JUDGMENT : [Vinod Chandran, J.] 1. The appeal is against the judgment and decree of the Principal Sub Court, Kollam which allowed recovery of an amount of Rs.72,40,392.68 with future interest @ 6% after deducting the counter claim; which was confined to Rs.93,952.10. The defendant is in appeal and the case arose from different contracts for supply of raw cashew nuts to the plaintiff, sourced from abroad. The plaintiff procures raw cashew nuts, processes it in its ten factories; four owned by the plaintiff and six taken on lease/contract, and exports processed cashew as per the orders received. The defendant is a company registered in Singapore engaged mainly in the supply of raw cashew nuts. The 1st plaintiff, a partnership firm and a recognized two-star export house, entered into import contracts with the defendant, the transactions in which led to differences of opinion leading to the above suit. The contracts which are dealt with in the above suit, number eight, two of which were entirely cleared, two cancelled by the defendant, one partly cleared and partly repudiated and three fully repudiated by the plaintiff. The plaintiff alleged that there was a breach of contract by reasons of short supply, delayed supply, the advance amounts having not been fully given credit and more importantly the absence of a certification required for the purpose of ensuring the quality and quantity of the goods and the sea worthiness of the vessel in which the goods are shipped. 2. The terms were agreed upon by the parties and the same reduced to writing, which is first executed by the defendant in Singapore and sent to the plaintiff at Kollam, as an offer, which is accepted by the plaintiffs by putting their signature on the offer document thus concluding the contract. The advance amounts are deposited by the plaintiff to the account of the defendant in Singapore, through the plaintiff's Bank at Kollam, which varied between 5% & 10% of the total consideration payable for the quantity agreed upon at the stipulated rate; evident from the contract. There is a time stipulated in all the contracts within which the supply is to be carried out, but however subject to the availability of vessels. There is a time stipulated in all the contracts within which the supply is to be carried out, but however subject to the availability of vessels. On the consignment being shipped from the port of origin, which in all these contracts was Abidjan in Ivory Coast, the Bill of Lading ('B/L' for brevity) is transmitted to the bankers of the plaintiff by the defendant's bank and on the plaintiff remitting the balance consideration as per the invoice sent along with the B/L, the plaintiff receives the goods at the port of entry and processes it in its factories. The plaintiff alleged breach of the terms of the contract by the defendant, when the plaintiff refused to clear the goods imported into the country. 3. The defendant alleged that Lloyd's Certification was not a mandatory condition of the contracts and in any event the shipments reached India; which makes the necessity of a certificate redundant. The defendant alleged breach on the plaintiff firm and forfeited the advance amounts; as per the terms of the contract. The plaintiffs sued for return of the advance amounts against which, supply was either not delivered or refused to be cleared by the plaintiff, on allegation of breach of contract. The defendant raised a counter claim alleging liability of loss including that of freight and demurrage from the plaintiff, which, according to them occurred only by reason of the refusal of the plaintiff to clear the goods. At the time of filing of the written statement, there was no computation of loss, which according to the defendant could be only computed after the sale of the goods which were refused to be cleared by the plaintiff. The liability to freight and demurrage were computed in a tabular form in the written statement as on that date, but there was no further amendment made to the pleadings alleging any loss having been occasioned. There was a further claim for the plaintiff, other than the advance amounts, which was with respect to the debit notes raised on the plaintiff for the short supply of the cleared goods certified by a third party mutually agreed upon. The defendant admitted the same in the written statement and hence there is no adjudication required on that aspect. In addition to the claim and counter claim the Court below raised issues on maintainability, jurisdiction and the capacity of the plaintiffs to sue. The defendant admitted the same in the written statement and hence there is no adjudication required on that aspect. In addition to the claim and counter claim the Court below raised issues on maintainability, jurisdiction and the capacity of the plaintiffs to sue. Arguments of the Appellant/Defendant: 4. Learned Counsel for the appellant Sri. V.B Harinarayanan, at the outset found fault with the Court below for not having looked into any of the documents produced by the defendant in their counter affidavit. It is pointed out that though some of the documents were copies, there were also originals which were marked by DW1, which has not been referred to by the Court below. It is argued that the demurrage to the full extent claimed in the written statement has been produced in original and a cross verification with paragraphs 9 and 29 of the written statement would establish the said claim. Exts.B19, B21 & B27 are specifically referred to as substantiating the above claim. It is the contention of the appellant that the grounds for repudiation of the various contracts, for reason of the short delivery and the absence of the Lloyd's Certification cannot at all be countenanced. The plaintiff had been cherry picking the deliveries sent in different lots; clearing some and not the others. The consignments which were not cleared had to be kept in the port premises suffering huge demurrage; before another purchaser could be found. There is also the practice of B/L being switched and issued in the name of another purchaser; which practice had to be followed in the consignments which are refused to be cleared by the plaintiff. It is specifically pointed out from the contract that it was the responsibility of the purchaser/importer to clear the goods within seven days of its receipt, which also stipulated that any breach of contract by the importer, enables the consignor to sell the goods to another purchaser and in that event the loss occasioned can be recovered from the original consignee. In addition, the above clause also enables forfeiture of the entire advance amounts; which right was exercised by the defendant. 5. As far as Lloyd's Certification is concerned it was not an essential condition of the contracts and could only give rise to a claim of loss or damages under S.73 of the Indian Contract, Act, 1872. In addition, the above clause also enables forfeiture of the entire advance amounts; which right was exercised by the defendant. 5. As far as Lloyd's Certification is concerned it was not an essential condition of the contracts and could only give rise to a claim of loss or damages under S.73 of the Indian Contract, Act, 1872. It was argued that under S.74 of the Indian Contract Act, even without proof of actual damage or loss, liquidated damages could be provided in a contract, which can be recovered without much ado. Reliance was placed on Oil and Natural Gas Corporation Ltd v. SAW Pipes Ltd AIR (2003) SC 2629 which looked at S.74 and found it to have two distinct aspects, one of a pre-estimated loss and the other of penalty alone; the former of which is the clause relating to the forfeiture of advance money on breach of contract. The learned Counsel also relied on an unreported decision of this Court in Arbitration Appeal No.22/2003, M/s. Chimmco Birla Ltd v. The Cochin Port Trust dated 19.2.2019. 6. The learned Counsel also took us to S.12 & 13 of the Sale of Goods Act to emphasize the difference between a warranty and condition, the former of which can be waived; which has been waived in the present case by the defendant. It is pointed out that from the same consignment, the defendant accepted one lot without demur while refusing to clear two other lots. It is also pointed out that there were two contracts in which the entire goods were cleared by the plaintiff, that is Exts.A3 and A11, which consignments also did not have Lloyd’s Certification. The certification in any event is inconsequential, being a certification of seaworthiness of the vessel, which admittedly reached the port of entry. To canvas the claim of waiver, City and Industrial Development Corporation of Maharashtra Ltd v. Nagpur Steel and Alloys Pvt. Ltd AIR 1992 Bombay 55 and Provash Chandra Dalui vs. Biswanath Banerjee AIR (1989) SC 1834 were relied on. The requirement of a Lloyd's Certification is not a condition essential to the main purpose of the contract, the breach of which alone could not have given a right to repudiate the contract. The requirement of a Lloyd's Certification is not a condition essential to the main purpose of the contract, the breach of which alone could not have given a right to repudiate the contract. When the goods have reached the port of entry the certification has to be treated as collateral to the main purpose of the contract, the breach of which can only give rise to claim for damages and not for repudiation. Again, when in the same consignment, goods have been sent in different lots; all the Bs/L were not accompanied with the certificate and hence, the buyer cannot be heard to repudiate some lots while clearing the others, which have the very same defects. 7. After considerable arguments were addressed learned Senior Counsel Sri.S.Sreekumar appeared and argued on the relevance of S.55 of the Limitation Act. There was no communication of repudiation issued by the plaintiff other than that issued as per Ext.B14 dated 27.08.2005; which too was issued malafide since the terms of the entire contract stood altered as per Ext.B1 dated 27.07.2005. It is also pointed out that the plaintiff and their Manager, who has signed as a witness in the contract, had requested for time to clear the goods on grounds of difficulty to arrange finance and this resulted in demurrage being mulcted on the goods stored in the customs warehouses. The plaintiff having refused to clear the goods and thus having repudiated the contract without good cause, is also liable to pay the freight of the goods shipped and brought into India on the strength of a contract entered into between the plaintiff and defendant, the obligation under which contract was not satisfied by the plaintiff. On facts, the learned counsel specifically took us through Exts.B19 and B27 series of documents produced before the lower court, to advance the defendant's case of demurrage; which documents unfortunately the trial court refused to looked into. It was emphasized that time was not the essence of the contract and the supply depended on the availability of vessels, which was the only reason for the delay. There was also no short supply since the supply against one contract could only be made through different shipments. It was emphasized that time was not the essence of the contract and the supply depended on the availability of vessels, which was the only reason for the delay. There was also no short supply since the supply against one contract could only be made through different shipments. Shafhi Mohammed v. State of Hmachal Pradesh (2018) 2 SCC 801 was relied on to canvass the argument of the person who had the custody of the electronic device which generated the documents, used in the ordinary course of business, having deposed before Court; which oral evidence is sufficient certification under Section 65B of the Evidence Act. As far as the claim of freight is concerned, the trial court failed to look into it at all. Arguments of Respondent/Plaintiff: 8. Sri.Kevin Thomas, learned Counsel for the defendant stressed on the necessity to effect deliveries in time since the plaintiff procures raw cashew nuts to satisfy the export orders of processed cashew, which too are time bound. There is absolutely no evidence led as to the non-availability of vessels and it is pointed out that there is no clarity in the deposition of DW1. But for marking different series of documents, there is nothing spoken off about the relevance of specified documents with reference to the separate contracts. Again, even after the objection was raised about the documents produced along with the counter affidavit, which was recorded by the Commissioner appointed to examine the witness, there was no attempt by the defendant to take out the originals marked and speak on their contents with reference to the individual contracts and consignments. Despite loss having been claimed there is no such computation done during the course of the proceedings before the trial court or a supplemental written statement filed to bring the loss alleged on record. Demurrage is not the liability of the plaintiff since the goods were not cleared for reason of the breach committed by the defendant. Each of the contracts were read over and with reference to the deposition of PW1, the specific breach was pointed out. The sale made to another purchaser was one made to a sister concern of the defendant and it is very pertinent to note that there is no proof offered that the sale was of goods brought to India as per the B/L issued to the plaintiff. 9. The sale made to another purchaser was one made to a sister concern of the defendant and it is very pertinent to note that there is no proof offered that the sale was of goods brought to India as per the B/L issued to the plaintiff. 9. It was further argued that, for forfeiture, the defendant has to establish not only breach but also the loss occasioned. It is pointed out that DW1 in his cross examination admitted that the breach was occasioned by him. There is clear admission of the liability to satisfy the debit notes issued by the plaintiff, in the written statement and also in the cross examination of DW1. As far as Lloyd’s Certification is concerned, it is argued that the same is an assurance of both the quality and quantity of the goods shipped. It is pointed out that the B/L reaches the bank before the vessel reaches the port of entry and if there is no Lloyd’s Certification, the importer/purchaser is placed at a definite disadvantage of having to cough up the balance consideration without any assurance about the quantity and quality of the goods. Without such certification, on any mishap of shortage in quantity or lowering of quality, the plaintiff would not be indemnified by the insurer. The insurance cover taken for the entire transactions long prior to the export of goods is evidenced by Ext.A35, the conditions in which bind the insured; in this case the plaintiff. Here, there is not only breach by reason of absence of the Lloyd’s Certification, but there is also the breach in so far as the delay occasioned in supply and short quantity supplied and in one instance the advance being not fully debited in the final invoice. 10. The clause regarding forfeiture in the contracts, is specifically read out to argue that it can only be done if the breach is on the purchaser and when there is a loss caused to the seller. When the seller is specifically given the right to recover the loss and damages caused on a breach committed by the purchaser, the forfeiture of advance is only for the purpose of setting off the same in the claim of loss raised; thus, making it imperative that there should be a loss caused on account of the breach committed by the purchaser. It is pointed out that at the time of filing the written statement, the goods were not resold and admittedly it was resold before the trial commenced. The loss can be computed only when such resale has been affected. The defendant has not attempted to bring the facts and figures of resale on record, by filing a supplemental written statement. When there is no such pleading, obviously there cannot be any evidence led to prove the loss caused on resale. There is hence no proof of even a legal injury caused to the defendant which can only lead to forfeiture as has been found in Kailash Nath Associates vs. Delhi Development Authority 2015 (4) SCC 136 . Reliance is also placed on Soji Peter vs. K.B.Vijayan 2017 (4) KHC 456 (DB) and Varkey Thomas v. Vijayendra Kurup 2017 (1) KLT 483 . Answering the contention of pre-estimated loss having been stipulated as liquidated damages, reliance is placed on Fateh Chand v. Balkishan Dass AIR 1963 DC 1405, which drew a distinction between advance money paid and earnest money deposit; the first of which cannot be forfeited. It is also argued that as per Muralidhar Chiranjilal v. Harish Chandra Dwaraka Das AIR 1962 SC 366 such forfeiture and recovery of damages can only be when there are steps taken by the defendant to ensure that no loss is caused to them. In the present case, the contract specifically provides for 7 days within which the importer has to remit the invoice amounts as per the B/L to facilitate clearance of goods. On the failure so to do within 7 days, it is the prerogative of the seller to recall the documents and carry out sale to any other purchaser. Obviously, no such steps were taken by the seller and in fact DW1 states that the bank to which the B/L were send, delayed return of the documents; not the liability of the plaintiff. 11. The defense taken that the plaintiff asked for further time is not at all proved and Ext.B1 agreement was specifically denied by PW1 in cross examination. The argument of the terms of the various contracts having been changed as per Ext.B1 was stoutly opposed by the learned Counsel, especially with reference to the cross examination of PW1, wherein he denied such an agreement as produced by the defendant having been executed. The argument of the terms of the various contracts having been changed as per Ext.B1 was stoutly opposed by the learned Counsel, especially with reference to the cross examination of PW1, wherein he denied such an agreement as produced by the defendant having been executed. It is specifically pointed out that the first page is not signed or initialed by the plaintiff and Ext. B1 is definitely a fraudulent creation. None of the contracts referred to in ExtB1, are the subject matter of the above suit. The mere fact that Ext.B1 was marked through PW1 does not prove the said document as has been held in Sait Thartajee KhimChand v. Yelamarti Satyam AIR 1971 SC 1865 and Kaliya v State of M.P (2013) 10 SCC 758 . The learned Counsel also refers to Exts.A19 and A38 to show that the invoices referred to in Ext.B1 were actually paid. The learned Counsel also resisted the contention raised of time being not the essence of the contracts, especially when the shipment would depend upon the availability of vessels as specified in the contract. It is pointed out from the cross examination of DW1 that he feigned ignorance about the availability of vessels. It was categorically stated that the shipment from the port of dispatch was carried out by his Manager and he had no direct knowledge about it. The witness was hence not competent to speak on the availability of vessels and there is nothing produced to show that the delay occasioned, was on account of vessels being not available. Reliance is placed on M/s China Cotton Exporters v Beharilal Ramcharan Cotton Mills Ltd. AIR 1961 SC 1295 to argue that time was the essence of the separate contracts and S.55 of the Contract Act provides that when breach has been occasioned by one party to the contract, repudiation is at the option of the other party. 12. That the goods supplied under one contract was accepted even without a Lloyd’s Certification cannot necessarily result in the plaintiff being obliged to accept the lots sent under the different contracts since the contracts are severable [Rajratan Babulal Agarwal v SolartexIndia Pvt. Ltd. (2023) 1 SCC 115]. In so far as the different lots sent under one contract, when the entire quantity agreed upon has not been send, it is the option of the plaintiff to accept some and reject others. In so far as the different lots sent under one contract, when the entire quantity agreed upon has not been send, it is the option of the plaintiff to accept some and reject others. The contract in its entirety having not been fulfilled, it cannot be argued that whatever was sent has to be fully cleared. The plaintiff imports raw cashew for export, after processing and the time stipulated for supply of goods is to satisfy the plaintiff's obligations of export. The short-supplied contracts also were sent in different lots, in the same vessel, with different B/L thus making it severable. The defendant’s reference to Exts.B2 to B18 documents, alleged communications addressed by the plaintiff seeking time to clear the goods were denied. All these communications are addressed by Thambi who was the agent of the defendant and not the plaintiff. It is also pointed out that those are copies of electronic documents which was not accompanied with a S.65B certificate under the Indian Evidence Act (Arjun Panditrao Khotkar v. Kailash Kusharao Gorantyal and Others (2020) 7 SCC 1 ). Preliminary Objections: 13. The appellant's Counsel also raised preliminary objections on the grounds of maintainability, lack of jurisdiction and the bar under the Partnership Act, as raised in the appeal memorandum. As for maintainability, the argument before the Trial Court was that within 5 days of repudiation of contract a suit was filed and, in that circumstance, it was not possible for the defendant to assess the loss caused. We are unable to accept the argument of the suit being premature, merely for reason of the plaintiff having filed the suit five days after repudiation. The suit is filed on 27.09.2005 and the last of the B/L was with respect to the seventh contract, A20 which was dated 13.06.2005. The eighth contract A22, dated 25.06.2005 was not honored by the defendant since no goods were sent on that account. Further, admittedly the plaintiff sold the goods before the suit went for trial. The specific plea in the written statement in paragraph 32 was that the defendant reserves the right to adjust and claim towards damages and further losses that may be suffered on account of the breach committed by the plaintiff. No such loss has been computed or brought before Court as a counter claim, with a supplemental written statement. The specific plea in the written statement in paragraph 32 was that the defendant reserves the right to adjust and claim towards damages and further losses that may be suffered on account of the breach committed by the plaintiff. No such loss has been computed or brought before Court as a counter claim, with a supplemental written statement. There is hence no ground to non-suit the plaintiff on the ground of the suit being premature. 14. As to the legal bar under S.69(2) of The Partnership Act, we have gone through Exts.A1 and A2 produced by PW1. Ext.A1 is an acknowledgment of the registration of the firm issued to the first claimant. A2 in Form A is the extract of the register maintained under S. 59 of The Partnership Act. The first plaintiff is a firm registered, with the 2nd and 3rd plaintiffs as partners. There were two other partners included as Sl.No.3 and 4 who ceased to be partners with effect from 1.4.98 as evident from Ext.A2. The ground of legal bar under S.69(2) of the Partnership Act hence falls to the ground. Territorial jurisdiction is objected to and challenged on the ground that the payment of advance was realized at the bank of the defendant, at Singapore and the goods had arrived at the Cochin Port and thus the Court at Kollam has no jurisdiction. As has been rightly found by the Tribunal, as per S.4 of the Contract Act, the offer made by one to another becomes complete on the acceptance by that another. It is undisputed that in the present case an offer is made by the defendant for supply of raw cashew nuts of specified quality at a specified rate, within a specified time, subject to availability of vessels and the contract becomes complete when it is accepted by the plaintiff at Kollam. It was also admitted by DW1 in his cross examination that the 2nd plaintiff had executed all the contracts on behalf of the first plaintiff at Kollam. We have no hesitation to find territorial jurisdiction on the Sub Court at Kollam. 15. One other objection raised by the defendant is that the documents produced by DW1 was not looked into by the trial court. We have no hesitation to find territorial jurisdiction on the Sub Court at Kollam. 15. One other objection raised by the defendant is that the documents produced by DW1 was not looked into by the trial court. We see from the deposition that just before cross-examination the plaintiffs objected to the marking of the documents in the proof affidavit, which were copies obtained from electronic devices not accompanied by a certificate under Section 65B. The learned Counsel for the appellant relied on Shafhi Mohammed (supra) to argue that the oral testimony of DW1 who had control and possession of the computer would be sufficient certification under S.65B. The said decision has been overruled by a larger bench in Arjun Panditrao Khotkar (supra). The larger Bench specifically held that 'oral evidence in the place of such certificate cannot possibly suffice as S.65B(4) is a mandatory requirement of the law'. We fully agree with the trial court, which eschewed such consideration of documents. Then it was argued that there were originals also produced, which could not have been eschewed. On a reading of the proof-affidavit filed by DW1, we are constrained to find that there was no attempt to refer to the documents relevant for each of the contracts and the invoices, Bs/L etc. were marked in a series. There was also no attempt to take out the originals and place them for consideration before the Court. Despite that, we agreed to look into the originals produced on the same being specifically pointed out. The Law and the Adjudication on Facts: 16. Though there are 8 contracts produced as Exts.A3, A7, A10, A11, A15, A17, A20 and A22, the subject matter of the claim raised by the plaintiff is with respect to five contracts; the goods dispatched as per Exts.A3 and A11 having been completely cleared by the plaintiff and Ext.A10 not concluded since the plaintiff refused to pay the advance amounts allegedly on indications received from the defendant that the goods cannot be procured for the price agreed upon. No counter claim is raised on that count. It is to be noticed that admittedly there was no Lloyd’s Certification sent with the shipping documents, as against any of the concluded contracts and in A3 and A11 contracts there was excess quantity dispatched, which was cleared by the plaintiff. No counter claim is raised on that count. It is to be noticed that admittedly there was no Lloyd’s Certification sent with the shipping documents, as against any of the concluded contracts and in A3 and A11 contracts there was excess quantity dispatched, which was cleared by the plaintiff. The learned Counsel for the plaintiff argued that all the contracts are independent and when under a single contract different lots are sent, they are severable and the acceptance of one lot, without a Lloyd's Certification would not amount to a waiver of the condition so as to make the stipulation in the contract a mere warranty. The plaintiff relied on Rajratan Babulal Agarwal (supra) while the defendant relied on City and Industrial Development Corporation of Maharashtra Ltd. (supra), a decision of the High Court of Bombay. 17. We first look at the decision of the High Court wherein the contract was for supply of steel round bars and cold twisted deformed bars of various specified sizes, with a stipulation that the goods will be accompanied with test certificate from some Government institutions and (i) on failure to enclose such certificates or (ii) when the specifications are not as stipulated, the buyer could reject the goods. Sixty different consignments with test certificates were sent and fifty-eight of them were accepted and the bills paid. The last two consignments were rejected on the ground that the goods supplied were over-sized. The supplier filed a suit for the amount representing the outstanding in the two bills, balance for other bills and miscellaneous charges. The trial court found the breach to be one of a warranty, which stood waived, decreed the suit and the counter claim raised for damages was dismissed. The Hon'ble High Court found that admittedly (i) the price agreed was weight-wise, (ii) the contract indicated a breach to be enabling the buyer to reject the goods (iii) the supplier being obliged to replace within thirty days, (iv) which rejection was never carried out or opportunity for replacement allowed, (v) the consignments were sent in sixty different installments, (vi) the goods were accepted with full knowledge of size variation and (vii) also consumed in the construction. No notice was issued regarding the breach and the last two bills were held up merely to satisfy the claim of the contractor, if made in future and there was no proof of actual damage. No notice was issued regarding the breach and the last two bills were held up merely to satisfy the claim of the contractor, if made in future and there was no proof of actual damage. Looking at S.12 of the Sale of Goods Act, it was held that the stipulation in the contract of sale of goods, may be a condition or a warranty depending upon whether the stipulation is essential to the main purpose of the contract or it is merely collateral to the contract. The former is an absolute right to treat the contract as cancelled while the latter only leads to a claim for damages. S.13 speaks further on the situation when the condition is treated as a warranty; wherein the buyer may either waive the condition or elect to repudiate the contract on the allegation of breach. It was found on facts that the size stipulated though was for the benefit of the buyer, it could be voluntarily waived by the buyer and it stood waived. The buyer after receipt of the goods did not choose to reject it and give the supplier an opportunity to replace it, but consumed it and paid the price for 58 consignments, all of which had the very same defect. 18. Applying the dictum to the instant case, it has to be noticed that the dispatch of goods made by the defendant was on the basis of individual contracts, which are quite distinct and hence severable. The mere fact that the goods dispatched as against two contracts, Exts.A3 and A11 were cleared completely cannot result in a finding that the plaintiff had waived the condition of Lloyd's Certification in all the other contracts too. Pertinent is the fact that every such contract specifically in its recital mentioned the condition of Lloyd’s Certification. In this context, our attention was specifically drawn to Ext.A35 the marine cover note issued by the New India Assurance Company Ltd., wherein the insured shown is M/s Bank of India Singapore, the defendants bank and M/s Lakshmi Enterprises, the 1st plaintiff who paid the premium. The marine cover note is dated 30.03.2005 and the same is subject to conditions attached to the cover note. Clause No 4 of the conditions attached is, as follows: 4. The marine cover note is dated 30.03.2005 and the same is subject to conditions attached to the cover note. Clause No 4 of the conditions attached is, as follows: 4. Loading of the cargo is to be supervised by Lloyd's Agents and their Certificate/ report in regard to quantity/quality of cargo loaded to be obtained. In the absence of Lloyd's agents, a Government approved Surveyor to do loading supervision and their Certificate/report as above to be obtained.' Hence without the certification being accompanied with the documents, the insured has the risk of being not indemnified in the event of a claim arising on any count. It is pertinent that the terms of the contract stipulate the balance consideration to be paid on the documents being presented to the plaintiff's bank; Cash Against Documents (CAD). It is an admitted position that the cargo reaches the port of entry only after the B/L is presented to the bank of the plaintiff. The B/L is dispatched by the defendant's bank in Singapore to the plaintiffs’ bank in India on the vessel leaving the port of dispatch and if the payments are to be made, the Lloyd’s Certification is a condition necessary for indemnification of the insured, the plaintiff. Here we specifically notice that in the decision of the Bombay High Court there was stipulation for a test certification which accompanied all the sixty consignments akin to the certification required herein. 19. Rajratan Babulal Agarwal (supra) specifically held that though S.13 (2) of the Sale of Goods Act provides that when the buyer accepts the goods or part thereof, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty and not a ground for repudiation, unless there is an express or implied term in the contract to that effect or the contract is not severable. Unlike in the case of City and Industrial Development Corporation of Maharashtra Ltd, (supra) where the sixty consignments were send under a single contract, here there were different contracts entered into by the parties. The acceptance of the goods dispatched as per Exts.A3 and A11 contracts does not amount to a waiver in the case of the other contracts. The separate contracts entered into by the parties stipulated the Lloyd’s Certification as a condition and the severable contracts are to be considered separately. The acceptance of the goods dispatched as per Exts.A3 and A11 contracts does not amount to a waiver in the case of the other contracts. The separate contracts entered into by the parties stipulated the Lloyd’s Certification as a condition and the severable contracts are to be considered separately. As far as the acceptance of some and rejection of other lots in one single contract, whether can be treated as a waiver, will be dealt with at the appropriate place while dealing with A7 contract, in which case alone such a contingency arise. 20. There is no dispute with respect to the different contracts and the advance amounts paid; which amounts are admitted to have been forfeited by the defendant to the extent the goods were not cleared by the plaintiff. The terms of the contract are identical and we refer to Ext.A7(02/2005) (spoken of by PW1 in para 8 of the proof affidavit); wherein an offer to sell 500 metric tons (MT) of dry raw cashew-nuts in two lots, at the rate of US $ 845 per MT was accepted by the plaintiff. The agreement was to buy the goods on CAD terms with an advance payment of 10% of the contract value to be remitted on or before 20.03.2005 to the defendant’s bank account in Singapore. The balance 90% was to be paid upon the first presentation of the shipping documents at the plaintiff’s bank in Kollam, India. It was also agreed that one lot would be shipped before 30.04.2005 and the second lot before 15.05.2005. Among the documents to be submitted to the Bank, a certificate of Llyod’s Classification 100AI or equivalent society classification in respect of the carrier, issued by the carrier agents was also stipulated. The conditions stipulated in the contract required a quality inspection to be carried out by a third party, RBS, Kollam; in whose presence the containers were to be opened, at the option of the plaintiff, and the cost of such inspection to determine the landed weight and quality, was the liability of the buyers. It is also stipulated that a buyer should take delivery of the goods within one week of the ship’s arrival at the port of discharge and that too at one go and not spread over a period. It is also stipulated that a buyer should take delivery of the goods within one week of the ship’s arrival at the port of discharge and that too at one go and not spread over a period. The failure of the buyer to clear the goods enables the seller to recall the documents and negotiate it with any other buyer and claim the difference in sale price if any, from the contracted buyers, in which event the advance will be forfeited by the sellers. The contract is executed by the seller at Singapore and the buyer at Kollam and one VJS Thambi is shown as the broker. PW1 in paragraph 8 of the proof affidavit marks Ext.A7 contract and the copy of the advice given by the bank regarding the payment of advance as A8 though a copy of the advice. There is no dispute to the marking and we notice the payment of advance as per the contract and its forfeiture, to the extent of the repudiation is admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved, M. Venkataramana Hebbar v M. Rajagopal Hebbar (2007) 6 SCC 401 . 21. We pause here to deal with a minor matter, regarding the role of VJS Thambi. The plaintiff and defendant have conflicting contentions. While the plaintiff alleges that he was the close confidant of DW1, it is alleged by the defendant that he was the Manager of the plaintiff firm. There is nothing to establish either of these contentions but we see from the individual contracts that VJS Thambi has been described as a broker and we cannot assume any allegiance to either of the parties. 22. As against 500 MT to be delivered in two lots, first before 30.04.2005 and the second before 15.05.2005 (Ext.A7), the supply was made as per one B/L dated 06.05.2005 and three Bs/L dt 13.06.2005, delayed supply and short delivery. The goods reach the port of entry only after the B/L is first presented at the bank of the plaintiff along with other shipping documents. The Bs/L were also not accompanied with Lloyd’s Certification. But however, two consignments, one with respect to B/L dt 06.05.2005 of 25.977MT and one of 13.06.2005 of 52.425MT were accepted. Two lots in the second dispatch of 106.793 and 129.880MT were not cleared by the plaintiff. The Bs/L were also not accompanied with Lloyd’s Certification. But however, two consignments, one with respect to B/L dt 06.05.2005 of 25.977MT and one of 13.06.2005 of 52.425MT were accepted. Two lots in the second dispatch of 106.793 and 129.880MT were not cleared by the plaintiff. In addition to the absence of Lloyd’s Certification the plaintiff also alleges short supply and delay since the total quantity sent was only 315.085MT as against the agreed upon 500MT. The plaintiff specifically denied the claim in the written statement that 205MT of goods were sent on 23.06.2005 by two separate Bs/L. The defendant has not proved with specific documents as to the dispatch of such goods. However the short supply may not be relevant, in the view we take on the transaction pursuant to Ext.A7; especially with respect to the part clearance and waiver. 23. Insofar as Lloyd’s Certification is concerned admittedly the dispatch of the goods were on two lots, the first of which was by B/L dated 06.05.2005 which was accepted by the plaintiff. There was considerable delay and short supply, of the first and second lots. But the first and one lot in the second consignment was accepted and both the lots accepted had the very same defects. The lots refused to be cleared, which were asserted to have been suffering from breach was also of a single contract and the breach was identical. The mere fact that the defendant sends the goods in different lots cannot make the contract severable. A part of one single consignment was accepted and two lots of the same consignment were rejected. The condition in so far as Lloyd’s Certification; the absence of which puts any claim for insurance of the plaintiff at risk, was voluntarily waived by the plaintiff. The plaintiffs cannot also claim breach on account of short supply since they accepted one lot of the three Bs/L of the same date and rejected two others. 24. In considering whether time is the essence of the contract, M/s China Cotton Exporters (supra) can be usefully referred to. Therein the contract was for supply of Italian Staple Fiber Cotton the full quantity of which was not supplied. Resisting the claim of damages by the plaintiff the defendant pleaded that the shipment time mentioned in the contract was not guaranteed and hence time was not the essence of the contract. Therein the contract was for supply of Italian Staple Fiber Cotton the full quantity of which was not supplied. Resisting the claim of damages by the plaintiff the defendant pleaded that the shipment time mentioned in the contract was not guaranteed and hence time was not the essence of the contract. The Hon'ble Supreme Court affirmed the concurrent decision of the trial court and High Court that the shipment time was guaranteed, except for any delay caused in obtaining import license; which however was obtained in good time. It was held relying on the specific words of the contract; that, the contract is subject to import license and therefore the shipment date is not guaranteed, that, in commercial contracts time is ordinarily of the essence and that, interpreting the specific terms the parties intended delay to be condoned only if the import license was not received. In the present case, the specific clause providing for the time of shipment made it subject only to availability of vessels. Admittedly, all the consignments were delayed and while the plaintiff alleges delay as one of the causes for repudiation, the defendant asserts that the specific condition of availability of vessels makes the time stipulated in the contract irrelevant. Here it has to be noticed that there is absolutely no evidence led by the defendant regarding the non availability of vessels. Though the defendant makes a bland assertion that there was unavailability of vessels, there is nothing produced to establish the same. The plaintiff had produced Exts.A37 and 37(a) which were stated to be details of container movement-import of raw cashew-nuts. The document bears the seal of Cochin Chamber of Commerce and Industry. But the same was not proved through an authorized officer. In any event, when it was asserted by the defendant that the delay was only occasioned by reason of non-availability of vessels, it was their bounden duty to prove the same. It is also pertinent, as pointed out by the learned Counsel for the plaintiff, DW1 testified that he was not aware of the shipping details at the port of dispatch and he had entrusted his Manager to ship the goods as per the contracts. Hence DW1 was not competent to speak on the non-availability of vessels and there is nothing adduced, not even the oral testimony of the Manager of the defendant, to substantiate the claim of non-availability of vessels. Hence DW1 was not competent to speak on the non-availability of vessels and there is nothing adduced, not even the oral testimony of the Manager of the defendant, to substantiate the claim of non-availability of vessels. The reason stated for delay of supply of goods cannot hence be raised since it can only be, in the specific event of non-availability of vessels. Hence time is found to be the essence of the different contracts except when there is non-availability of vessels. 25. All the same, with reference to Ext. A7 contract, it has to be noticed that the delayed first consignment as also one of the lots in the second consignment were accepted and cleared by the plaintiff. Section 55 of the Contract Act hence comes into play. When a specified time is provided for the supply of goods in a contract, if the supply is not made within the stipulated time, then the contract becomes voidable at the option of the promisee. As to the effect of acceptance of performance at a time other than that agreed upon, if the promisee accepts the performance in the delayed time then the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise in the time agreed, unless at the time of such acceptance he gives notice to the promisor of his intention to raise such a claim. Applying these to the facts of the supply pursuant to Ext. A7, we may number the different lots as 1 to 4, of which 1 and 2 were accepted and 3 and 4 which were consigned along with 2 were refused to be cleared. The plaintiff does not claim any loss; for which the plaintiff ought to have definitely given a notice at the time of acceptance of the two lots. There is no loss occasioned, pleaded or claimed by the plaintiff and the issue raised is only against forfeiture, which insofar as Ext.A7 contract is concerned, we would deal with later. But the breach as far as A7 contract has to be found to be on the plaintiff. The defendant has a further contention in the written statement that there were two further consignments, as against A7, which reached the port of Cochin on 13.07.2005 and the plaintiff had refused to clear such goods resulting in huge demurrage being mulcted on the defendant. The defendant has a further contention in the written statement that there were two further consignments, as against A7, which reached the port of Cochin on 13.07.2005 and the plaintiff had refused to clear such goods resulting in huge demurrage being mulcted on the defendant. The specific Bs/L pointed out are GOSUABI-4678 and 4679, which are seen in Ext.B28 series which indicate two lots of 108.110 MT and 131.515 MT having been transmitted. However, there is nothing to show that theses goods were shipped under Ext.A7 contract, which, as already noticed, stipulated the supply to be effected latest before 15.05.2005. There is no reason to find the said shipment to be in pursuance of Ext.A7 contract. 26. The next repudiated contract is Ext.A15 (05/05), spoken of by PW1 in para 11 of the proof affidavit, which was for a quantity of 300 MT to be sent in one lot and the shipment to be made before May 2005 again subject to the availability of vessels, the other conditions being identical to A7. The total amounts @ US $ 850 per MT brings the advance amounts stipulated at 10%, to Rs.25,500/-. The time stipulated was for the shipment to be made in May, 2005 Bs/L were dated 26.05.2005 and there were 3 lots totaling 308.500MTs. Ext.A38 is the invoice, accompanying the shipping documents which showed deduction of only half of the advance amount paid. The plaintiff refused to clear the goods for reason of the entire advance amounts having not been given credit to and the absence of Lloyd’s Certification. There is no doubt that the breach is on the defendant and the defendant does not have any explanation for the same but for waiver of the certification, which has already been found against the defendant. 27. Ext.A17 (06/05) dated 05.05.2005 spoken of in paragraph 12 of the proof affidavit of PW1 was for a quantity of 500 MT @ US $850/-. The plaintiff made an advance of US $21250/-being 5% of the total consideration as stipulated in that contract. Ext.A18 is the advice memo of the plaintiff's bank regarding the deposit in the Bank at Singapore and Ext.A19 is the invoice sent to the Bank of the plaintiff by the defendant. The total quantity dispatched was only 206.403 MT. The plaintiff made an advance of US $21250/-being 5% of the total consideration as stipulated in that contract. Ext.A18 is the advice memo of the plaintiff's bank regarding the deposit in the Bank at Singapore and Ext.A19 is the invoice sent to the Bank of the plaintiff by the defendant. The total quantity dispatched was only 206.403 MT. Hence in addition to the absence of Lloyd’s Certification there is short fall in the quantity agreed upon and there is delay insofar as Ext.A17 stipulated supply on or before May 2005. The two Bs/L itself were dated 12.06.2005 and the goods admittedly arrive at the port of entry only subsequently. The plaintiffs were well within their rights to repudiate the contract for reason of absence of Lloyd’s Certification, short supply of goods and delay in supply. 28. Ext.A20 (07/05), contract dt 19.05.2005 spoken of in para 13 of the proof-affidavit was for supply of 300MTs @ US $820/-to be supplied on or before May/June 2005. The advance amounts of Rs.24,600/-being 10% of the total consideration was remitted as per Ext.A21. The shipping documents along with the B/L dt 12.06.2005 and 13.06.2005 contained only a quantity of 239.220MT. The plaintiff refused to clear the goods for reason of the short supply and also the attachment in a suit by another. The defendant contended that the attachment was much later, after the seven days stipulated for clearing the goods. But neither have adduced any evidence to prove their claims. However, the absence of Lloyd's Certification is admitted and the claim of delay and short supply also is established. Ext.A22 (09/05) contract dt 26.05.2005 spoken of in paragraph 14 of the proof-affidavit, agreed to supply 300 MT @ US $770/-on or before June 2005 and the advance of US $23100/-being 10% of the total amount was paid. The said consignment was not received and unilaterally the advance amounts were forfeited. 29. Except in Ext.A7 contract we have found the breach in all the contracts to have been committed by the defendant, but still we have to consider the question of forfeiture as raised by the defendant, for completeness and with reference to Ext.A7, where we found waiver of the conditions by the plaintiff. The clause of forfeiture is also urged, pressing into service Section 74 of the Contract Act, which dispenses with the proof of loss and damages. The clause of forfeiture is also urged, pressing into service Section 74 of the Contract Act, which dispenses with the proof of loss and damages. ONGC Ltd (supra) referring to a number of authorities held that the jurisdiction of the court to allow compensation in case of breach of contract as provided for in Sections 73 and 74 is unqualified except as to the maximum stipulated and the requirement for it to be reasonable. Section 73 enables the party to a contract, who suffers from a breach, to receive compensation for loss or damage caused to him, naturally arising or which the parties knew was likely to result, even at the time of entering into the contract. This provision has to be read along with Section 74 which deals with a penalty stipulated in the contract, payable to the party complaining of a breach, whether or not actual loss is proved to have been caused. The emphasis in Section 74 is on the word reasonable compensation and if, in a contract a named sum is stipulated as penalty, the party who suffers the breach is only entitled to reasonable compensation not exceeding the amount so stipulated. However, it was held that, if the compensation named is a genuine pre-estimate of loss, which the parties knew at the time of entering into the contract was likely to be caused from any breach occasioned, then there is no question of proof being offered of such loss caused. 30. Fateh Chand (supra) held that Section 74 merely dispenses with proof of 'actual loss or damages' but does not justify the award of compensation when in consequence of such breach no legal injury has been occasioned. That was a case in which there was an agreement for sale of a building together with 'pattadari' rights on the land for a total consideration of Rs.1,12,500/-and there was stipulation of payment of Rs.1,000/-as earnest money deposit. The agreement further stipulated that on vacant possession being delivered, the part-consideration being Rs.24,000/-shall be paid, which, along with the earnest money deposit, would be forfeited and the agreement cancelled, if the vendee fails to get the sale deed registered within the stipulated time. The agreement further stipulated that on vacant possession being delivered, the part-consideration being Rs.24,000/-shall be paid, which, along with the earnest money deposit, would be forfeited and the agreement cancelled, if the vendee fails to get the sale deed registered within the stipulated time. The sale deed was not registered within time and the plaintiff filed a suit for recovery of possession and mesne profits, with a claim that Rs.24,000/-; representing the advance amounts, were forfeited on the terms of the contract. Before the Hon'ble Supreme Court, the defendant did not challenge the forfeiture of the earnest money deposit, but argued that the right to forfeit the advance amounts was in the nature of a penalty and the plaintiff can retain that amount or part thereof, only if he establishes that in consequence of the breach he suffered loss and even when that is established, the Court can only grant reasonable compensation for the loss. It was held that Rs.24,000/-was expressly referred to in the agreement as money to be paid 'out of the sale price' and merely because there is a stipulation for forfeiture, the amount named cannot have the character of a deposit for due performance of the contract. 31. We extract portions of paragraph 8 of Fateh Chand (supra), which specifically referred to S.74 and also paragraphs 10 & 15: “... The section is clearly an attempt to eliminate the somewhat elaborate refinements made under the English common law in distinguishing between stipulations providing for payment of liquidated damages and stipulations in the nature of penalty. Under the common law a genuine pre-estimate of damages by mutual agreement is regarded as a stipulation naming liquidated damages and binding between the parties: a stipulation in a contract in terrorem is a penalty and the Court refuses to enforce it, awarding to the aggrieved party only reasonable compensation. The Indian Legislature has sought to cut across the web of rules and presumptions under the English common law, by enacting a uniform principle applicable to all stipulations naming amounts to be paid in case of breach, and stipulations by way of penalty…. * * * 10. Section 74 of the Contract Act deals with the measure of damages in two classes of cases (i) where the contract names a sum to be paid in case of breach and (ii) where the contract contains any other stipulation by way of penalty. * * * 10. Section 74 of the Contract Act deals with the measure of damages in two classes of cases (i) where the contract names a sum to be paid in case of breach and (ii) where the contract contains any other stipulation by way of penalty. We are in the present case not concerned to decide whether a covenant of forfeiture of deposit for due performance of a contract falls within the first class. The measure of damages in the case of breach of a stipulation by way of penalty is by Section 74 reasonable compensation not exceeding the penalty stipulated for. In assessing damages the Court has, subject to the limit of the penalty stipulated, jurisdiction to award such compensation as it deems reasonable having regard to all the circumstances of the case. Jurisdiction of the Court to award compensation in case of breach of contract is unqualified except as to the maximum stipulated; but compensation has to be reasonable, and that imposes upon the Court duty to award compensation according to settled principles. The section undoubtedly says that the aggrieved party is entitled to receive compensation from the party who has broken the contract, whether or not actual damage or loss is proved to have been caused by the breach. Thereby it merely dispenses with proof of ‘actual loss or damages’; it does not justify the award of compensation when in consequence of the breach no legal injury at all has resulted, because compensation for breach of contract can be awarded to make good loss or damage which naturally arose in the usual course of things, or which the parties knew when they made the contract, to be likely to result from the breach. * * * Section 74 declares the law as to liability upon breach of contract where compensation is by agreement of the parties pre-determined, or where there is a stipulation by way of penalty. But the application of the enactment is not restricted to cases where the aggrieved party claims relief as a plaintiff. The section does not confer a special benefit upon any party; it merely declares the law that notwithstanding any term in the contract pre-determining damages or providing for forfeiture of any property by way of penalty, the court will award to the party aggrieved only reasonable compensation not exceeding the amount named or penalty stipulated. The section does not confer a special benefit upon any party; it merely declares the law that notwithstanding any term in the contract pre-determining damages or providing for forfeiture of any property by way of penalty, the court will award to the party aggrieved only reasonable compensation not exceeding the amount named or penalty stipulated. The jurisdiction of the court is not determined by the accidental circumstance of the party in default being a plaintiff or a defendant in a suit. Use of the expression ‘to receive from the party who has broken the contract’ does not predicate that the jurisdiction of the court to adjust amounts which have been paid by the party in default cannot be exercised in dealing with the claim of the party complaining of breach of contract. The court has to adjudge in every case reasonable compensation to which the plaintiff is entitled from the defendant on breach of the contract. Such compensation has to be ascertained having regard to the conditions existing on the date of the breach.” It was held by the Hon'ble Supreme Court in Fateh Chand (supra) that there was no evidence of any loss suffered by the plaintiff in consequence of the default by the defendant, except the loss of the plaintiff by reason of he being kept out of possession of the property. It was found that what was reasonable compensation, especially in the context of loss occasioned having not been proved, was only with respect to the earnest money forfeited and the benefit accrued of Rs.24,000/-, retained with the plaintiff, which had to be refunded. The claim for mesne profits was separately considered and accepted by the Hon'ble Supreme Court while modifying the amount awarded by the High Court. 32. The authorities dealt with, in ONGC Ltd. (supra), also bring forth facts in which damages could be quantified and those in which it cannot be. In Maula Bux v. Union of India (1969) 2 SCC 554 two contracts were entered into for supply of potatoes and poultry, eggs & fish; with due performance secured by two earnest money deposits. On breach, by reason of failure to regularly and fully supply the commodities, the Government rescinded the contracts and forfeited the earnest money deposits; relying on a clause in the contract permitting such forfeiture. On breach, by reason of failure to regularly and fully supply the commodities, the Government rescinded the contracts and forfeited the earnest money deposits; relying on a clause in the contract permitting such forfeiture. The Court held that this was a case in which the Government could have led evidence to prove the failure to 'regularly and fully' supply the commodities by leading evidence as to the loss caused in procuring such commodities otherwise, and that having not been done there could be no damages granted. It was held in Maula Bux (supra) that it is true that in every case of breach of contract, the person aggrieved by the breach is not required to prove actual loss or damage suffered by him, before he can claim a decree and the Court is competent to award reasonable compensation in a case of breach, even if no actual damage is proved to have been suffered in consequence of breach of contract. The Court specifically held that in some cases it will be impossible for the Court to assess compensation arising from a breach. In ONGC Ltd. (supra) by way of illustration it was pointed out that the delay caused, in the construction of a road or bridge would be difficult of computation. Likewise in the decision referred to in M/s Chimmco Birla Ltd. (supra), the contract was for fabrication and erection of cranes, where again, it would be difficult to prove the exact loss caused. In ONGC Ltd. (supra) the case set up was delay in deployment of rigs which was caused interalia by reason of the delay in supply of casing pipes. Both the fore-cited decisions also indicate identical facts of the awardee having sought extension of time, which was granted, specifically reserving the right of the awarder to recover the liquidated damages stipulated in the contract. 33. Applying the above principles to the facts of this case, definitely loss can be proved if breach was on the part of the plaintiff who had to clear the goods imported after depositing the balance consideration. A failure to do so within seven days, enabled the defendant to recall the documents and issue it to another purchaser. The defendant also speaks of a procedure of switching the B/L to another purchaser. The goods being cashew-nuts, the loss can be clearly computed. A failure to do so within seven days, enabled the defendant to recall the documents and issue it to another purchaser. The defendant also speaks of a procedure of switching the B/L to another purchaser. The goods being cashew-nuts, the loss can be clearly computed. The difference in the price agreed upon in the contract and the price at which it was sold after repudiation, together with any incidental charges incurred, in the form of demmurage; which arise on the goods being kept in the wear-houses till another purchaser is found out and the goods cleared or the like expenses, would be the losses occasioned. 34. We also have to read the clause of forfeiture to better understand the terms of the contract, since as held in Delta International Ltd. v Sunder Ganeriwalla (1999) 4 SCC 545 construction of contracts is best understood, when the intention of the parties is clear, from the unambiguous words employed. In the above case, if at all a waiver can be presumed, it is only in the case of Ext.A7 contract. In all the other contracts, we have to specifically find a breach having occasioned by the defendant, on which the plaintiff refused to clear the goods, thus repudiating the contract. As far as the forfeiture of the amounts, we extract the clause enabling forfeiture as found in Ext.A7, which is identical in all the other contracts. “In the event, the buyers fail to honour the shipping documents on their first presentation by the buyers' bank at Kollam, the sellers have the right to recall the documents and negotiate the said documents on any buyer at whatever selling price, and claim the difference from the buyers. In such event, the advance sum of USD 42,250/-will be forfeited by the buyers.” The clear term as extracted above is that in the event of the buyer failing to honor the shipping documents within the stipulated time, the seller is entitled to recall the documents and negotiate it in favour of any other buyer at whatever selling price and claim the difference from the buyers, i.e the buyer in the contract. Only in that event, ie: on the buyer's breach and the sale of goods to another buyer, the right to forfeit arise. The breach, loss and forfeiture are inextricably linked and forfeiture has no independent existence. Only in that event, ie: on the buyer's breach and the sale of goods to another buyer, the right to forfeit arise. The breach, loss and forfeiture are inextricably linked and forfeiture has no independent existence. The forfeiture also is to set off the loss caused since in the event of breach the claim for loss is not limited to the advance amounts. The interpretation of the specific clause enabling the forfeiture, as one intended to set off the loss occasioned follows the dictum in Fateh Chand (supra). There is no warrant to treat the advance money as an earnest money deposit for the due performance of the contract, since it is a part of the total sale consideration. It is also not a pre-estimated loss since the minimal percentage of advance amounts, cannot be the loss in the event of a breach. In the setting in which it appears, we are also not persuaded to treat the forfeiture clause as a penalty, for, the clause is enabled only on the event of sale of goods to another buyer, pursuant to failure on the part of the contracted buyer to honour the shipping documents. It is not a deterrent for the due performance of the contract or a pre-estimated loss. Nevertheless, if it is to be treated as a penalty, then even as per S.74, though there is no requirement for proof of loss or damages, there should be establishment of the legal injury, which alone could enable the court to grant compensation subject to the maximum of the named amount. In the present case, when there is a specific clause with respect to the right to claim difference in sale price from the buyer, definitely on it being established; if it is in excess of the named amount, it can be granted after allowing the forfeited amount to be set off against such loss established. Obviously, if the loss established is lesser than the named amount, then the forfeiture can be upheld only to that extent. The term of the contract can hence be only considered to be a compensation for any loss or damage caused in the ordinary course of things, as coming under S. 73 and not S. 74 of the Contract Act. Obviously, if the loss established is lesser than the named amount, then the forfeiture can be upheld only to that extent. The term of the contract can hence be only considered to be a compensation for any loss or damage caused in the ordinary course of things, as coming under S. 73 and not S. 74 of the Contract Act. The forfeiture clause in the contract is to ensure at least some amounts being secured, which can be set off on the final loss determined. In the present case, there is no loss established by the defendant, much less any legal injury established. Though the claim of loss and damages were reserved in the written statement, there is no attempt made to file a supplementary written statement after the sale of the goods to another buyer and establish before Court the loss occasioned. 35. In this context, we also look at Muralidhar Chiranjilal [supra], wherein it was held that there are two principles well settled, on which damages are computed. The first is that the party, who proves the breach as far as possible, should be placed in a situation as if the contract had been performed, which is qualified by the second, that it also imposes on the party who claims such breach to take all steps to mitigate such loss and he is barred from claiming any part of the loss caused due to his own neglect. Again, we are faced with a situation, where even if the breach is on the part of the plaintiff, by their refusal to clear the goods, immediate steps could have been taken by the defendant to mitigate the loss by finding out another purchaser. The defendant does not have a case that there was delay in getting another purchaser and eventually the sale was made to the defendant's own sister concern. It is also to be reiterated that the case set up by the defendant was also that there were frequent requests made by the plaintiffs and their Manager to allow further time to clear the goods; which was found to be not established. In fact, DW1 in his testimony clearly stated that the breach was committed by him and also that the documents, when not cleared by the plaintiff was not returned by the plaintiff’s, despite the defendant's bank recalling it; which is not the liability of the plaintiff. In fact, DW1 in his testimony clearly stated that the breach was committed by him and also that the documents, when not cleared by the plaintiff was not returned by the plaintiff’s, despite the defendant's bank recalling it; which is not the liability of the plaintiff. Further the contention of delay on the part of the plaintiff’s bank belies the ground raised of the defendant having given time to the plaintiff on the plaintiff’s request. In such circumstances, we find the forfeiture of the advance amounts to be not possible as per the terms of the contracts which are the subject matter of the instant suit. As against the advance paid, with reference to Ext.A7 contract, in which we find a waiver of the conditions again there is no question of forfeiture without the loss computed and established. The absence of a legal injury or a loss occasioned having not been pleaded or proved, prohibits any forfeiture to be permitted from the advance amount as per the forfeiture clause in the contract, even if the breach is of the buyer. 36. As has been rightly argued by the learned Counsel for the plaintiff there is no loss claimed by the defendant, other than the demurrage. At the time of filing of the written statement, the goods refused to be cleared, even according to the defendant was not sold. The defendant reserved the claim of loss which was never made before the Court below. Despite the admission of DW1 that the goods were sold some time in October to one Saba Trading Pvt. Ltd., the details of such sale were not placed before the Court. There is also no evidence adduced to show that the goods brought into the country based on the contracts entered with the plaintiff were in fact sold to Saba Trading. The Bs/L produced were only those in the name of Saba Trading which admittedly is another private company in which DW1 and his wife are the shareholders. Though a practice of switch B/L has been argued by the learned Counsel for the defendant, there is no person examined before Court to testify on such switch B/Ls being issued. The B/L in the name of Saba Trading might as well be goods consigned in their name, unless it is established that it was those consigned to the plaintiff and then switched in the name of Saba Trading. The B/L in the name of Saba Trading might as well be goods consigned in their name, unless it is established that it was those consigned to the plaintiff and then switched in the name of Saba Trading. We also have to observe that even such practices of switch B/L has not been proved. It was the bounden duty of the defendant to have brought on record the recall of the B/L, refused to be cleared by the plaintiff and the very same consignment having been issued in the name of Saba Trading Pvt.Ltd. We say this without in any manner discounting the fact there was no claim for any loss raised by the defendant before the Court below. The breach alleged by the plaintiff is the absence of Lloyd’s Certification, short supply and delay in consignments and in one of the invoices the entire advance amounts not being debited. With respect to contracts executed as A15, A17 and A20 the plaintiff has refused to clear any goods dispatched on the strength of those individual contracts, based on the grounds of breach above referred; clear conditions in the contracts. When breach is found on the defendant there arise no question of any loss or demurrage against the plaintiff. 37. The defendant argued that there was no intimation of repudiation which is unnecessary insofar as the contracts stipulate that the plaintiff should clear the goods within seven days of presentation of documents in the plaintiff's bank. When the balance remittances as per the invoice accompanying the shipping documents are not made, the defendant is enabled as of right to recall the documents and issue it in the name of any other seller. When there is no clearance effected within the time stipulated necessarily there is an implied repudiation, which enables the defendant to recall the documents. It was the case of the defendant that due to financial stringency the plaintiff and his agent VJS Thambi has sought for time; which we have already held to be not substantiated. The communication relied on were Ext.B2 to B18 all issued by VJS Thambi who was not examined before the Court below. In this context we have to notice that Ext.B2 to B18 are documents recovered from a computer without any certification under S.65B of the Evidence Act. The communication relied on were Ext.B2 to B18 all issued by VJS Thambi who was not examined before the Court below. In this context we have to notice that Ext.B2 to B18 are documents recovered from a computer without any certification under S.65B of the Evidence Act. We have already held that the role of Thambi as per the contracts is of a broker, who has not been examined before court. There can be no reliance placed on the documents so produced to find the plaintiff having sought time to make the remittances against the documents presented to its Bank. 38. Lloyd's Certification we have already found to be a necessary condition which can be considered as waived only with respect to A7 contract where two lots were accepted while two, which suffered from the same defect, were refused to be cleared. The short supply insofar as A7 and the other four contracts which is the subject matter of the suit is not controverted by any evidence offered by the defendant. The contention in the written statement that in fact the entire quantity has been dispatched in different lots has not been proved by any substantive evidence. The defendant had merely marked the documents without reference to any particular document establishing the dispatch of the agreed quantity as against the individual contracts. Mere admission of a document in evidence does not amount to its proof as held in Sait Tarajee Khimchand & Kaliya (both supra). We fully agree with the trial court and the suit claim was properly decreed. Counter Claim : 39. The counterclaim raised by the defendant is on two counts, one with respect to freight charges and the other on demurrage suffered by the defendant by reason of the failure of the plaintiff to clear the goods. Insofar as freight is concerned, there is no such liability cast on the plaintiff in any of the contracts. The responsibility to procure the goods and supply it at the port in India is the responsibility of the defendant and the only liability of the plaintiff is to pay advance amounts at the rates stipulated, remittance of the balance consideration at the time of presentation of shipping documents, and incurring any charges for inspection of quantity and quality. The responsibility to procure the goods and supply it at the port in India is the responsibility of the defendant and the only liability of the plaintiff is to pay advance amounts at the rates stipulated, remittance of the balance consideration at the time of presentation of shipping documents, and incurring any charges for inspection of quantity and quality. We also refer to the original copies of the Bs/L produced in Ext B26 series which show that the freight is prepaid which further establish that the freight is factored in the sale price agreed upon. At the risk of repetition, if losses are to be claimed, the difference in the sale price, as agreed upon with the plaintiff and that received on the alleged switching of B/L to another purchaser has to be established before court. There can be no claim of freight raised as such, going by the terms of the contract. 40. In so far as demurrage is concerned, the defendant's Counsel relied on Exts.B19 series and B21 which are originals produced before the trial court. The learned Counsel for the appellant however specifically pointed out that those are B/Ls raised on Saba Trading Pvt. Ltd and the specific vessels shown in the tabulation in the written statement differs from that seen in Exts.B19 and B19(f). In paragraph 29 of the written statement item Nos. 4 to 5, in the table are said to be Bs/L, PONLABJ1500-1275,-1281 and -1282 shown as transmitted in a vessel called 'MOL MONO' and item Nos.7 and 8 have Bs/L PONLABJ1500-1309 and-1313 which are shown as transported in a vessel bearing name 'PONL Thekwini'. Ext.B19(a) to Ext.B19 (i), according to the defendant, are the proforma invoices for ground rent issued by the shipping company P&O Nedllyod (India) Private Ltd. in the name of the plaintiff. The Bs/L PONLABJ1500-1275 is referred to in Ext.B19(a) the vessel name in which is shown as TIGERARROW. As far as B/L PONLABJ15001281 covered by Exts.B19 (b&c) again proforma invoices issued in the name of the plaintiff, goods are shown to be transported in TIGERARROW. B/L, PONLABJ1500 -1282 likewise shows the vessel TIGERARROW in the proforma invoices produced as Exts.B19(d&e). B/L, PONLABJ1500-1309 is seen from Ext.B19(f&g) and the vessel name is shown as 'DAFU' and B/L, PONLABJ1500-1313 as seen from Ext.B19(h&i)) also transported in vessel by name 'DAFU'. B/L, PONLABJ1500 -1282 likewise shows the vessel TIGERARROW in the proforma invoices produced as Exts.B19(d&e). B/L, PONLABJ1500-1309 is seen from Ext.B19(f&g) and the vessel name is shown as 'DAFU' and B/L, PONLABJ1500-1313 as seen from Ext.B19(h&i)) also transported in vessel by name 'DAFU'. Proforma invoices for ground rent charges produced as Ext.B19 (a) to B19 (i) indicate specifically 'that no ground rent is received'. The clearance made of Bs/L PONLABJ1500-1275, 1281 and 1282 by the customs agent is indicated in Ext.B21. The clearance has been made by M/s.Saba Trading Private Ltd and the payment is made towards clearance and forwarding charges without any demurrage indicated. 41. The defendant has a contention that the entire goods as per contract No.2 (Ext.A7) reached the port of Cochin on 13.07.2005 and those not taken delivery by the plaintiff was suffering huge demurrage. As on 03.10.2005, it was the case of the defendant that the demurrage suffered for the containers in respect of Bs/L Nos.GOSUABI-4678 and GOSUABI-4679 are Rs.3,63,645/-and Rs.4,54,553/-. These two Bs/L are also indicated as item nos.2 and 3 in paragraph 29 of the written statement. DW1 marked Ext.B26 series as the proforma invoices of one AREBEE Star Maritime Agencies Private Limited Willingdon Island being the detention invoices for containers having Bs/L Nos.GOSUABI-4676,-4678 and-4679 which are item Nos. 1 to 3 shown in paragraph 29 of the written statement. However, a perusal of the documents, the invoices, certificates and the fax message issued to the plaintiff along with the Bs/L of the aforesaid numbers there are no detention charges seen from Ext.B26 series. DW1, who was examined on behalf of the defendant, has not, with reference to the claim of demurrage pointed out the specific documents which are marked in the proof affidavit. The demurrage allowed by the lower court was on consent by the plaintiff. In such circumstances, we find no further claim on demurrage to be entitled to the defendant. 42. We also have to deal with the contention raised by the defendant with respect to Ext.B1 contract and modification of contract alleged by the defendant. Ext.B1 was not confronted to PW1 but was all the same marked. It was specifically stated by PW1 that the agreement he executed was in a stamp paper and that the bills referred to in Ext.B1 are not those which are the subject matter of above suit. Ext.B1 was not confronted to PW1 but was all the same marked. It was specifically stated by PW1 that the agreement he executed was in a stamp paper and that the bills referred to in Ext.B1 are not those which are the subject matter of above suit. We see from Ext.B1 that the first page is not signed by the plaintiff. Ext.B1 modification of terms of contract, was not admitted by PW1. DW1 does not testify which of the invoices referred to in Ext.B1, relate to the contracts, which are the subject matter of the suit. We find ourselves unable to place any reliance on Ext.B1. 43. We have found the breach on the defendant with respect to four out of the five contracts, which are the subject matter of the suit. We have also found that the forfeiture clause does not come under S.74, which would enable the defendant to get reasonable compensation, subject to the maximum of the named sum, even if there is no proof of loss or damage. We have found, based on precedents, that under S.74 even if loss or damage need not be proved, it is imperative that the legal injury is established which alone entitles reasonable compensation not exceeding the named sum. Ext.A7 contract to the extent the goods supplied were not cleared by the plaintiff, are found to be a breach on the part of the plaintiff who waived every condition alleged, insofar as a part of the goods sent under the very same contract, that too in the very same consignment, having been accepted without demur. However, on the basis of the interpretation of the forfeiture clause we have to find the defendant to be not entitled to claim any loss or damages since no legal injury, much less any loss was established. In the said circumstance the defendant is also not entitled to forfeit the advance amounts paid by the plaintiff as against Ext.A7 contract. The debit notes raised by the plaintiff has been admitted by the defendant. The suit has been correctly decreed by the trial court. 44. The breach having been found on the defendant on the four contracts there is no question of any demurrage being the liability of the plaintiff. As far as Ext.A7 contract is concerned the demurrage paid by reason of the breach has not been established. The suit has been correctly decreed by the trial court. 44. The breach having been found on the defendant on the four contracts there is no question of any demurrage being the liability of the plaintiff. As far as Ext.A7 contract is concerned the demurrage paid by reason of the breach has not been established. As far as the demurrage granted by the trial court, we find the same to be on the basis of the concession of the plaintiff and there is no appeal from the same. As far as freight is concerned, we have found that it was not a liability of the plaintiff as per the contract and the same was factored in the price agreed upon by the parties. The difference in the sale price obtained by the defendant on subsequent sale, from the price agreed upon in the contract, not having been pleaded or proved there is no question of any such amounts being allowed as a loss or damage; which character the claim for demurrage also assume. We uphold the judgment and decree of the trial court and also the counterclaim to the extent it stood allowed by the trial court. The appeal stands dismissed with the cost of the respondent/plaintiff.