of Rs. 2611/- per MT and out of the entire quantity of 725 MT as offered under the first contract, the defendant had gained the advantage of lifting 360 MT of the scrap materials till the date when the contract was terminated. Under the first contract, the defendant had the privilege of purchasing the materials at the agreed price of Rs. 2611/- per MT and out of the entire quantity of 725 MT as offered under the first contract, the defendant had gained the advantage of lifting 360 MT of the scrap materials till the date when the contract was terminated. The defendant could have compelled the plaintiff to continue to supply the materials at the same rate under the first contract, but it had opted out of such right. On the other hand, the defendant had voluntarily quoted much higher price of Rs. 10,710/- per MT in response-to the second lender. The obvious inference would be that even at such high rate as quoted by the defendant in/its tender, it was a profitable bargain for the defendant since it was sure that on account of rise in the market price, the defendant would have fetched definite profit under the contract. The defendant cannot plead therefore that it was compelled to quote the higher rate in the second tender. If the second tender was not likely to fetch any profit, the defendant was absolutely at liberty not to submit any tender at all in response to the plaintiffs invitation for the second tender. The defendant having offered the price of Rs. 10,710/- per MT and the same having been accepted by the plaintiff, there was a concluded contract between the parties the defendant was certainly required to perform its part of the contract as per the terms and conditions stipulated in the contract. Admittedly, under the terms of the contract, which was for the period of one year commencing from 26 th October 1981, the defendant was under obligation to lift the minimum quantity of 30 MT of scrap materials per month and to pay in advance the cost of the monthly quantity of materials to the plaintiff every month. The defendant admittedly, could not maintain or perform its obligation regularly on account of some labour problem which it had to face in its factory. In absence of any stipulation in the contract, that the contract could be terminated on the ground of frustration due to labour problem, the plea advanced by the defendant as reason for irregular performance of its obligation under the contract, cannot be accepted. In absence of any stipulation in the contract, that the contract could be terminated on the ground of frustration due to labour problem, the plea advanced by the defendant as reason for irregular performance of its obligation under the contract, cannot be accepted. However, since under the terms contained in Clause-11 of the contract, as pointed out by the learned Counsel for the defendant / respondent, there was provision for extension of time for lifting of the monthly quota, the defendant was certainly entitled to claim extension of the period. The evidences adduced by the plaintiff do suggest that the plaintiff did extend the time by allowing time to the defendant till June 1982 to deposit the cost of the materials which had accumulated during the preceding months and to lift the accumulated quantity till the end of June 1982. The defendant responded by giving out an assurance initially, that it would deposit the entire cost of the accumulated materials by the end of April 1982, but it had failed on its assurance and yet, it was allowed time till June 1982. The above facts would clearly demonstrate on the one hand that though, the defendant was required to lift 30 MT of the scrap materials per month after paying advance cost thereof, yet time was not the essence of the contract and it can reasonably be construed that the defendant was entitled to utilize the entire period of one year of the contract for lifting the total quantity of the materials offered under the contract. The plaintiffs plea that the accumulation of the stock in its plant floors was causing inconvenience and, therefore, the urgency for clearance of the materials from the plant site, cannot be accepted as a reasonable ground, on account of the fact that even under the contract, the possibility of the materials lying accumulated in the plant without being cleared, was anticipated and, therefore, the demurrage charge at the rate of 0.25% per diam on the sale price of the materials or portion (hereof remaining uncleared until the dale of removal, Was stipulated under the contract. 13. The question which now arises is, whether by proceeding to invite fresh tender for the uncleared materials even before the expiry of the one year period under the contract with the defendant, would amount to unilateral termination of the contract by the plaintiff? 13. The question which now arises is, whether by proceeding to invite fresh tender for the uncleared materials even before the expiry of the one year period under the contract with the defendant, would amount to unilateral termination of the contract by the plaintiff? It is not disputed under the contract with the defendant that the period of one year was up to 26 th/28 th October 1982. Even before the expiry of the period, the plaintiff had proceeded to issue fresh tender notice inviting tender from other parties. This act of the plaintiff may be construed as a declaration on its part to terminate the contract with the defendant. Learned Counsel for the plaintiff/ appellant argues that the mere initiation of the process, cannot be construed as termination of the contract by the plaintiff as because. considering the conduct of the defendant, on account of its persistent failure to perform the contract according to the terms and conditions of the contract the plaintiff could reasonably infer that the defendant was unable to perform its part of the contract even till the date of expiry of one year. The plaintiff being anxious to clear off the piled up materials from its plant site, had to initiate the process of resale by inviting fresh tender in order to ensure that it could resell the left over materials without any further delay after the expiry of the contractual period of one year. Learned Counsel would explain that even after issuing a fresh tender notice, the plaintiff did give option to the defendant to complete the contract within the contractual period, but the defendant had failed and the resale of the left over materials was done only after expiry of the contractual period of one year. By such argument, learned Counsel for the appellant wants to suggest that mere issuance of a fresh tender notice does not amount to termination of the contract by the plaintiff and that the plaintiff on its part had taken all reasonable steps to mitigate the loss or damage on account of the defendants breach of contract. There is apparent flaw in this argument of the learned Counsel as would appear from the evidences adduced even by the plaintiff itself. There is apparent flaw in this argument of the learned Counsel as would appear from the evidences adduced even by the plaintiff itself. By inviting fresh tender, even before the expiry of the period of one year, under the contract with the defendant, the plaintiff had certainly declared its intention by offering the left over materials for resale to other parties and thereby giving the defendant a definite impression that the plaintiff had unilaterally terminated the contract with the defendant. The plea of the plaintiffs anxiety to clear of the materials and mitigate the loss on account of anticipated breach of contract by the defendant, is not acceptable for two reasons. Firstly, even after issuing the invitation for fresh tender, negotiation continued to be held by the plaintiff with the defendant and the defendant had offered to lift the materials at the same price earlier quoted by him. If the plaintiff had proceeded to invite fresh tender, it implied obviously that the period of the fresh tender was to continue for another period of one year, after termination of the contract with the defendant. Under such circumstances, the defendant as any other contractor, was entitled to make its own offer of price in respect of fresh tender and claim the benefit of extended period for concluding the contract. It is not disputed that by making its fresh bid pursuant to the negotiation with the plaintiff, at the meeting held on 30 th December 1984, the plaintiff had offered to perform the contract at the rate of Rs. 10,710/- per MT. Yet, the plaintiff had refused the defendants offer and had opted for a lesser quoted rate offered by the third party namely, M/s Agarwal Iron and Steel Industries. 10,710/- per MT. Yet, the plaintiff had refused the defendants offer and had opted for a lesser quoted rate offered by the third party namely, M/s Agarwal Iron and Steel Industries. Learned Counsel for the appellant would explain that the defendants offer was not tenable as because, the defendant sought to make a counter offer by stipulating that the monthly quantity of materials to be lifted, should be reduced and as such, the plaintiff was at liberty not to accept such counter offer and moreover, going by the defendants own conduct on the previous occasion, there was no certainty that the defendant was capable of honouring its obligation in terms of the contract even if awarded for any extended period, This argument is also not convincing as because, the notice inviting third tender was for a total quantity of 360 MT and to be lifted within a period of one year and since the stipulation did exist in the contract that the plaintiff would be entitled to claim demurrage charge at the rule of 0.25% per diem on the cost of the entire materials it could not be taken that the stipulation for lifting the quantity of 30 MT per month was a fixed and definite stipulation. Even otherwise, in view of the offer of the defendant to pay the price of Rs. 10,710/- per MT, the plaintiff could have extended a reasonable accommodation to the defendant instead of proceeding to resell the materials at much lower price than what was offered by the defendant in the expectation that the plaintiff could possibly realize the difference of price from the defendant on the ground of breach of contract. This situation leads to the question as to what was the market price available to the plaintiff on the alleged date of breach of contract by the defendant. The defendants answer to this question is two fold. Firstly, the price of Rs. 10,710/- per MT which the defendant had quoted, has to be considered as the market price available on the breach date and not the price offered by the third party namely M/s Agarwal Iron and Steel Industries. Secondly, that the plaintiff having wasted two precious years from the alleged date of breach, for assessing the available market price, the plaintiff is liable for contributory negligence and is not entitled to claim any damage from the defendant. 14. Secondly, that the plaintiff having wasted two precious years from the alleged date of breach, for assessing the available market price, the plaintiff is liable for contributory negligence and is not entitled to claim any damage from the defendant. 14. The above argument of the learned Counsel for the defendant/respondent is not without basis. As discussed above, after the notice inviting fresh tender was issued by the plaintiff, the defendant had made its fresh offer for purchasing the materials at the rate of Rs. 10,710/- per MT. The defendants offer was refused by the plaintiff on the grounds which are thoroughly unconvincing. Furthermore, if the plaintiff in its purported anxiety to clear of the materials from its plant site, had to initiate the process of inviting tender even before the expiry of the one year contract period with the defendant, then also, since the tender notice had fixed a specific time within which the tender was to be submitted and in response, tenders were obtained by the plaintiff from various parties, there could be no reason why the plaintiff should wait for taking a decision on the fresh lenders for two years till the end of February 1984. It has to be deemed therefore that the plaintiff had intentionally suffered loss of two years in deciding to award a fresh contract to a third party for the resale of the materials which were left over by the defendant under the previous contract. It clearly points out that the plaintiff had failed in its obligation to mitigate the loss by taking prompt reasonable steps. If on the other hand, it is considered that by inviting defendant for negotiation, and dilly-dallying the matter with him till the end of January 1984, the impression given by the plaintiff to the defendant was that the plaintiff did not elect to avoid the contract, then it has to be held that the contract with the defendant was subsisting and the plaintiff had agreed to prorogue the time for performance. 15. 15. However, accepting the plaintiffs claim that the contract with the defendant had suffered termination due to the failure of the defendant to perform its obligation under the contract within the stipulated time of one year, and accepting the interpretation of Clause-12C of the contract, that the plaintiff had a right not only to terminate the contract and forfeit the earnest amount deposited by the defendant, but also to proceed with the resale of the left over materials and realize the loss on account of difference of price of resale, yet it was incumbent upon the plaintiff to prove and establish by clear and cogent evidence, firstly it had not contributed to the loss by its failure and neglect to take prompt steps to mitigate the loss and secondly, by establishing the actual market price which was available to it on the date of breach or within a reasonable period of the breach date. Thus, even if it is taken that the defendant had committed breach of contract and was liable therefore to pay damages for the loss suffered by the plaintiff, but for deciding the actual loss and damage, the plaintiff must prove its entitlement to claim damage by showing that it had taken all reasonable steps to mitigate the losses and also by showing the market price which was available to it on the breach date. 16. Section 73 of the Indian Contract Act provides the method for computing compensation for any loss or damage caused by breach of contract and it reads as under: 73. Compensation for loss or damage caused by breach of contract.- 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. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. Compensation for failure to discharge obligation resembling those created by contract.- When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract. The illustrations to the section amplify that the measure of damages has to be assessed on the basis of difference of price of the materials quoted in the contract and what was available on the date of breach. The section also lays down that an obligation is cast upon the party suffering the breach to mitigate the loss by taking reasonable steps. 17. Learned Counsel for the appellant has strenuously tried to impress that since the materials involved in the contract were not such as could be transacted during the daily course of business and since it required the lengthy process of inviting tender. which in its turn, had necessarily involved consumption of time. This argument is not acceptable since the plaintiff has not demonstrated by cogent evidence that the process on taking a decision on the fresh tender had involved a period of two years without any lapses on the part of the plaintiff. 18. Learned Counsel for the appellant has further tried to impress that there is no pleading on the part of the defendant in its written statement that the second contractor namely, M/s Agarwal Iron and Steel Industries did not lift the entire quantity of the materials under its contract and that the left over material was sold by the plaintiff in auction at the rate of Rs. 17,000/- per MT and, therefore, the defendant should not have been allowed to introduce a new plea of defence by adducing evidence in absence of specific pleading. It is true that according to the procedural law, the evidences adduced by the parties have to be confined to its pleadings and not beyond. 17,000/- per MT and, therefore, the defendant should not have been allowed to introduce a new plea of defence by adducing evidence in absence of specific pleading. It is true that according to the procedural law, the evidences adduced by the parties have to be confined to its pleadings and not beyond. In the instant case, the defendant was allowed to adduce such extra evidence without the plaintiff offering any resistance and having allowed such evidence to come on record, the plaintiff had also proceeded to cross-examine the defendants witnesses on the evidence given in respect of purported new plea. Furthermore, the plaintiff has though claimed in its plaint that it had sold the entire quantity of 360 MT as offered under the contract, to M/s Agarwal Iron and Steel Industries, yet it has not adduced supportive evidence to confirm that the entire quantity of 360 MT of scrap materials offered under the contract, was actually lilted by M/s Agarwal Iron and Steel Industries. The plaintiff has further more not specifically explained as to how it disposed of the balance of the left over materials which M/s Agarwal Iron and Steel Industries had not lifted. There is no specific denial on the part of the plaintiff against the defendants claim that such left over materials were sold by the plaintiff in public auction at a much higher price than what was offered even by M/s Agarwal Iron and Steel Industries. The legitimate inference is that M/s Agarwal Iron and Steel Industries had not lifted the entire quantity of the materials offered to it under the contract and the left over articles were sold by the plaintiff in public auction. If the plaintiff did not suffer any loss by selling the left over materials in public auction, it was a benefit to the third contractor since the plaintiff could not have claimed to have suffered any loss due to breach of contract by the third contractor. The defendant cannot take any advantage of this situation on the plea that measure of damages should be calculated not on the basis of potential loss, but on the basis of the actual loss sustained, if any, by the plaintiff and in the present case, the plaintiff had not suffered any such actual loss. 19. The defendant cannot take any advantage of this situation on the plea that measure of damages should be calculated not on the basis of potential loss, but on the basis of the actual loss sustained, if any, by the plaintiff and in the present case, the plaintiff had not suffered any such actual loss. 19. This aspect of the matter does lead to another inference that for sale of the left over scrap materials, inviting tender from public bidders, was not the only option to the plaintiff. Rather, it had also the other option of selling the materials by public auction and obtain the price available as the market price for the materials. If this option was also available to the plaintiff, then there is no reason explained by the plaintiff as to why it had not resorted to immediate sale of the materials by public auction, if it knew that the process of sale by inviting tender could involve considerable time. 20. The conclusion reasonably drawn from the discussion of the above facts is that the plaintiff has not assessed the correct market price available to it on the breach date, that is, on the date when the contract was broken by the defendant and therefore the computation of loss as assessed by the plaintiff on the alleged difference of price cannot be accepted. The price offered by the defendant after the plaintiff had floated the third tender notice, was the price available on or about the date of breach. Even if, the offer of the defendant was not accepted by the plaintiff, for the reasons explained by the learned Counsel for the plaintiff/ appellant, yet the plaintiff has not come with any specific price which could be available on or about the breach date. Considering the price offered by the defendant, it can reasonably be inferred that the price quoted was the general market price which could be available even from other purchasers on or about the date of breach. If thereafter, during the long period of almost two years, the market price had fallen down, the loss on account of the fall in the market price cannot be attributed to the defendant and neither can the plaintiff claim for damages on the difference of price, by way of loss, from the defendant. If thereafter, during the long period of almost two years, the market price had fallen down, the loss on account of the fall in the market price cannot be attributed to the defendant and neither can the plaintiff claim for damages on the difference of price, by way of loss, from the defendant. The further conclusion is that the plaintiff having failed in its duty to lake all reasonable steps to mitigate the loss consequent on the breach, and allowing almost two years to lapse during which period the market price of the materials fell down, the plaintiff cannot be entitled to the damages as claimed in the suit. This issue is decided accordingly. 21. Point No. ii - As regards the question of maintainability of the suit, in relation to the defect in the plaint, the plea of the learned Counsel for the plaintiff / appellant is that the plaint did not originally suffer from any such defect and in all probability, the page containing the verification and affidavit, got detached from the plaint. Learned Counsel reiterates that the fact that the plaint did contain the mandatory verification and affidavit, would be evident from the copy of the plaint retained by the plaintiff for the purpose of record which does contain the requisite verification and affidavit. It appears from the written statement of the defendant/respondent that though, it has taken a ground that the suit is not maintainable in its present form, it has not specifically pleaded that the plaint did suffer from the defect of non-verification and absence of affidavit. The explanation offered by the learned Counsel for the appellant appears to be reasonable since it could not be a matter of co-incidence that the absence of verification and affidavit could escape the notice of the stamp reporter/seriastedar and even of the court during the entire period when the case was pending trial. It appears that in all probability, the plaint did contain the mandatory verification and affidavit probably in a separate page which got detached and escaped the notice throughout and the defendant / respondent had availed the opportunity to capitalize on it. It appears that in all probability, the plaint did contain the mandatory verification and affidavit probably in a separate page which got detached and escaped the notice throughout and the defendant / respondent had availed the opportunity to capitalize on it. Learned trial court does not appear to have considered the issue on these lines and has proceeded to record its finding that the suit is not maintainable on account of absence of verification accompanied by affidavit, as per provisions of Rule 15 Order 6 CPC. In my opinion, the purported above defect cannot be considered as fatal to the plaintiffs case. 22. However, In the light of the discussion on the other issues and for the reasons stated herein, I do not find any merit in this appeal. Accordingly, this appeal is dismissed with cost(s).

Steel Authority Of India Ltd. v. British India Rolling Mills