JUDGMENT : F. M. REIS, J. :- Both the above appeals are taken up together for final hearing as both challenge the same Judgment and Decree dated 13-8-2004 passed by the learned Civil Judge, Senior Division at Mapusa in Special Civil Suit No.102/1999. The parties shall be referred to in the manner they so appear in the cause title of the impugned Judgment. The Appellant in First Appeal No.266 of 2004 are the Plaintiffs in the said suit whereas the Appellants in First Appeal No.267 of 2004 are the Defendants in the said suit. 2. The Plaintiffs filed a suit on the ground that on 19-1-1989 the Defendants invited tenders through newspaper from Civil Contractors to develop the land purchased by the Defendants admeasuring an area of 14,300 sq. meters situated at Britona village of Village Panchayat area of Penha de Franca and surveyed under No.13/6 of village Penha de Franca which included infra structural development as also construction of houses for its members who were 31 in number. It is further the contention of the Plaintiffs that they submitted the tender to the Defendants and the contract for the said development of the said property was allotted to the Plaintiffs on turn key basis by its work order dated 6-3-1989. The Plaintiffs further contend that they got a portion of the suit property changed to settlement zone from the concerned authorities which took about two years as the Plaintiffs had to get the said land re-surveyed by the survey authorities which took another one year. The Plaintiffs contend that pursuant to the said work order dated 6-3-1989, the Plaintiffs prepared blocked level contour plans of the suit property so as to enable the authorities to change the land into settlement zone and the fees thereof for the portion of the said plans worked out to Rs.83,000/- out of which the Defendants paid Rs.41,500/-. RCC designs were also prepared for which the total fees incurred was Rs.11 ,000/ - which was not paid by the Defendants. Infrastructural development contemplated in the said order according to the Plaintiffs included carrying out of works such as road drainage, levelling of land, construction of culvert, development of wall, etc. The Defendants decided to develop the suit land as a group housing scheme under which infrastructural development and the construction of houses was to be simultaneously taken up for development by the Plaintiffs. The Defendants decided to develop the suit land as a group housing scheme under which infrastructural development and the construction of houses was to be simultaneously taken up for development by the Plaintiffs. The Plaintiffs further state that in terms of the said work order, the Plaintiffs were entitled for mobilization advance to the tune of Rs.10,00,000/- for commencement of the work for infrastructural structure development and a further sum of Rs.15,75,000/- as the first instalment before construction of houses with 90% escalation thereof. It is further their case that the Defendants expressed their inability to pay mobilization advance of Rs.10,00,000/- and as such they offered to the Plaintiffs a suggestion whereby a portion of the suit land which was in excess after providing the land for houses for all the 31 members, would be given to the Plaintiffs for development on their own account and appropriate receipts thereof so as to meet the infrastructural development costs of Rs.14,55,217.60 for the suit land. The proposal was accepted by the Plaintiffs and the agreement for development was executed on 21-11-1993 between the parties hereto. The Plaintiffs contend that Defendants also agreed to accept the escalation contemplated in the work order dated 6-3-1989 as incorporated in the said agreement dated 21-11-1993. The Plaintiffs further state that the total area given to the Plaintiffs by the Defendants for the said development towards the costs of the said infrastructural development costs was totally admeasuring an area of 2,800 sq. meters as identified in Clause 2 of the said agreement. It is further their case that the Defendants took about one year to decide about the type of houses to be constructed in the said suit land to its members though 10 members out of 31 members selected from the building plans prepared by the Plaintiffs for the construction of the said houses. After securing the licences for the construction of the said houses, all the remaining 21 members selected the plans for their respective houses and the licences for the construction of the said 21 houses were submitted to the Panchayat though the same were not collected by the Defendants till about 18-11-1996. After securing the licences for the construction of the said houses, all the remaining 21 members selected the plans for their respective houses and the licences for the construction of the said 21 houses were submitted to the Panchayat though the same were not collected by the Defendants till about 18-11-1996. It is further their case that after obtaining the licences from the Village Panchayat dated 19-4-1994 for the construction of the 10 houses for the 10 members and the construction of 7 buildings of the blocks of flats and 2 bungalows to be constructed in the said portion allotted to the Plaintiffs, the Plaintiffs started the work of construction. The development carried out by the Plaintiffs included laying the foundation for the internal road to the extent of 140 meters, construction of RCC culvert and 2 wells and a retaining wall. The land was also cut to an appropriate gradient and levelled to suit the construction of houses and the building sites of 300 sq. meters each for the 31 members. The Plaintiffs also commenced construction of the flats in three portions of the suit land as per the agreement dated 21-11-1993. Agreements were also entered into for selling the flats proposed to be constructed by the Plaintiffs in the said portion of the land and the work of the said three buildings had reached the height of the first floor slab of one building plinth level of the second building and half plinth level and first floor level of the third building. The investment incurred by the Plaintiffs was amounting to Rs.28,50,000/- in the suit land for the infrastructural development therein. It is further their case that in August, 1995, five of the members initiated proceedings against the Defendants objecting to the work carried out by the Plaintiffs, by filing arbitration proceedings. A temporary injunction was also obtained in the said proceedings which was subsequently vacated. The contention of the said five members was that the work of development was carried out by the Defendants in violation of the scheme of the Defendants of putting up construction of houses therein. 3. A temporary injunction was also obtained in the said proceedings which was subsequently vacated. The contention of the said five members was that the work of development was carried out by the Defendants in violation of the scheme of the Defendants of putting up construction of houses therein. 3. It is further the case of the Plaintiffs that by letter dated 26-9-1995, they called upon the Defendants to effect the payment of mobilization amount of Rs.20,00,000/- for construction work of the said 10 bungalows/houses for the 10 members and there was no response from the Defendants to the said letter. Ultimately, by reply dated 146-1996 to the letter dated 16-5-1996, the Plaintiffs requested the Defendants to call for a meeting of its Managing Committee but, however, the Plaintiffs boycotted the said meeting as according to them there were strangers along with the office bearers. It is further their case that the development was supposed to be completed by the Plaintiffs within 24 months from the date of the receipt of all the approvals/permissions from the concerned authorities for the said development but, however, till November, 1996 permissions' were received for only part development of the suit land whereas the permissions for putting up construction of the remaining land were not obtained. It is further their case that the Plaintiffs performed all their obligations under work order dated 6-3-1989 and the agreement dated 21-11-1993 and was ready and willing to perform their obligations under the said agreements and are still ready and willing to perform their obligations under the said work order and the said agreement. It is further their case that the Defendants have failed to perform their said obligations under the said work order/agreement and did not even pay the initial mobilization amount of Rs.15,75,000/- and Rs.12,00,000/- payable for commencement of the work. It is further their case that in view of the ex-parte Order obtained by the said members, the work had come to a stand still and even after the work order was vacated the Plaintiffs did not commence the work since they did not want to create any further misunderstanding with the Defendants. It is further their contention that the Plaintiffs have invested a sum of Rs.28,50,000/- in the suit land including infrastructural development and out of the said amount a sum of Rs.26,50,838.44 belongs to the prospective flat purchasers. It is further their contention that the Plaintiffs have invested a sum of Rs.28,50,000/- in the suit land including infrastructural development and out of the said amount a sum of Rs.26,50,838.44 belongs to the prospective flat purchasers. The Plaintiffs stated that on 8-11-1996, a public notice was published in the Navhind Times wherein it was stated that the agreement between the Plaintiffs and the Defendants was terminated from 8-111996 and thereafter on 9-11-1996 the Plaintiffs received a letter/notice from the advocate of the Defendants. The grounds for such termination was that the Plaintiffs neglected and failed to comply with the agreement and the road was not constructed and no sub-divisions of the said property into plots had been carried out nor has the work been carried out from the date of the execution of the work contract. It is further their case that the Plaintiffs were not liable to do any sub-division of the land nor that the Plaintiffs had not commenced the work as contemplated in the work order and the agreement. The Plaintiffs disputed the said grounds raised by the Defendants to terminate the said agreement and the said notice was replied on 12-11-1996 to the advocate of the Defendants. It is further their case that when they went to the suit plot on 12-11-1996 they saw some unknown people doing some work and found some G.I. sheets missing from the suit land which according to the Plaintiffs' estimate was Rs.2,46,000/-. Immediately thereafter Arbitration Case was filed by the Plaintiffs on 18-11-1996 before the Assistant Registrar of Co-operative Society as a dispute under Section 91 of the Maharashtra Cooperative Societies Act, 1960. In the said proceedings, an application for temporary injunction was also filed and that by Order dated 9-12-1996 the authority held that he had no jurisdiction to entertain and try the said case. An appeal was also preferred by the Plaintiffs against the said Judgment before the Cooperative Tribunal and by its final order dated 7-7-1999 the proceedings were remanded back to the Assistant Registrar to record a finding as to whether the Plaintiffs are entitled for temporary injunction in respect of the said area of 2,800 sq. meters as the Plaintiffs found that they could not obtain the effective reliefs to the said proceedings. The Plaintiffs filed the present suit and withdrew the said proceedings before the Assistant Registrar of Co-operative Tribunal. meters as the Plaintiffs found that they could not obtain the effective reliefs to the said proceedings. The Plaintiffs filed the present suit and withdrew the said proceedings before the Assistant Registrar of Co-operative Tribunal. At para 50 of the said plaint, the Plaintiffs have contended that they have valued the work of infrastructural development carried out by the Plaintiffs in the said land. According to the Plaintiffs, a total amount spent works out to Rs.21,06,940/- and the particulars thereof are found at para 50 of the plaint. The Plaintiffs have also stated that they have started the construction of three buildings in the plot allotted to him and collected a sum of Rs.26, 15,838.44 from the flat purchasers and invested a total amount of Rs.28,50,000/- in the suit land. It is further their case that they are in possession of the suit land pursuant to work order dated 6-31989. The Plaintiffs further contend that they are also entitled for a fixed compensation of Rs.18,05,000/- with escalation as mentioned in the said agreement and that the Plaintiffs had spent a total amount of Rs.21 ,06,940/- and as such are entitled to recover a sum of Rs.6,55,722/- which is in excess spent by the Plaintiffs. They also claimed a sum of Rs.2,46,000/- towards the loss of materials in the said land and further in the alternativ~ claimed for compensation of Rs,28,50,000/- with interest at the rate of 18% per annum. Accordingly, the suit came to be filed praying for the transfer of the land admeasuring an area of 2,800 sq. meter's in terms of the agreement of development dated 21-11-1993 and also to pay a sum of Rs.18,05,000/- towards damages and compensation for wrongful termination of the agreement dated 21-11-1993 together with interest besides a sum of Rs.2,46,000/- towards the said material and in the alternative to prayer (a) for specific performance for a sum of Rs,28,50,000/- together with interest at the rate of 18% per annum. 4. The Defendants on being served filed their written statement. It is their case that the Plaintiffs are not entitled for any relief in the said suit. They have disputed that the Plaintiffs had carried out any infrastructural development in the said property. It is further their case that since inception, the Plaintiffs had not carried out any work in the suit land. It is their case that the Plaintiffs are not entitled for any relief in the said suit. They have disputed that the Plaintiffs had carried out any infrastructural development in the said property. It is further their case that since inception, the Plaintiffs had not carried out any work in the suit land. It is further their case that the Plaintiffs had not even started the construction of the road as contemplated in the said agreement nor carried out any activity in terms of the agreement for carrying out the infrastructural development as contemplated therein. The Defendants have also denied that they were liable to pay mobilization advance of Rs.10,00,000/- in respect of infrastructural development and Rs.15,75,000/ - towards the first instalment before construction of the houses was started in the said property with 90% escalation as claimed by the Plaintiffs. It is also denied hat the Defendants had expressed their inability to pay the said amount of Rs.10,00,000/-. It is further disputed that a sum of Rs.14,55,217.60 were the expenses incurred by the Plaintiffs in the suit land as according to the Defendants no infrastructural development was carried out in the suit property. It is further contended by the Defendants that for the first time, the Plaintiffs started doing construction in the year 1995 and stopped some time in December, 1995. The allegation that the Plaintiffs had cut the land to a gradient was also disputed by the Defendants in their written statement so also that the houses claimed to have been constructed and in a broken condition. The Defendants also disputed that the Plaintiffs had rendered their services to change the zone of part of the land as settlement zone as according to the Defendants the said act was performed by the members of the Defendants themselves. It is further their case that the past members of the Society were hand in glove with the Plaintiffs and had executed one sided agreement. It is further their case that the work had to be completed within 24 months and that the Plaintiffs are misguiding. The allegation that there were any material and/or equipment in the suit property has also been disputed by the Defendants. It is further their case that the work had to be completed within 24 months and that the Plaintiffs are misguiding. The allegation that there were any material and/or equipment in the suit property has also been disputed by the Defendants. With regard to the contents of para 50 of the plaint wherein the particulars of the expenses incurred by the Plaintiffs have been pleaded, the Defendants only denied the said allegations and put the Plaintiffs to strict proof. 5. Along with the written statement, the Defendants have also filed a counterclaim and claimed that the Plaintiffs did not start the work in the right earnest and as such, on account of inflation in the construction costs and infrastructural development, it is claimed by the Defendants that the costs in the year 1999 works out to Rs.3,46, 92,195/- and considering the difference in the index from the year 1 989, the difference in the costs according to the Defendants is Rs. 1,25,35,911/- which they claim they are entitled to recover. A written statement to the said counterclaim was also filed by the Plaintiffs disputing the said amount as according to the Plaintiffs the Defendants are not entitled to any amount from the Plaintiffs as the delay was not occasioned on the part of the Plaintiffs. In view of the amendment of the plaint carried out by the Plaintiffs, an additional written statement was also filed by the Defendants on 22-6-2001. 6. On the basis of the pleadings, the learned Judge framed the issues and recorded the evidence adduced by the Plaintiffs as well as the Defendants. After, hearing the parties and on appreciating the evidence on record, the learned Judge by Judgment and Decree dated 13-8-2004 partly decreed the said suit and directed the Defendants to pay to the Plaintiffs a sum of Rs.28,50,000/- with 2% penal interest per annum from 8-11-1996 till payment and also a sum of Rs.18,05,000/- by way of compensation. The counterclaim filed by the Defendants came to be dismissed. 7. The counterclaim filed by the Defendants came to be dismissed. 7. Being aggrieved by the said Judgment, the Defendants have preferred the above appeal challenging the decree in favour of the Plaintiffs and the refusal of the counterclaim whereas the Plaintiffs also preferred the above appeal seeking for a modification of the impugned Judgment and Decree and praying for the compensation towards the materials as well as the modification of the rate of interest as awarded in the impugned Judgment. 8. Shri. S. D. Lotlikar, learned Senior Counsel appearing for the Defendants has assailed the impugned Judgment and pointed out that on perusal of the reliefs sought by the Plaintiffs in the suit, the Plaintiffs have prayed for the specific performance of the said agreement at prayer (a) and for compensation at prayer (b) besides the costs of the materials at prayer (d) and for compensation in the alternative to prayer (a) in prayer (e). The learned Senior Counsel accordingly submitted that the question of the learned Judge granting compensation in the alternative to the tune of the alleged amount of Rs.28,50,000/- would be justified only in case the Plaintiffs had been in a position to establish that they were ready and willing to perform their part of the agreement. Learned Senior Counsel further submitted that on the basis of the material on record, it is clear that the Plaintiffs were not ready and willing to perform their part of the agreement nor the Plaintiffs performed any activities as per the work order and the agreement which would justify their claim for compensation in the alternative. Learned Senior Counsel further submitted that the learned Judge lost sight that once the Plaintiffs had claimed compensation in the alternative to the claim for specific performance, the case for granting compensation for the termination of the said agreement to the tune of Rs. 18,50,000/- would not arise at all. Learned Senior Counsel further submitted that the very fact that the learned Judge granted the said two reliefs itself disclose that the learned Judge misconstrued the pleadings as well as the case advanced by the Plaintiffs and came to an erroneous conclusion that the Plaintiffs were entitled to such relief. 18,50,000/- would not arise at all. Learned Senior Counsel further submitted that the very fact that the learned Judge granted the said two reliefs itself disclose that the learned Judge misconstrued the pleadings as well as the case advanced by the Plaintiffs and came to an erroneous conclusion that the Plaintiffs were entitled to such relief. Learned Senior Counsel further submitted that in any event, on the basis of the evidence on record, it is evident that the Plaintiffs failed to establish that in fact the Plaintiffs have incurred expenses to the tune of Rs.28,50,000/- as a claimed by them on account of infrastructural a development charges. The learned Senior Counsel further submitted that the Plaintiffs had c failed to adduce any material to establish that in a fact such expenditure had been incurred by them but only relied upon the evidence of an Engineer who cannot be believed. Learned Senior Counsel further submitted that the Engineer examined by the Plaintiffs was not at all associated with the so-called infrastructural development carried out by the Plaintiffs and as such, the question of the Engineer giving evidence to that effect would not arise. Learned Senior Counsel took us through the evidence on record and pointed out that as per the said agreement, the Plaintiffs were to construct a road so as to enable the Defendants to carry out the development therein but, however, no activity was carried out nor there is evidence hat on record to establish that the Plaintiffs had carried out any construction of such road. Learned Senior Counsel further submitted that the so-called infrastructural development carried out by the Plaintiffs was only in respect of the plots which were sought to be allotted to the Plaintiffs and as such, such work does not inhere any benefit to the Defendants, as such construction activity was dishonestly carried out by the Plaintiffs at their own risk. Learned Senior Counsel further submitted that the evidence on record establishes that the work of development had not at all taken off at the instance of the Plaintiffs as according to them, even the change to settlement zone was carried out by the members of the Defendants. Learned Senior Counsel further submitted that the evidence on record establishes that the work of development had not at all taken off at the instance of the Plaintiffs as according to them, even the change to settlement zone was carried out by the members of the Defendants. Learned Senior Counsel has further submitted that the Defendants have examined an expert who has categorically stated that no activity carried out by the Plaintiffs was visible at the site and the Defendants had to incur expenditure for the purposes of carrying out the work as pleaded in the counterclaim. Learned Senior Counsel further submitted that the Plaintiffs have miserably failed to establish that they were ready and willing to perform their part of the agreement and as such, the question of granting specific performance and/or in the alternative any compensation to the Plaintiffs would not arise at all. Learned Senior Counsel has taken us through the pleadings and the evidence on record and pointed out the infirmities in the evidence of the Plaintiffs and submitted that the Plaintiffs have failed to establish that they are entitled for any reliefs and as such the learned Judge completely misdirected itself in partly decreeing the said suit. The learned Senior Counsel has further submitted that as per the case advanced by the Plaintiffs themselves, the work for development of the suit property has not been completed. Learned Senior Counsel has finally summarized his submission and pointed out that the agreement executed between the parties is only for infrastructural development and not for putting up construction therein. He further pointed out that there was default committed by the Plaintiff in completing the work within 24 months from the date of the agreement and further that the evidence discloses that the licences for construction of the work were obtained by the Plaintiffs only in April, 1994 which would not help the Plaintiffs to get any extension of time to complete the infrastructural development. He pointed out that the plaintiffs were not entitled to carry out the development of the land in the area of 2,800 sq. meters agreed to be allotted to him side by side with the infrastructural development which was not even completed by the Plaintiffs. He pointed out that the plaintiffs were not entitled to carry out the development of the land in the area of 2,800 sq. meters agreed to be allotted to him side by side with the infrastructural development which was not even completed by the Plaintiffs. The learned Senior Counsel further submitted that the amount awarded by the trial Court is much in excess to the one even contemplated in the agreement executed between the parties for the purpose of the expenses towards infrastructural development which in any event the Plaintiffs are not entitled as they had defaulted in complying with the term of the agreement to complete the work within 24 months from the date of the agreement. The learned Senior Counsel further submitted that the learned trial Judge was in error in coming to the conclusion that the Defendants were at fault. Learned Senior Counsel as such submitted that the impugned Judgment and Decree needs to be quashed and set aside. Learned Senior Counsel further submitted that in fact, the Defendants are entitled to recover from the Plaintiffs the amount for damages as claimed in the counterclaim and according to the Defendants, the conduct of the Plaintiffs in refusing to carry out the development in the suit land has resulted in the Defendants incurring escalated expenditure on which count the Plaintiffs are liable to pay to the Defendants the differential amount. Learned Senior Counsel has taken us through the evidence on record and pointed out that the Defendants have established that the Plaintiffs are liable to pay to the Defendants the amount claimed in the counterclaim which has been wrongly rejected by the learned trial Judge. Learned Senior Counsel as such pointed out that the impugned Judgment and Decree deserves to be quashed and set aside and the counterclaim deserves to be decreed. 9. On the other hand, Shri. J. E. Coelho Pereira, learned Senior Counsel appearing for the Plaintiffs has supported the impugned Judgment with regard to the decree for payment of compensation. At the outset, learned Senior Counsel submitted that the Plaintiffs are not pressing for any relief of specific performance and the claim is only restricted to the recovery of the compensation as decreed by the learned trial Judge. At the outset, learned Senior Counsel submitted that the Plaintiffs are not pressing for any relief of specific performance and the claim is only restricted to the recovery of the compensation as decreed by the learned trial Judge. Learned Senior Counsel has taken us through the work order and pointed out that the Plaintiffs were successful tenderers for the work to carry out infrastructural development in the suit land as well as the construction of the houses. Learned Senior Counsel pointed out that immediately after the work was allotted to the Plaintiffs they carried out the re-survey of the land and before starting any activity in the said land, it was necessary that the zone be changed to settlement zone. To change the zone, the Plaintiffs had to prepare the plans and comply with other requirements in law and also forward the requisite documentation to the concerned authorities. Learned Senior Counsel further submitted that it is well known that to carry out the change to settlement zone, a person has to incur substantial expenditure and admittedly the Defendants have failed to establish that they have incurred any such expenditure and as such, the question of claiming that the change of zone was carried out at the instance of the members of the Defendants are total1y erroneous. Learned Senior Counsel has further submitted that the Plaintiffs have categorically stated that they had carried out the work of construction of the road and even built a RCC culvert and for that purpose specific expenditure had to be incurred. As to the limited extent the road was remaining to be completed a deduction on that count has been made by the Plaintiffs. Learned Senior Counsel further submitted that in terms of the said agreement, the Plaintiffs had submitted the plans to the concerned authorities and even the approval with regard to the 10 bungalows to be allotted to 10 members were duly granted at the instance of the Plaintiffs by the Village Panchayat. Learned Senior Counsel further submitted that in terms of the agreement a portion of the land admeasuring 2,800 sq. meters was allotted to the Plaintiffs and the work of construction therein was started by the Plaintiffs on which count the Plaintiffs had incurred substantial expenditure. Learned Senior Counsel further submitted that in terms of the agreement a portion of the land admeasuring 2,800 sq. meters was allotted to the Plaintiffs and the work of construction therein was started by the Plaintiffs on which count the Plaintiffs had incurred substantial expenditure. Learned Senior Counsel has taken us through the contents of para 50 of the plaint and pointed out that the Plaintiffs had given the particulars of the amount spent by the Plaintiffs for the infrastructural work. Learned Senior Counsel further pointed out that there is no specific denial to the said amounts by the Defendants in the written statement. He further submitted that the only boggy raised by the Defendants is that the Plaintiffs had not started any infrastructural work in the suit land which the evidence on record establishes that such contention to be false. Learned Senior Counsel has further taken us through the evidence on record and the documents and pointed out that the Plaintiffs have established by evidence on record including the evidence of Engineer Bhende that the Plaintiffs had in fact carried out infrastructural development in the suit land and for the said purpose substantial expenditure had been incurred by the Plaintiffs which the Defendants are bound to pay to the Plaintiffs. Learned Senior Counsel has further submitted that the Plaintiffs were always ready and willing to perform their part of the agreement and that the work was not allowed to be completed by the Defendants and as such the Plaintiffs are entitled for the compensation as claimed by them. Learned Senior Counsel further submitted that under the provisions of the Specific Relief Act besides claiming specific performances, the parties are also entitled to claim compensation for wrongful termination of the agreement and as such the contention of learned Senior Counsel appearing for the Defendants that no such relief can be granted to the Plaintiffs is misplaced. The learned Senior Counsel has taken us through the tender notice as well as the letter addressed by the Plaintiffs and pointed out that the work of infrastructural development to be done by the Plaintiffs have been specifically stipulated therein. The learned Senior Counsel has taken us through the tender notice as well as the letter addressed by the Plaintiffs and pointed out that the work of infrastructural development to be done by the Plaintiffs have been specifically stipulated therein. The learned Senior Counsel further submitted that the Plaintiffs had completed the work of construction of the culvert besides doing the terracing, digging of the two wells, construction of benches as well as carrying out the work for putting up the houses apart from changing the zone and carrying out the resurvey and obtaining the conversion sanad and carrying out of all activities which are required for development of the suit land including levelling and cutting of the land to the extent necessary. In support of his submissions, the learned Senior Counsel has relied upon the Judgments of the Apex Court in the case of Sheikh Abdual Sattar Vs. Union of India (AIR 1970 SC 79), Jagdish Singh Vs. Natthu Singh ( AIR 1992 SC 1604 ) and Damodar Valley Corporation Vs. K.K Kar( AIR 1974 SC 158 ). Learned Senior Counsel has further pointed out that the learned Judge whilst passing the impugned Judgment has erroneously refused the claim of the Plaintiffs with regard to the costs of the material which was located in the land which the Plaintiffs are entitled to claim from the Defendants. Learned Senior Counsel submitted that even in terms of the agreement the interest contemplated was 12% per annum and as such the question of granting only 2% per annum by the impugned Judgment is totally erroneous and deserves to be modified. Learned Senior Counsel as such submitted that the claim in the counterclaim filed by the Defendants is totally erroneous as the question of claiming compensation would not arise as according to him the default was on the part of the Defendants. Learned Senior Counsel submitted that the Plaintiffs failed to establish by cogent evidence that there was any such difference in the actual expenditure incurred by the Defendants in carrying out the development and as such the question of granting any relief would not arise. Learned Senior Counsel submitted that the appeal of the Defendants deserves to be rejected and the appeal preferred by the Plaintiffs be allowed and the decree modified accordingly. 10. Learned Senior Counsel submitted that the appeal of the Defendants deserves to be rejected and the appeal preferred by the Plaintiffs be allowed and the decree modified accordingly. 10. On perusal of the impugned Judgment and upon hearing the learned Senior Counsel and going through the pleadings of the parties and the evidence on record, we find that the following points for determination arise in the present appeals. 1. Whether the learned Judge was justified in directing the payment of a sum of Rs.28,50,000/- in the alternative to the prayer for specific performance as claimed by the Plaintiffs? 2. Whether the learned Judge was a justified to direct the payment of Rs.18,50,000/- as compensation for the s wrongful termination as claimed by the Plaintiffs? 3. Whether the learned Judge was a justified to award interest at the rate of d 2% per annum on the said amount by the impugned Judgment and refuse the claim for the value of the materials at the site? 4. Whether the learned Judge was justified in refusing the compensation as claimed by the Defendants in the counterclaim? 11. We shall consider the first two points for determination together as they are interconnected. For the purpose of deciding as to whether the Plaintiffs are entitled to the compensation as claimed by them, it would be appropriate to ascertain as to what were the activities which were to be performed by the Plaintiffs in the suit property pursuant to the agreements executed between the parties. The question of considering the grant of specific performance does not arise in the above appeal as the learned Senior Counsel has conceded that the Plaintiffs do not press' for specific performance of the agreement but restricted their claim for compensation as decreed by the learned trial Judge and as claimed in the Appeal preferred by them. As such, the only point for consideration would be whether the Plaintiffs had in fact complied with the terms of agreement and were entitled for the compensation as decreed by the learned trial Judge to the tune of Rs.28,50,000/- and the compensation of Rs.18,50,000/- towards the wrongful termination of the contract. 12. As such, the only point for consideration would be whether the Plaintiffs had in fact complied with the terms of agreement and were entitled for the compensation as decreed by the learned trial Judge to the tune of Rs.28,50,000/- and the compensation of Rs.18,50,000/- towards the wrongful termination of the contract. 12. Whilst considering the prayer of the Plaintiffs for specific performance and in the alternative for the said relief for compensation, the learned Judge has considered the work order dated 6-3-1989 as well as the agreement executed thereafter dated 21-11-1993 whereby an area of 2,800 sq. meters from the suit land was allotted to the Plaintiffs. The said agreement is at Exh. PW1/D. The learned Judge has also considered that the terms of the said agreement which contemplate that the work of development had to be completed within a period of 24 months from the date of receipt of all permissions and approvals from the concerned authorities and that the Plaintiffs were entitled for extension of reasonable time. The learned Judge has considered that the licences from the Panchayat were obtained on 19-4-1994 and the time could not run from the date of agreement i.e. 29-11-1993. In the background of such facts, the learned Judge has considered whether the termination on the part of the Defendants was illegal and has come to the conclusion that the termination by the Defendants is not legal as the agreement was in full force and effect. The learned Judge has also considered the evidence of the Plaintiffs where he had given the details of the work carried out by them in the suit land. The learned Judge has also found that PW1 had deposed that he had received a sum of Rs.26,15,838.44 from prospective purchasers of the flat and that he had spent a sum of Rs.28,50,000/- for the development work. The learned Judge has also considered the provisions of the Planning and Development Authority (Development Plan Regulations, 1989) and found that under the provisions of the Town and Country Planning the permission for development is mandatory and no development can be carried out without such permissions. The learned Judge has considered the evidence of PW3/S. Bhende as well as the evidence of DW3/S. K. Prabhu Chodnekar examined by the Defendants. The learned Judge has considered the evidence of PW3/S. Bhende as well as the evidence of DW3/S. K. Prabhu Chodnekar examined by the Defendants. The learned Judge has also noted the fact about the pendency of the dispute between the members of the Defendants and found that DW3/Chodnekar had not furnished any particulars such as the measurements of the calculations of the basis on which the amount was worked out. The learned Judge has held that as the property was not transferred in favour of the Plaintiffs they were entitled for a sum of Rs.28,50,000/- which was the amount invested by them in the suit land for infrastructural development and also the said sum of Rs.18,50,000/- for wrongful termination of the contract and accordingly awarded the said compensation. 13. Records reveal that as the Defendants wanted to develop the suit land with the help of a contractor, the Defendants issued an advertisement and called for tenders to carry out development work in the suit land. The conditions inter alia provide thus:- 1(a) Preparing revised survey from Government, preparing Contour Survey and block levels at 2M grills, drawings concerning N.A.(fees involved) to be mentioned. Planning and construction of roads, drainage, culverts, sanitary and water supply systems designed estimated, quoted accordingly for execution. All the boundary stones, road divider stones, kerb-stones, each plot boundary stones, banking in roads and fencing of entire property to be suggested, with drawings and materials and quoted accordingly. For roads cross section of existing G.L. And completed road levels, should be shown with quantities of earth-work and other materials involved be shown. Longitudinal section to be clearly drawn technically with proper levels, gradients of roads and other details must be shown in drawings and its estimates and complete development expenses of roads and plots. 1.c) Levelling of each plot adequately with spot levels of original and final should be shown on drawings and executing its development and implicated cost clearly mentioned. If retaining walls, embarkments are required should be supported with correct sketches. Also plinths levels of each building be shown from respective book (Bench mark). 1.d) If culverts and side-drainages to be proposed specified for plots, then it should be supported with drawings, estimates, materials specified and rates quoted. 14. If retaining walls, embarkments are required should be supported with correct sketches. Also plinths levels of each building be shown from respective book (Bench mark). 1.d) If culverts and side-drainages to be proposed specified for plots, then it should be supported with drawings, estimates, materials specified and rates quoted. 14. The letter dated 25-2-1989 addressed by the Plaintiffs whilst submitting the quotations provides inter alia thus: (1) Laterite soling 3x2x6xo.15 M @ Rs.125.45 = 42,000-00 (Rupees Forty two thousand only) (2) Asphalt carpet over... (illegible) of 50mm. @ Rs.75.50 = Rs.1,00,440-00 thick using 6 kg. Asphalt per 1.5 m. sq. (Rupees One lakh four hundred and including forty) spreading rolling 372x4M= forty) 1488M2 (3) Preparing sulegrade for road work after cutting and filing. (enclosed earth work detail) Rs.97,500=00 Item 1(c) Levelling each plot/terracing during Rs.2,44,350=00 (Rupees Two lacs capping out after completion of plinth and forty four thousand three hundred retaining the same with random pitching or toe and fifty only) wall. Restricted quantity 60% of 13575.08= 8145x30=00 (in soil) Item 1 (d) Construction of R.C. Culvert over Rs. 8000-00 Rupees Eight Thousand Panchyat stream water drain 8x6m only. Side drain 0.30mx 0.30m along road Rs.26,040-00 + Rs. 8,000-00 372m x Rs.70 per m. Total: Rs.34,040-00 Rupees Thirty Four Thousand and forty only. 1 (e) Developing well at Rs.1 0,000 each by Rs. 1 0,000-000 (Rs. Ten thousand cleaning and building parapet wall of 0.90M ht. only) Rs.10,000-00 Escalating the well and increasing the depth to 0.50m thick with strainer and constructing Rs.27,900-00 G.L. Sup. Sup and constructing and fixing Rs.25,000-00 3 H.P. Pump in a pump house of 3 sq.m. Rs.25,000-00 Area with 1½ P.V.C. pipe. Rs.87,900-00 (Rs. Eighty Seven Thousand Nine Hundred only). The time limit is valid from the date of obtaining all licences and after 15 days of information to us in writing. For any delay and due to calamities, disputes in Society, court or legal matters, Government or hindrances from Panchayat or any Agencies individuals shall be compensated to us by Arbitration and the period of completion may be duly increased. In case of demobilization - we shall demobilize only after we are compensated duly. The demobilization will be completed only after all dues are completely paid in all respect. In case of demobilization - we shall demobilize only after we are compensated duly. The demobilization will be completed only after all dues are completely paid in all respect. If pre-demobilization is affected before or midway of completion of project due to any action caused by Society their members, neighbours or any licencing bodies/Authorities then we shall be duly compensated at present value of market amounting to Rupees (9.50 lacs) Rupees Nine lacs fifty thousand only with interest applicable at Bank lending rates. Abstract of Rates Item I (a) Sulegrate & Road Rs. 2,69,614-00 (Two lacs sixty nine thousand six hundred and fourteen). Item I(b)----- Rs. 2,80,000-00 (Two lacs and eighty thousand). Item l(c)------ Rs. 2,44,350-00 (Two lacs forty four thousand three hundred and fifty). Item l(d)------- Rs. 34,000-00 (Thirty four thousand only). Item l(e)--------- Rs.87,900-00 (Eighty seven thousand nine hundred only). Item l(f)--------- Rs.75,000-00 (Rupees Seventy five thousand only). Item 2------------- Rs. 55,000-00 (Fifty five thousand only). Item 3------------- Rs.63,00,000-00 (Rupees Sixty three lacs). Rs.73,45,904-00 (Rupees Seventy three lacs forty five thousand nine hundred and four only). 15. Thereafter, an agreement came to be executed dated 21-11-1993. The recitals thereof provide that the Defendants desire to develop the property as group housing and that the conversion was obtained with the assistance of the Plaintiffs and the consideration for infrastructural development as provided in the work order dated 6-3- 1989 with 90% escalation costs would be the allotment of Blocks B, C and D plots in the suit land. There is also a reference to the letter dated 13-3- 1993 in the said agreement. The letter dated 13-31993 addressed by the Plaintiffs to the Defendants inter alia reads thus:- We have acquired all clearances necessary for commencement of Housing Construction after obtaining constructing Development N.O.C. (1) We have managed to convert your property of 16,700 sq. m. from Orchard to settlement valid till 1993. (2) We have managed to get your property re-surveyed and confirm it to 16,700 sq. m. in lieu of 1430 sq. m. (3) We have acquired the Conversion Sanad dt.7th Nov.1992. (4) You have expressed now, your inability to reject funds for development which works out to Rs.14,55,217.60 (Fourteen lacs fifty five thousand two hundred and seventeen and paise sixty only). This excl udes items of construction of fencing). m. in lieu of 1430 sq. m. (3) We have acquired the Conversion Sanad dt.7th Nov.1992. (4) You have expressed now, your inability to reject funds for development which works out to Rs.14,55,217.60 (Fourteen lacs fifty five thousand two hundred and seventeen and paise sixty only). This excl udes items of construction of fencing). This is based on 90% escalation above our tendered amount on items which was Rs.7,65,904-00 (Seven lacs sixty five thousand and nine hundred and four). (5) In your last General Body Meeting as suggested by your member Mr. Lotlikar (and subsequently we made a proposal) that in exchange of land admeasuring 2194=50m2 parcel 330=00m2 “ 276=00m2 “ Two thousand and eight hundred and fifty sq. meters shown in this attached plan described as part shown B block, C & D block respectively identified by red delineation. (6) We have also suggested that we shall pay Rs.2,24,783/-(Two lacs twenty four thousand seven hundred and eighty three) after completion of the entire project. (7) Please therefore expedite all the legal documentations so that I am able to prepare drawings of flats and start Coop. Housing Scheme(all relevant fees shall be paid by the Society) and commence booking. 16. All the aforesaid documents form the basis on which the Plaintiffs were allotted the work of infrastructural development. On perusal of the said document, we find that whilst executing the agreement dated 21-11993, the cost of the infrastructural development was fixed at Rs.7,65,904/- with 90% escalation which works out to Rs.14,55,210. The letter dated 13-3-1993 and the said agreement further categorically confirm that the Plaintiffs had obtained the sanad, completed the re-survey of the land and done the charge of zone. The said activities were part of the infrastructural development to be conducted by the Plaintiffs as per the said work order. Hence the contention of the learned Senior Counsel for the Defendants that the Plaintiffs failed to do any work in the suit land for development after obtaining the work order cannot be accepted. So also the contention of the Defendants that the development had to be completed within 24 months of the contract is contrary to the agreements which contemplate that the time starts from the date of receipt of permission with reasonable extensions. So also the contention of the Defendants that the development had to be completed within 24 months of the contract is contrary to the agreements which contemplate that the time starts from the date of receipt of permission with reasonable extensions. The evidence of the Plaintiffs as well as the admission by DW1 and DW3 Engineer examined by the Defendants further corroborates the claim of the Plaintiffs that the infrastructural development was substantially completed by the Plaintiffs. 17. The defaults alleged by the Defendants whilst seeking to terminate the agreement by Notice dated 16-11-1996 at Exh.DW1/D are that the road has not been constructed and that the sub-division of the property has not been completed. It is also alleged that no work has been executed from the date of the contract. We have extensively narrated the type of work entrusted to the Plaintiffs and we find that the property was to be developed as group housing and no subdivision thereon was required. This has also been admitted by DW1 in the cross at page 29. On perusal of the survey records in form Nos. 1 and XIV, the area of the land is shown as 16,700 sq. meters in respect of property surveyed under No.13/6 of Penha de Franca whereas the area in the sale deed dated 27-10-1988 was stated to be 14,300 which itself shows that the resurvey of the land was carried out by the Plaintiffs. The fact of carrying out such resurvey and preparing the plans for the said purpose has been established by the Plaintiffs on the basis of the records. The Defendants have not seriously disputed that the Plaintiffs have carried out such activity. DW1 has also admitted in the cross-examination that the area on the sale deed is 14,300 sq; meters and the area sought to be developed is 16,700 sq. meters which shows that such work of resurvey was performed by the Plaintiffs. There is also a sanad dated 7-8-1992 issued by the Deputy Collector and Sub-Divisional Magistrate, Mapusa for conversion of some part of the land admeasuring an area of 11,231 sq. meters. The said sanad was obtained prior to 1992. Apart from that, the evidence of PW1/N. Salgaonkar corroborated by DW3/Chodnekar shows that for the purpose of carrying out the development of the suit land the zone had to be changed to settlement zone. meters. The said sanad was obtained prior to 1992. Apart from that, the evidence of PW1/N. Salgaonkar corroborated by DW3/Chodnekar shows that for the purpose of carrying out the development of the suit land the zone had to be changed to settlement zone. The Plaintiffs have pleaded in the plaint that the services on that count were rendered by the Plaintiffs and for that purpose different plans had to be prepared and submitted to the concerned authorities. Though, the Defendants contend that the members of the Defendants had carried out the said work the Defendants have failed to give any particulars nor examine any such member who has assisted to carry out the changing of the zone of the suit land to settlement zone. As such, the contention of the Plaintiffs that they had taken steps to carry out the change of the zone is to be accepted. The evidence on record also establishes that substantial work on the road was done by the Plaintiffs. DW1 in the cross-examination has admitted that the Plaintiffs had constructed a bridge over the drain. He has also admitted that trucks were proceeding on the road constructed by the Plaintiffs to carry materials. DW1 further states in the cross-examination that the development to be carried out by the Plaintiffs is stated at para 8 of the affidavit. Para 8 thereof states that the Plaintiffs had to carry out the sub-division of the property which is not stipulated in the contract executed with the Plaintiffs. The other works mentioned by DW1 have been completed by the Plaintiffs. The fact that sub-division is not contemplated in the agreement has been admitted by DW1 in the cross at page 25. The licence at Exh.DW1/Y dated 19-4-1994 also specifies that permission for the construction of bungalows to the members of the Defendants were obtained by the Plaintiffs as admitted by DW1 at page 27 in the cross-examination. DW1 has also admitted at page 30 that but for the default in doing the sub-division and the road, no breach of compliance of any other item was mentioned in Exh.DW1/D. 18. From the foregoing evidence on record and the documents produced by the Plaintiffs, we find that there was no justification for the Defendants to terminate the agreement as records suggest that the Plaintiffs had pursuant tow the contract executed substantial works for the purpose of developing the suit land. From the foregoing evidence on record and the documents produced by the Plaintiffs, we find that there was no justification for the Defendants to terminate the agreement as records suggest that the Plaintiffs had pursuant tow the contract executed substantial works for the purpose of developing the suit land. The contention of Shri. Lotlikar, learned Senior Counsel that the Plaintiffs were not ready and willing to perform their part of the agreement and there are no pleadings to that effect cannot be accepted as there are specific averments in the plaint to that effect at para 34 of the plaint. The said aspect has been corroborated by the evidence adduced by the Plaintiffs as enumerated hereinabove. The learned trial Judge is as such justified to come to the conclusion that the Defendants defaulted by illegally terminating the contract. 19. We shall now proceed to determine the amount of compensation which the Plaintiffs are entitled to receive from the Defendants in view of the termination of the contract executed between the parties for the development of the suit property as the prayer for specific performance has been given up by the Plaintiffs. The specific amount claimed by the Plaintiffs at para 50 of the plaint have not been specifically traversed by the Defendants in the written statement. There is no specific denial to the amounts claimed but a bare denial and nothing more. The Apex Court in the Judgment in Sheikh Abdual Sattar Vs. Union of India (supra) has held at para 9 thus:- “9. Now according to the law of pleadings the defendant was bound to deal specifically with each allegation of fact, the truth of which was not admitted. The allegation that B.R.I. A.S.C. Eastern Command, Ranchi was the officer sanctioning the contract was not specifically dealt with and was therefore not specifically denied. If its truth was not admitted then it should also have been stated in this para as to who, according to the defendant, was the officer sanctioning the contract. Had the matter rested here the question of taking the appellant's allegation that B.R.I.A.S.C., Eastern Command was the sanctioning officer to have been admitted, would have required consideration. If its truth was not admitted then it should also have been stated in this para as to who, according to the defendant, was the officer sanctioning the contract. Had the matter rested here the question of taking the appellant's allegation that B.R.I.A.S.C., Eastern Command was the sanctioning officer to have been admitted, would have required consideration. But we find that in para 26 of the additional pleadings in the written statement it was pleaded that the Commander, Lucknow District was the officer sanctioning the contract and in para 27 it was added that the said officer had not sanctioned enhancement of contract rates. The appellant's plea in question would therefore have to be considered to have been traversed though we cannot complement the respondent or its law officer entrusted with the task of drafting the written statement for the manner in which it was drafted". 20. Considering the said Judgment of the Apex Court, we find that even in the evidence adduced by the Defendants, there is nothing to suggest that the Defendants have seriously disputed the specific amounts mentioned at para 50 of the plaint. The only dispute raised by the Defendants was to the effect that according to the Defendants, the Plaintiffs were defaulters and had committed breach of the contract which for the reasons already stated hereinabove cannot be accepted. 21. On perusal of the work order dated 6-3-1989 referred to hereinabove it discloses that the tender dated 25-2-1989 submitted by the Plaintiffs came to be accepted as per the terms stipulated therein. The costs for development expenses for item Nos.1 and 11 is worked out to Rs.12,95,904/- which was accepted for Rs.10,45,904/- by letter dated 63-1989. On perusal of para 50 of the plaint, the amount claimed by the Plaintiffs for rendering the services for change of zone and conversion of the property is a sum of Rs.3,58,290/-. The said amount has been arrived at 3% of the total project cost of Rs.119,46,000/-. On perusal of para 50 of the plaint, the amount claimed by the Plaintiffs for rendering the services for change of zone and conversion of the property is a sum of Rs.3,58,290/-. The said amount has been arrived at 3% of the total project cost of Rs.119,46,000/-. Once the contention of the Defendants that the change of zoning was done at the instance of the Defendants has been rejected, we find that the Plaintiffs would be entitled for the amounts for rendering such services as the evidence discloses that in fact the zone of the suit land was changed to settlement zone in view of the services rendered by the Plaintiffs, DW1 at page 9 of his cross-examination has also admitted that for changing the zone, plans have to be prepared and works had to be done which incur expenditure. The said figure claimed by the Plaintiffs has been reiterated by PW3/S.Bhende in his report. In the affidavit in evidence, he has stated that the land was originally a natural reserve zone which was thereafter changed and converted to settlement zone. He has further stated that the costs for carrying out such change of zone has been mentioned in his report. In the cross-examination of the said witness, we find that there is no specific suggestion to the contrary. The only suggestion put therein is that the cost of compensation given in the report are imaginary, baseless, fabricated and false. Considering the stand taken by the Defendants which has not been accepted to the effect that the Plaintiffs had not carried out the work of obtaining the requisite permission to change the zone from the concerned authorities and the amounts mentioned in the quotation of the Plaintiffs, we find that there is no reason to disbelieve the Plaintiffs that they are entitled to a sum of Rs.3,58,000/- on such count. 22. The next amount claimed by the Plaintiffs on account of expenses incurred by the Plaintiffs for the removal of the vegetation from the ground clearing the plot for contouring work, removal of boulders by breaking an excavation to lower the ground levels and for proper and admissible gradient for road and change of zone is an amount of Rs.5, 13,000/- and Rs.7,20,000/-. The amount has been worked out on the basis of 60% of 15,000 m3 at Rs.57/- per m3 and 40% of 15,000 m3 at Rs.120/- per m3. The amount has been worked out on the basis of 60% of 15,000 m3 at Rs.57/- per m3 and 40% of 15,000 m3 at Rs.120/- per m3. In his evidence, PW-1 has stated that in the property of the Defendants there were a lot of jungle trees which were required to be cut and for the purpose of constructing the road the surface had to be levelled to make it suitable for construction of the road. This was done for the total length of the road of 382.50 meters and a width of 6 meters. He has further stated that he had to reduce the gradient for the purpose of getting the change of zoning and had incurred the expenditure on that count. PW3/S. Bhende in his report has stated that the cutting and the levelling of the site was completed to commence the work and the road. The said aspect was verified by him on the basis of the original block levels furnished to him. The said figures as claimed by the Plaintiffs in the plaint have been confirmed by PW3/Bhende in his report. In his cross-examination, the fact that the said works have been done by the Plaintiffs have not been challenged. The amounts claimed by the Plaintiffs have also not been seriously disputed by the Defendants in their written statement though, it is contended in the report produced by the Defendants that no such work was carried out. On perusal of the report submitted by the Defendants, we find that the fact that there was cutting and filling has not been disputed in the said report. The report however stipulates that the plots have not been clearly demarcated distinctly with concrete pegs and no proper levelling of ground of each plot had been done. DW3 at page 27 in the cross-examination has admitted that there was hill cutting for terracing and the filing of the land and he had not given the details of such expenses in his report dated 13-4-1997. DW2 at page 15 in the cross has also admitted that Kamat the new contractor has not done any cutting for the plots. On perusal of the letter dated 25-2-1989 the amount payable for the levelling of the plots, etc. is a sum of Rs.2,44,300/- and Rs.97,500/- for preparing sub-grade of road and cutting and filing. DW2 at page 15 in the cross has also admitted that Kamat the new contractor has not done any cutting for the plots. On perusal of the letter dated 25-2-1989 the amount payable for the levelling of the plots, etc. is a sum of Rs.2,44,300/- and Rs.97,500/- for preparing sub-grade of road and cutting and filing. After giving an escalation of90% as contemplated in the fetter attached to the agreement in the year 1993 the amount works out to about Rs.6,49,420/- for the said work. As the Plaintiffs have failed to establish by any documentary evidence on record the actual amount spent on that count, we find that the amount to be awarded to the Plaintiffs for doing the said work would be an amount of Rs.6,49,420/- which is in accordance with the original tender document and the agreement executed between the parties. 23. Another amount claimed by the Plaintiffs is a sum of Rs3,16,000/- towards the preparation of the project plans, architectural drawings amounting to Rs.2,34,000/-; survey and block levels contouring initial and final and to maintain the road gradient Rs.66,800/- and RCC slab culvert Rs.15,000/-. PW-1 in his evidence has clearly stated that for the purpose of carrying out the infrastructural development such plans had to be prepared. The Defendants have not seriously disputed that the Plaintiffs had prepared the said plan. PW-3 has also corroborated the fact that he had perused the plan for the purpose of preparing his report. DW3 at page 9 in the cross has admitted that contour plans have to be prepared for development of hilly areas. The Defendants in their evidence have not disputed nor brought any evidence to the contrary. As such a sum of Rs.2,34,000/- towards such expenditure would have to be accepted, as the amount has been worked out on the basis of the submission level at 40% of the total amount. The sketchy cross-examination of PW-3 and PW-1 also shows that the Defendants have not disputed the said amount. 24. Dealing with the claim towards the survey and block level contour for maintaining the road gradient of Rs.66,800/-, the fact that such activity was carried out by the Plaintiffs can be borne out from the records. Even the expert DW3 examined by the Defendants has accepted that such gradient was found at the site though according to him it was not done properly. Even the expert DW3 examined by the Defendants has accepted that such gradient was found at the site though according to him it was not done properly. Nevertheless, considering the defence in the written statement wherein there is no serious dispute to the said amounts, we find that the Plaintiffs have established that such expenditure was incurred whilst carrying out the infrastructural development of the suit land. Similarly for the same reason the amount of Rs.15,200/- claimed by the Plaintiffs towards the expenses to construct a R.C.C. culvert would as such have to be accepted. Even the said Engineer examined by the Defendants has not disputed the existence of such R.C.C. culvert at the site. DW2/ Ramakant Kande has also admitted in his affidavit that the Plaintiffs had put the culvert. Hence the Plaintiffs are entitled to the said compensation. 25. Another amount claimed by the Plaintiffs is Rs.1,00,000/- towards the construction of the pump house and 3 hp sump with suction and discharge pipes. The fact that such sump was constructed by the Plaintiffs has not been disputed by the Defendants. Deposition of PW-3 and the material adduced on record establishes the existence of such sump. The Defendants have not challenged the quantum as claimed by the Plaintiffs. We accordingly find that the Plaintiffs have established that the said amount was spent on such count from the evidence on record. 26. The Plaintiffs are also entitled for Rs.38,000/- towards the construction of two wells. DW2 has also admitted the existence of the said wells at page 17 in his cross-examination. The amount spent and confirmed by PW3 have not been disputed by the Defendants. Hence the Plaintiffs would be entitled for Rs.38,000/- on that count. 27. Apart from the said compensation, the evidence discloses that pursuant to the agreement executed in November, 1993, an area of 2,800 was sought to be allotted to the Plaintiffs towards the consideration on account of infrastructural development carried out by the Plaintiffs in the suit land. In terms of the agreement, the Plaintiffs had started putting up construction in block (B), (C) and (D) and in fact the evidence discloses that the construction of one block was completed substantially. The expert examined by the Plaintiffs Shri Bhende has evaluated the incomplete constructions put up in the said block as Rs. In terms of the agreement, the Plaintiffs had started putting up construction in block (B), (C) and (D) and in fact the evidence discloses that the construction of one block was completed substantially. The expert examined by the Plaintiffs Shri Bhende has evaluated the incomplete constructions put up in the said block as Rs. 9,41,712/- but, however, the Plaintiffs have failed to adduce any evidence to substantiate that actually the said amount has been spent by the Plaintiffs for putting up the said incomplete structure. But, however, such incomplete structures were existing in the said portion of the property cannot be disputed in view of the evidence on record. Even the report produced by the Defendants of Shri. Chodankar values the incomplete structures to the tune of Rs.4,10,000/-. Though DW3/Chodankar has included the cost of the pump house in the said amount, in the cross he could not furnish the values separately. Considering that the Plaintiffs have failed to establish the actual amount spent though PW-3 has valued at above Rs.9,00,000/-, we find no difficulty in awarding a consolidated amount of Rs.4,10,000/- towards the value of the incomplete structures which were existing in the said portion of the property on the basis of the valuation report prepared by a DW3. 28. The Plaintiffs have claimed in the suit a sum of Rs.28,50,000/- as compensation in the alternate to the claim for specific performance. On perusal of the said agreement coupled with the work order the tender forms and letter dated 25-2-1989, we find that there was an amount of Rs.9,50,000/- as damages contemplated at the then current rate specified in case the agreement was terminated halfway. The escalation agreed by subsequent agreement is 90%, Though, the amount stipulated as liquidated damages may not be decisive but, however, when such amounts are stipulated, they serve a useful purpose to avoid litigation. The fact that to assess the compensation with precision is sometimes difficult. Fixing such amounts would assume that there was a genuine attempt by the parties to estimate their claim for compensation so as to overcome the difficulty of proof. The said amount has been suggested by the Plaintiffs themselves in the said letter and the same would help us to fix the total amount of compensation payable by the Defendants on account of the breach of the contract. The said amount has been suggested by the Plaintiffs themselves in the said letter and the same would help us to fix the total amount of compensation payable by the Defendants on account of the breach of the contract. In the present case, we have perused the letter of termination brought on record and found that the ground on which the termination has been effected is that according to the Defendants, the Plaintiffs had defaulted in complying with the terms of the contract. We find from the records that the Plaintiffs had substantially completed the work of infrastructural development and that substantial expenditure in that direction was incurred by the Plaintiffs. The learned Judge has rightly appreciated the evidence on record and has come to the conclusion that there was no fault by the Plaintiffs in complying with the terms of the agreement. The evidence further discloses that in the plot of 2,800 meters which 'has allotted to the Plaintiffs, they had carried out substantial construction activities therein. This aspect has not been disputed even by the Engineer examined by the Defendants. The cumulative circumstances as disclosed in the evidence on record establish that only after the new office bearers took over the charge of the Defendants a pretext was sought to be found to terminate the agreement of the Plaintiffs. The evidence discloses that the permissions from the Panchayat authorities was obtained by the Plaintiffs as late as in the year 1994 for construction of 10 bungalows and the plans for the remaining bungalows/houses for other members were also submitted. This establishes that the Plaintiffs were ready and willing to perform their part of the contract. Considering the overall evidence on record and the fact that the substantial construction activity was carried out by the Plaintiffs in the plots allotted to them, we find that the Defendants would be liable to pay to the Plaintiffs compensation for committing the breach of the contract. The amount invested by the Plaintiffs for putting up the construction of the said plot has been lost in view of the arbitrary attitude on the part of the Defendants to terminate the contract. The amount invested by the Plaintiffs for putting up the construction of the said plot has been lost in view of the arbitrary attitude on the part of the Defendants to terminate the contract. Considering the overall view of the matter, we find that the amount of Rs.18,71,400/- as stipulated above would also include the amount of compensation which the Plaintiffs would be entitled on account of the loss occasioned to them in connection of the incomplete constructions put up by the Plaintiffs in the said plot intended to be allotted to them pursuant to the agreement of November, 1993. Even on perusal of the agreement of November, 1993 and the letter dated 13-3-1993 the costs of infrastructural development was fixed at Rs.14, 15,217/-. The said amount obviously would not include the value of the incomplete structures existing in the said plot intended to be allotted to the Plaintiffs. Hence, we find that the amount determined as compensation is just and proper and in accordance with the documents on record. The learned Judge erred in awarding Rs.28,50,000/- as compensation without properly assessing the evidence on record and the documents produced by the parties. The Plaintiffs would as such be entitled only to a sum of Rs.18,71,400/- on account of the compensation. The learned Judge has failed to consider that the Plaintiffs have not established that they suffered damages of a sum of Rs.18,50,000/-, by any evidence on record. The Plaintiffs have not adduced any evidence on that count. In any event, under Section 73 of the Indian Contract Act such remote damages cannot be claimed. The learned Senior Counsel Shri. Coelho Pereira was unable to point any piece of evidence produced by the Plaintiffs to substantiate such claim by the Plaintiffs. While it is proper that the court should have a discretion to award damages in any case it thinks fit, one cannot, on the other hand overlook the unfairness and hardship caused to the other side in case such decree for damages is passed in addition to specific performance under Section 21 of the Specific Relief Act, 1963 without any pleadings and material on record. The Plaintiffs would be entitled only to the actual damages suffered by them on such count. The Plaintiffs would be entitled only to the actual damages suffered by them on such count. Considering the amount stipulated as liquidated damages and the value of the work done by the Plaintiffs in the suit plot, we find that ends of justice would be met if the Defendants are ordered and decreed to pay to the Plaintiffs a sum of Rs.18,71,400/-. Points 1 and 2 for determination are answered accordingly. 29. Dealing with the third point for determination, we find that the learned Judge was not justified to award interest @ 2% per annum on the compensation as awarded in the impugned Judgment. Whilst determining points 1 and 2, we have come to the conclusion that the Plaintiffs would be entitled to Rs.18,71,400/ -. The said amount would be payable by the Defendants with interest at the rate of 6% per annum from the date of filing of the suit upto actual payment. Considering the facts and circumstances of the case, we find that the interest should be at the rate of6% per annum instead of 2% per annum as awarded by the learned trial Judge. The points for determination are answered accordingly. Apart from that the claim for the materials, pumps, etc. at the site to the tune of Rs.2,46,000/- has been rightly rejected by the learned trial Judge. But, however, DW3 in his report dated 13-4-1997 has valued the value of the existing material at the site at Rs.35,000/-. As such the Plaintiffs would also be entitled to the said sum of Rs.35,000/- with interest @ 6% per annum. The third point for determination is answered accordingly. 30. Dealing with the fourth point, we find from the evidence on record that there is no material to establish that any loss has occasioned to the Defendants on account of any excess amount paid by the Defendants to complete the development of the suit plot. Shri. S. D. Lotlikar, learned Senior Counsel was unable to point out any piece of evidence produced to establish the said case. The fourth point is answered accordingly. In fact, while dealing with points 1 and 2, we have come to the conclusion that there was no default committed by the Plaintiffs in complying with the terms of the contract. On the contrary, the Defendants were at fault in terminating the said agreement. The fourth point is answered accordingly. In fact, while dealing with points 1 and 2, we have come to the conclusion that there was no default committed by the Plaintiffs in complying with the terms of the contract. On the contrary, the Defendants were at fault in terminating the said agreement. Consequently, the Defendants are not entitled to any amounts claimed in the counterclaim. As such, the point in awarding the compensation would not arise. 31. In view of the above, we pass the following Order:- ORDER 1. Both the appeals are partly allowed. 2. The Defendants are ordered to pay to the Plaintiffs a sum of Rs.19,06,400/ together with interest at the rate of 6% per annum from the date of filing of the suit until actual payment. 3. The impugned Judgment and Decree dated 13-8-2004 stands modified accordingly. 4. Both the appeals stand disposed of accordingly with no order as to costs. Ordered accordingly