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2015 DIGILAW 86 (CAL)

ABS Marine Products Pvt. Ltd. v. Indian Bank

2015-02-03

DEBANGSU BASAK

body2015
JUDGMENT DEBANGSU BASAK, J. The plaintiff seeks to recover damages from the defendant in the suit. The plaintiff was a constituent of the first defendant. The plaintiff had approached the first defendant for credit facilities to set up a project. Prior to the project being approved of, the first defendant had granted ad hoc credit facilities to the plaintiff. The first defendant had considered the project report of the plaintiff and had issued a sanction letter dated December 19, 1991. By the sanction letter dated December 19, 1991 the plaintiff had agreed to sanction four heads of credit facilities of varying amounts. The sanction letter provides various terms and conditions to be observed by the plaintiff. One of the terms and conditions of sanction letter is furnishing of collateral securities by the plaintiff. According to the plaintiff, it adhered to the terms and conditions of the sanction letter and had offered all collateral securities required of it by the sanction letter. In fact, according to the plaintiff, it provided additional securities than was required of them under the sanction letter. In spite of such securities being given, the plaintiff did not disburse the credit facilities sanctioned by the letter dated December 19, 1991. The plaintiff claims that by reason of non-disbursement of the credit facilities agreed under the letter of sanction dated December 19, 1991, the first defendant had caused loss and damages to the plaintiff which the first defendant must compensate. The plaintiff claims to have taken steps for the purpose of setting up of the project and had made diverse expenditures with regard thereto. The plaintiff had lost expected profits on the project and had suffered damages on account of loss of goodwill. The first defendant is contesting the suit. The first defendant has filed its written statement. In its written statement the first defendant claims that the plaintiff had acted in breach of the terms of the sanction letter. The first defendant, however, does not specify the breaches committed by the plaintiff with regard to the terms of the sanction letter. The first defendant claims that in view of the breaches committed by the plaintiff, the first defendant was not obliged to disburse any amount under the sanction letter. Consequently, the first defendant contends that no damages is payable by the first defendant to the plaintiff. The first defendant claims that in view of the breaches committed by the plaintiff, the first defendant was not obliged to disburse any amount under the sanction letter. Consequently, the first defendant contends that no damages is payable by the first defendant to the plaintiff. Seven issues were settled for trial by the Order dated January 24, 2001. They are as follows:- 1. Is the suit maintainable in view of the provision of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993? 2. Did the defendant No.1 issue any disbursement letter in favour of the plaintiff as alleged in paragraph 11 of the plaint? 3. If so, is there any breach on part of the plaintiff to fulfil the terms and conditions in terms of the letter of disbursement? 4. Has the defendant failed and neglected to perform in terms of disbursement letter as alleged by the defendant? 5. Has the plaintiff suffered loss and damages as alleged in the plaint? 6. If so, what is the amount of such loss and damages? 7. To what relief the plaintiff is entitled? The first issue with regard to the maintainability of the suit in view of the provisions of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 stands adjudicated upon by the judgment and order dated April 18, 2006 passed by the Hon’ble Supreme Court of India and Indian Bank vs. ABS Marine Products Pvt. Ltd. 2006 (5) SCC 72 . The first issue does not survive the decision rendered in ABS Marine Products Pvt. Ltd. (supra). The second, third and the fourth issues are taken up together for consideration for the sake of convenience. In paragraph 11 of the plaint the plaintiff states that the first defendant had issued a disbursement letter dated October 19, 1992. This letter is marked as Exhibit ‘AH’. Learned Counsel for the first defendant submits that Exhibit ‘AH’ is an internal document issued by the Zonal Manager to the Chief Manager. The Chief Manager was permitted by Exhibit ‘AH’ to release the limits to the plaintiff subject to the availment of refinance from the third defendant in terms of credit division. The plaintiff ought not to have in its possession such internal document of the first defendant. The Chief Manager was permitted by Exhibit ‘AH’ to release the limits to the plaintiff subject to the availment of refinance from the third defendant in terms of credit division. The plaintiff ought not to have in its possession such internal document of the first defendant. Learned Counsel for the first defendant contends that the plaintiff did not fulfil and the terms and conditions to be entitled to the disbursement of the credit facilities. He contends that the first defendant never issued any disbursement letter to the plaintiff as the plaintiff had failed to comply with the terms and conditions of the sanction letter dated December 19, 1991. He refers to the answered given by the witness of the plaintiff to question Nos.201 and 203 as well as 379 and 380. According to him, Exhibit ‘AH’ cannot be considered as a disbursement letter and, therefore, the second and the third issues are required to be answered in the negative. The learned Counsel for the plaintiff submits that, the plaintiff was carrying on business in exporting marine products. In 1990 the plaintiff sought to venture out for wider European market and felt it necessary to install a factory with a more modern system. For the purchase and installation of such system, the plaintiff had negotiated with foreign companies. The plaintiff had prepared a project report and had submitted the same with the first defendant on April 5, 1991. Exhibit ‘C’ is such project report. The learned Counsel for the plaintiff contends that, as a precondition for considering Exhibit ‘C’, the first defendant insisted that the plaintiff mobilizes substantial sums as fixed deposit with the first defendant. The plaintiff did so and caused Rs.1,00,00,000/- to be deposited with the first defendant. This has been acknowledged by the first defendant in its letter dated June 26, 1991 being Exhibit ‘B’. Learned Counsel for the plaintiff points out that Exhibit ‘C’ being the project report was approved by the first defendant without any reservation. In support thereof he relies upon Exhibits ‘D’, ‘D1’, ‘D2’, ‘D3’ and ‘D4’ being the letters of the defendant. He points out that such approval will also appear from the sanction letter dated December 19, 1991 being Exhibit ‘L’. The plaintiff had agreed to abide to the terms of the sanction letter by its letter dated December 19, 1991 being Exhibit ‘L’. He points out that such approval will also appear from the sanction letter dated December 19, 1991 being Exhibit ‘L’. The plaintiff had agreed to abide to the terms of the sanction letter by its letter dated December 19, 1991 being Exhibit ‘L’. He next relies on Exhibit ‘AH’ being a letter dated October 19, 1991 issued by the Zonal Office at Chennai to the first defendant at Kolkata which directs the Branch Office of the first defendant to disburse the credit facilities. He points out that the existence or the issuance of the letter dated October 19, 1992 being Exhibit ‘AH’ has not been disputed in the written statement. The pleadings with regard to Exhibit ‘AH’ is at paragraph 11 of the plaint. He refers to paragraph 9 of the written statement which deals with paragraph 11 of the plaint. He submits that, the disbursement letter dated October 19, 1992 being Exhibit ‘AH’ constitute a complete contract between the parties. The first defendant has failed to abide by the terms and conditions of the letter of disbursement. Learned Counsel for the plaintiff submits that, the attempts by the first defendant to dispute the agreement between the parties and the failure to discharge its obligations thereunder, are tainted with mala fides. He points out that the written statement does not contain any averment as to the nature of the alleged breaches allegedly committed by the plaintiff with regard to terms of the sanction letter or the disbursement letter. The witness of the first defendant sought to lead evidence alleging violations. Without pleading to such effect, such evidence should not be looked into. He points out that the plaintiff had been pursuing the matter with the first defendant and had made repeated requests for disbursement. In this regard he relies upon Exhibits ‘X’, ‘W’ and ‘Y’ being letters written by the plaintiff to the defendant. He points out that the witness of the defendant was challenged to produce the telex messages referred to in Exhibit ‘AH’. In spite of such challenge the first defendant did not produce such telex messages. Learned Counsel for the plaintiff contends that in view of Section 114(g) of the Evidence Act, 1872 adverse inference needs to be drawn for withholding a document by a party. He refers to S.P. Chengalvaraya Naidu vs. Jagannath & Others, All India Reporter 1994 SC 853 in this regard. Learned Counsel for the plaintiff contends that in view of Section 114(g) of the Evidence Act, 1872 adverse inference needs to be drawn for withholding a document by a party. He refers to S.P. Chengalvaraya Naidu vs. Jagannath & Others, All India Reporter 1994 SC 853 in this regard. Learned Counsel for the plaintiff contends that the plaintiff has furnished more than adequate security in terms of the sanction letter. He refers to the various questions and answers as well as Exhibits ‘P’, ‘Q’, ‘R’ and ‘S’ with regard to furnishing of securities by the plaintiff to the first defendant. He submits that, the first defendant was satisfied with regard to the title of the property sought to be given in collateral securities. In fact, the first defendant had retained the title deeds of the property furnished as security in their custody as equitable mortgage. On the aspect of Exim Bank, learned Counsel for the plaintiff referring to the two letters dated November 9, 1992 being Exhibit ‘N’ and the letter dated May 8, 1992 being Exhibit ‘O’ of the first defendant submits that, the first defendant did not apply for assurance from Exim Bank. He relies upon Alghussein Establishment vs. Eton College, 1991 (1) All England Law Reports 267 in this regard and submits that, a party in default cannot be allowed to set up its default to allege that the other party has failed to perform its terms of the contract. Three issues under consideration relate to Exhibit ‘AH’ being the letter dated October 19, 1992 issued by the Zonal Manager of the first defendant to the Chief Manager of the first defendant. By this letter the Zonal Manager of the first defendant permitted the Chief Manager to disburse the credit facilities specified therein. The letter also refers to various telex messages. The objection of the first defendant is that Exhibit ‘AH’ is an internal document and ought not to be with the plaintiff. No law has been cited by the first defendant that Exhibit ‘AH’ cannot be looked into as a piece of evidence. The first defendant does not deny the existence of Exhibit ‘AH’. The objection of the first defendant is that Exhibit ‘AH’ is an internal document and ought not to be with the plaintiff. No law has been cited by the first defendant that Exhibit ‘AH’ cannot be looked into as a piece of evidence. The first defendant does not deny the existence of Exhibit ‘AH’. Exhibit ‘AH’ is a letter written by the Zonal Manager of the first defendant to its subordinate Chief Manager of the first defendant permitting the Chief Manager of the first defendant to release the credit facilities sanctioned in favour of the first defendant. Existence of Exhibit ‘AH’ not being denied, the second issue is answered in the affirmative and in favour of the plaintiff. On the question of breach of Exhibit ‘AH’ no evidence has been placed before me by the first defendant to establish that after such permission being granted by the Zonal Manager as embodied in Exhibit ‘AH’, the plaintiff had acted in a manner so as to disentitle itself to the disbursement of the credit facilities permitted by Exhibit ‘AH’. This conduct of the first defendant can be looked into from another aspect. The first defendant admits that it had sanctioned a credit facility enumerated in the sanction letter dated November 19, 1991 being Exhibit ‘L’. The first defendant contends that the sanction granted by Exhibit ‘L’ was valid for one year. According to the first defendant, the plaintiff did not perform its part of the obligations in terms of the sanction letter being Exhibit ‘L’. In the written statement the first defendant claims that the plaintiff had failed to perform certain obligations in terms of Exhibit ‘L’. The certain obligations which the plaintiff had failed to discharge in terms of Exhibit ‘L’ have not been specified in the written statement. In evidence the first defendant through its witness tries to make out a case that the plaintiff did not put in the collateral securities as required. In the course of hearing, learned Counsel for the defendant took the stand that the plaintiff did not furnish adequate collateral securities in terms of Exhibit ‘L’ and, therefore, disentitled itself to receive the disbursement of the sanction in terms of Exhibit ‘L’. Exhibit ‘AH’ is subsequent to the sanction letter dated December 19, 1991 being Exhibit ‘L’. Exhibit ‘AH’ is within the period of one year of Exhibit ‘L’. Exhibit ‘AH’ is subsequent to the sanction letter dated December 19, 1991 being Exhibit ‘L’. Exhibit ‘AH’ is within the period of one year of Exhibit ‘L’. Exhibit ‘AH’ is written by the Zonal Manager of the first defendant. It is, therefore, safe to presume that the first defendant at a level higher than that of the branch level was satisfied with the compliance of the terms and conditions of Exhibit ‘L’ by the plaintiff and, therefore, permitted the first defendant to disburse the credit facilities to the plaintiff sanctioned by Exhibit ‘AH’. Exhibit ‘AH’ establishes that the plaintiff had acted in terms of Exhibit ‘L’. As noted above, no evidence has been placed to show that the plaintiff had failed to act in terms of Exhibit ‘L’ subsequent to Exhibit ‘AH’. Moreover, the first defendant did furnish collateral securities in terms of Exhibit ‘L’. The first defendant had caused investigations into the title of the immovable properties of the first defendant given as security and had accepted deposit of title deeds of such immovable properties as collateral security. This conduct of the first defendant would appear form Exhibits ‘P’, ‘Q’, ‘R’ and ‘S’. In Chengalvaraya Naidu (supra) it has been held that the Courts of law are meant for imparting justice between parties. A litigant who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If the litigant withholds a vital document in order to gain advantage on the other side then such litigant would be guilty of playing fraud on the Court as well as on the opposite party. Applying such ratio in the fact of the case, the first defendant has withheld the telex messages referred to in Exhibit ‘AH’. The witness of the first defendant did not produce such telex messages although could upon to do so. By withholding such telex messages, the first defendant is seeking to obtain an advantage over the plaintiff. Exhibit ‘AH’ as well as the telex messages referred to therein are relevant to the issues of the suit. Such telex messages would demonstrate whether or not the first defendant at its zonal level was satisfied with the discharge of the obligations by the plaintiff in terms of Exhibit ‘L’. Exhibit ‘AH’ as well as the telex messages referred to therein are relevant to the issues of the suit. Such telex messages would demonstrate whether or not the first defendant at its zonal level was satisfied with the discharge of the obligations by the plaintiff in terms of Exhibit ‘L’. It would also demonstrate whether or not the dealing branch of the defendant was acting mala file in not disbursing the credit facilities in terms of Exhibit ‘L’ and Exhibit ‘AH’ to the plaintiff. The telex messages are internal to first defendant and within the domain of the first defendant. The first defendant was in a position to produce the same. The first defendant had chosen not to do so. Such withholding of the relevant telex messages referred to in Exhibit ‘AH’ would also permit the Court to make an adverse presumption against the first defendant who is withholding such vital documents from the Court. As rightly pointed out by the learned Counsel for the plaintiff adverse inference is required to be drawn as against the first defendant for non-production of the telex messages referred to in Exhibit ‘AH’. Such telex messages are internal to the first defendant with the plaintiff not having any access thereto. It is within the domain of the first defendant. The first defendant ought to have produced the same when called upon through its witness, the first defendant chose not to do so. No breach on the part of the plaintiff to fulfil any terms and conditions of Exhibit ‘AH’ being demonstrated, the third issue is, therefore, answered in the negative and in favour of the plaintiff. The indisputable position is that the first defendant did not disburse any amount to the plaintiff pursuant to its terms in Exhibit ‘AH’. The plaintiff was entitled to the credit facilities sanctioned by Exhibit ‘C’ and directed to be disbursed by Exhibit ‘AH’. No cogent reason appears from the evidence on record to entitle the first defendant to withhold disbursement of credit facilities in accordance with Exhibit ‘AH’. The non-disbursement in terms of Exhibit ‘AH’ is wrongful. Consequently, the fourth issue has to be answered in the affirmative and against the first defendant. The fifth issue relates to the claim of the plaintiff for loss and damages suffered. Such claims of the plaintiff are to be considered in the light of Section 73 of the Contract Act. The non-disbursement in terms of Exhibit ‘AH’ is wrongful. Consequently, the fourth issue has to be answered in the affirmative and against the first defendant. The fifth issue relates to the claim of the plaintiff for loss and damages suffered. Such claims of the plaintiff are to be considered in the light of Section 73 of the Contract Act. Learned Counsel for the plaintiff submits that, the first defendant had incurred a sum of Rs.7,68,053/- on account of wasted expenditure. Elaborating on the different heads which constitute wasted expenditure he refers to an advance of Rs.3.50 Lakhs paid by the plaintiff to a foreign supplier as advance payment for price of the machine for the project. He also refers to the sum of Rs.2,36,611/- paid by the plaintiff to the second defendant as possessing charges. He contends that the plaintiff had incurred other expenses amounting to Rs.1,81,442/- towards implementation of the project as would appear from Exhibit ‘A1’. The aggregate of the three accounts is Rs.7,68,053/-. On account of loss of profit it is claimed that the project if implemented would have generated profits as would appear from Exhibit ‘C’ being the project report. The plaintiff is entitled to the claim on account of loss of profit on the basis of Exhibit ‘C’. On the principles of award of damages and quantification thereof he relies upon Hadley & Another vs. Baxendale & Others, (1843-60) All England Law Reports Reprint 461, Dwarka Das vs. State of Madhya Pradesh & Another, All India Reporter 1999 SC 1031, Victoria Laundry (Windsor) Ld. vs. Newman Industries Ld. 1949 Volume 2 King’s Bench Division 528. On the claim on account of goodwill learned Counsel for the plaintiff submits that the plaintiff could not fulfil its commitments to third parties at the European. In such circumstances he submits that, the plaintiff should be compensated for loss of goodwill. He refers to the various answers given by the witness of the plaintiff to the questions put to him in this regard. He also refers to Exhibits ‘Z’, ‘AA’, ‘AB’, ‘AD’ and ‘AE’ in this regard. He relies upon 1928 Volume 1 King’s Bench Division page 269 (Marbe vs. George Edwards (Daly’s Theatre) Limited & Another.) and Malik vs. Bank of Credit and Commerce International SA (In Liquidation), 1997 (3) All England Law Reports 1. He also refers to Exhibits ‘Z’, ‘AA’, ‘AB’, ‘AD’ and ‘AE’ in this regard. He relies upon 1928 Volume 1 King’s Bench Division page 269 (Marbe vs. George Edwards (Daly’s Theatre) Limited & Another.) and Malik vs. Bank of Credit and Commerce International SA (In Liquidation), 1997 (3) All England Law Reports 1. On the fifth and the sixth issues, in course of hearing, the learned Counsel for the plaintiff give up a portion of the claim on account of loss made in plaint. He submitted that his client is entitled to an amount on account of wasted expenditure, amount under the head of loss of profit and goodwill. Having come to a finding that the defendant had wrongfully withheld disbursement of the credit facilities in terms of Exhibit ‘AH’ to the plaintiff, the expenditures incurred by the plaintiff towards implementation of the project approved of by the first defendant is required to be allowed. The plaintiff had conceived of the project. The plaintiff had caused a project report in respect thereof to be prepared. Such project report was placed before the first defendant for approval. The project report being Exhibit ‘C’ was approved by the first defendant. Exhibit ‘C’ postulated that the project conceived of therein would be financed partially by funds provided by the first defendant and partially by the plaintiff as the promoter’s contribution. The parties had acted on basis of the project report being Exhibit ‘C’. The plaintiff had expended a sum of Rs.7,68,053/- on account of and towards implementation of such project. The plaintiff had expended a sum of Rs.3.50 Lakhs towards machineries. The same would appear from Exhibit ‘C’ itself. The plaintiff had also paid a sum of Rs.2,36,611/- as processing charges to the second defendant and had expended a sum of Rs.1,81,442/- as costs for implementing the project as would appear from Exhibit ‘A1’. All these expenses are lost to the plaintiff and are recoverable from the first defendant as damages. The plaintiff has adequately proved by evidence that the plaintiff had expended such sum towards implementation of the project. In such circumstances, the plaintiff is entitled to recover the sum of Rs.7,68,053/- from first defendant on account wasted expenditure. All these expenses are lost to the plaintiff and are recoverable from the first defendant as damages. The plaintiff has adequately proved by evidence that the plaintiff had expended such sum towards implementation of the project. In such circumstances, the plaintiff is entitled to recover the sum of Rs.7,68,053/- from first defendant on account wasted expenditure. Hadley & Another vs. Baxendale & Others (supra) is of the view that, “Where two parties have made a contract which one of them has broken the damages which the other party ought to receive in respect of such project of contract should be such as they fairly and reasonably be considered as either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as made reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it. If special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known of both parties, the damages resulting from the breach of such a contract which they would reasonable contemplated would be the amount of injury which would ordinarily follow from a breach of contract under the special circumstances was wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have bad in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For, had the special circumstances been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case; and of this advantage it would be from unjust to deprive them.” In Dwarka Das (supra) it has been held that where a defendant is found to be guilty of breach of contract and where such breach was due to a rescission of the contract by the defendant and such rescission is held to be unjustified, the plaintiff would be entitled to damages by way of loss of profit. In that case the Court granted 10 per cent of the contract price as damages. In Victoria Laundry (Windsor) Ld. In that case the Court granted 10 per cent of the contract price as damages. In Victoria Laundry (Windsor) Ld. (supra) it has been held that the governing purpose of damages is to put the parties whose rights have been violated at the same position as if his rights have been observed. If a person whose right has been violated is compensated for all loss de facto resulting from such breach however improbable, however unpredictable would be harsh. Therefore, in case of such breach of contract, the aggrieved party is only entitled to recover such part of the loss actually resulting as was at the time of the contract reasonably foreseeable to be liable as a result of the breach of the contract. What would constitute to be reasonably foreseeable would depend on the knowledge possessed by the party at the time of the contract or by the party who is guilty of committing the breach. The knowledge possessed of is of two kinds namely one imputed and the other actual. Every reasonable person is taken to know the ordinary course of things and consequently what loss is liable to result from a breach of contract in that ordinary course. A person acting in breach of the contract is assumed to possess knowledge of special circumstances outside the ordinary course of things which allows additional loss to be recoverable from the person acting in breach of contract. A plaintiff in a suit for recovery of loss on account of breach of contract need not establish the actual loss suffered, to be entitled to damages. In the instant case, Exhibit ‘C’ is the project report. Exhibit ‘C’ quantifies the total costs of the project. It identifies the net fund required for the project. The net fund had been found to be Rs.214.23 Lakhs. Out of the net fund required for the project a substantial portion thereof is to be financed by the defendant. A sum of Rs.59.73 Lakhs is the promoter’s input into the project. The evidence on record establishes that the defendant sanctioned the credit facilities on December 19, 1991 being Exhibit ‘L’. The credit facilities sanctioned takes care of the sources of fund contemplated in Exhibit ‘C’ other than that of the promoter. The plaintiff had already paid an advance of Rs.3.50 lakhs to the foreign purchasers. Such claim has already been allowed in the suit. The credit facilities sanctioned takes care of the sources of fund contemplated in Exhibit ‘C’ other than that of the promoter. The plaintiff had already paid an advance of Rs.3.50 lakhs to the foreign purchasers. Such claim has already been allowed in the suit. Therefore, the plaintiff was required to put in a sum of Rs.59.73 Lakhs into the project. The project report also contemplates that the project would generate profits. Such profits would obviously be disbursed to the share-holders as a declaration of dividend. The project report envisages declaration of dividend at the rate of 8 per cent from the second year of the project implementation. So far as the land of the project is concerned and which is one of the promoter’s contribution in the project, the title deeds in respect of such land, it is submitted at the time of hearing, that they are lying with the first defendant as security for the ad hoc credit facilities enjoyed by the plaintiff from the first defendant. The first defendant has initiated proceedings for recovery of the ad hoc credit facilities granted by it to the plaintiff. The deposit of title deeds will therefore abide by the result of such proceedings. In the instant case, therefore, the plaintiff can reasonably claim 8 per cent of Rs.59.73 lakhs as loss of profit. The plaintiff has also not placed any evidence on record to show that the plaintiff had taken any step to substitute the first defendant as the financer. The project report being Exhibit ‘C’ contemplates influx of fund by the promoter for the portion of the fund required in implementation of the project. Nothing has been shows to demonstrate that, the plaintiff was impeded by law or circumstances caused by the first defendant to approach a different financer. Refusal to disburse in terms of Exhibit ‘AH’ does not mean that the first defendant had actively or otherwise prevented the plaintiff from exploring other financiers at any point of time. It has been submitted that the plaintiff had worked with the first defendant to such an extent that it was impracticable for the plaintiff to find another financier. I do not think so. The plaintiff was required to take some steps to mitigate the damages. The plaintiff chose not to do so. It has been submitted that the plaintiff had worked with the first defendant to such an extent that it was impracticable for the plaintiff to find another financier. I do not think so. The plaintiff was required to take some steps to mitigate the damages. The plaintiff chose not to do so. The answers given by the witness of the plaintiff on mitigation of loss is vague and does not address the core issue as to what steps the plaintiff took to find out a suitable substitute of the first defendant as its financier to the project. In such circumstances, the plaintiff cannot be allowed to have the entirety of its claim on account of loss and damages and goodwill. The project reports relate to the period 1993-1996. As noted herein, the rate of dividend contemplated in the project reports being Exhibit ‘C’ is 8 per cent. That would be a just return on the investment contemplated to be made by the plaintiff in the project. The plaintiff will, therefore, be entitled to a decree for damages 8 per cent on Rs.59.73 Lakhs being Rs.4,77,840/-. On account of goodwill, I am not inclined to grant any relief to the plaintiff. The return on investment is a just compensation to the plaintiff on account of loss of profit as also goodwill of the plaintiff. The plaintiff will, therefore, be entitled to a decree for Rs.7,68,053/- on account of wasted expenditure and a sum of Rs.4,77,840/- on account of loss of profit and goodwill aggregating to Rs.12,45,893/- against the first defendant. The first defendant shall pay the said sum of Rs.12,45,893/- along with the costs awarded herein within 3 weeks from date. In default, there will a decree for interest at the rate of 8 per cent per annum on the sum of Rs.12,45,893/- on and from the date of default until realization, in favour of the plaintiff and as against the first defendant. Such rate of interest is awarded consideration the rate of dividend envisaged in the project report. On the seventh issue I find that, the plaintiff has put in a Court fees of Rs.10,000/-. The plaintiff will be entitled to costs assessed at Rs.20,000/- from the first defendant. C.S. No. 7 of 1995 is decreed accordingly. The department will draw up and complete the decree expeditiously.