JUDGMENT : (Munnuri Laxman, J.) : 1) The challenge in the present appeal is to the judgment dated 22.08.2023 passed by Commercial Court No.1, Jodhpur Metropolitan on the file of Civil Original Suit No.41/2018 (NCV No.41/2018), wherein and whereby the claim for recovery of damages was partly allowed granting an amount of Rs.10,50,000/- with interest at the rate of 9% per annum from 13.08.2010 till the date of realisation. 2) The present appellants are the defendants and the respondent is the plaintiff in the original suit. For convenience, rank of the parties as referred in the suit is maintained. 3) The sum and substance of the case of the plaintiff is that the plaintiff is engaged in the business of transport, warehousing, fuel station, container repair, yard and the business is conducted through its offices at Jodhpur and Anand (Gujrat). To meet his business requirements, he placed purchase order for two Forklift trucks with the defendants’ Company. The defendants’ Company supplied two Forklift Trucks on 16.08.2010. On 18.08.2010, the plaintiff informed the defendants about malfunction of Forklift in its ordinary course of working as they were unable to stuff and de-stuff the paper roles in the machine container and such malfunction was causing damages to the plaintiff. When there was no response, another notice was given on 26.08.2010 and the defendants replied to the said notice denying the claims. Under such circumstance, the plaintiff was compelled to change the damage paper role attachment by procuring the new machinery from Mumbai office at the cost of plaintiff, for that the plaintiff incurred a cost of Rs.25,000/-. One of the Forklift Machine No.34930 was constantly needed repairs for which complaints were was lodged with the defendants. Several attempts were made by the defendants to put it in proper function, but failed. Finally, they treated the complaint of the plaintiff as a ‘special case’ and agreed to replace the engine of the machine with Tata 4SP engine, for which the plaintiff did not agree. Under such circumstance, the present suit has been filed for claiming damages of Rs.38,66,770/- with interest, which includes cost of the machine, loss and damages on account of non-operation of the machine and interest thereon. 4) The case of the defendants was that they denied the malfunction of the machine. According to them, the problem arose on account of improper uses of machinery. The machinery was not properly serviced. 4) The case of the defendants was that they denied the malfunction of the machine. According to them, the problem arose on account of improper uses of machinery. The machinery was not properly serviced. Further, the service and other instructions of warranty have not been followed. They have delivered the paper role attachment without any damage. They agreed to treat the complaint of the plaintiff as a ‘special case’ and also agreed to replace the engine. In spite of such special concession, the plaintiff did not hand over the machine for replacement of engine. Under such circumstance, the suit is liable to be dismissed. It is also prayed that the suit is barred by limitation. 1) On the basis of contentions of both the parties, the following issues were framed: 5) The plaintiff in support of his case examined PW-1 Anil Modi, PW-Mohan Lal and PW-3 himself and relied upon the documents under Exhibit-P/1 to P/25. The defendants in rebuttal examined DW-1 Saurabh Gupta, DW-2 Razi M.Ibrahim and exhibited two documents. 6) The court below after considering the evidence on record found that the machine supplied by the defendants was defective and the cost of the machine was ordered to be returned as a damage with interest @ 9% par annum from 13.08.2010 till the date of realization. Aggrieved by the same, the present appeal is filed. 7) Heard the arguments of both the parties on final disposal of the present appeal. 8) The points for consideration in the present appeal are: (i) whether the damages awarded by the trial court requires any interference, (ii) whether the suit filed by the plaintiff was barred by limitation and (iii) whether the litigation cost awarded by the trial court in the given circumstance requires any interference. 9) The learned counsel appearing for the appellants-defendants has contended that the learned court below failed to take into consideration the possession of the vehicle with the plaintiff while awarding invoice cost of the vehicle. The court below ought to have ordered for return of the vehicle when the value of the vehicle was awarded in the form of damages. The learned counsel for the appellants-defendants also contended that the plaintiff initially filed a consumer complaint before the State Consumer Forum and the State Consumer Forum allowed the plaintiff’s claim for compensation. The court below ought to have ordered for return of the vehicle when the value of the vehicle was awarded in the form of damages. The learned counsel for the appellants-defendants also contended that the plaintiff initially filed a consumer complaint before the State Consumer Forum and the State Consumer Forum allowed the plaintiff’s claim for compensation. On appeal, the National Consumer Forum set aside the order of State Consumer Form holding that Consumer Courts have no jurisdiction to entertain the commercial dispute. Such proceedings before the Consumer Forms are not a civil proceedings and no liberty was given to file a suit so as to claim the benefit of Section 14 of the Limitation Act. 10) The learned counsel for the appellants-defendant has also submitted that the learned court below failed to answer the issue of limitation having framed such an issue and answer was given only holding that such an issue was preliminarily decided and requires no further decision. Such approach of the learned court below is incorrect. It is also submitted that the damages awarded by the learned court below holding that there is a defect in the machine supplied by the defendant is incorrect. The court below failed to take into account that such a defect was not inherent and such malfunction is result of improper use of the vehicle without following the instructions. There was no proper service as required in the warranty so as to claim the proper functioning of the machinery. 11) The other contention of the learned counsel for the appellants-defendants is that the learned court below awarded exorbitant interest from the date of payment of invoice amount of the machine. The period spent in a wrong forum ought to have been excluded while granting interest. Therefore, in this regard also, the judgment of the learned court below suffers from illegality. 12) Lastly, it is contended that the learned court below has awarded the entire litigation cost ignoring the fact that the suit was only decreed for some of the amount and not the total amount claimed by the plaintiff. This aspect was not properly taken note of by the learned court below, which also requires interference. 13) The learned counsel appearing for the respondent-plaintiff has contended that the suit was only for damages and there was no counter-claim for return of the vehicle. This aspect was not properly taken note of by the learned court below, which also requires interference. 13) The learned counsel appearing for the respondent-plaintiff has contended that the suit was only for damages and there was no counter-claim for return of the vehicle. As such, even the cost of the vehicle was awarded, in absence of such a claim for return of the vehicle, the learned court below was justified in not ordering the return of the vehicle. 14) The learned counsel for the respondent-plaintiff also contended that the issue of limitation was preliminarily adjudicated by the court below and such a preliminary finding was in favour of the plaintiff. It was carried in appeal before this Court and the appeal was also dismissed. In view of the finality to the preliminary issue, there was no occasion for the learned court below to again adjudicate such an issue. 15) It is also submitted that the time spent in the Consumer Forum was bona fide proceedings and such proceedings amount to civil proceeding. As such, the plaintiff was entitled to get the benefit of Section 14 of the Limitation Act. This was rightly considered by the learned court below, which was upheld by this Court in the previous proceedings. Therefore, adjudication of such an issue, which has already attained finality, does not require any interference. 16) The learned counsel for the respondent-plaintiff also submitted that the evidence on record clearly shows that the plaintiff had been complaining to the defendants about improper functioning of machinery and the purpose for which, the machinery was obtained has not been achieved resulting into great loss to the plaintiff’s business operations. In the above background, the plaintiff was compelled to purchase new machinery from the other suppliers and incurred amounts for such purchases and transport. According to him, the evidence clearly shows that the appellant-plaintiff had been complaining about malfunction of the machine. In spite of the best efforts of service Engineers of the defendants-Company, they could not rectify the malfunction and ultimately the defendant had agreed to treat the claim of the plaintiff as a ‘special case’ and agreed to change the engine, which was not agreed as the plaintiff was insisting for entire replacement of new vehicle. Therefore, such a fact clearly demonstrates that the respondent-plaintiff has suffered on account of supply of inherent defective machine. Therefore, such a fact clearly demonstrates that the respondent-plaintiff has suffered on account of supply of inherent defective machine. Thus, the learned court below was rightly awarded the damages. 17) The learned counsel for the respondent-plaintiff also submitted that the learned court below has rightly awarded the interest from the date of payment of invoice amount of machine till the date of deposit, including the period spent in the bona fide litigation. Therefore, in this regard, the intervention of the appellate court is unwarranted. 18) Learned counsel for the respondent-plaintiff tried to defend the award of total litigation cost, which the plaintiff reasonably spent for claiming the damages on account of supply of defective machinery. 19) The evidence of both the parties clearly shows that the plaintiff had been complaining about malfunction of the machinery. The plaintiff purchased two machinery of same kind. One was properly working and other was given trouble. The evidence also shows that on multiple occasions, the efforts of the service Engineers of the defendants-Company failed to rectify the defect. The evidence also clearly shows that the defendants-Company agreed to treat the plaintiff’s claim of defect as a ‘special case’ and agreed to replace the engine of the vehicle. The above facts clearly demonstrate that there is ample evidence to show that the vehicle supplied by the defendants was suffered from inherent defect and such a defect could not be rectified in spite of best efforts of service Engineers of the Company. Thus, facts clearly justify the court below to come to a conclusion that the supply of defective machine was well founded and accordingly, the trial court granted the invoice value of the vehicle i.e. Rs.10,50,000/-. 20) The plaintiff also claimed the damages as a result of such supply of defective machine. The fact remain is that the machine was suffering from inherent defect and there were bona fide attempts on the part of the defendants-Company to rectify the problem raised by the plaintiff in operating the machine. The evidence also indicates that there is material to show that there was no timely services to the vehicle. The fact that the defendants themselves agreed to replace the engine over-runs other facts raised by the defendants. Therefore, the court below was right in awarding the invoice value of the vehicle. The evidence also indicates that there is material to show that there was no timely services to the vehicle. The fact that the defendants themselves agreed to replace the engine over-runs other facts raised by the defendants. Therefore, the court below was right in awarding the invoice value of the vehicle. 21) When the invoice value of the vehicle was ordered to be refunded, it is obligatory on the plaintiff to return the defective vehicle. He cannot take advantage of invoice value of the vehicle as well as the detention of such a vehicle which he claims to suffer from defectiveness. Therefore, the court below while ordering the payment of invoice value of the vehicle ought to have ordered the return of the vehicle for which no separate relief is required. Such relief has inherited the claim for damages, which includes the purchase value of the vehicle. 22) In such circumstance, this Court feels that when the invoice value is directed to be paid to the plaintiff, the plaintiff is under reciprocal obligation to return the defective vehicle. Therefore, the plaintiff is directed to return the vehicle on payment of decreetal amount. 23) The court below awarded interest from the date of payment of invoice amount of the vehicle till the date of deposit. There is no such agreement to grant interest prior to the suit. Indisputably, in the present case, the vehicle was supplied and such a vehicle was found having the latent defect, which is not in the knowledge of the defendants when the vehicle is supplied. The evidence also shows that the attempts have been made by the defendants to rectify the defect, which they failed to do. The court below also committed error in granting interest for the period spent for litigation in the wrong forum. The respondent-plaintiff cannot take advantage of their wrong done and claim interest for such period. Further, the percentage of interest awarded by the court below requires no interference considering the lending rates of interest in commercial transactions. However, the interest granted by the court below is restricted from the date of suit till the date of deposit. 24) The claim for damages was made on various heads. The total suit value was Rs.38,66,770/-. The entire litigation cost was awarded. The relief was restricted to part of the suit amount. The litigation expenses must be proportionate to the damages awarded. 24) The claim for damages was made on various heads. The total suit value was Rs.38,66,770/-. The entire litigation cost was awarded. The relief was restricted to part of the suit amount. The litigation expenses must be proportionate to the damages awarded. Therefore, this Court feels that the award of complete litigation expenses on the entire claim is not correct. In this regard, interference of this Court is required. The plaintiff is only entitled for the proportionate cost on the awarded damages. All the points are answered accordingly. 25) In the result, the present civil appeal is partly allowed as follows: i) The compensation of Rs.10,50,000/- as granted by the court below to the plaintiff is confirmed. ii) The plaintiff is directed to return the vehicle on deposit of the said amount. iii) The interest granted by the court below from the date of delivery of the machine till the date of deposit is modified. Instead the plaintiff is entitled for interest at the rate of 9% from the date of suit till the date of deposit on the amount awarded. iv) In the circumstances, no costs.