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2015 DIGILAW 688 (GAU)

M. Apartment Pvt. Ltd. v. Rathindranath Sharma

2015-06-04

N.CHAUDHURY

body2015
JUDGMENT AND ORDER N. Chaudhury, J. In this first appeal, defendants of Title Suit No. 278 of 2002 have challenged the Judgment and Decree dated 15.12.2008 passed therein by the learned Civil Judge No.1 Kamrup, Guwahati. By that judgment, the learned trial court has decreed the suit of the plaintiff in entirety for recovery of Rs. 5,24,724/- from the defendants. Essential facts involved in the suit are required to be stated first. 2. One Dr. Rathindra Nath Sharma as plaintiff instituted Title Suit No. 278 of 2002 in the court of learned Civil Judge, No.1, Kamrup on 21.11.2002 for declaration and specific performance of contract. Pleaded case of the plaintiff is that he being the owner in possession of a plot of land measuring 1 Bigha covered by Dag No. 584 of K.P. Pata 79 of Village-Japorigog under Mouza Beltola described in schedule A to the plaint, entered into written agreement with the defendants on 24.2.1997 whereby it was agreed upon between the parties that a multi-storied building as per enclosed plan and design prepared by an approved architect and sanctioned by appropriate authorities like GMC and GMDA would be constructed on the land in question as per terms and conditions mentioned in the agreement and for that purpose an irrevocable Power of Attorney would be executed by plaintiff in favour of the defendant No. 1. Accordingly, on 1.3.1997, a registered Power of Attorney being No. 647/1997 was executed by plaintiff authorising the defendant No. 2 to perform the contract. As per the agreement, defendants in lieu of utilisation of plaintiff's property agreed to hand over five Apartments measuring 5611.41 sq. feet in two different floors of the proposed multi-storied RCC building as per specification in Schedule-B to the plaint as well as the agreement dated 24.2.1997. It was agreed that construction would be completed within a period of two and half years i.e., on or before 24.8.1999 but after the construction had started the defendants failed to comply with the requirements of the agreement and did not hand over Owner's Allocation in time. The Apartments D and F on the second floor were handed over to the plaintiff on 12.1.2001 about 17 months after the stipulated time and Apartment A, B and C were handed over to the plaintiff on 15.4.2001 about 20 months after the stipulated time. The Apartments D and F on the second floor were handed over to the plaintiff on 12.1.2001 about 17 months after the stipulated time and Apartment A, B and C were handed over to the plaintiff on 15.4.2001 about 20 months after the stipulated time. The plaintiff intimated the defendants about such default by letters dated 6.1.2001 and 2.4.2001 but the defendants did not give any reply to these letters. Under such circumstances, the defendants became liable to make payment of compensation to the tune of Rs. 5,57,698/- as furnished in the particulars of the claims mentioned in the plaint. The plaintiff further claimed that the defendants did not make payment of tax to the GMC to the tune of Rs. 6,474/- which is also a requirement under the agreement. So the plaintiff had to make the payment and hence a decree is liable to be passed against the defendants for realisation of Rs.6474/-as well. In addition to what is stated above, the defendants did not make construction of toilets in Apartments in A-1 and D-2 falling under Owner's Allocation which plaintiff duly intimated to the defendants. But the defendants neither made amend for the shortcomings nor did they reply to the communication of the plaintiff for which plaintiff had to approach technical expert for assessing the estimate for construction of the two toilets. The technical expert estimated the total expenditure at Rs.54224/-. Plaintiff informed this to the defendants but even thereafter nothing has been done. Under such circumstances, plaintiff was compelled to institute the suit for declaration that defendants have failed to perform their part of the contract as mentioned in the agreement dated 24.2.1997, that construction carried out by defendants is deficient in respect of toilets in Apartment A1 and D1 and is not upto the mark with reference to Clause -14 of the agreement. Plaintiff also prayed that Amin Commissioner be appointed to appreciate, analyse and pinpoint the defects and to make estimate thereof keeping in view Clause-14 and various other Clauses of the agreement. Consequently, a money decree for Rs.5,57,698/- has been prayed for by plaintiff against defendants along with cost and other reliefs. Schedule-A to the plaint gives description of the land measuring 1 Bigha whereupon the construction of "MAHALAXMI APARTMENT" has been made. Schedule-B to the plaint gives description of the "Owner' s Allocation" in the aforesaid construction. Consequently, a money decree for Rs.5,57,698/- has been prayed for by plaintiff against defendants along with cost and other reliefs. Schedule-A to the plaint gives description of the land measuring 1 Bigha whereupon the construction of "MAHALAXMI APARTMENT" has been made. Schedule-B to the plaint gives description of the "Owner' s Allocation" in the aforesaid construction. Particulars of claim included GMC Tax to the tune of Rs.6,474/- estimate of the Civil Engineering Consultant for construction of two toilets in Apartment A1 and D2 to the tune of Rs.54,224/-, rental loss for 20 months @ Rs.15000/- per month for apartment A, B and C for the period from 24.8.1999 till 15.4.2001 to the tune of Rs.3,10,000/- and lastly, rental loss for 17 months @ 11000/- per month for Apartment D2 and E2 w.e.f. 24.8.1999 till 12.01.2001 to the tune of Rs.1,87,000/-. The plaintiff has thus claimed a compensation of Rs.5,57,698/in total. 3. On being summoned, the defendants No.1, 2 and 3 appeared and submitted written statement contesting the suit and denying the case of the plaintiff in entirety. In para-6 of the written statement while replying to averments made in para-5 of the plaint, the defendants pleaded that the application for building permission was submitted to the GMDA on 31.3.1997 and 10.8.1997. As plaintiff could not provide all necessary land documents, defendants had to approach him on several occasions to collect the same. Ultimately, defendants had to engage their own advocate to procure the documents at their initiative from land revenue office and submitted the same to the GMDA for getting No Objection Certificate. Ultimately on 2.9.1997, GMDA granted the NOC. Similarly, GMC granted NOC on 17.11.1998. By making mention of these facts, defendants asserted that the delay of 21 months in completing construction was not due to their laches and negligence and so this period is liable to be deducted for the purpose of computing the period of construction. Apart from that, the plaintiffs had a number of tenants squatting on the Schedule-A land by setting up Motor Garage and plaintiff himself took 7 months' time to evict them from the Schedule-A land where after possession of the land could be handed over to the defendants for initiating construction works. Apart from that, the plaintiffs had a number of tenants squatting on the Schedule-A land by setting up Motor Garage and plaintiff himself took 7 months' time to evict them from the Schedule-A land where after possession of the land could be handed over to the defendants for initiating construction works. Thus, Schedule-A land became ready for construction only in the month of June, 2000 and in that view of the matter, defendants handed over the Owner's Allocation to the plaintiff in time. It is the further pleaded case of the defendants that on a number of occasions, plaintiff visited the office of the defendants and requested to issue possession certificate on a later date so that he could use the same for regularising his financial irregularities for the purpose of Income Tax Return although in fact he was given physical possession of the Apartment of Owner's Allocation much before the time mentioned in the possession certificate. In para-7 of the written statement, the defendants stated that they are neither liable to make payment of Rs.6474/- towards GMC tax nor are they liable to make any compensation. The defendants denied receipt of pleader's notice dated 25.10.2001. However, in para-9 of the written statement, while replying to averments made in para-8,9 and 10, the defendants admitted that Architect made negligible changes to suit the needs of the prospective flat purchasers without causing any Architectural imbalances and without violating the norms set down by competent authority. This is why in Apartment-A and D, Architect made minor changes by turning the bathroom in question into balcony for better ventilation for the benefit of the prospective users. It was felt that constructing bathroom in one floor and not in the other floors would affect the outside architectural beauty of the building and so defendants did not keep provision of keeping one bathroom in Apartments-A and D. However, these changes were informed verbally to the plaintiff to which he did not raise any objection at the time of construction. The defendants also made a submission that the authorities of GMDA and GMC be entrusted to visit the building to see if there is any violation in the construction as claimed by plaintiff in para-9 of the plaint. The defendants also made a submission that the authorities of GMDA and GMC be entrusted to visit the building to see if there is any violation in the construction as claimed by plaintiff in para-9 of the plaint. That being the position and more particularly, since the changes were made for the benefit of the Apartment holders in general, the defendants are not liable to make payment of any compensation to the plaintiff, defendants asserted. With these averments, the defendants prayed that suit of the plaintiff be dismissed with cost. 4. Upon such rival contentions of the parties, the learned trial court framed following eleven issues:- (i) Whether there is any cause of action for the suit? (ii) Whether the suit is maintainable in law as well as on fact? (iii) Whether the suit is bad for non-joinder of necessary parties? (iv) Whether the defendants have failed to perform their part of the contract fully as per agreement dated 24.2.1997? (v) Whether there is any deficiency in respect of toilet in flat/Unit-A-I and D-I with reference to clause-XIV of the agreement dated 24.2.1997 and specification prescribed by the defendant for the plaintiff? (vi) Whether the defendant deserved any direction to perform their part of their contract agreement for Unit A-I and D-I as per specification shown in the drawing with time bound programme? (vii)Whether there is any contributory negligence/delay on the part of the plaintiff which delayed the execution of the project by defendant? (viii) Whether the flat allotted to the plaintiff was made ready in time and handover in time to the plaintiff? (ix) Whether the plaintiff took physical possession at a later date intentionally and possession certificate was issued as per request of the plaintiff? (x) Whether the plaintiff is entitled to a decree as prayed for? (xi) Any other relief/reliefs parties are entitled? 5. In course of trial, plaintiff examined himself as PW-1 and exhibited as many as 12 documents. The defendants on the other hand examined the defendant No.2, Kamakhya Mahanta as the sole witness and exhibited as many as 9 documents as Exhibit-A to Exhibit-I. In course of his examination-in-chief, plaintiff virtually re-stated the averments made in the plaint and claimed that defendants are liable to compensate the loss incurred by plaintiff to the tune of Rs.5,57,698/- as mentioned in the particulars of the claims. Exhibit-1 is the certified copy of the agreement dated 24.2.1997 executed between the plaintiff and the defendants wherein Exhibit-1(1) and 1(7) are signatures of the plaintiff and Exhibit-1(8) to 1(14) are signatures of defendant No. 3 Sagar Saikia. Exhibit-1(15) to 1(21) are the seal and signatures of K. Mahanta who is the defendant No.2 and Director of S.M.Apartments Pvt. Ltd. Exhibit-2 is the irrevocable General Power of Attorney executed by plaintiff in favour of the defendant No. 1 on 1.3.1997. Exhibit-3 is the letter dated 6.1.2001 written by the plaintiff to the defendants complaining about the delay in handing over the Owner's Allocation to the plaintiff. Exhibit-4 is yet another letter issued on 2.4.2001 containing some allegations. Exhibit-5 is the letter written by defendant No.2 through plaintiff on 12.1.2001 directing him to take over possession of Apartment No. D and F at second floor of the building. Exhibit-6 is a similar letter written by defendant No. 2 to the plaintiff on 15.4.2001 asking him to take over possession of the Apartment A, B and C at the 1st Floor of the building. By Exhibit-7, the plaintiff wrote to the defendant No. 2 on 24.8.2001 highlighting the defects in the Apartment which are contrary to the agreement dated 24.2.1997. Pleader's notice dated 25.10.2001, the receipt of which has been denied by defendants has been exhibited as Exhibit-8 and Exhibit-9 is the postal receipt thereof. Exhibit-10 is the acknowledgment duly signed by one N. Deka on 29.10.2001 and the same has been placed on record by the plaintiff to show that pleader's notice was received by the defendants. Exhibit-11 is an estimate given by Consultant Civil Engineer on 4.10.2002 in two pages giving estimate for construction of toilets in Apartment D1 and D2. Exhibit-12 is the GMC receipt against payment of Rs.6474/- by plaintiff. 6. This witness was thoroughly cross-examined by defendants where he disclosed that agreement dated 24.2.1997 was executed through negotiation and one Gautam Baruah, Architect introduced him to the defendants. It is Gautam Baruah who had negotiated with the defendants and finalised the deal in respect of the suit land and building. After execution of the Power of Attorney and the agreement, a final plan of the building was prepared for obtaining permission from the competent authority. Plaintiff maintained that as per agreement, he was entitled to get 5611.41 sq. feet and that he received the same area. After execution of the Power of Attorney and the agreement, a final plan of the building was prepared for obtaining permission from the competent authority. Plaintiff maintained that as per agreement, he was entitled to get 5611.41 sq. feet and that he received the same area. He further stated that the suit land was inherited by him and his two brothers and two sisters from their deceased father and that during lifetime of his father, it had been transferred to him through court documents. He stated that Schedule-A land was covered by all sides by boundary walls and that one M.M.Motors was his neighbour. He denied that there was any garage on the suit land. However, thatched houses were occupied by his neighbor Saikia and by some persons who are acquainted with said Saikia. There was no power connection to the premises on the land and that defendants applied for building permission to GMC and GMDA after execution of the Power of Attorney and agreement. In reply to a specific question in course of cross-examination, he stated that he did not revoke the agreement and the Power of Attorney. On good faith the agreement and Power of Attorney is still valid. He stated that he was staying outside and that he is an income tax payer. He has disclosed in his income tax return about getting 5 flats in lieu of the land. However, he could not say in which year he had furnished the said return. He could not say whether flats were delivered in the same year to other purchasers. Though as per agreement, he was entitled to inspect the construction work of the flats but he did never inspect as he did not reside there. He denied the suggestion that he had failed to deliver all the relevant documents to the defendants for a long period for obtaining No Objection Certificate. He denied that he did not deliver the documents and that they had to obtain the documents by engaging their own advocate and had to prepare the papers. He also denied that he did not hand over the papers as he was out of Guwahati. 7. Defendant No. 2, Kamakhya Mahanta examined himself as DW-2. He stated that he submitted the written statement on behalf of defendants No. 1, 2 and 3. He admitted to have entered into agreement with the plaintiff on 24.2.1997. He also denied that he did not hand over the papers as he was out of Guwahati. 7. Defendant No. 2, Kamakhya Mahanta examined himself as DW-2. He stated that he submitted the written statement on behalf of defendants No. 1, 2 and 3. He admitted to have entered into agreement with the plaintiff on 24.2.1997. He applied for building permission before GMDA on 31.3.1997 and 10.8.1997 and that he got NOC on 2.9.1997. He reiterated the same story as narrated in the written statement about plaintiff approaching him to show a different date in the possession certificate than the one when the Onwer's Allocation were actually handed over. He stated that some negligible changes were made in the construction by Architect to suit the needs of the prospective purchasers without causing any architectural imbalance and by following the norms set down by competent authorities. He exhibited 9 documents as Exhibit-A to Exhibit-I out of which Exhibit-H and Exhibit-I were also exhibited by the plaintiff as Exhibit- 3 and Exhibit- 4 respectively. Exhibit-A is the building permission issued by GMDA on 2.9.1997 which contains the dates of filing application. Exhibit-B is the building permission from GMC on 17.11.1998. Exhibit-C to Exhibit-G are the possession certificates of Apartments under the Builder's allocation. Exhibit-H and Exhibit-I as referred to above are the same documents as Exhibit- 3 and 4 which are letters dated 12.1.2001 and 15.4.2001 respectively asking the plaintiff to take over possession of his Apartment falling under Owner's Allocation. This witness was thoroughly cross-examined by plaintiff side. In course of cross-examination, he stated that he is the Managing Director of Defendant No. 1 Company which was incorporated in the year 1991 for the purpose of constructing buildings. A number of persons are employed in the project and so there are permanent office staff as well. The approved architect of the defendant No. 1 is Gautam Barua and his associates. He admitted his signature in Exhibit-1 agreement and claimed that he signed the same on 25.21997 and not on 24.2.1997. He admitted that in the agreement there is no mention about existing house on Schedule-A land and that Exhibit 1(7) is the diagram of the building plan in which Exhibit-1(21) is his signature. Exhibit-1(7) is the owner's allocation after construction of the building. He stated that 30 months time was necessary for making construction complete. He admitted that in the agreement there is no mention about existing house on Schedule-A land and that Exhibit 1(7) is the diagram of the building plan in which Exhibit-1(21) is his signature. Exhibit-1(7) is the owner's allocation after construction of the building. He stated that 30 months time was necessary for making construction complete. He did not seek any document from the plaintiff either between 24.2.1997 to 1.3.1997 or thereafter. However, he sought for NOC from GMDA and GMC on 31.3.1997 and he did not supply the documents with the application. He also admitted that GMC and GMDA did not seek any shortfall document from him. He admitted that he did not write any letter to the plaintiff prior to 31.3.1997 for removing any structures from site. However, he denied that there was no structure on the Schedule-A land. In reply to a pointed question, he stated that agreement does not contain any recital to the fact that construction is to be completed within a period of 30 months from the date of getting permission. As per Schedule-B of Exhibit-1, he made the construction except bathroom under Owner's allocation. He stated that after delivery of owner's allocation, Builder got the right to sell the remaining apartment of the building to the purchaser and agreement also does not provide for any provision of making any change in the plan by Architect. He stated that he did not obtain any order from the authority to change the structure. He also did not inform the plaintiff that in place of one bathroom, there will be balcony. He admitted that while he wrote letters to the plaintiff on 12.1.2001 and 15.4.2001 for handing over possession of owner's allocation, he had issued possession certificate vide Exhibits-C, D, E and G in the year 2000 in respect of builder's allocation. He however, denied that he had violated any term or condition of the agreement and caused any hurdle to the owner's allocation. He denied to have caused any loss to the plaintiff amounting to Rs.5,57,698/-. In reply to a specific question, he stated that there is no such person as N. Deka under his establishment and he did not receive the pleader's notice. 8. The learned trial court after consideration of the aforesaid materials on record passed the impugned judgment and decree on 15.12. In reply to a specific question, he stated that there is no such person as N. Deka under his establishment and he did not receive the pleader's notice. 8. The learned trial court after consideration of the aforesaid materials on record passed the impugned judgment and decree on 15.12. 2008 holding that the plaintiff has cause of action, that the suit is maintainable, that the suit is not bad for defect of parties. The learned trial court decided Issue No. 5, 7, 8 and 9 together and noticed that the defendants stated in their written statement itself that in course of construction of building, Architect made negligible changes to suit the needs of the prospective flat purchasers without causing any change in the architectural imbalances and without violating the norms set down by competent authority. He noticed that Architect made minor changes by turning the bathroom in question into balcony for better ventilation of the particular flat to the benefit of prospective flat purchaser as it is not advisable to construct one bathroom in one floor and not constructing in other floors and this could have affected the outside architectural beauty of the building and that defendants did not keep the provision of keeping one bathroom in Apartment of Type-A and D. Considering the depositions of the parties, all these four issues were decided in favour of the plaintiff. As the learned trial court felt that defendants were selective in handing over possession of the flats, they delivered possession of flats to plaintiff much later than the possession of flat No. D-1 to others like Sri N. Zaman and so there were deficiencies in respect of toilets of unit A-1 and D-1 by owner's allocation. The learned trial court held that plaintiff spent Rs.54,224/- for curing the deficiency of constructing toilets in A-1 and D-1. The defendants failed to show any contributory negligence on the part of the plaintiff and that they have failed to show that actual possession of the flats were delivered to plaintiff much earlier than the dates mentioned in the possession certificates. 9. The defendants failed to show any contributory negligence on the part of the plaintiff and that they have failed to show that actual possession of the flats were delivered to plaintiff much earlier than the dates mentioned in the possession certificates. 9. While deciding Issues No. 4 and 5, the learned trial court held that as there were deficiencies in construction of owner's allocation and that flats of the owners were delivered after expiry of the stipulated time without there being any contributory negligence on the part of the plaintiff, Issue No. 4 was decided in favour of the plaintiff in the affirmative. But it was noticed that since the plaintiff had already constructed toilets at his own cost, there is nothing to be performed by defendants. So, the Issue No. 6 was decided in the negative. Ultimately, by deciding Issues No. 10 and 11, the trial court recorded as follows:- "By delaying the completion of the five flats of the plaintiff for more than a year it must have been peculiarly benefited at the cost of the plaintiff. Under such circumstance, the right of monthly rent of five flats estimated by plaintiff is tenable in the eye of law". 10. With these findings, the learned trial court held that claims of the plaintiff under two heads of pecuniary loss i.e. construction cost of two toilets and rental loss as calculated at Rs.5,24,724/- was tenable. However, the claim under the head of payment of tax to the GMC was not found tenable. It is this judgment which has been brought under challenge in the present appeal. In view of above factual position, the points for determination in this appeal are as follows: Whether the defendants have committed breach of contract ? If so, to what compensation the plaintiff is entitled? 11. I have heard Mr. K. Agarwal, learned senior counsel assisted by Ms. M Dey for the appellant and Mr. A. Sattar, learned counsel assisted by Mr. Z Mukhit for the respondent. I have perused the LCR including the deposition of the parties and the exhibits adduced by them. 12. Mr. K. Agarwal, learned senior counsel for the appellant would argue that the plaintiff has miserably failed to make out any breach of the terms of Exhibit-1 agreement not to speak of any damage caused to it. Z Mukhit for the respondent. I have perused the LCR including the deposition of the parties and the exhibits adduced by them. 12. Mr. K. Agarwal, learned senior counsel for the appellant would argue that the plaintiff has miserably failed to make out any breach of the terms of Exhibit-1 agreement not to speak of any damage caused to it. Under such circumstances, no case has been made out by plaintiff warranting a decree for damage and compensation. Drawing attention of the court to the plaint, the learned senior counsel would argue that the plaintiff in para-5 of the plaint pleaded that Apartments numbering D and F were described to have been handed over 17 months after the stipulated time and the same under Type - A, B and C were described to have been handed over after 20 months from the stipulated dates. The plaintiff pleaded that these shortcomings were pinpointed by plaintiff but were not rectified by defendants and so they are liable to pay compensation to the tune of Rs.5,57,698/-. The learned senior counsel relied on Exhibit-1 agreement dated 24.2.1997 particularly to Clause- 7 and 10 thereof. In Clause -7 of the agreement, it was agreed to between the parties that if either of the parties violates any terms and conditions of the agreement or in any way backs out in its commitment resulting in loss or damage whether financially or otherwise, then the defaulting party would be liable to compensate the other party to the extent of loss/damage. Similarly, as per provisio to clause 8 of agreement if Schedule-B property is not handed over to the 2nd party in well furnished condition as specified in Clause-14 as well as schedule-14 of the agreement within a period of two and half years, in that event the second party, namely, plaintiff, shall have every right to revoke the power of attorney and to cancel the agreement unilaterally. By showing this provision in the agreement, the learned senior counsel would argue that time was never the essence of the contract at all and there was only an indication in the agreement to give an option to the land owner for revoking the contract. By showing this provision in the agreement, the learned senior counsel would argue that time was never the essence of the contract at all and there was only an indication in the agreement to give an option to the land owner for revoking the contract. Moreover, even if it is assumed for the time being that time was the essence of the contract, the plaintiff has condoned the same and did not enforce the default clause as laid down in the agreement. According to him a party may forfeit his right to get compensation if he waives or acquiesces under section 55 as well as 63 of the Contract Act by not enforcing the option of the default clause. Mr. Agarwal further submits that as per the agreement, if any side fails to perform its part and this occasions loss or damage to the other side in that event the defaulting side is liable to compensate the damage. But the plaintiff herein made no attempt to establish the damage really sustained by it and so there is no scope to decree the suit at all. 13. The learned senior counsel has also referred to Sections 73 and 74 of the Contract Act in this regard. Section -73 entitles a party to the contract to receive compensation for loss or damage sustained by him caused by other side of the contract but it provides that no compensation would be available for any remote and indirect loss or damage sustained by reason of the breach. Section-74 is exception to Section-73. It provides for compensation for breach of contract where penalty is stipulated for. It provides that when a contract not only provides a term but also a penalty for breach of terms in some manner by mentioning some amount to be paid in case of breach, in that event party complaining of the breach is entitled whether or not actual damage is established, to such penalty as has been stipulated in the contract. In the case in hand, the default clause empowered the plaintiff to revoke the agreement and so failure to hand over the owners' allocation entails only such consequence and no compensation can be claimed under this head, Mr. Agarwal argued. 14. In support of his contention, the learned Senior Counsel has relied on the following decisions of the Hon'ble Supreme Court:- 1. Agarwal argued. 14. In support of his contention, the learned Senior Counsel has relied on the following decisions of the Hon'ble Supreme Court:- 1. M/s Hind Construction v. State of Maharashtra (1979) 2 SCC 70 2. Mcdermott International Inc. v. Burn Standard Co. Ltd. & Ors. (2006) 11 SCC 181 3. Arosan enterprises Ltd. v. Union of India & Ors. (1999) 9 SCC 449 4. Jagad Bandhu Chatterjee v. Smti Nilima Rani & Ors. (1969) 3 SCC 445 5. Krishna Bahadur v. Purna Theatere & Ors. (2004)) 8 SCC 229. 6. Provash Chandra Dalui and anr. v. Biswanath Banerjee & anr. (1989) Supply (1) SCC 487. 7. M.O.H. Uduman v. M.O.H. Aslum AIR 1991 SC 1020 8. ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705 , 9. Fateh Chan v. Balkishan Dass AIR 1963 SC 1405 10. Managing Director, Army Welfare Housing Organisation v. Sumangal Services (P) Ltd., (2004) 9 SCC 619 , 11.(M.O.H. Uduman & Ors. v. M.O.H. Aslum) AIR 1991 SC 1020 (Oil and Natural Gas Corporation Ltd. v. Saw Pipes Ltd.) 13. (1989) Supply (1) SCC 487 (Provash Chandra Dalui & Anr. v. Biswanath Banerjee & Anr.) 15. Per contra, Mr. A. Sattar, learned counsel for the respondent would argue that under Clause-17 and 18 of the agreement, the defendants bound them to indemnify the plaintiff from any financial liability involved in respect of A-Schedule property. According to the learned counsel, the defendants specifically undertook vide term -8 of the Exhibit-1 to complete the construction within a period of two and half years and then to hand over the same to the plaintiff. But instead of that they completed the Apartment of other persons and handed over the same to them in the year 2000 itself vide Exhibit-C, D, E, F and G. Admittedly, the defendants did not hand over possession of the owner's allocation before construction of the builders allocation and thus the defendants committed breach of the contract. Mr. Sattar would further assert that in the written statement the defendants admitted in para-9 that the Architect made changes to suit the needs of the prospective flat purchaser and minor changes were made by turning the bathroom into balcony. Mr. Sattar would further assert that in the written statement the defendants admitted in para-9 that the Architect made changes to suit the needs of the prospective flat purchaser and minor changes were made by turning the bathroom into balcony. Whether it was for proper ventilation or not it was definitely in deviation from the contract entered into between the parties and this is why plaintiff had to incur expenditure to the tune of Rs.54,424/- for the purpose of making construction. As to the toilets, defendants are definitely liable to make payment of the amount in terms of Clause-7 of the Exhibit-1. Coming to the question of rental loss, Mr. Sattar would argue that in the plaint, plaintiff has furnished the particulars as to how he suffered the rental loss. Basing on these particulars, demand was made to the plaintiff by letter Exhibit-7 and the defendants did not give any reply to the same for which it is to be presumed that they have no objection against the same. Since the defendants did not dispute the amount by giving reply notice, the plaintiff was not saddled with any responsibility to prove the same and so the learned trial court did not commit any illegality in decreeing the suit for rental loss and for construction of toilets. With these submissions, the learned counsel would assert that the appeal does not have any merit and it is accordingly liable to be dismissed with cost. 16. To understand the arguments of the learned counsel of both sides, it is required to see what are the relevant terms of the agreement and what is the effect of various sections of the contract Act in view of the agreement and the actions of the parties. The plaintiff and the defendant executed Exhibit-1 agreement on 24.2.1997 and thereby defendants were entrusted with the responsibility to make construction of MAHALAXMI APARTMENTS. Exhibit-1 has several terms and conditions. Clause 7, 8 and 14 of this agreement are relied on by both sides and they are relevant for the purpose of this suit. These clauses are quoted below for ready reference:- "7. Exhibit-1 has several terms and conditions. Clause 7, 8 and 14 of this agreement are relied on by both sides and they are relevant for the purpose of this suit. These clauses are quoted below for ready reference:- "7. That the PARTIES to this agreement that if either of the PARTY violates any Terms and Conditions of this agreement or in any way backs out in its commitments and if such act or omission on the part of the either part results in loss or damage whether financially or otherwise, to each party, then the defaulting party shall have to compensate lawfully the losing party to the extent of lass/damage and in such an eventuality the parties shall have first charge over the properties of each other. 8. That second part further reiterates that second part's right/claim under this agreement or otherwise, confines and shall, during the subsistence of this agreement, confine to only five apartment/unit per specification vide Schedule 'B' as entitled by the party of the Second part, any right or claim for any partnership or joint venture or co-ownership with the first part in respect of the first part's project or in the part of the building remaining after first part's handing over to the second part the owner's allocations/value thereof, provided the party of the first part do not construct any additional structure other than the specified structure/design annexed with this agreement. Only and if any subsequent modification is recommended by the final sanctioning authority. Provided that if the "Schedule B" property is not handed over to the party of the SECOND PART in well furnished condition as per clause 14 of this agreement and also per the specification made in "Schedule B" within a period of TWO AND HALF YEARS then the SECOND PART shall have every right to Revoke the Power of Attorney and cancel the agreement unilaterally. 14. 14. That FIRST PART shall install in the building, amenities including mosaic, marble/ceramic tiles, aluminium/iron/wood glazed windows, concealed copper wiring, concealed plumbing, common TV antenna, fire fighting system in staircase lobby on each floor, coloured glazed tiles in kitchen, toilets walls glazed tiles and marble floor, administration office room on ground floor of the building, personal telephone system, ground & terrace finished as per modern techniques, top quality high speed lift, well connected to each of the wings, 24 hours water supply, stilt car parking, electric installation, water-supply provisions, kitchen and bathroom fittings and all other amenities as provided in the approved plans to the entire R.C.C. Building including "Schedule B" property. " 17. Since the court is called upon to examine the plaintiff's allegation of breach in the light of Sections 55, 63, 73 and 74 of the Contract Act, before the relevant terms of the contract and the alleged breach are discussed it is necessary to have a look at these sections. These sections are quoted below for ready reference:- "55. Since the court is called upon to examine the plaintiff's allegation of breach in the light of Sections 55, 63, 73 and 74 of the Contract Act, before the relevant terms of the contract and the alleged breach are discussed it is necessary to have a look at these sections. These sections are quoted below for ready reference:- "55. Effect of failure to perform at a fixed time, in contract in which time is essential.-When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.-When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract." Effect of such failure when time is not essential.-If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure. -If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure." Effect of acceptance of performance at time other than that agreed upon.-If, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of such acceptance he gives notice to the promisor of his intention to do so.1 -If, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of such acceptance he gives notice to the promisor of his intention to do so." 63. Promisee may dispense with or remit performance of promise.-Every promisee may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, for may accept instead of it any satisfaction which he thinks fit. Every promisee may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, for may accept instead of it any satisfaction which he thinks fit. 73. Compensation for loss or damage caused by breach of contract.-When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. -When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. Compensation for failure to discharge obligation resembling those created by contract.-When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract. 74. Compensation for breach of contract where penalty stipulated for- [When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for. Explanation.- A stipulation for increased interest from the date of default may be a stipulation by way of penalty.] (Exception) http://indiankanoon.org/doc/14923744/- When any person enters into any bail-bond, recognizance or other instrument of the same nature or, under the provisions of any law, or under the orders of the [Central Government] or of any [State Government], gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of the condition of any such instrument, to pay the whole sum mentioned therein. Explanation.- A person who enters into a contract with Government does not necessarily thereby undertake any public duty, or promise to do an act in which the public are interested. 18. Explanation.- A person who enters into a contract with Government does not necessarily thereby undertake any public duty, or promise to do an act in which the public are interested. 18. The Clause -7 provides that if any of the parties commits breach of a term and condition of the agreement and if such breach results in loss or damage to the other side either financially or otherwise in that event defaulting party shall be liable to compensate the other side for the same. A perusal of Clause -7 would show that there are at least three ingredients therein. First, there has to be a breach of terms or conditions by a party, Secondly, such breach by one party would result in damage or loss to the other party and Thirdly, the defaulter would be liable to compensate such damage or loss. To make this term operational it is necessary to establish that there was a contract with some terms and condition one or more of which has been breached by other side. Mere breach of a term would not be sufficient to entitle a party for compensation unless there is real damage or loss. Under such circumstances, the suffering party is saddled with the responsibility to establish the damage and the loss. The party by establishing the damage and loss is also duty bound to assess the quantum of such damage or compensation by proper pleading and evidence. After all damage or loss is a matter of fact. A fact has to be pleaded and it has to be proved thereafter in accordance with the provision of law. Fact which can be seen has to be proved by examining such person who had seen the same. 19. In the case in hand, appellant's argument is based on one of the propositions that the plaintiff had condoned the breach, even if there be any. Various case laws have been pressed into service on this point. Now, let us have a look at the law laid down by the Apex court in regard to section 55 and 63 of the contract Act. In the case of Jagad Bandhu Chatterjee v. Nilima Rani reported in (1969) 3 SCC 445 , the Apex court has considered the law in India in this regard. Now, let us have a look at the law laid down by the Apex court in regard to section 55 and 63 of the contract Act. In the case of Jagad Bandhu Chatterjee v. Nilima Rani reported in (1969) 3 SCC 445 , the Apex court has considered the law in India in this regard. Paragraphs 3,4 and 5 of this judgment are relevant and may be profitably quoted below for our use in the present case:- "3. The main point which was sought to be raised before us was that waiver could be brought about only by a contract and since no consideration had passed it could not be said that there had been any waiver in the present case. Moreover waiver could not be proved by estoppel. Learned Counsel for the appellant relied on the observations of Lord Russell of Killowen in Damsons Bank Limited v. Nippon Menkwa Kabushiki Kaisha. While stating the distinction between estoppel and waiver, it was said, that "waiver is contractual, and may constitute a cause of action; it is an agreement to release or not to assert a right". According to the appellant all that had been found was that by his act and conduct he had waived his right of pre-emption. It was pointed out that there was no evidence for any consideration having moved from Respondent 1 in the matter of abandonment of the appellant's right of pre-emption. 4. In the well-known work of Sir William P. Anson Principles of the English Law of Contract, 22nd Edn., behalf been stated at p. 107 that at Common Law the waiver of existing obligations does not appear to require the presence of detriment in order to make it effective. 5. In India the general principle with regard to waiver of contractual obligation is to be found in Section 63 of the Indian Contract Act. Under that section it is open to a promisee to dispense with or remit, wholly or in part, the performance of the promise made to him or he can accept instead of it any satisfaction which he thinks fit. Under the Indian law neither consideration nor an agreement would be necessary to constitute waiver. This Court has already laid down in Waman Shriniwas Kini v. Ratilal Bhagwandas & Co., that waiver is the abandonment of a right which normally everybody is at liberty to waive. Under the Indian law neither consideration nor an agreement would be necessary to constitute waiver. This Court has already laid down in Waman Shriniwas Kini v. Ratilal Bhagwandas & Co., that waiver is the abandonment of a right which normally everybody is at liberty to waive. "A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right". It is well-known that in the law of pre-emption the general principle which can be said to have been uniformly adopted by the Indian courts is that acquiescence in the sale by any positive act amounting to relinquishment of a pre-emptive right has the effect of the forfeiture of such a right. So far as the law of pre-emption is concerned the principle of waiver is based mainly on Mohammedan Jurisprudence. The contention that the waiver of the appellant's right under Section 26-F of the Bengal Tenancy Act must be founded on contract or agreement cannot be acceded to and must be rejected." In the case of Hind Construction Contractors v. State of Maharastra reported in (1979)2 SCC 70 , the Apex Court has considered the law as to time being essence of contract. It is held that the inference in this regard has to be arrived after reading whole of the agreement on total effect of all the provisions made therein. Merely by laying down a time period for performance of the contract, time may not be the essence thereof. The discussions at paragraphs 7, 8 and 9 are relevant for our purpose. These paragraphs are quoted for guidance:- "7. ... that question whether or not time was of the essence of the contract would essentially be a question of the intention of the parties to be gathered from the terms of the contract. (See Halsbury's Laws of England, 4th Edn., Vol. 4, para 1179). 8. ... even where the parties have expressly provided that time is of the essence of the contract such a stipulation will have to be read along with other provisions of the contract and such other provisions may, on construction of the contract, exclude the inference that the completion of the work by a particular date was intended to be fundamental; (See Lamprell v. Billericay Union, Exch at p. 308; Webb v. Hughes; Charles Rickards Ltd. v. Oppenheim)" 9. Having regard to the aforesaid material on record, particularly the clauses in the agreement pertaining to imposition of penalty and extension of time it seems to us clear that time (12 months period) was never intended by the parties to be of the essence of the contract. Further from the correspondence on the record, particularly, the letter (Ex. 78) by which the contract was rescinded it does appear that the stipulation of 12 months' period was waived, the contractor having been allowed to do some more work after the expiry of the period, albeit at his risk, by making the rescission effective from August 16, 1956. In Provash Chandra Dalui and another v. Biswanath Banerjee and another reported in (1989) Supply (1)SCC 487 the Apex court held that a contract has to be construed having look at the words used in it unless they are such that one may suspect about the intention of the makers of the document. Every part of the document is to be considered for deciphering the intention of the parties to the contract. Paragraph 10 of the judgment deals with construction of the contract and paragraph 24 deals with waiver of obligation. Both these paragraphs are quoted below:- "10. 'Ex praecedentibus et consequentibus optima fit interpretatio.' The best interpretation is made from the context. Every contract is to be construed with reference to its object and the whole of its terms. The whole context must be considered to ascertain the intention of the parties. It is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be collected 'ex antecedentibus et consequentibus;' every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that is possible. As Lord Davey said in N.E. Railway Co. v. Hastings: "... the deed must be read as a whole in order to ascertain the true meaning of its several clauses, and... As Lord Davey said in N.E. Railway Co. v. Hastings: "... the deed must be read as a whole in order to ascertain the true meaning of its several clauses, and... the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed if that interpretation does no violence to the meaning of which they are naturally susceptible...." In construing a contract the court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. If the words are clear, there is very little the court can do about it. In the construction of a written instrument it is legitimate in order to ascertain the true meaning of the words used and if that be doubtful it is legitimate to have regard to the circumstances surrounding their creation and the subject-matter to which it was designed and intended they should apply. 24. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right. It means the forsaking the assertion of a right to the proper opportunity. The first respondent filed suit at the proper opportunity after the land was transferred to him, and no covenant to treat the appellants as thika tenants could be shown to have run with the land. Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel such intent is immaterial. The necessary condition is the detriment of the other party by the conduct of the one estopped. An estoppel may result though the party estopped did not intend to lose any existing right. Thus voluntary choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquishment and the conferment of the right in question. An estoppel may result though the party estopped did not intend to lose any existing right. Thus voluntary choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquishment and the conferment of the right in question. Nothing of the kind could be proved in this case to estop the first respondent." In the case of Arosan Enterprises Ltd. v. Union of India and others reported in (1999)9 SCC 449 , the Apex court has dealt with effect of waiver of the breach of contract in paragraph 13 and discussed the law of section 55 of the Contract Act in this regard. It is held that under such circumstances, court is left with only conclusion that the term of the contract has been abandoned by the party by conduct. In the case of Krishna Bahadur v. Purna Theatre reported in (2004)8 SCC 229 , the effect of waiver has been dealt with. The Apex court compared the law of waiver and estoppel and has held that estoppel is not a cause of action but a rule of evidence. A right on the other hand can be waived by a party to the contract. All these laws referred to above have been reiterated in the case of Mcdermott International Inc. v. Burn Standard Co. Ltd. and others reported in (2006)11 SCC 181 . The sum total of these citations are that whether time is the essence of contract has to be construed by reading the entire document. If there is waiver of any of the clause involving time of performance of the contract, in that event it is to be understood that a party has abandoned his right thereby. 20. Mr. Agarwal relied on the judgment of the Hon'ble Supreme Court in the case of M.O.H. Uduman & Ors. v. M.O.H. Aslum reported in AIR 1991 SC 1020 to argue on the point of law regarding interpretation of document. In para-14 of this judgment, the Apex Court has held that a document is to be construed by reading the whole of it and the intention of the parties is to be gathered from the language used in the contract by applying the rule of harmonious construction. In para-14 of this judgment, the Apex Court has held that a document is to be construed by reading the whole of it and the intention of the parties is to be gathered from the language used in the contract by applying the rule of harmonious construction. Same is the law laid down in the case of ONGC v. Saw Pipes Ltd. reported in 2003 (5) SCC 705 as well as Provash Chandra Dalaui (supra). 21. He has placed reliance on the case of ONGC v. Saw Pipes Ltd.(supra), the case of Fateh Chand v. Balkishan Dass reported in AIR 1963 SC 1405 and M.D. Army Welfare Housing organisation v. Sumangal Services (P) Ltd. reported in 2004 (9) SCC 619 , to show that if agreement provides for a particular remedy for breach of a term, in that event in case breach is established the wronged party shall be entitled to that relief only and not to any other relief. Paragraph-46 of the case of ONGC v. Saw Pipes Ltd(supra) is quoted below for ready reference: "46. From the aforesaid sections, it can be held that when a contract has been broken, the party who suffers by such breach is entitled to receive compensation for any loss which naturally 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 of leading evidence for proving damages, unless the court arrives at the 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 only 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. However, when the terms of the contract are clear and unambiguous then its meaning is to be gathered only 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." 22. Here in this case, plaintiff made specific prayer in the plaint that a Commissioner be appointed for the purpose of assessing the real damage or loss but in course of trial the plaintiff failed to take any step to get a Commissioner appointed. Even the Engineering Consultant who has allegedly certified that the estimate has not been examined to show that amount mentioned in Exhibit-11 is the probable expenditure for construction of each of the toilets. It is to be seen that plaintiff filed a suit not only for compensation but also for specific performance of contract. In the body of the plaint, it is pleaded that the defendants failed to construct two toilets in Type A and D Apartments. However, learned trial court observed on appreciation of evidence that plaintiff himself by incurring expenditure to the tune of Rs.54,424/- constructed the two toilets. That being the position, the prayer for specific performance itself has become infructuous as nothing has been left to be performed by defendants. Whether plaintiff incurred expenditure to the tune of Rs.54424/- for making the construction is a different question but since the toilets have been constructed by incurring whatever expenditure, the defendants cannot perform the same again and so such prayer of the plaintiff has lost its significance. But the learned trial court decreed the suit for Rs.54,424/- towards cost of construction without there being any evidence in support thereof. No suit can be decreed merely at the ipse dixit of the plaintiff. True, plaintiff pleaded in his plaint that Rs.54,424/- is the probable expenditure for construction of two toilets. This estimate has been given by a Civil Engineering Consultant who has not been examined and so such an estimate is not reliable. If the plaintiff has made construction in that event, he might have incurred expenditure on various heads. True, plaintiff pleaded in his plaint that Rs.54,424/- is the probable expenditure for construction of two toilets. This estimate has been given by a Civil Engineering Consultant who has not been examined and so such an estimate is not reliable. If the plaintiff has made construction in that event, he might have incurred expenditure on various heads. He has not produced any account nor has he produced any voucher for purchase of materials, labour charges in making the construction. So, it is not possible to hold as to what was the actual quantum of expenditure incurred by plaintiff in making the construction. 23. In Section-55 of the Contract Act, it is provided that when a party to a contract promises to do something during a specific period of time but fails to do the same it becomes voidable at the option of the promisee.Section-55 also lays down the effect of taking or purchase of other thing than that agreed upon. As would appear from above, if the promise accepts the performance by promisor on a later date, in that event failure on the part of the promisor gets condoned. So, in the case in hand even if it is assumed for the time being that time was the essence of the contract and that the defendants had agreed to make the construction within 30 months but plaintiff having taken over the possession later on without registering protest instantaneously, the acceptance of the performance at a later date has wiped out the failure on the part of the defendants . 24. Moreover, under Section 63 of the Indian Contract Act, a promise may dispense or remit the performance of the promise. It provides that if there is stipulated period of performance of contract in that event promissee may dispense with or remit, wholly or in part and it may extend the time for such performance or may accept instead of any satisfaction which he thinks fit. The last part of Section 55 of the contract Act lays down the effect of acceptance of performance at later stage which has been supplemented by Section-63 laying down that acceptance of performance at a later stage is voidable at the option of the promisee. The last part of Section 55 of the contract Act lays down the effect of acceptance of performance at later stage which has been supplemented by Section-63 laying down that acceptance of performance at a later stage is voidable at the option of the promisee. It is articulated in Section 63 in specific language saying that promisee is entitled to waive the promisor for performance of a contract within a specific period of time where time is the essence of contract. 25. In clause 8 of the agreement it is provided that in case defendants fail to complete the construction within a period of two and a half years in that event plaintiff had liberty to revoke or cancel agreement for such lapse. So, when agreement itself specifies a particular action because of particular breach, court cannot impose any other penalty other than the one agreed to between the parties. Thus, in the case in hand, even if plaintiff succeeds to prove that defendants defaulted in making construction within the stipulated period, then the only consequence shall be an option to the plaintiff for revoking and cancelling the contract. This provision does not entitle the plaintiff to claim for any damage because of the provision of Section-74 of the Indian Contract Act. Considered from the standpoint of the last part of Section 55 of the Contract Act, plaintiff having waived his right to cancel the agreement for failure to perform the contract within two and half years and also by taking over the possession on a later date without protest, has condoned the breach committed by the builder. Section-74 also solidifies the position by providing that the plaintiff was entitled to only one option of revoking the contract if he was aggrieved for non-performance thereof in time. It is the option of revoking the contract alone which is the consequence of non-performance of the contract in time. Since the plaintiff did not exercise the option, he is not entitled to relief of compensation. Apart from that, the plaintiff did not lead any evidence to prove that he had sustained damage or loss of the quantum of such damage or loss. 26. Since the plaintiff did not exercise the option, he is not entitled to relief of compensation. Apart from that, the plaintiff did not lead any evidence to prove that he had sustained damage or loss of the quantum of such damage or loss. 26. Coming to the question of failure on the part of the defendants to make construction of two toilets in Apartment of the Type-A and D, it is to be seen that plaintiff himself having made the construction of the toilet, there is no question of any specific performance of that part of the contract. The pleaded case of the defendant is that the deviation was made in all the Type-A and D Apartments for the purpose of maintaining architectural balances for benefit of the prospective purchasers. The Architect made the modification by converting one toilet into balcony for proper aeration of this type of flat and it was for the benefit of the purchaser. When all other flats are not having this facility, this could not have been provided in the flat allotted to the owners. Because, in that event the architectural beauty of the construction would have been affected. Now, it is to be seen as to whether such deviation results in any damage or loss to the plaintiff. But plaintiff has neither pleaded nor did he adduce any evidence as to prove any such damage or loss at all. Moreover, plaintiff proved Exhibit-11 issued by the Civil Engineering Consultant to show the probable expenditure for construction of each of the toilets but neither the consultant has been examined nor has any document been produced after actual expenditure was incurred. The plaintiff having admitted that he had made the construction already but he has not produced the proof as to making of expenditure, quantification of the construction cost at Rs.54,424/- has not been established. it is to be noticed that clause-7 of the agreement itself provides that if failure on the part of the defendants results in loss or damage either financially or otherwise to the plaintiff, then the defendants should be liable to compensate the loss. Plaintiff did not prove any damage or loss, so question does not arise for making compensation at all. Moreover, specific performance of contract has also become infructuous in view of the fact that there is no room for further performance as plaintiff had already made the construction himself. Plaintiff did not prove any damage or loss, so question does not arise for making compensation at all. Moreover, specific performance of contract has also become infructuous in view of the fact that there is no room for further performance as plaintiff had already made the construction himself. The learned trial court did not accept the contention of the plaintiff that defendants are liable to make payment of Rs.6474/- towards GMC tax. 27. As it would appear in clause-7 of the agreement itself that the parties had agreed to payment of compensation on the basis of damage provided that it had resulted from any breach of any terms of the contract. In their written statement, defendants stated that deviation was made from agreed plan for not making two toilets in Type A and D of the Apartment complex for the benefit of the users. The two toilets were converted into balcony for the purpose of better ventilation and architectural beauty. Not only in the Apartment of A-1 and D-1 allotted to the owners but in all the Apartments of this category in all floor, the same thing was done. The defendants at least pleaded that it was for the benefit of the occupier of the complex. This means that there was no damage to the plaintiff. Under such circumstances, plaintiff was duty bound to specifically plead and prove that because of such modification damage or loss has been sustained by plaintiff. Plaint is silent in this regard. May be there was an initial agreement for construction of a third toilet in both these categories of Apartments but whether failure to make this construction resulted in damage or loss to the plaintiff ought to have been pleaded and proved by plaintiff for entitling him for compensation. Plaintiff has not proved any damage or loss caused to him because of non-construction and has not proved the quantum of money that has been spent by him for redressing this damage. In that view of the matter, findings of the learned trial court that defendants are liable to make payment of Rs.54,424/-in this count is devoid of any basis. This finding cannot be sustained and it is accordingly set aside. 28. In that view of the matter, findings of the learned trial court that defendants are liable to make payment of Rs.54,424/-in this count is devoid of any basis. This finding cannot be sustained and it is accordingly set aside. 28. Coming to the question of rental loss of the plaintiff, it is to be seen that in particulars of claims appended to the plaint, plaintiff stated in Item No. 3 that he suffered rental loss for 20 months @ 15,500/- per month for Apartments A, B and C Unit in the first floor from 24.8.1999 till 15.4.2001 which was quantified at Rs.3,10,000/-.Now this calculation has been made on the basis that if construction would have been completed on 24.8.1999 in that event plaintiff would have been entitled to get rental charges from that date. Admittedly, agreement was entered into between the parties prior to obtaining No Objection Certificate from the GMDA and GMC. Obtaining prior permission from these authorities is a legal requirement for initiating construction in the metropolitan area of Guwahati. The agreement specified that construction would be completed within a period of two and half years from the date of execution of the contract. In course of cross-examination, plaintiff himself stated as follows:- "After execution of the Power of Attorney and the agreement, final plan of the completing building has been prepared for obtaining permission from the competent authority". 29. In Exhibit-1, there was an enclosed plan. Admittedly that plan was not approved plan. After the parties had entered into agreement the defendants submitted application to the concerned authorities for getting NOC and so time required for getting approved plan definitely is not within the control of the defendants. The defendants cannot be panelized for the incidents which are not within their control. 30. Besides, Clause 8 of the Exhibit-1 agreement is important. It provides that defendants shall complete the construction and hand over owners' allocation of 5 flats within two and half years from the date of the agreement. There is default clause in this term which provides that in case the defendants fail to do so, the plaintiff would be at liberty to revoke the agreement and cancel the contract. Exhibit-1, therefore, not only provides a condition but also provides for a penalty for breach of such condition. There is default clause in this term which provides that in case the defendants fail to do so, the plaintiff would be at liberty to revoke the agreement and cancel the contract. Exhibit-1, therefore, not only provides a condition but also provides for a penalty for breach of such condition. As discussed above, under Section 74 of the Indian Contract Act, if a penalty is prescribed in the contract itself for a particular breach in that event the defaulter will be liable to such penalty as is mentioned in the contract only and for that the other party would not be required to establish the actual damage. If the exhibit-1 is viewed from the light of Exhbit-4 in that event plaintiff would not be entitled to benefit of compensation for the default committed by defendants in making construction within two and half years. The only thing which the plaintiff could have done was to revoke and cancel the agreement. It was an option given to the plaintiff but how far that option would have been legal in terms of Section 202 of the Contract Act is yet another question. Now if this breach is viewed from the light of Section 55 and 63 of the Contract Act, it would appear that the defendants failed to perform their part of the contract within the stipulated period. They performed their part of their contract later on and the plaintiff accepted the same. On 12.1.2001 plaintiff was offered the possession of D and F Apartment in the 2nd Floor and on 15.4.2001 plaintiff was offered A, B, C and D Apartment at the first Floor. There is nothing on record to show that plaintiff took over possession of these Apartments with protest. The first objection after taking over possession came on 24.8.2001 after the service of Exhibit-7 is deemed to have been made. So it is clear that at the time of taking over possession of the five apartments, plaintiff did not register protest for late performance of the contract. That being the position, the last part of Section-55 of the Indian Contract Act became applicable. Plaintiff having accepted performance at a later date condoning failure on the part of the defendants to perform their part of the contract in time, plaintiff thereby dis entitled himself to get the compensation. Same will be the affect of Section 63 of the Indian contract Act. Plaintiff having accepted performance at a later date condoning failure on the part of the defendants to perform their part of the contract in time, plaintiff thereby dis entitled himself to get the compensation. Same will be the affect of Section 63 of the Indian contract Act. Section 63 provides that if a promisee fails to perform the contract in a given time, promisor may extend the time for such performance or may accept instead of it any satisfaction which he thinks fit. Plaintiff did not exercise the option available to him by operation of Clause-8 of the Exhibit-1 agreement. This amounts to waiver in terms of Section 63 of the Contract Act. Once it is found that plaintiff waived his option, in that event default committed by defendants, if any, for not performing the contract in time got automatically condoned. This being the position, the plaintiff cannot be held to be entitled to get any compensation for the plaintiff for late construction. 31. Then comes the question of rental loss. Now, what was the rental loss of the plaintiff ? In the particulars of the claims appended to the plaint, the plaintiff merely mentioned that he sustained rental loss to the tune of Rs.15,500/- per month in case of A, B and C Units and to the tune of Rs.11,000/- per month in case of D2 & E2 units in the second floor. But apart from that it has not been pleaded as to how this amount was lost by plaintiff. There is no assessment as to the probable rental income from such flats. Plaintiff has not proved that in similar flats of the same building such amount of rental are being paid. No witness has been examined to prove rental loss or as to how similar flats of said Apartments fetched such rental income. This being the position, claim of loss of Rs.15000/- for ABC Unit, Rs.10,000/- Per month for D and E units are devoid of any evidence. The learned trial court has not considered this aspect of the matter and decreed the suit on the basis of mere pleadings of the plaintiff. The finding of the learned trial court, therefore, that plaintiff sustained rental loss under Item No. 3 and 4 of the particulars of the claim mentioned in the plaint are without any evidence whatsoever. The learned trial court has not considered this aspect of the matter and decreed the suit on the basis of mere pleadings of the plaintiff. The finding of the learned trial court, therefore, that plaintiff sustained rental loss under Item No. 3 and 4 of the particulars of the claim mentioned in the plaint are without any evidence whatsoever. These findings are not sustainable .Since the claim of the plaintiff for compensation towards construction of toilet and rental loss have been found to be unsustainable, the points for determination in this appeal are accordingly decided. Consequently, the appeal is allowed and the impugned judgment and decree are set aside. 32. No order as to cost. Send down the records after framing of the decree.