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2018 DIGILAW 598 (GUJ)

ABB INDIA LIMITED v. BHARAT BIJLEE LIMITED

2018-04-06

A.Y.KOGJE, M.R.SHAH

body2018
JUDGMENT AND ORDER : M.R. Shah, J. Feeling aggrieved and dissatisfied by the impugned judgment and decree passed by the learned Judge, Commercial Court, Vadodara, in Commercial Civil Suit No.138/2016, by which the learned Commercial Court has partly allowed the said suit and has passed a decree in favour of the original plaintiff for a sum of Rs.5,69,91,250/- with interest at the rate of 12% per annum from the date of filing the suit till the date of decree, and at the rate of 9% per annum from the date of decree till realization of the amount, with a liberty in favour of the appellant herein - original defendant to take the delivery of the transformers in question after making payment of the aforesaid amount along with interest, the original defendant has preferred the present appeal under the provisions of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as "the Commercial Courts Act" for short). 2. The facts leading to the present appeal in nutshell are as under: 2.1 That the original plaintiff Bharat Bijlee Limited is a manufacturer of electrical and engineering goods and mainly electrical motors, transformers, drives, elevator system and also undertakes technical projects on turnkey basis. That the plaintiff Company is having its registered office at Mumbai and a factory at Airoli, Navi Mumbai. That the original defendant ABB Limited (hereinafter referred to as "the defendant"), having its registered office at Bangalore, is having one of its plants at Vadodara. As per the plaintiff, the defendant approached the plaintiff for supply of two numbers of 50 MVA 230/11 KV Power Transformers. That the defendant also gave specifications of the transformers. According to the plaintiff, the transformers which the defendant wanted to purchase were of special specifications and not the transformers which are generally manufactured by the plaintiff. That the defendant wanted customized equipments and had asked for the offer of the plaintiff for supply of the transformers and after scrutinising the offer submitted by the plaintiff, the defendant placed a Purchase Order, being No.3191254738 dated 22.02.2010, on a firm price basis at per unit ex-works price of Rs.2,03,75,000/- and the total value of the said two transformers, being Rs.4,07,50,000/-. The Purchase Orders were issued as per the terms and conditions incorporated in the said Purchase Orders and the same were accepted by the plaintiff. The Purchase Orders were issued as per the terms and conditions incorporated in the said Purchase Orders and the same were accepted by the plaintiff. 2.2 According to the plaintiff, as per the terms of the said Purchase Order, Unit-I transformer was to be delivered ex-works by 15.06.2010 and Unit-II by 15.09.2010. According to the plaintiff, the defendant had obtained contract for Distribution System Project on turnkey basis from its customer Sterlite Industries (India) Limited, Tuticorin, (hereinafter referred to as "Sterlite Industries/Sterlite"), and as a part of the entire project, the defendant required two numbers of 50 MVA transformers and therefore, it placed order with the plaintiff and the scope of the works included design, engineering, manufacturing, testing, training, inspection, packing, forwarding and delivery of the transformers, strictly as per the specifications and requirements of defendant's project. According to the plaintiff, as per the terms of the Purchase Order, the transformers manufactured by the plaintiff were to be subjected to inspection and approval of defendant/its customer/its consultant, prior to despatch. That the plaintiff had to give fourteen days' advance intimation regarding expected date of readiness to enable the defendant organize inspection and thus, as part of the fulfillment of the terms of the Purchase Order, the plaintiff had intimated the defendant to carry out the inspection of both the units. According to the plaintiff, the defendant's representative, along with their customer's representative and consultant, personally inspected Unit-I transformer and during inspection, they carried out tests as per technical specification and found all the test results, including physical/dimensional test, spares of the transformers etc. to be in order. According to the plaintiff, as per Clause-20 of the Purchase Order, plaintiff had to despatch the transformer only after receipt of detailed forwarding and invoicing instructions issued by the defendant and therefore, the plaintiff requested the defendant to issue despatch clearance at the earliest. 2.3 According to the plaintiff, upon the request of the defendant, Unit-II transformer was manufactured on priority basis and was ready in all aspects for inspection and delivery. However, the defendant, by an e-mail dated 13.07.2010, requested the plaintiff to hold the despatch of Unit-I transformer for a period of six months, stating that their customer Sterlite Industries was yet to receive SEZ Notification. However, the defendant, by an e-mail dated 13.07.2010, requested the plaintiff to hold the despatch of Unit-I transformer for a period of six months, stating that their customer Sterlite Industries was yet to receive SEZ Notification. According to the plaintiff, it conveyed to the defendant that the despatch of the transformers need not be held up for the reason of defendant's customer not getting SEZ Notification and vide e-mail dated 14.07.2010, the defendant was requested to make the payment of the transformers within thirty days from the date of completion of the inspection as the plaintiff had already fulfilled its contractual obligations. According to the plaintiff, as per Clause-9 of the Purchase Order, plaintiff was entitled to get 100% contract value within thirty days as the transformers were completed in all respects and the test report of Unit-I was found to be in order by the defendant. According to the plaintiff, said transformers could not be delivered to the defendant because the defendant did not issue forwarding and invoicing instruction and therefore, the plaintiff is entitled for the price of the transformers along with interest and the storage charges. According to the plaintiff, thereafter, the plaintiff continuously followed up with the defendant for lifting of the said transformers and for payment of all dues under the Purchase Order contract dated 22.02.2010, but the defendant failed to take delivery of the said transformers on one or other excuses and also failed and neglected to pay the consideration as per the said contract. 2.4 According to the plaintiff, on account of the failure of the defendant to lift the transformers and to pay the ex-works price of the transformers, the plaintiff raised a debit note bearing No.001DN dated 16.10.2012 along with an amount of Rs.1,37,02,500/- towards the interest charges at the rate of 12% per annum and storage charges on inventory of the said transformers for 27 months. According to the plaintiff, thereafter, the plaintiff received a letter dated 30.10.2012, written by the Project Manager of the defendant Company denying the contractual liability citing suspension of contract due to "Force Majeure". The Project Manager cited inability of Sterlite Industries to execute their project in Tamil Nadu in support of his alleged ground of "Force Majeure". According to the plaintiff, thereafter, the plaintiff received a letter dated 30.10.2012, written by the Project Manager of the defendant Company denying the contractual liability citing suspension of contract due to "Force Majeure". The Project Manager cited inability of Sterlite Industries to execute their project in Tamil Nadu in support of his alleged ground of "Force Majeure". According to the plaintiff, the defendant could not have invoked "Force Majeure" under Clause-23 of the Purchase Order dated 22.02.2010 because Sterlite Industries and its liability to execute their Project was unknown to the contract between the plaintiff and the defendant and Sterlite is a stranger to the contract between the plaintiff and the defendant and therefore, the defendant has no legal right to take shelter of Clause 23 of the Purchase Order. That thereafter, by letter dated 10.12.2012, in reply to the defendant's letter dated 30.10.2012, the plaintiff denied the defendant's alleged invocation of "Force Majeure" under Clause-23 of the terms and conditions of the Purchase Order and called upon the defendant to pay contractual dues along with the amount raised in the debit note. According to the plaintiff, despite the best efforts by the plaintiff, the defendant did not lift and/or took the delivery of the two transformers which were ready and the plaintiff invested huge amount for manufacturing transformers and the transformers are very huge and manufactured as per the specification of the defendant and because of the failure of the defendant to lift the said transformers, huge amount of ex-works price is blocked and the plaintiff has suffered a loss of interest. 2.5 Therefore, the plaintiff initially instituted Special Summary Suit No.60/2013 in the Court of learned Principal Senior Civil Judge, Vadodara, to recover total Rs.5,87,66,250/- which included Rs.4,07,50,00/- towards ex-works price of the two transformers, Rs.1,44,66,250/- towards interest at the rate of 12% per annum from July 2010 to 25.06.2013 and Rs.35,50,000/- towards storage charges for two transformers for 35 months and 15 days at the rate of rupees one lakh per month. 2.6 That on receipt of the summonses of the suit, the defendant appeared before the learned trial Court. Thereafter, the plaintiff filed the application for summonses for judgment. In pursuance thereto, the defendant filed the application at Ex.9 for leave to defend the suit unconditionally. 2.6 That on receipt of the summonses of the suit, the defendant appeared before the learned trial Court. Thereafter, the plaintiff filed the application for summonses for judgment. In pursuance thereto, the defendant filed the application at Ex.9 for leave to defend the suit unconditionally. The learned trial Court allowed the said application subject to deposit of 50% of the suit amount vide its order dated 24.03.2015. The defendant challenged the order of granting conditional leave to defend the suit before this Court. 2.7 In the meantime, on establishment of Commercial Court at Vadodara, the suit came to be transferred to the Commercial Court, Vadodara, on 26.07.2016, in accordance with the provisions of the Commercial Courts Act. The High Court, with the consent of the learned advocates for the respective parties, quashed and set aside the order dated 24.03.2015, granting conditional leave to defend the suit and granted unconditional leave to defend the suit to the defendant. 2.8 That thereafter, the defendant filed written statement at Ex.25 by which the defendant denied all the allegations made in the Plaint. It was the case on behalf of the defendant that the suit does not fall within the purview of Order 1, Rules 1 and 2 of the Code of Civil Procedure, 1908 ("CPC"). That the suit of the plaintiff is bad for mis-joinder and non-joinder of necessary parties. It was the case on behalf of the defendant that in fact, Sterlite Industries Limited and the defendant approached the plaintiff for supply of two numbers of 50 MVA transformers and the said transformers were to be supplied according to the specifications provided by Sterlite Industries who is the necessary party to the suit. It was the case on behalf of the defendant that in fact, the plaintiff was well aware that the said transformers are required by Sterlite Industries coupled with the fact that they are to be delivered strictly at the site of Sterlite Industries. It was the case on behalf of the defendant that Purchase Order dated 22.02.2010 was, as such, a third party Purchase Order and the said Purchase Order was a back-to-back Purchase Order which was first placed before ABB and further placed to the plaintiff and in this manner, Sterlite Industries is directly involved in placing the said Purchase Order. It was the case on behalf of the defendant that Purchase Order dated 22.02.2010 was, as such, a third party Purchase Order and the said Purchase Order was a back-to-back Purchase Order which was first placed before ABB and further placed to the plaintiff and in this manner, Sterlite Industries is directly involved in placing the said Purchase Order. Therefore, the said Purchase Order was accepted by the plaintiff after discussion between three parties, i.e., the plaintiff, the defendant and Sterlite Industries, but the plaintiff has not made Sterlite Industries a party to the present suit. Therefore, it was the case on behalf of the defendant that the suit is liable to be dismissed on the ground of non-joinder of proper party, that is, Sterlite Industries. 2.9 It was also contended on behalf of the defendant that the plaintiff has admitted the delivery dates of transformers as 15.06.2010 for Unit-I and 15.09.2010 for Unit-II. However, the transformers are not yet delivered as per the terms of the Purchase Order. The plaintiff has failed to complete the manufacturing of the transformers which resulted in timely non-delivery of the transformer Unit-I before 15.06.2010. It was also contended on behalf of the defendant that a joint inspection took place at the site of the plaintiff on 02.07.2010 and in the said inspection, the representatives of Sterlite Industries were also present. It was further contended on behalf of the defendant that the plaintiff failed to arrange inspection within time and ultimately did not deliver the transformers within the stipulated period of time mentioned in the Purchase Order. It was further contended that the plaintiff failed in giving fourteen days' advance intimation regarding expected date of readiness to enable the defendant to organize the inspection as per the terms of the Purchase Order. 2.10 It was further contended on behalf of the defendant that as per the allegation of the plaintiff, the interest and storage charges of transformers is extra-contractual, but it is nowhere stipulated in the Purchase Order and therefore, if any damage is suffered by the plaintiff, then the plaintiff may file the suit for damages. Therefore, the summary suit under Order 37 of CPC shall not be maintainable. Therefore, the summary suit under Order 37 of CPC shall not be maintainable. 2.11 It was also the case on behalf of the defendant that as Sterlite Industries could not obtain the SEZ Notification due to which the Sterlite Industries has not issued the receipt of compliance, the defendant is not able to issue Despatch Clearance Certificate. Therefore, it was the case on behalf of the defendant that the circumstances were out of control for defendant as envisaged in part 2 of Clause-23 of the Purchase Order, therefore, "Force Majeure" Clause 23 shall be applicable. It was also the case on behalf of the defendant that even otherwise, the plaintiff is not entitled to interest pre-suit, as claimed. 2.12 That against the written statement of the defendant, the plaintiff filed the affidavit-in-rejoinder vide Ex.27 and specifically denied averments made in the written statement. 2.13 That the trial court framed the following issues at Ex.39: "1. Whether the plaintiff is entitled to recover a sum of Rs.5,87,66,250/- from the defendant? 2. Whether the plaintiff is entitled for interest? If yes, at what rate and for what period? 3. Whether the defendant proves that the defendant has rightly invoked the force majeure clause of the agreement? 4. Whether the defendant proves that the suit of the plaintiff is bad for non-joinder of the necessary party? 5. Whether the defendant proves that time was the essence of the contract and the plaintiff could not supply the transformers on or before 15.06.2010? 6. Whether the defendant proves that the plaintiff ha snot obtained the compliance certificate from the Sterlite Industries as per agreement entered into between the parties? 7. 5. Whether the defendant proves that time was the essence of the contract and the plaintiff could not supply the transformers on or before 15.06.2010? 6. Whether the defendant proves that the plaintiff ha snot obtained the compliance certificate from the Sterlite Industries as per agreement entered into between the parties? 7. What order and decree?" 2.14 That the plaintiff led both oral as well as documentary evidence as under: Exhibit Description 42 Deposition in form of affidavit in lieu of Examination in Chief under Order-18 Rule-4 of CPC tendered by Mr.Prashant S.Thaker and Cross examination 43 Deposition in form of affidavit in lieu of Examination in Chief under Order-18 Rule-4 of CPC given by Mr.V.G.Balraj and Cross examination Documentary Evidence: Exhibit Description 32 Original Purchase order No.3191254738 dated 22.02.2010 sent by defendant to plaintiff 33 Copy of Minutes of joint meeting dated 02.07.2010 34 Copy of email dated 13.07.2010 sent by defendant to plaintiff 44 Copy of email dated 13.07.2010 sent by plaintiff to defendant 45 Copy of email dated 14.07.2010 sent by plaintiff to defendant 46 Copy of email dated 07.12.2010 sent by plaintiff to defendant 47 Copy of email dated 05.11.2011 sent by plaintiff to defendant 48 Copy of email dated 10.02.2012 sent by plaintiff to defendant 49 Copy of email dated 23.04.2012 sent by plaintiff to defendant 50 Copy of email dated 06.06.2012 sent by plaintiff to defendant 51 Copy of email dated 04.07.2012 sent by plaintiff to defendant 52 Affidavit cum Certificate dated 23.02.2017 of Mr.Balraj Vommi under Section 65B of the Indian Evidence Act 53 Copy of letter dated 16.10.2012 written by plaintiff to defendant 54 Copy of letter dated 10.12.2012 written by plaintiff to defendant 55 Copy of letter dated 24.05.2013 written by plaintiff to defendant regarding outstanding amount against the supply of transformers 56 Copy of letter dated 24.05.2013 written by plaintiff to defendant regarding outstanding amount against the supply of transformers 57 Copy of Invoice No.019/2012-13 sent by plaintiff to defendant, dated 16.12.2012 58 Copy of Debit Note No.001DN sent by plaintiff to defendant, dated 16.10.2012 59 Copy of Power of Attorney dated 29.11.2005 executed by plaintiff company in favour of Durgesh N. Nagarkar 60 Copy of Power of Attorney dated 05.10.2015 executed by plaintiff company in favour of Mr.Prashant S. Thaker 61 Copy of Certificate of Incorporation of plaintiff company dated 22.06.1946 62 Copy of letter dated 03.02.2011 written by plaintiff to defendant 63 Copy of letter dated 19.10.2012 written by plaintiff to defendant 36 Copy of letter dated 30.10.2012 written by defendant 71 Closing Purshis submitted by the learned counsel for the plaintiff That the plaintiff submitted the closing Purshis at Ex.71. 2.15 That the defendant also led the oral as well as documentary evidence as under: Exhibit Description 72 Deposition in form of affidavit in lieu of Examination in Chief under Order 18 Rule 4 of CPC given by Mr.Ajay K. Dubey and cross examination 35 Copy of letter dated 25.10.2010 from defendant to plaintiff regarding supply of 2 nos. Power Transformers 36 Copy of letter dated 30.10.2012 written by the defendant 37 Copy of Winding up petition against defendant before Karnataka High Court, Bangalore 38 Copy of order of Honble Supreme Court in the matter of Sterlite Industries India Ltd., and Union of India 73 Affidavit of Mr.Manoj N. Modi dated 10.03.2017 74 Original Power of Attorney executed in favour of Ajay K.Dubey 75 Copy of Power of Attorney dated 11.09.2012 executed in favour of Kaushik P.Kute 76 and 79 Copy of Power of Attorney dated 07.11.2016 executed in favour of Murali Mohan Majhi 77 Copy of Order passed in Spl.C.A. No.7910 of 2015 dated 09.01.2017 by the Honble High Court of Gujarat 78 Copy of email dated 01.09.2010 from Sterlite Industries India Ltd. 80 Copy of Minutes of Meeting dated 23.08.2016 81 Closing Purshis submitted by the learned counsel for the defendant. That on behalf of the defendant, closing Purshis was submitted at Ex.81. 2.16 At this stage, it is required to be noted that in between, the defendant submitted application at Ex.65 under Order 1 Rule 10 of CPC to join/implead Sterlite Industries as a necessary party to the suit. The said application was submitted on 01.03.2017. That thereafter, the defendant submitted the witness list on 20.03.2017. That by a speaking order dated 19.04.2017, the learned Judge, Commercial Court, rejected the said application Ex.65 by specifically observing that in the present case, the rights of Sterlite Industries are not affected by not impleading it as a party and at the most, it can be a good witness to the defendant but it cannot be termed as a necessary party in the suit. 2.17 That thereafter, the defendant submitted the application Ex.69 to suspend the order below Ex.65 stating that the defendant wished to appeal the said order. The said application Ex.69 came to be rejected by the learned trial Court vide order dated 04.06.2017. 2.17 That thereafter, the defendant submitted the application Ex.69 to suspend the order below Ex.65 stating that the defendant wished to appeal the said order. The said application Ex.69 came to be rejected by the learned trial Court vide order dated 04.06.2017. At this stage, it is required to be noted that as such, thereafter the defendant has not challenged the order below Ex.65 and therefore, the order below application Ex.65, which was submitted under Order 1 Rule 10 of the Code, had attained finality. 2.18 That thereafter, the defendant led the evidence and the defendant witness came to be examined vide Ex.72. That thereafter, the defendant submitted closing Purshis at Ex.81 on 13.06.2017. That thereafter, the defendant submitted the application at Ex.82 on 23.06.2017 though in the said matter, the next date was kept on 01.07.2017 for written submissions and requested the Court to take the suit on Board and to issue witness summons to the officer of Vedanta Limited (formerly M/s.Sterlite Industries (India) Limited). That by a detailed order dated 23.06.2017, the learned trial Court rejected the said application Ex.83 with cost of Rs.5,000/-. At this stage, it is required to be noted that the said order rejecting the application Ex.82 has also attained finality as the same is not challenged thereafter. 2.19 That thereafter, the plaintiff filed the written submissions vide Ex.86. The defendant also filed the written submissions at Ex.87. After the fullest opportunity to the learned counsel appearing for the respective parties and thereafter on appreciation of evidence on record, the learned trial Court has held Issues No.1, 2 and 6 in the affirmative and rest of the issues in the negative and by impugned judgment and decree, has passed a decree in favour of the plaintiff for a sum of Rs.5,69,61,250/- from the defendant along with interest at the rate of 12% per annum from the date of filing of the suit till the date of decree and at the rate of 9% per annum from the date of decree till realization of the said amount. The learned trial Court has also observed while passing the impugned decree that the defendant is at liberty to take the deliver of the transformers in question after making the payment of the aforesaid amount along with interest within thirty days from the date of the judgment and decree, failing which the plaintiff shall be at liberty to sell the transformers in question in whole or parts at best available price through public auction at the cost and risk of the defendant and the proceeds of the same shall be adjusted against the decretal amount. 2.20 That after the impugned judgment and decree passed by the learned Judge, Commercial Court, the defendant submitted the application Ex.92 for seeking suspension of the judgment and decree so as to enable the defendant to prefer an appeal before the High Court. The said application as such was opposed by learned counsel appearing for the plaintiff on the ground that decree is a money decree and therefore, the judgment and decree cannot be stayed without any security or order of depositing the amount in the Court. That by order dated 13.10.2017, the learned trial Court partly allowed the said application and stayed the operation of the judgment and decree subject to deposit of 50% of the decretal amount including the interest within thirty days from the date of the order with the Nazir, District Court, Vadodara. Accordingly, thereafter, the defendant has deposited 50% of the decretal amount with interest, that is, Rs.4,34,24,838/- and the said amount is lying with the Registry in Fixed Deposit. 2.21 Thereafter, feeling aggrieved and dissatisfied with the impugned judgment and decree passed in Commercial Civil Suit No.138/2016, the original defendant ABB India Limited has preferred the present First Appeal under the provisions of the Commercial Courts Act read with the relevant provisions of the CPC. 3. Mr.Unmesh D. Shukla, learned advocate has appeared on behalf of the appellant (original defendant) and Mr.Jay Kansara, learned advocate, has appeared for M/s.Wadia Ghandy and Company for the opponent herein (original plaintiff). 4. Learned counsel for the respective parties have placed on record the entire paper-book of the case. The Record and Proceedings of the case is also received by this Court. 5. 4. Learned counsel for the respective parties have placed on record the entire paper-book of the case. The Record and Proceedings of the case is also received by this Court. 5. Mr.Unmesh D. Shukla, learned counsel appearing for the appellant (original defendant), has vehemently submitted that in the facts and circumstances of the case, the learned trial Court has materially erred in passing the decree of Rs.5,59,91,250/- along with interest and storage charges. 5.1 It is further submitted by Mr.Unmesh Shukla learned counsel for the appellant that as such, the suit filed by the plaintiff was required to be dismissed on the ground of non-joinder of necessary and proper parties, namely M/s.Sterlite Industries (India) Limited. It is submitted that as such, for proper adjudication of the dispute in the suit, presence of M/s.Sterlite was necessary and the learned trial Court ought to have dismissed the suit on the ground of non-joinder of necessary party. 5.2 It is submitted by Mr.Unmesh Shukla learned counsel for the appellant that therefore, as such, the learned trial Court has materially erred in rejecting the application Ex.65 filed by the defendant to implead M/s.Sterlite Industries as a party-defendant. 5.3 It is submitted that it is true that the appellant original defendant as such did not prefer any proceedings before this Court against the order passed below Ex.65, however, the appellant is entitled to question and challenge such order of non-joining of M/s.Sterlite Industries as a party before this Court in the present appeal. 5.4 It is further submitted by Mr.Unmesh Shukla learned counsel for the appellant that looking to the terms and conditions of the Purchase Order and the direct participation of Sterlite Industries envisaged therein, and looking to the fact that the transformers in question were ultimately meant for use of Sterlite Industries and the specifications for the same were provided by Sterlite Industries, it was a necessary party to the suit. It is submitted that therefore, the impugned judgment and decree is vitiated on account of absence of Sterlite Industries. It is submitted that therefore, the impugned judgment and decree is vitiated on account of absence of Sterlite Industries. 5.5 It is further submitted by Mr.Unmesh Shukla learned counsel for the appellant that even while rejecting the application for joining Sterlite Industries as a party (Ex.65), the learned trial Court, though observed that Sterlite Industries is not necessary or proper party, in the course of the order, the learned Judge observed that "at the most it can be a good witness to the defendant but it cannot be treated as necessary party in the present suit". It is submitted that thereafter when the defendant submitted application at Ex.83 to issue witness summons to the officer of Sterlite Industries, the learned trial Court rejected the said application while imposing the cost of Rs.5,000/-, therefore, by doing so, the learned trial Court has materially erred in passing the impugned judgment and decree without giving any opportunity to the defendant to examine one of the officers of Sterlite Industries as a witness. 5.6 It is further submitted by Mr.Unmesh Shukla, learned counsel for the appellant, that in the facts and circumstances of the case, and considering the material on record, the learned trial Court has materially erred in holding that the defendant was not justified in invoking "Force Majeure" clause of the agreement. 5.7 It is further submitted by Mr.Unmesh Shukla, learned counsel for the appellant, that in view of the fact that Sterlite Industries could not get the SEZ Notification and therefore the defendant was not in a position to lift the transformers which as such were manufactured for Sterlite Industries and even manufactured as per the specification approved by Sterlite Industries and in absence of any material Despatch Clearance Certificate issued by Sterlite Industries, due to which the defendant could not lift the transformers in question, Clause-23 of the agreement - "Force Majeure" clause shall be applicable with full force. 5.8 It is further submitted by Mr.Unmesh Shukla, learned counsel for the appellant, that even otherwise, the learned trial Court has materially erred in not properly appreciating the consequences and implications of the failure of the plaintiff to obtain Material Inspection Clearance Certificate from Sterlite Industries as per the agreement between the plaintiff and the defendant. 5.8 It is further submitted by Mr.Unmesh Shukla, learned counsel for the appellant, that even otherwise, the learned trial Court has materially erred in not properly appreciating the consequences and implications of the failure of the plaintiff to obtain Material Inspection Clearance Certificate from Sterlite Industries as per the agreement between the plaintiff and the defendant. That the consequence of non-issuance of certificate by Sterlite Industries was clearly to exonerate and absolve the defendant of contractual responsibility and offer a complete discharge of their contractual obligations. 5.9 It is further submitted by Mr.Unmesh Shukla, learned counsel for the appellant, that even otherwise, the limitation to make the payment by the defendant to the plaintiff would start from the date of obtaining the Material Inspection Clearance Certificate from Sterlite Industries. It is submitted that admittedly, there was no Material Inspection Clearance Certificate from Sterlite Industries and therefore, no cause of action has arisen to make the payment of the defendant to the plaintiff. It is submitted that the aforesaid aspect has not been properly appreciated by the learned trial Court. 5.10 It is further submitted by learned counsel for the appellant that even otherwise, the learned trial Court has misinterpreted Clause-15 of the Purchase Order. It is submitted that the trial Court has materially erred in holding that it was the responsibility of the appellant original defendant to organize inspection of the transformers. It is submitted that coordination with Sterlite Industries to organize inspection for ordered item was the responsibility of the plaintiff. It is further submitted by Mr.Shukla that the trial Court has failed to appreciate that the contract/Purchase Order between the plaintiff and the defendant was a contingency contract. It is submitted that contingency consisted in the Purchase Order even provides for certain actions by Sterlite Industries. It is submitted that when Sterlite Industries did not perform such acts, it became clear that the contingency did not materialize. That obligation of the appellant to accept delivery of the transformers and make payment did not trigger at all on account of non-fulfillment of such condition. 5.11 Learned counsel for the appellant has submitted that the learned trial Court has materially erred in not properly appreciating the fact that even in terms of the Purchase Order, the stage for payment did not arrive due to non-fulfillment of certain terms of the Purchase Order. 5.11 Learned counsel for the appellant has submitted that the learned trial Court has materially erred in not properly appreciating the fact that even in terms of the Purchase Order, the stage for payment did not arrive due to non-fulfillment of certain terms of the Purchase Order. It is submitted that the Purchase Order casts an obligation upon the defendant to make payment when the transformers are delivered to Sterlite Industries. It is submitted that admittedly, no such delivery has taken place. That even the inspection of the second transformer has not taken place. 5.12 Mr.Unmesh Shukla, learned counsel for the appellant, has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Steel Authority of India And Others v. Tycoon Traders And Others, (2015) 5 SCC 767 as well as a commentary on Non-promissory Conditions in Anson's Law of Contract, 30th Edition, Oxford. 5.13 It is further submitted by Mr.Shukla, learned counsel for the appellant, that even otherwise, in absence of any specific contract between the parties with respect to the interest on delayed payment and/or non-payment, the learned trial Court has materially erred in passing the decree of interest on nonpayment of dues. It is submitted that as such, in the Purchase Order/contract, there is no provision of interest. 5.14 It is submitted by learned counsel for the appellant that in the invoices only, there is a provision for interest. However, the invoices as such cannot be said to be a concluded contract between the parties. It is submitted that therefore, the learned trial Court has materially erred in passing the decree of pre-suit interest. It is submitted that therefore, the pre-suit interest ought not to have been awarded by the learned trial Court. 5.15 In support of the above submissions, Mr.Shukla, learned counsel appearing on behalf of the appellant (original defendant), has relied upon the decision of the Court of Appeal in the case of Thornton v. Shoe Lane Parking Ltd., (1971) 2 QB 163 as well as the decision of the King's Bench Division in the case of Olley v. Marlborough Court Limited, (1949) 1 KB 532. 5.16 It is further submitted by Shri Shukla on behalf of the appellant that even the learned Trial Court has materially erred in passing the decree of storage charges. 5.16 It is further submitted by Shri Shukla on behalf of the appellant that even the learned Trial Court has materially erred in passing the decree of storage charges. It is submitted that in absence of any specific evidence led by the plaintiff and in absence of proof of such claim the learned trial Court has materially erred in awarding storage charges. 5.17 Making the above submissions and relying upon the above, it is requested by learned counsel for the appellant to allow the present appeal and quash and set aside the impugned judgment and decree passed by the learned trial Court. 6. The present appeal is vehemently opposed by Shri Jay Kansara, learned advocate appearing on behalf of the respondent original plaintiff. 6.1 It is submitted by Shri Jay Kansara, learned advocate for the respondent original plaintiff that in the facts and circumstances of the case, the learned trial Court has rightly passed the decree. 6.2 It is further submitted by Shri Jay Kansara, learned advocate for the respondent original plaintiff that the findings recorded by the learned trial Court are on interpretation of the material on record, more particularly, the relevant clauses of the contract entered into between the parties and on appreciation of evidence and therefore, the same are not required to be interfered by this Court. 6.3 It is further submitted by Shri Jay Kansara, learned advocate for the respondent original plaintiff that as such, the learned trial Court has rightly held that a contract was between the plaintiff and the defendant and therefore for any inability on the part of the third party, namely, Sterlite Industries, the defendant could not have invoked the "Force Majeure" clause, as provided in Clause-23 of the Purchase Order dated 22.02.2010. 6.4 It is submitted by Shri Jay Kansara that as such Sterlite Industries was not a party to the contract between the plaintiff and the defendant, more particularly, the Purchase Order dated 22.02.2010 and therefore, Sterlite Industries can be said to be a stranger to the contract between the plaintiff and defendant and therefore, as rightly held by the learned trial Court, the defendant could not have taken the shelter of Clause-23 of the Purchase Order. 6.5 It is further submitted by learned advocate for the respondent original plaintiff that merely because the transformers were required to be manufactured as per the specification of Sterlite Industries, said Sterlite Industries cannot be a party to the contract/Purchase Order dated 22.02.2010. It is submitted that a contract/Purchase Order was between the plaintiff and the defendant by which the plaintiff was to manufacture the transformers and thereafter the defendant was to lift the said transformers. It is submitted that in the present case, the plaintiff manufactured the transformers as per the Purchase Order between the plaintiff and the defendant, and after due intimation and even after inspection with respect to transformer Unit-I, the defendant did not lift the transformer. It is submitted that insofar as a transformer Unit-II is concerned, even no inspection was carried out and ultimately, the manufactured transformer was not lifted by the defendant. It is submitted that therefore, when the plaintiff manufactured the transformers as per the Purchase Order and invested huge amount and thereafter when the defendant failed to lift the transformers, the learned trial Court has rightly passed the decree. 6.6 It is further submitted by Shri Jay Kansara, learned advocate for the respondent original plaintiff that in the present case, the suit cannot be said to be bad for non-joinder of Sterlite Industries inasmuch as Sterlite Industries cannot be said to be a necessary and/or proper party to the suit. It is submitted that as such, the order of by the learned trial Court, passed below application Ex.65 which was submitted by the defendant under Order 1 Rule 10 of CPC by which it was requested to join Sterlite Industries as party to the suit, had attained the finality inasmuch as that thereafter the defendant has not challenged the said order below Ex.65. It is submitted that therefore, thereafter it was not open for the defendant to make any grievance in respect of non-joinder of Sterlite Industries as a party to the suit. 6.7 It is further submitted that even thereafter also and till the defendant submitted the closing Purshis on 13.06.2017, no application was submitted by the defendant to issue witness summons to the officer of Vedanta Ltd. (formerly Sterlite Industries (India) Ltd.). 6.7 It is further submitted that even thereafter also and till the defendant submitted the closing Purshis on 13.06.2017, no application was submitted by the defendant to issue witness summons to the officer of Vedanta Ltd. (formerly Sterlite Industries (India) Ltd.). It is submitted that after the closing Purshis was submitted by the defendant on 13.06.2017 and thereafter when the matter was kept on 01.07.2017 for written submissions, the defendant submitted the application Ex.82 on 23.06.2017, requesting to issue witness summons to the officer of Vedanta Limited (formerly Sterlite Industries (India) Ltd.). It is submitted that by a detailed order dated 23.06.2017, the learned trial Court rejected the said application with cost of Rs.5,000/-. It is submitted that even the said order also attained the finality as it was not challenged thereafter. It is submitted that therefore, thereafter it is not open for the defendant to make a grievance in respect of non-joinder of Sterlite Industries. It is submitted that in any case, in the facts and circumstances of the case, Sterlite Industries cannot be said to be a necessary and/or proper party and therefore, as rightly held by the learned trial Court, the suit is not bad for non-joinder of proper party - Sterlite Industries, as contended on behalf of the defendant. 6.8 Now so far as the submission on behalf of the appellant herein original defendant, that in absence of any contract between the parties with respect to the interest the learned trial Court is not justified in awarding the interest pre-suit period is concerned, it is submitted that as such, in the invoice it was specifically mentioned that on delayed payment, the plaintiff is entitled to interest. It is submitted that in any case, the plaintiff shall be entitled to the reasonable interest on the delayed payment as the plaintiff invested huge amount in manufacture of the transformers which the plaintiff manufactured as per the Purchase Order and the amount invested by the plaintiff in manufacturing the transformers was stuck and therefore also, the plaintiff shall be entitled to the reasonable interest/interest pre-suit. 6.9 It is further submitted by Shri Jay Kansara, learned advocate for the respondent original plaintiff that even the learned trial Court is also justified in passing the decree of storage charges. 6.9 It is further submitted by Shri Jay Kansara, learned advocate for the respondent original plaintiff that even the learned trial Court is also justified in passing the decree of storage charges. It is submitted that the transformers manufactured were required to be kept in the premises of the plaintiff at Mumbai and therefore, the plaintiff could not use the said space which was occupied by keeping the transformers, the delivery of which was required to be taken by the defendant. It is submitted that therefore, in the facts and circumstances of the case, the learned trial Court is justified in passing the decree for storage charges also. However, ultimately, Shri Jay Kansara, learned advocate for the respondent original plaintiff has left it to the Court to pass appropriate order so far as passing the decree of storage charges is concerned. 6.10 Making the above submissions, it is requested to dismiss the present appeal. 7. We have the learned advocates for the respective parties at length and perused and considered in detail, the impugned judgment and decree passed by the learned Judge, Commercial Court, Vadodara. We have re-appreciated the entire evidence on record. 8. At the outset, it is to be mentioned that by the impugned judgment and order, the learned trial Court has partly allowed the suit preferred by the respondent herein original plaintiff and has passed the decree of Rs.5,69,91,250/- with interest at the rate of 12% per annum from the date of filing the suit till the date of decree and at the rate of 9% per annum from the date of decree till realization of the amount. The learned trial Court has also observed that the original defendant is at liberty to take delivery of the transformers in question after making the payment of the aforesaid amount along with interest within thirty days from the date of the judgment, failing which the plaintiff shall be at liberty to sell the transformers in question in whole or parts at best available prices through public auction at the cost and risk of the defendant and the proceeds of the same be adjusted against the decretal amount. It is an admitted position that even after passing the decree, the defendant has failed to take the delivery of the transformers in question after making the payment of the aforesaid amount along with interest. It is an admitted position that even after passing the decree, the defendant has failed to take the delivery of the transformers in question after making the payment of the aforesaid amount along with interest. From the impugned judgment and decree passed by the learned trial Court, it appears that the decretal amount of Rs.5,69,91,250/- is consisting of and includes, Rs.4,07,50,000/- towards ex-works price of two transformers, Rs.1,44,66,250/- towards interest at the rate of 12% per annum from July 2010 to 25.06.2013 (pre-suit period) and Rs.17,75,000/- towards storage charges at the rate of Rs.50,000/- per month for two transformers for 35 months and 15 days. 9. Considering the material evidence on record, it appears that and it cannot be disputed that as per the contract between the plaintiff and the defendant Purchase Order dated 22.02.2010 - the plaintiff was required to manufacture two transformers at exworks price mentioned in the Purchase Order and as per the specification of the customer of the defendant Sterlite Industries and the delivery of the two transformers manufactures were required to be given by the plaintiff to the defendant. The Purchase Order at Ex.32 contains various clauses by which duties were cast upon the plaintiff and the defendant It contains several steps which were to be performed by the respective parties, namely, (1) Drawing/designing and manufacture of the transformers; (2) Inspection of transformers (Clause-15) ; (3) Issuance of Test Certificate (Clause-16) ; (4) Guarantee/Warranty and Performance Bank Guarantee (Clauses 18 and 19) ; (5) Despatch instruction (Clause-20) ; and (6) Payment (Clause-9). From the evidence on record, it cannot be disputed that the transformers were manufactured by the plaintiff Company and in fact, inspection in respect of transformer Unit-I was also carried out by Sterlite Industries (India) Ltd. It has also come on record by way of evidence that so far as transformer Unit-II is concerned, the inspection could not be carried out and in fact, it was not carried out though it was manufactured. It is evident from Ex.33 the joint minutes of the meeting, that the transformers were duly inspected by the defendant and Sterlite Industries on 1st and 2nd July, 2010. It is also evident from the e-mail dated 13.07.2010 at Ex.34 sent by the defendant to the plaintiff that the defendant Company itself requested the plaintiff to hold up the despatch for the period of another six months. It is also evident from the e-mail dated 13.07.2010 at Ex.34 sent by the defendant to the plaintiff that the defendant Company itself requested the plaintiff to hold up the despatch for the period of another six months. That so far as transformer Unit-I is concerned, though the said transformer was duly inspected by the defendant and Sterlite Industries, it was the defendant who requested the plaintiff to hold up the despatch for the period of another six months. Thus, it has been established and proved by leading the cogent evidence that the first transformer was ready for delivery and it was defendant Company who requested the plaintiff Company to hold the despatch of the first transformer for a further period of six months. So far as transformer Unit-II is concerned, the plaintiff, after the said transformer Unit-II was manufactured, requested vide e-mail dated 13.07.2010 at Ex.44 to arrange the inspection on 30th and 31st July, 2010. However, the defendant could not arrange for the inspection by Sterlite Industries and therefore, the defendant did not perform its part under the Purchase Order. Thus, though the transformers were manufactured by the plaintiff as per the Purchase Order and as per the specification and the design provided by the defendant/Sterlite Industries and were ready for delivery, it was the defendant who did not lift the transformers. It is required to be noted that the transformers were manufactured as per the design and specifications and the plaintiff invested huge amount. Therefore, as such, the plaintiff fulfilled its obligations as per the Purchase Order. However, it was the defendant who could not perform its part and did not lift the transformers. The reason for not lifting the transformers by the defendant seems to be that Sterlite Industries (India) Limited was facing some problems, environmental and/or other problems and therefore, the defendant did not lift the transformers and in fact requested the plaintiff to hold the despatch/delivery. However, it is required to be noted that so far as Sterlite Industries is concerned, it was the client of the defendant for whose benefit the defendant placed the Purchase Order with the plaintiff to manufacture the transformers. It is required to be noted that so far as Sterlite Industries is concerned, the same can be said to be a stranger to the Purchase Order/contract between the plaintiff and the defendant. It is required to be noted that so far as Sterlite Industries is concerned, the same can be said to be a stranger to the Purchase Order/contract between the plaintiff and the defendant. Under the contract/Purchase Order, it was for the plaintiff to manufacture the transformers and after following due procedure as mentioned in the Purchase Order, including the inspection to be carried out by Sterlite Industries, it was the defendant who was required to take the delivery which the defendant failed to take. Whatever problems were faced by Sterlite Industries, the defendant was required to perform its part under the Purchase Order/Contract between the plaintiff and the defendant for which the plaintiff had nothing to do. The plaintiff was entitled to the amount exworks price from the defendant on manufacture of the transformers, which were in fact manufactured as per the Purchase Order. Before the learned trial Court, the defendant invoked Clause-23 of the Purchase Order - "Force Majeure". However, considering the relevant clauses of the contract/Purchase Order and even Clause-23, the learned trial Court has rightly held that the defendant shall not be entitled to invoke the "Force Majeure" clause. The relevant part of Clause-23 reads as under: "23. Right of Buyer to Set off: ..The Purchaser also reserve the right to cancel this order or any part incomplete if stoppage occurs due to fire, strike, lockout, riots, force majeure from any other cause or cause beyond our control or causes due to any acts demands of the Government any Government Department or as a consequence of war or outbreak of hostilities." 10. Considering the aforesaid clause, as rightly observed by the learned trial Court, on facing some problem by Sterlite Industries who is not a party to the contract and/or who can be said to be a stranger to the contract, the defendant shall not be entitled to invoke "Force Majeure" clause, as contained in Clause-23. We are in complete agreement with the view taken by the learned trial Court. 11. Even the learned trial Court has rightly not accepted the case on behalf of the defendant that the contract was a contingent contract. As rightly observed by the learned trial Court, the decision of the Hon'ble Supreme Court in the case of Steel Authority of India And Others v. Tycoon Traders And Others, shall not be applicable to the facts of the case on hand. As rightly observed by the learned trial Court, the decision of the Hon'ble Supreme Court in the case of Steel Authority of India And Others v. Tycoon Traders And Others, shall not be applicable to the facts of the case on hand. Learned trial Court has rightly considered the relevant clauses of the Purchase Order and held that the contract in question cannot be said to be a contingent contract. In the case before the Hon'ble Supreme Court, the contract was for extracting iron ore for which necessary permission/clearance was anticipated in the contract itself and therefore, when there was no permission/clearance granted, the Hon'ble Supreme Court held the contract as contingent contract and held that consequent restoration of the parties to precontractual position was proper. Under the circumstances, the said decision shall not be applicable to the case on hand. 12. Considering the aforesaid facts and circumstances of the case, the learned trial Court has rightly held that the plaintiff is entitled to Rs.4,07,50,000/- towards the cost of two transformers which the plaintiff manufactured as per the Purchase Orders and which were kept for delivery/despatch but the defendant did not lift and/or took the delivery. The relevant discussion by the learned trial Court while holding the above is in paragraph-36 of the impugned judgment and decree. We are in complete agreement with the view taken by the learned trial Court. 13. Now so far as the finding recorded by the learned trial Court that the plaintiff shall be entitled to claim interest on the principal amount, i.e. the cost of transformers from the date of delivery till the filing of the suit, namely interest for the pre-suit period is concerned, it is the case on behalf of the defendant that in absence of any specific clause/contract to award interest on delayed payment, the learned trial Court is not justified in awarding the interest presuit. However, it is required to be noted that Clause-8 of the Purchase Order (Ex.32) makes the provision for liquidated damages in case of any delay in delivery beyond the fifteen days' grace period. Clause-8 reads as under: "8. Liquidated Damages: For the purpose of L.D., 15 days grace period shall be considered over and above the agreed delivery dates mentioned above. Clause-8 reads as under: "8. Liquidated Damages: For the purpose of L.D., 15 days grace period shall be considered over and above the agreed delivery dates mentioned above. In case of any delay I delivery beyond that, the liquidated damages shall be leviable @ 0.5 per week, subject to a maximum of 10% on the total order value." 14. It is required to be noted and as observed hereinabove, two transformers were manufactured by the plaintiff as per the specifications and special design. The same were kept ready for delivery. However, it was the defendant who did not took the delivery. As per the Purchase Order, the first transformer was to be delivered on 15.06.2010 and as the design was revised, the period of fifteen days was extended. The second transformer was to be delivered on 15.09.2010. 15. In view of the above discussion, the decisions on which reliance is placed by learned counsel for the appellant, referred to hereinabove, shall not be applicable to the facts of the case on hand, more particularly, in view of specific Clause-8 of the Purchase Order. 16. It has also come on record that even the defendant also received consideration from its buyer to supply the transformers but failed to take the delivery and even did not make any payment to the plaintiff. The plaintiff invested the huge amount of rupees four crores in manufacture of the two transformers. It was the defendant who failed to take the delivery. Therefore, as rightly observed by the learned trial Court, the defendant cannot be permitted to enrich at the cost of the plaintiff. Considering Clause-8 of the Purchase Order, award of interest for pre-suit period can be said to be one part of liquidated damages. At this stage, it is required to be noted that as such, it was the defendant who committed the default and committed breach of the contract/Purchase Order. As observed hereinabove, on one hand, the plaintiff invested huge amount and did not receive any amount from the defendant and on the other hand, the defendant received the consideration from its buyer, i.e., Sterlite Industries. Once it is established that the defendant committed the breach of the Purchase Order/contract, as per catena of decisions of the Hon'ble Supreme Court, innocent party like the plaintiff is entitled to claim damages. Once it is established that the defendant committed the breach of the Purchase Order/contract, as per catena of decisions of the Hon'ble Supreme Court, innocent party like the plaintiff is entitled to claim damages. It is a cardinal principle of law that as far as possible, the injured party should be placed in as good a situation as if the contract had been performed. Under the circumstances, no error has been committed by the learned trial Court in awarding interest pre-suit period which as such can be termed as damages and/or loss sustained by the plaintiff for no fault on its part. Even grant of interest pre-suit is required to be considered from another angle, namely, the defendant as such recovered the amount of consideration from its buyer but did not make the payment to the plaintiff and therefore as such, the defendant used that amount which was required to be given to the plaintiff. Therefore also, the defendant cannot be permitted to challenge the grant of interest pre-suit. We therefore confirm the impugned judgment and decree passed by the learned trial Court insofar as award of Rs.1,44,66,250/- as interest pre-suit period is concerned. 17. However, at the same time, in absence of any other evidence on record to prove the storage charges and/or the rent prevailing in the market for such space, the learned trial Court is not justified in awarding the storage charges. Even the learned counsel appearing on behalf of the plaintiff is not in a position to justify the impugned judgment and decree awarding storage charges, more particularly, in absence of any further evidence. Under the circumstances, to that extent, the appeal is required to be partly allowed and the impugned judgment and decree passed by the learned trial Court awarding storage charges deserves to be quashed and set aside. 18. In view of the above discussion, the present appeal stands allowed in part. The impugned judgment and decree passed by the learned trial Court insofar as award of storage charges of Rs.17,75,000/- is concerned, is hereby quashed and set aside. Rest of the judgment and decree passed by the learned Judge, Commercial Court, Vadodara, in Commercial Civil Suit No.138/2016, is hereby confirmed. In the facts and circumstances of the case, there shall be no order as to costs. 19. Rest of the judgment and decree passed by the learned Judge, Commercial Court, Vadodara, in Commercial Civil Suit No.138/2016, is hereby confirmed. In the facts and circumstances of the case, there shall be no order as to costs. 19. In view of the above, Civil Application for stay does not survive and it stands disposed of accordingly. 20. The Record and Proceedings be transmitted back to the trial Court forthwith. Further order: At this stage, learned advocate appearing on behalf of the appellant has requested to stay the present judgment and order. However, in view of the above discussion, where it is held that it was the defendant who did not take the delivery of the Transformers though they were ready for delivery and there was no fault on the part of the plaintiff who manufactured two transformers and invested huge amount, prayer is rejected.