JUDGMENT : P.S. RANA, J. 1. Plaintiff filed present suit for recovery of Rs.71,88,356/- (Rupees seventy one lacs eighty eight thousand three hundred fifty six only) by way of damages with interest at the rate of 8% per annum from the date of institution of suit till realization. Brief facts of the case:- 2. It is pleaded that plaintiff is proprietor of M/s Priyanka Enterprises Phase-II Industrial area Gagret District Una H.P. and is competent to file the present civil suit. It is pleaded that plaintiff purchased a plot measuring about 1000 sq. metres at G.M. District Industries Centre Una having Plot No. 10, Phase-II Industrial Area Gagret District Una H.P. for the purpose of establishing the business by constructing a factory for the manufacturing of Expended Extruded Snacks Food Kurkure and Potato Wafer etc. and also sought permission for establishment of factory by the competent authority i.e. District Industries Centre Una H.P. It is pleaded that plaintiff prepared complete project summary and took loan from the Nationalized Bank and defendant approached the plaintiff for supply of machinery required for the manufacture of Expended Extruded Snacks Food Kurkure and Potato Wafer etc. and further for supply of machinery for processing of food items. It is further pleaded that defendant had given the quotation to the plaintiff for the supply of machinery and total estimate to the tune of Rs. 57 lacs (Rupees fifty seven lacs only) was given by defendant to the plaintiff. It is further pleaded that defendant also undertook to install machinery for the said project. It is also pleaded that plaintiff made all arrangements to facilitate the defendant for establishing the machinery required for the said project and further got loan sanctioned from the Nationalized Bank. It is pleaded that after the receipt of payment of Rs.61,50,000/- i.e. Rs.47,05,000/- vide demand draft No. 907811 on dated 29.3.2012 and sum of Rs.14,45,000/- by cash the defendant was under legal obligation to supply the machinery at the earliest to the plaintiff as the plaintiff was willing to start the manufacturing of Expended Extruded Snacks Food Kurkure and Potato Wafer etc.. It is pleaded that defendant deliberately after receipt of payment delayed the machinery for the project and in place of supplying the new machinery defendant supplied old and rusted machinery, the details of which is as under: S. No. Name of Part Value Old/Rusted 1. It is pleaded that defendant deliberately after receipt of payment delayed the machinery for the project and in place of supplying the new machinery defendant supplied old and rusted machinery, the details of which is as under: S. No. Name of Part Value Old/Rusted 1. Esprator (1) 2,25,000/- Old 2. Emry Rule machine (1) 90,000/- Old 3. Elemator (1) 60,000/- Old 4. Brum (1) 40,000/- Old 5. Grinding Suj Machine (2) 6,50,000/- Old 6. Jaali Swizerland, Namda, Tape, Air Lock Rubber etc. (Set) 5,00,000/- Old 7. Motors and Electricals Good (set) started not supplied 5,00,000/- Old It is pleaded that defendant failed to supply the complete machinery to the plaintiff with malafide intention and also failed to supply the following items such as Reel Machine, Wibro Purifier, Finisher Machine, Ekoter Machine Mixer Masala and Pneumatic Packing Machine to the plaintiff. It is further pleaded that plaintiff was in state of shock and after receiving the old rusted and incomplete machinery supplied by the defendant the plaintiff immediately informed the defendant about the same. It is pleaded that when this fact of supply of old rusted and incomplete machinery was brought to the notice of defendant thereafter defendant promised to replace the said machinery with immediate effect but in spite of repeated requests defendant had failed to replace the old machinery and hence the plaintiff after making huge investment in the project could not start the said project. It is pleaded that plaintiff placed the order for supply of requisite machinery for manufacturing of Expended Extruded Snacks Food Kurkure and Potato Wafer etc. and plaintiff was under belief that defendant would provide best quality of machinery. It is pleaded that due to supply of old incomplete machinery by defendant the plaintiff has suffered huge funds and loss. It is pleaded that plaintiff is suffering the losses of Rs.1 crore (Rupees one crore only) on account of deficiency in service to the plaintiff by the defendant. It is further pleaded that plaintiff and defendant entered into a written agreement dated 28.10.2012 whereby defendant agreed for eplacement of old machinery. It is pleaded that defendant agreed to refund a sum of Rs.17,65,000/- (Rupees seventeen lacs sixty five thousand only). It is pleaded that defendant also issued post dated cheque amounting to Rs.17,65,000/- (Rupees seventeen lacs sixty five thousand only) out of which amount of Rs.10 lacs (Rupees ten lacs only) stood cleared. It is pleaded that defendant agreed to refund a sum of Rs.17,65,000/- (Rupees seventeen lacs sixty five thousand only). It is pleaded that defendant also issued post dated cheque amounting to Rs.17,65,000/- (Rupees seventeen lacs sixty five thousand only) out of which amount of Rs.10 lacs (Rupees ten lacs only) stood cleared. It is pleaded that defendant did not comply the promise of agreement dated 28.10.2012 and failed to replace the old machinery. It is pleaded that one post dated cheque to the tune of Rs.2,50,000/- (Rupees two lacs fifty thousand only) was also dishonoured and separate proceedings under Section 138 of Negotiable Instrument Act are pending before competent Court of law. It is pleaded that despite repeated requests the defendant did not replace the old machinery and plaintiff was forced to purchase new machinery from other authorized dealer. It is pleaded that plaintiff suffered great financial loss due to illegal act and conduct of defendant. It is also pleaded that plaintiff also served a legal notice upon the defendant dated 12.2.2013 and further pleaded that plaintiff also filed FIR against the defendant. It is pleaded that plaintiff by act and conduct of defendant suffered following damages: (a) Breach of agreement and for non-supply of the new machinery Rs. 51,50,000/- (b) Interest paid on loan obtained for the purchase of machinery from the bank of plaintiff w.e.f. 29.3.2012 till 30.9.2013 Rs. 10,38,356/- (c) Mental harassment Rs. 10,00,000/- Total Rs. 71,88,356/- Prayer for decree the suit as mentioned in relief clause of plaint sought. 3. Defendant did not appear despite service and defendant was proceeded exparte on dated 5.3.2014. 4. Oral evidence examined by plaintiff: S. No. Name of witness PW1 Vijay Kumar PW2 HHC Vijay Kumar PW3 Ranbir Chaudhary PW4 Swaraj Kapoor 5. Documentary evidence produced by plaintiff: Exhibit Description of document Ext.PW3/1 Letter issued by GM District Industries Centre to the plaintiff regarding extension of validity in period of provisional allotment of plot No. 11 Phase II Industrial Area Gagret. Ext.PW3/2 Project report of Food Processing Unit. Ext.PW1/A Letter issued by defendant to plaintiff regarding offer for machinery and equipment for manufacturing of Kurkure. Ext.PW1/A-2 Commitments of the buyer letter. Ext.PW1/A-3 Quotation for manufacturing and erection of Kurkure Plant. Ext.PW1/A-4 Quotation for manufacturing and erection of Kurkure plant. Ext.PW1/E Copy of demand draft of Rs.7,05,000/- (Rupees seven lacs five thousand only) in favour of M/s Tirupati Food Processing. Ext.PW1/A-2 Commitments of the buyer letter. Ext.PW1/A-3 Quotation for manufacturing and erection of Kurkure Plant. Ext.PW1/A-4 Quotation for manufacturing and erection of Kurkure plant. Ext.PW1/E Copy of demand draft of Rs.7,05,000/- (Rupees seven lacs five thousand only) in favour of M/s Tirupati Food Processing. Ext.PW3/3 Agreement between the parties dated 28.10.2012. Ext.PW3/4 Legal notice given by plaintiff. Ext.PW3/5 Reply to legal notice by defendant. Ext.PW3/6 to Ext.PW3/12 Invoice dated 27.11.2012 of Kapur Mill Gin Store Ext.PW3/13 to Ext.PW3/16 Invoice dated 2.4.2012 of Sharma Electricals. Ext.PW3/17 Invoice dated 13.4.2012 of Usha Sales Corporation Ext.PW3/18 Invoice dated 10.7.2012 of Mahesh Trading Company. Ext.PW3/19 Retail invoice dated 24.11.2012 of Mahadev Trading Company Ext.PW3/20 Invoice dated 24.11.2012 of Kartar Machine Tools Ext.PW3/21 Invoice dated 24.12.2012 of Pankaj Steel Industries. Ext.PW3/22 Invoice dated 5.1.2013 of Ludhiana Krishi Udyog Ext.PW3/23 Invoice dated 7.1.2013 of M/s Aman Food Industries. Ext.PW2/A Copy of FIR Ext.PW1/F Certificate issued by PNB Gagret. Ext.PW1/G Account ledger inquiry. 6. Following points arise for determination in this case:- 1. Whether plaintiff is entitled for amount of Rs.71,88,356/- (Rupees seventy one lacs eighty eight thousand three hundred fifty six only) by way of damage along with interest at the rate of 18% per annum from the date of institution of suit till realization of amount? 2. Relief. 7. Court heard learned counsel appearing on behalf of the plaintiff and perused the entire record carefully. 8. Testimonies of oral witnesses examined by plaintiff:- 8.1 PW1 Vijay Kumar Deputy Manager PNB Gagret has stated that he has brought the original record of M/s Priyanka Enterprises regarding loan Account No. IB5512. He has stated that an amount of Rs.42,78,740/- (Rupees forty two lacs seventy eight thousand seven hundred forty only) was given as loan to M/s Priyanka Enterprises by way of demand draft No. UEO907811 payable to Kankhal Haridwar Branch. He has stated that record of offer-cum-quotation for quoting rates given by M/s Tirupati Food Processing are Ext.PW1/A to Ext.PW1/D. He has stated that copy of demand draft No. UEO907811 is exhibited as Ext.PW1/E and interest certificate dated 28.10.2013 issued by the bank bears his signature and is Ext.PW1/F. He has stated that interest to the tune of Rs.14,24,275/- (Rupees fourteen lacs twenty four thousand two hundred seventy five only) was paid till 30.4.2014 by M/s Priyanka Enterprises in the said loan account, copy of statement of account is exhibited as Ext.PW1/G. 8.2. PW2 HHC Vijay Kumar P.S. Gagret has stated that he has brought the original record of FIR No. 93/2013 dated 25.7.2013 P.S. Gagret District Una. He has stated that copy is Ext.PW2/A and FIR was lodged by Ranbir Chaudhary against Manoj Aggarwal proprietor M/s Tirupati Food Processing. 8.3 PW3 Ranbir Chaudhary has stated that his affidavit Ext.PW3/A be read as his evidence. He has stated that he is having manufacturing unit of Food Processing (Kurkure). He has stated that quotation given by the defendant pertaining to the supply of machinery is exhibited as Ext.PW1/A-3 and payment of Rs.47,05,000/- (Rupees forty seven lacs five thousand only) was paid to the defendant by way of demand draft which is exhibited as Ext.PW1/E. He has stated that defendant has supplied the old machinery and defendant had given the undertaking that he would replace the old machinery and supply the new machinery. He has stated that undertaking given by defendant is Ext.PW3/3. He has stated that defendant took away the old machinery from his plant and did not supply the new machinery. He has stated that defendant had issued cheque of Rs.2,50,000/- (Rupees two lacs fifty thousand only) and same was dishonoured due to insufficient funds. He has stated that notice given to defendant is mark Z. He has stated that he has filed the complaint against the defendant under Section 138 of Negotiable Instrument Act. He has stated that legal notice Ext.PW3/4 was also given. He has stated that reply to this legal notice is Ext.PW3/5. He has stated that defendant did not supply the new machinery and he was forced to purchase the new machinery for functioning of his unit at Una. He has stated that detail invoices of the material purchased for his unit are Ext.PW3/6 to Ext.PW3/23. He has stated that FIR registered against the defendant in P.S. Gagret District Una dated 25.7.2013 is exhibited as Ext.PW2/A. He has stated that certificate issued by PNB pertaining to charging of interest to the tune of Rs.10,38,356/- (Rupees ten lacs thirty eight thousand three hundred fifty six only) is exhibited as Ext.PW1/F. 8.4 PW4 Swaraj Kapoor has stated that he has brought the record pertaining to retail invoice of Kapoor Mil Gin Store Ludhiana. He has stated that machinery was sold to M/s Priyanka Enterprises. He has stated that retail invoices are Ext.PW3/6 to Ext.PW3/12. He has stated that machinery was sold to M/s Priyanka Enterprises. He has stated that retail invoices are Ext.PW3/6 to Ext.PW3/12. He has stated that payment pertaining to the purchase of said machinery was cleared by the plaintiff. Findings upon Point No.1 9. Submission of learned Advocate appearing on behalf of the plaintiff that plaintiff is entitled to recover the amount of Rs.51,50,000/- (Rupees fifty one lacs fifty thousand only) on account of breach of agreement and for non-supply of new machinery is accepted for reasons hereinafter mentioned. PW3 Shri Ranbir Chaudhary has stated in positive manner that after undertaking given by defendant in writing Ext.PW3/3 defendant took away old machinery from his plant and did not supply new machinery despite repeated request. Testimony of PW3 remained unrebutted on record. Defendant did not appear in the witness box to rebut testimony of PW3. Hence adverse inference is drawn against defendant under Section 114 (g) of Indian Evidence Act. It is held that plaintiff is entitled for recovery of Rs.51,50,000/- (Rupees fifty one lacs fifty thousand only) on account of non-supply of new machinery to plaintiff. 10. Another submission of learned Advocate appearing on behalf of the plaintiff that plaintiff is also legally entitled for damages relating to mental harassment to the tune of Rs.10 lacs (Rupees ten lacs only) is partly answered in yes and partly answered in no. Court is of the opinion that plaintiff is legally entitled for sum of Rs.50,000/- (Rupees fifty thousand only) as mental harassment because it is proved on record that plaintiff had sustained mental harassment on account of supply of old machinery by defendant and on account of supply of defective machinery. 11. Submission of learned Advocate appearing on behalf of the plaintiff that plaintiff is also legally entitled for recovery of Rs.10,38,356/- (Rupees ten lacs thirty eight thousand three hundred fifty six only) on account of interest paid on loan obtained for purchase of machinery from the bank is accepted for the reasons hereinafter mentioned. PW1 Vijay Kumar Deputy Manager PNB Gagret District Una (H.P.) has stated that loan to the tune of Rs. 42,78,740/- (Rupees forty two lacs seventy eight thousand seven hundred forty only) was given to plaintiff and plaintiff had paid interest to the tune of Rs.14,24,275/- (Rupees fourteen lacs twenty four thousand two hundred seventy five only). Testimony of PW1 Vijay Kumar remained unrebutted on record. 42,78,740/- (Rupees forty two lacs seventy eight thousand seven hundred forty only) was given to plaintiff and plaintiff had paid interest to the tune of Rs.14,24,275/- (Rupees fourteen lacs twenty four thousand two hundred seventy five only). Testimony of PW1 Vijay Kumar remained unrebutted on record. It is held that plaintiff is entitled to recover Rs.10,38,356/- (Rupees ten lacs thirty eight thousand three hundred fifty six only) from defendant on account of interest paid by plaintiff to PNB. 12. Evidence adduced by plaintiff remains unrebutted. Defendant neither filed written statement nor appeared in witness box despite service. Hence adverse inference is drawn against the defendant under Section 114 (g) of Indian Evidence Act. Oral as well as documentary evidence adduced by plaintiff remained unrebutted on record. It was held in case reported in AIR 1999 SC 1441 titled Vidyadhar vs. Mankikrao and another that if party does not enter into the witness box then adverse inference should be drawn against that party. (Also see 1999 (1) S.L.J. 724 titled Iswar Bhai C. Patel @ Bachu Bhai Patel vs. Harihar Behera and another) Point No.1 is decided partly in favour of plaintiff. Relief (Point No.2). 13. In view of findings upon point No.1 suit filed by plaintiff is partly decreed. Decree for recovery of Rs.6238356/- (Rupees sixty two lacs thirty eight thousand three hundred fifty six only) is passed in favour of plaintiff and against the defendant. Interest at the rate of 6% per annum qua decreetal amount is also granted in favour of plaintiff and against the defendant from institution of suit till realization of decreetal amount. Plaintiff will also be entitled for costs of suit. The Registrar (Judicial) will prepare the decree sheet strictly in accordance with law forthwith. Civil suit is disposed of. All pending miscellaneous application (s) if any also stands disposed of.