JUDGMENT This appeal, preferred by the plaintiff/appellant, under Section 100 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 20.11.2002 passed in Civil Appeal No. 169 of 2001, whereby learned Additional District Judge/4th F.T.C Dehradun has partly set aside and modified the judgment and decree dated 21.08.2001 passed by the then Civil Judge (Senior Division), Dehradun in Original Suit No. 427 of 1996 titled as M.N.Farooqi vs. State of U.P. whereby plaintiff’s suit was decreed against the defendants for Rs. two lacs along with the interest at the rate of 10 % per annum pendentilite and future. 2. Brief facts of the case are that original plaintiff/appellant M.N.Farooqi instituted Original Suit No. 427 of 1996 for a decree for the recovery of Rs. 2 lacs in his favour along with interest at the rate of 2% per mensem pendentilite and future against the defendant/respondent State of Uttar Pradesh. It was averred in the plaint that he was carrying on a business of contractor in the name of M/S Ajanta Arts Service as its sole proprietor at Rishikesh, District Dehradun. The Executive Engineer (Establishment) Ex. En. U.P. Government Workshop, Roorkee issued a notice dated 03.08.1994 inviting tenders for the following works : i. Painting with coaltar apoxy paint after sand blast and primer coating shutter and its parts of radial gate in bay no. 1, 2 & 3 of Jawalapur Head Regulator site at Km. 6.04 of Upper Ganga Canal Modernization (World Bank) Project. The approximate quantity of the work was 6.50 sq. meters. In the execution of the work apoxy zinc rich primer and coaltar apoxy were to be issued (lot no. 1). ii. Painting with coaltar apoxy paint sand blast cleaning and primer coating shutter and its parts of radial gates in bay nos. 4, 5 & 6 of Jawalapur Head Regulator site at Km. 6.04 of upper Ganga Canal Modernisation (Word Bank) Project. The estimated quantity of the work was 650 sq. meters. The paints to be used in the execution of the work apoxy zinc rich primer and coaltar apoxy (lot no. 2.). iii. Painting with synthetic Enamel Paint after primer coating on hoist bridge and hoist assembly in 1 no, bays of Jawalapur Head Regulator and cross regulator site at 6.4 k m of upper Ganga Canal Modernization (Word Bank) Project. The estimated quantity of the work was 2150 sq. 2.). iii. Painting with synthetic Enamel Paint after primer coating on hoist bridge and hoist assembly in 1 no, bays of Jawalapur Head Regulator and cross regulator site at 6.4 k m of upper Ganga Canal Modernization (Word Bank) Project. The estimated quantity of the work was 2150 sq. meters. The paints and the primer to be used were red oxide primer and synthetic enamel (lot no. 3). 3. The plaintiff deposited a sum of Rs. 16,000/- as earnest money along with tender in respect of the aforesaid three works in the form of post office Savings Bank Account duly placed in favour of the Executive Engineer (Establishment), Roorkee. The period of execution of work in respect of lot no. 1 and lot no. 2 was 15 days each and in respect of lot no. 3 was one month. The Executive Engineer accepted the rates kept by the plaintiff/appellant in respect of lot no. 1 and the acceptance was communicated through letter dated 30.09.1994. The plaintiff/appellant was required to deposit Rs. 20,000/- security money either in the form of Savings Certificate or Savings Bank Account duly pledged in favour of the Executive Engineer (Establishment). The plaintiff/appellant was further required to submit stamp papers worth Rs. 1950 for executing the work within a week. The Executive Engineer accepted the rates kept by the plaintiff /appellant in respect of lot no. 2 and communicated the acceptance through letter dated 30.09.1994. He directed the plaintiff to deposit Rs. 20,000/- as a security money either in the form of Savings Certificate from post office or Saving Banks Account duly pledged in favour of Executive Engineer for a period of six months and to submit stamp papers of the value of Rs. 1950 for executing the agreement within a week. The plaintiff/appellant on receiving the letter informed the Ex. En. vide letter dated 06.10.1994 that the post office and banks were closed for the last four days due to imposition of curfew and in such circumstances, the Savings Certificate or Savings Bank Account could not be furnished. The plaintiff/appellant requested the Ex. En. to deduct the amount of the security money in respect of both the lots from the first ruing bill. Stamp papers up to the value Rs. 1950+1950 were submitted in the office of Ex. En. along with the tender letter dated 06.10.994. 4. The plaintiff/appellant requested the Ex. En. to deduct the amount of the security money in respect of both the lots from the first ruing bill. Stamp papers up to the value Rs. 1950+1950 were submitted in the office of Ex. En. along with the tender letter dated 06.10.994. 4. It was also averred in the plaint that the plaintiff/appellant through his letter dated 15.10.1994 informed the Executive Engineer that he has made arrangements for material, tools, plants and labour for the execution of work. On that day signatures of plaintiff/appellant were obtained on the agreements. The plaintiff was informed on 07.10.1994 that the Canal was likely to be closed on 14.10.1994. Plaintiff/appellant was informed that the closure of Canal has not been notified in the gazette and it was expected to be notified in a day or two, as usual period of closure was from the middle of October to the end of October. The plaintiff/appellant again sent a letter dated 17.10.1994 to the Executive Engineer requesting for intimating the date of closure and also requested that a copy of the agreement be furnished to him. On 17.11.1994 Executive Engineer informed the plaintiff/appellant that the canal has not been closed in the month of October, 1994 and therefore, execution of the work was not possible. Ex. En. cancelled the acceptance of the tender vide letter dated 17.11.1994. The plaintiff/appellant made arrangements for paints, labour etc. in the second week of October, 1994 and the labour remained engaged till the receipt of letter dated 17.11.1994. The plaintiff / appellant suffered loss due to cancellation of acceptance of tender. The paint which was to be used in the aforesaid works was not a marketable item. It was manufactured specially according to the demand. plaintiff / appellant requested M/S Rishikesh Hardware for the supply of the required quantity of primer and paints. The plaintiff / appellant paid a sum of Rs. 15,000/- in cash and Rs. 33,500/- by cheque to M/S Rishikesh Hardware as advance and promised to pay the balance price of paint and primer on lifting of said items. plaintiff / appellant assured M/S Rishikesh Hardware that he would purchase the primer along with paints and on the assurance of plaintiff / appellant, M/S Rishikesh Hardware placed order for the supply of primer and paint with the manufacturer. The total cost of paint and primer was Rs. 2,43,677/-. plaintiff / appellant assured M/S Rishikesh Hardware that he would purchase the primer along with paints and on the assurance of plaintiff / appellant, M/S Rishikesh Hardware placed order for the supply of primer and paint with the manufacturer. The total cost of paint and primer was Rs. 2,43,677/-. The life of paint is only six months and thereafter the paint cannot be used. The plaintiff / appellant could not procure any other contract in the month of October and November due to the aforesaid works. The plaintiff / appellant gave contract to Shri Surendra Datt Joshi for painting work as the labour required for painting was to be provided by Surendra Datt Joshi. His services were engaged on 11.10.1994 and he was paid a sum of Rs. 10,000/- as advance. The plaintiff / appellant gave the contract for carrying out the work of sandblast cleaning to one Shri Santosh Kumar. He engaged his services for the said work on 12.10.1994. He was to be provided required labour for execution of the aforesaid work and was paid a sum of Rs. 15,000/- as advance. According to the plaint the plaintiff / appellant suffered following losses due to non-execution of the work : a. Amount paid to the sub-contractor – Rs. 25,000/- b. Amount paid to M/S Rishikesh Hardware. Rs.48,500/- c. Advance paid to Sunrise Minerals for the supply of Air Compressor on 10.10.1994 - Rs. 10,000/- d. Expenses incurred in visiting the office of the Executive Engineer (Sthapan) Roorkee in the months of September, October and November, 1994. – Rs.3,150/- e. Loss of profit @ 10 % of the value of the contract – Rs.50,700/- f. Earnest money – Rs.16,000/- g. Cost of stamp papers – Rs. 3,900/- h. Cost of tenders including stamp papers - Rs. 600/- Total – Rs. 1,57,850/- 5. Plaintiff / appellant sent a notice under Section 80 C.P.C. dated 28.01.1995 to the defendant/respondent saying that he is small scale entrepreneur and is entitled to recover the said amount along with interest at the rate of 2 % per mensem from 10.101.994 till the date of payment by way of interest as well as by way of damages. 6. The defendant /respondent contested the suit before the trial court and filed written statement. It was averred in the written statement that the plaintiff / appellant neither deposited the amount of security money nor executed any contract. 6. The defendant /respondent contested the suit before the trial court and filed written statement. It was averred in the written statement that the plaintiff / appellant neither deposited the amount of security money nor executed any contract. The plaintiff / appellant was asked to deposit the amount of security within a week. There was no provision for realization of security from first running bill. It was wrong on the part of the plaintiff / appellant to say that he could not deposit the security because curfew was imposed. No intimation was given to the plaintiff / appellant that the canal would be closed w.e.f 14.10.1994. A news item was published on 11.10.1994 in ‘Amar Ujala’ that the canal will not be closed this year. No such intimation was given to the plaintiff on 15.10.1994 or on any other day. When the tender was cancelled the plaintiff was asked to take back the stamp papers. The plaintiff did not arrange for the paint and never engaged any labour. The department was not bound till the agreement was executed between the plaintiff / appellant and the department. The tender which was accepted on 30.09.1994 was cancelled on 17.11.1994. The plaintiff / appellant was not entitled to damages. 7. Learned trial court framed following issues : I. Whether the plaintiff / appellant suffered a loss of Rs. 1,57,850/- on account of cancellation of work-order by defendant directing the plaintiff / appellant to execute the work of painting etc. as alleged in para 16 of the plaint? II. Whether the plaintiff / appellant is entitled to interest at the rate of 2 % per mensem on the aforesaid sum from 10.10.1994 against the defendant ? III. Whether any contractual obligation arose between the parties ? IV. To what relief, if any, is the plaintiff / appellant entitled ? 8. Learned trial court after recording the evidence and hearing the parties decreed the suit. The defendant/respondent was directed to pay a sum of Rs. 2 lacs along with interest at the rate of 10 % per annum till the realization of amount. Said judgment was delivered by Civil Judge, Senior Division / 10th FTC, Dehradun on 21.08.2001. 9. 8. Learned trial court after recording the evidence and hearing the parties decreed the suit. The defendant/respondent was directed to pay a sum of Rs. 2 lacs along with interest at the rate of 10 % per annum till the realization of amount. Said judgment was delivered by Civil Judge, Senior Division / 10th FTC, Dehradun on 21.08.2001. 9. Aggrieved by the said judgment the defendant/respondent filed Civil Appeal No. 169/2001 before (the District Judge, Dehradun which was transferred to) Additional District Judge/4th FTC, Dehradun, who after hearing the parties allowed the appeal in part and partly decreed the suit holding that the plaintiff / appellant was entitled to get Rs. 29,900/- along with interest at the rate of 7 % per annum pendentilite and future. Now the plaintiff / appellant has preferred this Second Appeal against the order dated 20.11.2002 passed by the first appellate court lower/appellate court. 10. I have heard learned counsel for the parties and perused the lower court records. 11. The substantial questions of law involved in this case are as follows : i. Whether after completion of agreement plaintiff / appellant was legally entitled to the payment of loss incurred to the plaintiff / appellant by canceling the agreement ? ii. Whether the plaintiff / appellant was entitled to the damages as well as payment made in advance to the persons concerned in supplying the specific material as well as labour in connection with the work under contract ? 12. A tender notice dated 08.08.1994 was issued by Executive Engineer (Sthapan) U.P. Rajkiya Udyogshala, Irrigation Department, Roorkee. Tenders were invited for three works to be completed within a definite period. It was said that the tender papers (Ext. 10) would be purchased from the post office at any working day and the tenders were to be opened on 13.09.1994 at 3:30 pm. Vide letter dated 30.09.1994 plaintiff / appellant (M/S Ajanta Arts Services, Railway Road, Rishikesh) was informed that their tender was accepted and they were required to deposit security money and stamp paper to the office of Executive Engineer within a week. On 06.10.1994 plaintiff / appellant informed the defendant/respondent that defendant’s acceptance letter was received by him and made a request to execute agreement. It was also requested by plaintiff to deduct the plaintiff / appellant security amount from first running bill since curfew was imposed in Rishikesh for the four days. On 06.10.1994 plaintiff / appellant informed the defendant/respondent that defendant’s acceptance letter was received by him and made a request to execute agreement. It was also requested by plaintiff to deduct the plaintiff / appellant security amount from first running bill since curfew was imposed in Rishikesh for the four days. The same was replied by the defendant vide letter dated 6th October, 1994. The contents of this letter are important and are thus being reproduced herein below for ready reference: “Kindly refer to your letter mentioned above. This work is to be carried out during the period of closure of Ganga Canal. You will be given the date of commencement of the work no sooner the date of closure of canal is notified in the gazette. Till then you are requested to complete entire preparations relating to (the aforesaid) work.” 13. Thereafter the plaintiff / appellant again wrote a letter dated 15.10.1994 (Ext. 14) intimating the defendant/respondent that they have made complete preparations. The plaintiff/appellant went to the office of defendant/respondent on 07.10.1994 but could not meet the Ex. En. Plaintiff / appellant sent a letter to Ex. En. on 12.10.1994 also. Plaintiff / appellant again went to the office of Ex. En. on 15.10.1994 but it was intimated by Assistant Engineer 3rd that the date of closure of canal has not yet been notified. It was informed by plaintiff / appellant that the labour and appliances are ready. When the closure of Ganga Canal was not notified, the defendant/respondent informed the plaintiff / appellant that the work was not to be carried out and therefore, cancelled the acceptance of tender. The Executive Engineer made a request to plaintiff / appellant to take back the security money and stamp papers which the plaintiff / appellant deposited with the irrigation office. 14. Elaborate reasons have been given by learned Civil Judge, Senior Division and learned Additional District Judge for holding that the plaintiff/appellant suffered loss because the work order given to him was cancelled by the Executive Engineer. The agreement between the parties was complete. Executive Engineer gave it to plaintiff/appellant in writing that he should start preparations for executing the work. He was asked to be ready because the work was of emergent nature and was to be completed in stipulated time. 15. The agreement between the parties was complete. Executive Engineer gave it to plaintiff/appellant in writing that he should start preparations for executing the work. He was asked to be ready because the work was of emergent nature and was to be completed in stipulated time. 15. There is concurrent finding of the learned Civil Judge, Senior Division (trial court) as well as learned Additional District Judge (first appellate court). There is concurrent finding of fact that contractual obligations arose between the parties and plaintiff/appellant suffered loss because his work order was cancelled by the Executive Engineer. Finding of fact is that the tender awarded by the department was cancelled because of their own fault and not because of the fault of contractor. Therefore, appellant was entitled to damages. Parties to the suit (and appeal) have maintained that the proposal of plaintiff/appellant was accepted vide letter dated 30.09.1994. Although, this was not the condition in the tender notice but subsequently it came out that the work was to be carried out only after closure of Ganga Canal to be notified. Unfortunately, the said notification never saw the light of the day during that year. The Contract was concluded but later on the said contract was rescind. 16. I see no reason to differ from said findings of trial court as well as the first appellate court. 17. The first substantial question of law is therefore, answered in the positive. It is held that after completion of agreement plaintiff/appellant was legally entitled for the payment of loss incurred to the appellant by canceling the agreement. 18. Three issues were framed in the suit. Issue nos. 1 and 3, as said above, were decided in favour of plaintiff/ appellant by the learned trial court but when it came to the quantum of compensation, the same was reduced by learned first appellate court to Rs. 29,000/- only ( Rs. 10,000/- as an advance paid to Sunrise Mineral for compressor machine; 16,000/- earnest money and Rs. 3900/- for depositing stamp paper). 19. In the plaint, the plaintiff/appellant had sought relief in respect of the following: (a) Payment made by the plaintiff/appellant to sub-contractor - Rs. 25,000/-. (b) Payment made by the plaintiff/appellant to Rishikesh Hardware - Rs. 48,500/- (c) Advance paid to M/S Sunrise Mineral for air compressor - Rs. 10,000/-. (d) Transportation charges for going to the office of Executive Engineer - Rs. 3150/-. 25,000/-. (b) Payment made by the plaintiff/appellant to Rishikesh Hardware - Rs. 48,500/- (c) Advance paid to M/S Sunrise Mineral for air compressor - Rs. 10,000/-. (d) Transportation charges for going to the office of Executive Engineer - Rs. 3150/-. (e) Loss at the rate of 10% - Rs. 50,700/-. (f) Earnest money - Rs. 16,000/- (g) Value of stamp papers - Rs. 3,900/-. (h) Expenses of tender - Rs. 600/-. Total :- Rs. 1,57,850/- 20. Whereas the learned trial court agreed with the entire sum, learned first appellate court agreed with item no. (c), (f) and (g) only as referred in the foregoing paragraphs. 21. Before deciding anything it is to be borne in mind that the work order was to be carried out by the plaintiff/appellant within 15 days (or 30 days). Since plaintiff’s / appellant’s contract was accepted on 30.09.1994, therefore, it was incumbent upon him to make preparations for the same. Since the work was of emergent nature, therefore, the plaintiff/appellant had to keep everything in tune, no sooner he was asked to perform the work. It is because of this reason that the Executive Engineer wrote a letter to the plaintiff/appellant that he should get ready with all the preparations. Plaintiff /appellant was a small time entrepreneur. He had to arrange everything on his own from others. He, therefore approached Rishikesh Hardware for purchase of Apoxi Paint etc. and paid Rs. 15,000/- (Ext. 24) and Rs. 33,500/- (Ext. 25), in all 48,500/- to M/S Rishikesh Hardware. 22. Learned counsel for the State argued that Ext. 24 was dated 07.10.1994 whereas the cheque was dated 15.10.1994. How can a cheque be given later and receipt thereof be obtained earlier? To this, learned counsel for the plaintiff/appellant brought to the notice of this Court towards the fact that it was a post dated cheque. He drew the attention of the Court towards paper no. 38 (Ext. 23) which was letter dated 07.10.1994 wherein a request was made by the plaintiff/appellant to the Rishikesh Hardware to deposit the cheque in the Bank only on 15.10.1994. Learned counsel for the plaintiff/appellant submitted that the explanation was not sought from the witness who tendered evidence to prove Ext. 23. 23. Learned counsel for the State also argued that letter was given by Executive Engineer on 06.10.1994 then how could plaintiff /appellant make payment of hardware on 01.10.1994 ? Learned counsel for the plaintiff/appellant submitted that the explanation was not sought from the witness who tendered evidence to prove Ext. 23. 23. Learned counsel for the State also argued that letter was given by Executive Engineer on 06.10.1994 then how could plaintiff /appellant make payment of hardware on 01.10.1994 ? Learned counsel for the plaintiff/appellant replied that his contract was accepted on 30.09.1994 and since it was a work of emergent nature therefore, he approached Rishikesh Hardware on 01.10.1994, even before other formalities could be completed by the department. Learned counsel for the plaintiff/appellant also submitted that plaintiff /appellant is asking only for Rs. 48,500/- , an amount which was paid by him to Rishikesh Hardware. When he was questioned what happened to the Apoxi Paint when the contract of the plaintiff/appellant was rescinded, learned counsel for the plaintiff/appellant submitted that it was a special kind of paint and was thrown into gutters as has been said by one of the witness of the plaintiff /appellant. He also submitted that the defendant/respondent did not try to demolish the said statement of plaintiff’s/appellant witness in cross-examination. This Court is inclined to agree with the submission of learned counsel for the plaintiff/appellant that since the work was of emergent nature and the plaintiff was asked to remain in the state of preparedness by Ex. En., the plaintiff /appellant was required to start the work from the word ‘go’ and therefore, he had to prepare everything before hand in order to save embarrassment for himself as well as for the department. The plaintiff/appellant has not asked for a sum of s. 2,40,000/-, the expenses which would have been incurred in purchasing his entire material but he has asked for Rs. 48,500/- only, a sum which was paid by the plaintiff/appellant to M/S Rishikesh Hardware. Learned counsel for the State also questioned the wisdom of plaintiff/appellant to prepare so early when date of closure of Ganga Canal was not notified. It has come in evidence that the Executive Engineer himself wrote to the plaintiff/appellant to get ready in the matter and therefore, he was required to make all the preparations in time to avoid any embarrassment. It was only 15 days- 30 days time at his disposal. Therefore, there was nothing unusual on the part of plaintiff/appellant to have invested the money in order to purchase necessary items. It was only 15 days- 30 days time at his disposal. Therefore, there was nothing unusual on the part of plaintiff/appellant to have invested the money in order to purchase necessary items. Although the statement that the Apoxy paint was thrown into the gutters may be taken with a pinch of salt but the fact remains that the defendant /respondent did not try to demolish such statement in cross-examination of the witness who said so. This Court, therefore, is of the opinion that the plaintiff was entitled to Rs. 15,000 + 33,500 in addition to what has been accepted by learned first appellate court. 24. The plaintiff /appellant is not entitled to Rs. 25,000/- as claimed by him towards payment of labour contractor (paper no. 24, Ext. 14). This sum was said to have been paid by the plaintiff/appellant as an advance payment to labour contractor. Learned counsel for the State brought the attention of this Court towards Ext. 29 and Ext. 33 arguing that Ext. 29 was agreement of sub-contract. It was contract for doing the work. It was not the labour contract but the sub-contract. Learned counsel for the State also pointed out that no date has been mentioned in Ext. 33. In other words, it has not been mentioned from which date the labour will be provided. Further, it was nowhere mentioned in Ext. 14 that the plaintiff/appellant paid said amount to the labour. He also submitted that it was general condition in the agreement that the sub-contract shall not be given. There is sense in the in the argument of learned Additional Advocate General. It is not believable that somebody will pay Rs. 25,000/- to a labour contractor in advance for taking his labour in future especially when there were no definite dates when the labours were required to perform. The said document does not inspire confidence of the Court. So far as making payment in advance for purchasing material is concerned, it is believable and has been evidenced on record but why a contractor will make advance payment to the labourers, specially when the dates of work to be carried out by them were not certain. Labourers are often engaged on day-to-day basis. Had the dates been certain, it was believable that the labourers will not undertake any other work on the given dates. Labourers are often engaged on day-to-day basis. Had the dates been certain, it was believable that the labourers will not undertake any other work on the given dates. It was believable that if the work was once started, an advance payment would have been made to them but since the work had not yet been started so making advance payment to the labourers does not appear sound. Therefore, there appears to be no substance in claim of plaintiff/appellant so far as the advance made to labour contractor is concerned. 25. Now the next question arises how the losses incurred to the plaintiff/appellant are to be determined. 26. Learned counsel for the appellant submitted the ruling of Oil and Natural Gas Corporation Limited vs. Saw Pipes Ltd. (2003) 5 SCC 705 . Learned counsel for the appellant referred to paragraphs 45 & 46 of said ruling wherein it was observed that from the (aforesaid) sections (Section 73 & 73 of the Contract Act), it can be held that when a contract has been broken, the party who suffers of such breach is entitled to receive compensation for any loss which arises in the usual course of things from such breach. These sections further contemplate that if parties knew when they made the contract that a particular loss is likely to result from such breach, they can agree for payment of such compensation. In such a case there may not be any necessity for leading evidence for proving damages, unless the court arrives at a conclusion that no loss is likely to occur because of such breach. Further in case where the court arrives at the conclusion that the term contemplating damages is by way of penalty, the court may grant reasonable compensation not exceeding the amount so named in the contract on proof of damages. However, when the terms of the contract are clear and unambiguous then its meaning is to be gathered from the words used therein. In a case where agreement is executed by experts in the field, it would be difficult to hold that the intention of the parties was different from the language used therein. In such a case, it is for the party who contends that stipulated amount is not reasonable compensation, to prove the same. 27. In a case where agreement is executed by experts in the field, it would be difficult to hold that the intention of the parties was different from the language used therein. In such a case, it is for the party who contends that stipulated amount is not reasonable compensation, to prove the same. 27. It may be clarified here that in the instant case no such agreement regarding anticipated loss was entered into between the parties. 28. Learned counsel for the appellant also submitted extracts from the book titled as “Commentary on Contract Act” by P. C. Markanda, second edition 2008 to submit that the measure of compensation depends upon the circumstances of the case. The complained loss or claimed damage must be fairly attributable to the breach as a natural result or consequences of the same. The loss must be real loss or actual damage and not merely a probable or possible one. When it is not possible to calculate accurately or in a reasonable manner, the actual amount of loss incurred or when the plaintiff is not able to prove the actual loss suffered, he will be, all the same, entitled to recover nominal damages for breach of contract. Where nominal damages only are to be awarded, the extent of the same should be estimated with reference to the facts and circumstances involved. The general principle to be borne in mind is that the injured party may be put in the same position as that he would have been if he had not sustained the wrong ( Brahmdeo Narayan Singh vs. Members of the de-notified committee, AIR 1965 Patna 179). 29. Learned counsel for the appellant also drew the attention of this Court towards the observations made by Hon’ble Kerala High Court in State of Kerala vs. K. Bhaskaran, AIR 1985 Kerala 49, as follows : “12. So the question that is to be decided by this Court is whether 10% profit claimed by the plaintiff as a loss of gain prevented can fairly and reasonably be considered as a loss, ‘arising naturally’ i.e. according to the usual course of things. We think section 73 of the Indian Contract Act allowed as damages, the loss of reasonable profits arising from a breach of contract. We think section 73 of the Indian Contract Act allowed as damages, the loss of reasonable profits arising from a breach of contract. The rule that is applicable can be summarized as follows : ‘The defendant is liable only for ‘natural and proximate consequences of a breach or those consequences which were in the parties’ contemplation at the time of contract.’ The above quoted phrases are words of art and usually represent two ways of executing a single requirement. Proximate and natural consequences are those that flow directly or closely from the breach in the usual and normal course of event – those are ‘a reasonable man’ or a person of ordinary prudence would when the bargain is made for see, as acceptable results of later breach. The phase ‘ in the parties contemplation’ normally means for the reasonable contemplation of the defendant. Thus understood it has got only the same meaning as the companion phrase, ‘natural and proximate’. Brevity and clarity are better served by abandoning these traditional phrase of legal art and using instead the gist of their meaning. We propose the following statement of the rule. The defendant is liable only for reasonable, forcible loss - those that a normally prudent person, standing in his place possessing his information when contracting would have had reason to see as probable consequences of future breach.” 30. Learned counsel for the appellant also drew the attention of this Court towards the observations made in para 46 of Hon’ble Kerala High Court in C.T. Xavier & Others vs. P.V. Joseph and another, AIR 1995 Kerala 140. The relevant extract from the aforesaid ruling is reproduced herein below: “46. Once when the conclusion is reached that the defendants are liable because they have committed breaches of contract by abandonment without justification, the plaintiff would be entitled to the award of damages……………. This demand is more than reasonable because any contractor expecting 10 % profit and claiming damages in regard thereto on the basis of loss should be considered reasonable in regard thereto. 10 % profit should be held to be justifiable…………….. 47. However it must be made clear that with regard to this amount of damages ………….. This demand is more than reasonable because any contractor expecting 10 % profit and claiming damages in regard thereto on the basis of loss should be considered reasonable in regard thereto. 10 % profit should be held to be justifiable…………….. 47. However it must be made clear that with regard to this amount of damages ………….. in view of the decision of Supreme Court in Mahaveer Prasad vs. Durga Datta, AIR 1961 SC 1990 interest can not be granted up to the date of the suit as it is well settled.” 31. Learned counsel for the respondent referred to the ruling of M/S A.T. Brij Paul Singh and Brothers vs. State of Gujarat, A.I.R. 1984 S.C. 1703, wherein it was observed that the measure of profit would depend upon the facts and circumstances of each case. But that there shall be a reasonable expectation of profit is implicit in a works contract and its loss has to be compensated by way of damages if the other party to the contract is guilty of breach of contract. Learned counsel for the respondent submitted that in the case of A.T. Brij Paul Singh (supra), the contractor was awarded damages because he had executed a part of the works contract whereas, in the instant case, the contractor did not execute any part of the work contract. 32. He also referred to para 16 of the ruling given by Hon’ble Gauhati High Court in Union of India and another vs. Hari Mohan Ghosh, A.I.R. 1990 Gauhati 14, wherein it was observed that the loss of profit is not loss or damages which naturally arose in the usual course of things from the breach. In a case of non-delivery of goods such loss would be just the value of goods and the like but not damages due to the loss of profits. The plaintiff could be entitled to damages due to loss of business if he had made known to the Railway when the goods were booked that such loss was likely to result from the breach of it. He also referred to Andard Mount (London) Ltd., England vs. Curewel (India) Ltd, New Delhi, AIR 1985 Delhi 45, to show that the interest cannot be allowed by way of damages. There is no contract express or implied between the parties to justify the award of interest. He also referred to Andard Mount (London) Ltd., England vs. Curewel (India) Ltd, New Delhi, AIR 1985 Delhi 45, to show that the interest cannot be allowed by way of damages. There is no contract express or implied between the parties to justify the award of interest. Since the damages claimed by the plaintiff was not a sum certain the question of award of interest on unliquidated damages under the Interest Act too does not arise. Even otherwise it is well settled that ordinarily no interest is allowed on the amount of damages arising out of the breach of contract. In the instant case, plaintiff was held to be entitled to interest pendentelite from the date of institution of the suit as well as future interest from the date of the decree till realization on the said amount at six per cent annum. 33. Learned Trial Court has awarded 10 % interest per annum on the damage incurred by plaintiff/appellant. Learned lower appellate court ordered 7 % interest per annum on the loss incurred by plaintiff/appellant. As has been said earlier that no agreement was entered into between the parties anticipating loss to the plaintiff/appellant. As per Section 34 C.P.C. the normal interest on the loss would be 6% per annum. The said Section is set out herein below for ready reference : “34. Interest.- (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent per annum as the Court deems reasonable on such principal sum, from the date of decree to the date of payment, or to such earlier date as the Court thinks fit……………..” 34. But the next question arises what will happen if one of the courts below has awarded 7% instead of 6% interest per annum. Order 41 Rule 33 C.P.C. comes to the rescue of the Court wherein it is provided that: “ 33. Power of Court of Appeal. But the next question arises what will happen if one of the courts below has awarded 7% instead of 6% interest per annum. Order 41 Rule 33 C.P.C. comes to the rescue of the Court wherein it is provided that: “ 33. Power of Court of Appeal. - The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees , although an appeal may not have been filed against such decrees …………………..” 35. Theory of unjust enrichment has to be discouraged. Keeping in view the overall scenario of the subject matter in hand, this Court is of the opinion that the plaintiff /appellant should be awarded interest @ of 6 % per annum on the losses incurred by him. 36. Therefore, the plaintiff /appellant is entitled to the following along with interest @ of 6 per annum pendentilite and future (till the entire sum is paid) : (a) Advance paid to M/S Sunrise Mineral for air compressor - Rs. 10,000/-. (b) Earnest money - Rs. 16,000/- (c) Value of stamp papers – Rs. 3,900/-. (d) Payments made to M/S Rishikesh Hardware - Rs.15,000/- (e) Another payment made to M/S Rishkesh Hardware – Rs. 33,500/- 37. 2nd substantial question of law is accordingly answered as above. 38. Since the trial court has awarded a sum in excess of what the plaintiff/appellant was entitled to get and the first appellate court has awarded a lesser sum than what the plaintiff/appellant was entitled, therefore the appeal deserves to be allowed. Judgment and order of both the courts below are liable to be set side and modified. Total – Rs. 78,400/- 39. The Second Appeal is accordingly allowed. Judgment and order of both the courts below are liable to be set side and modified. Total – Rs. 78,400/- 39. The Second Appeal is accordingly allowed. The impugned judgment and order passed in Civil Appeal No. 169 of 2001 as also judgment and order passed in Civil Suit No.427 of 1996 M.N. Farooqi vs. State of U.P. are hereby set aside and modified to the extent as given in paragraph 36 of this Judgment. Defendant/Respondent is directed to pay the aforesaid amount to the Plaintiff/Appellant along with interest at the rate of 6 per cent per annum pendentilite and future.