ORDER : 1. The present appeals have been preferred against the judgment and decree dated 17.02.2024 passed by the Commercial Court, Udaipur in Civil Suit No. 43/2021 (CIS No. 43/2021) whereby the suit for recovery as preferred by the plaintiff-CJ DARCL Logistics Ltd. has been partly decreed. 2. Vide the judgment and decree dated 17.02.2024, the plaintiff-Company had been held entitled for an amount of Rs.3,12,000/- (the earnest money) and Rs.76,907/- (the due bill) i.e. a total of Rs.3,88,907/- with interest at the rate of 6% per annum. The relief qua the refund of the bank guarantee to the tune of Rs.21,38,000/- stood dismissed. 3. The appeal (D.B. Civil Misc. Appeal No. 1678/2024) against the rejection of the relief qua the bank guarantee has been preferred by the plaintiff-Company whereas the appeal (D.B. Civil Misc. Appeal No. 1726/2024) against the decree qua earnest money and due bill has been preferred by the defendant-Rajasthan State Mines and Minerals Limited (hereinafter referred to as ‘RSMML’). 4. Appeal (D.B. Civil Misc. Appeal No. 1678/2024) preferred by the plaintiff-Company is reported to be barred by 5 days. An application under Section 5 of the Limitation Act has been filed for condonation of delay. For the reasons stated in the application, the same is allowed. The delay caused in filing the appeal is condoned. 5. An application for refund of the excess amount of Court fee has also been filed by the plaintiff-Company with a submission that at the first instance, inadvertently, regular First Appeal was filed against the impugned judgment and a Court fee of Rs.1,26,586/- was paid whereas a D.B. Civil Misc. Appeal was required to be filed against the impugned judgment and decree and hence, a Court fee of Rs.500/- was only required to be paid. 6. In the opinion of this Court, the submission as made is totally fallacious. 7. As is evident, the present is a suit for money recovery and because of valuation of the same being above Rs.5,00,000/- the suit was instituted before a Commercial Court. 8. The present appeal is against the judgment and decree as passed by the Commercial Court in a suit for recovery of money. The ad valorem Court Fee in terms of the Rajasthan Court Fees and Suits Valuation Act, 1961 shall therefore be payable on the present appeal. 8. The present appeal is against the judgment and decree as passed by the Commercial Court in a suit for recovery of money. The ad valorem Court Fee in terms of the Rajasthan Court Fees and Suits Valuation Act, 1961 shall therefore be payable on the present appeal. Further, counsel for the plaintiff-Company could not point out any provision whereby the Court fee on a misc. appeal preferred against the judgment and decree passed by a Commercial Court in a suit for money recovery is fixed as an amount of Rs.500/-. The application is hence, dismissed. 9. Coming on to the merits of the present appeals, the facts are that the plaintiff-Company was issued work order dated 16.09.2016 for the work of “FEEDING OF LGO INTO PRIMARY CRUSHER HOPPER BY USING FRONT END LOADERS & TIPPERS AT IBP, JHAMARKOTRA MINES, UDAIPUR.” 10. As per the work order, approved rate was Rs.19.44/- per metric ton and the stipulated period for completion of work was from 01.10.2016 to 30.09.2018. A bank guarantee to the tune of Rs.21,38,000/- i.e. 10% of the valuation of the work was deposited by the plaintiff-Company. 11. However, due to the delay in completion of the work and the work not been performed satisfactorily, after service of various notices, ultimately the contract was terminated by the RSMML on 20.01.2018 (Exhibit D-13). As a consequence, the security deposit in the form of bank guarantee to the tune of Rs.21,38,000/- was forfeited. Fresh tenders for completion of the work were although invited but no work order qua the same was given to any other firm/company and the same was got completed by the RSMML vide its own resources and machinery. 12. Being aggrieved by the forfeiture of the security amount, the non-payment of the due bills and the non-refund of earnest money, the plaintiff-Company preferred the present suit in question for recovery of an amount of Rs.28,12,932/- (Rs.21,38,000/- + Rs.76,907/- + Rs.3,12,000/-) with interest thereupon. 13. It is relevant to note here that the communication dated 20.01.2018 (Exhibit D-13) vide which the contract was terminated was not under challenge in the suit. The only relief prayed for in the suit was for recovery of the amount aforesaid. 14. 13. It is relevant to note here that the communication dated 20.01.2018 (Exhibit D-13) vide which the contract was terminated was not under challenge in the suit. The only relief prayed for in the suit was for recovery of the amount aforesaid. 14. The case of the plaintiff-Company was firstly, the RSMML suffered no loss and hence, without proving the actual loss incurred due to the non-completion of the work by the plaintiff-Company, it could not have forfeited the security deposit and the earnest money. Secondly, the work was not got completed at the risk and cost of the plaintiff-Company and therefore, the RSMML was not entitled to recover the same from the plaintiff-Company. Thirdly, the rate at which the fresh tenders were invited was Rs.21.33/- per metric ton whereas the approved rate in the work order issued to the plaintiff-Company was Rs.19.44/- per metric ton. Meaning thereby, the difference in rate was only Rs.1.89/- per metric ton and hence, even if it is assumed that the RSMML suffered any losses/damages, it could have recovered the same only to the extent of the difference in the rates and nothing more than that. The complete forfeiture of the security deposit was totally illegal and the RSMML could not have done so. Fourthly, the plaintiff-Company had itself agreed to pay the difference amount at the rate of Rs.1.89/- per metric ton to the defendant-RSMML. Therefore, the prayer for refund of the remaining amount ought to have been granted. 15. The case of the defendant-RSMML was that the plaintiff-Company did not complete the work to the satisfaction of the RSMML despite continuous notices. The RSMML was therefore forced to get the work completed at its own level. Because of the same, the RSMML suffered losses which it was entitled to adjust from the security deposit of the plaintiff-Company. 16. So far as the difference amount of Rs.1.89/- per metric ton is concerned, it was the case of the defendant-RSMML that the same is not correct as the rate of Rs.19.44/- per metric ton as approved qua the plaintiff-Company included the taxes whereas the rate of Rs.21.33/- per metric ton on which the fresh tenders were floated by the RSMML did not include the taxes. The total loss as computed by the defendant-RSMML was to a tune of Rs.30,35,000/- and despite the adjustment of the bank guarantee amount as well as the due bill amount, the complete loss of the RSMML could not be made good. It was further submitted that the Condition No. 4.74 of the Contract having been breached by the plaintiff-Company was not denied, rather admitted, and hence, in terms of Clause 4.72 of the agreement, the RSMML was entitled to recover/adjust the excess cost incurred by it in getting the work completed. 17. On basis of the pleadings, following five issues were framed by the learned Commercial Court: 18. Issue Nos. 1 & 3 were decided in favour of the plaintiff, Issue No. 2 was also partly decided in its favour and consequently, vide Issue No. 4, the plaintiff was held entitled for interest at the rate of 6% per annum. 19. Learned counsel for the plaintiff-Company submitted that firstly, no actual damages, whatsoever were proved on record to have been incurred by the RSMML and in absence of any proof thereof the Commercial Court erroneously held it entitled to adjust the same from the security deposit of the plaintiff-Company. Secondly, even if it is assumed that the RSMML suffered any loss, it was only to the extent of Rs.1.89/- per metric ton and hence it could have been held entitled for recovery/forfeiture only to that extent and not anything over and above that. Thirdly, once the Court held the plaintiff-Company entitled for payment of the due bills and for release of the earnest money, as a necessary corollary, it ought to have decreed the suit qua the refund of the bank guarantee amount less the actual loss proved on record. 20. In support of his submissions, counsel relied upon the following judgments: 1. Maula Bux vs. Union of India, AIR 1970 SC 1955 2. M/s Kailash Nath Associate vs. Delhi Development Authority and Anr. 2015 (4) SCC 136 3. Central Inland Water Transport Corporation Ltd. & Anr. vs. Brojo Nath Ganguly & Anr. AIR 1986 SC 1571 4. Fateh Chand vs. Balkishan Das, AIR 1963 SC 1405 21. Learned counsel for the plaintiff-Company with the aforesaid submissions, urged that the suit ought to have been decreed in toto. 22. 2015 (4) SCC 136 3. Central Inland Water Transport Corporation Ltd. & Anr. vs. Brojo Nath Ganguly & Anr. AIR 1986 SC 1571 4. Fateh Chand vs. Balkishan Das, AIR 1963 SC 1405 21. Learned counsel for the plaintiff-Company with the aforesaid submissions, urged that the suit ought to have been decreed in toto. 22. At this stage, it is relevant to note that the earnest money deposit of Rs.3,12,000/- was refunded to the plaintiff-Company by the respondent-RSMML even prior to the institution of the suit on 25.01.2021. 23. Counsel for the RSMML therefore candidly admits that the appeal (D.B. Civil Misc. Appeal No. 1726/2024) as preferred by the RSMML is confined only to the decreetal amount of Rs.76,907/-. 24. Heard the counsels and perused the material available on record. 25. Finding on Issue No. 1 as recorded by the learned Commercial Court is not under challenge and hence, the same is affirmed. 26. Coming on to Issue No. 2 to the extent of forfeiture of Security Deposit (Bank guarantee), so far as the non-completion of the work by the plaintiff-Company is concerned, the same is admitted. The termination of the contract cause of the said non-completion is also not under challenge. Meaning thereby, it is an admitted case that the work was not completed in time and the reasons for the non-completion of the same were totally attributable to the plaintiff-Company. The only challenge laid by the plaintiff-Company is that the RSMML could not have forfeited/adjusted the amount more than the losses incurred by it in getting the work completed at its own level. 27. This Court is of the clear opinion that once the delay in execution of the work and non-completion of the work in the stipulated period being attributable to the company is admitted, Clause 4.72 to 4.76 of the agreement as executed between the parties would come into play. 27. This Court is of the clear opinion that once the delay in execution of the work and non-completion of the work in the stipulated period being attributable to the company is admitted, Clause 4.72 to 4.76 of the agreement as executed between the parties would come into play. For ready reference, Clause 4.72 to 4.76 of the agreement are reproduced as under: “TERMINATION: 4.72 If the Contractor fails to execute the work or any part thereof with such diligence as will ensure its completion within the time specified in the contract, or extension thereof, or fails to complete the said work within such time or fails to perform any of his obligations under the contract or in any manner commits a breach of any of the provision of the contract, it shall be open to the Company in its option, by written notice to the contractor: (a) To determine the contract; in which event the contract shall stand terminated and shall cease to be in force and effect on and from the date notified by the company in this behalf, whereupon the contractor shall stop forthwith all or any of the contract work, then in progress and the Company may on its part, may take over the work remaining incomplete by the Contractor and the contractor and his sureties if any, shall be liable to the company for any excess cost occasioned by such take over and completion by the Company or by appointing any other agency over and above the rates of remuneration payable under the contract. (b) Without determining the contract, to take over the work of the Contractor or any part thereof and complete the same through any other agency at the risk and cost of the Contractor and the Contractor, and his sureties shall be liable to the company for any excess cost/additional cost occasioned by such work having been so taken over and completed by the Company and/or through any other agency over and above the remuneration payable under the contract. 4.73 Before determining the contract, as aforesaid, and provided that, in the judgment of the company the default or defaults committed by the Contractor is or are curable or may be cured by the Contractor if any opportunity is given to him to do so, the Company may, by notice, in writing, call upon the Contractor to cure the default within such time as may be specified in the notice. 4.74 In the event of the Company proceeding in the manner herein above prescribed: (a) The whole of the Security Deposit furnished by the Contractor or retained by the Company shall be liable to be forfeited, without prejudice to the right of the Company to recover from the Contractor, the excess cost referred to aforesaid. The Company shall also have the right to take possession of the sites for completing the work or any part thereof, with any or all such materials, equipment, machinery, tools and tackles belonging to the Contractor as may be deployed/used for the work. (b) The money that may have become due to the Contractor on account of work executed by him/its already shall not be payable to him/its until after the expiry of six calendar months reckoned from the date of determination of contract or from the taking over of the work or part thereof by the company as the case may be, during which period the responsibility for faulty workmanship in respect of such work shall, under the contract rest exclusively with the Contractor and shall be subject to deduction of all amounts due from the Company to the Contractor, whether under the terms of the contract or otherwise, authorized or required to be recovered or retained by the Company. 4.75 The Company shall also have the right to proceed in the manner prescribed in sub-clauses above, in the event of the contractor abandoning the execution of the contract work for a continuous period of one month, or becoming bankrupt or insolvent, or compounding with his creditors or assignees the contract in favour of his creditors or any other person or persons, or being a firm or a corporation goes, into voluntary liquidation, provided that in the said event, it shall not be necessary for the Company to give any prior notice to the Contractor. 4.76 Termination of the contract as aforesaid shall not prejudice or affect the rights of the Company which may have accrued up-to the date of such termination.” 28. A bare perusal of Clause 4.74(a) makes it clear that after terminating/determining the contract, the RSMML shall be entitled to forfeit the whole of the security deposit furnished by the contractor and to recover the excess cost incurred by it from the contractor. Further, Clause 5.21 of the special conditions of Contract also prescribes for forfeiture of the whole security deposit of the contract for non-fulfillment of the contractual obligations. For ready reference, Clause 5.21 of the agreement is reproduced as under: “5.21 RISK & COST The company shall have full right to forfeit the whole security deposit and payment of other pending bills payable to the contractor for non fulfilment of the contractual obligations with regard to the production/excavation (work) of specified quantity within the scheduled/specified time period. The work can be completed by engaging third party at the risk and cost of the contractor.” 29. It is the settled position of law that the parties entering into an agreement are bound by the conditions of the agreement and cannot resile subsequently from the agreed conditions. It is an admitted case herein that the plaintiff-Company did not complete the work within the stipulated period and the same was got completed by the RSMML from its own sources. So far as the computation of the losses suffered/incurred by the RSMML is concerned, the complete details of the same had not only been pleaded by the RSMML in its written statement/reply but was also proved through evidence. The learned Commercial Court considered and analyzed the same elaborately while observing that the RSMML had to pay the excess amount at the rate of Rs.4.43/- per metric ton for the loading of the remaining quantity of 6.85 lakh metric tons material. Meaning thereby, the RSMML incurred an excess cost of Rs. 30,35,000/- which was evidently more than the security amount of Rs.21,38,000/- as forfeited by it. 30. The considerate finding as recorded by the learned Commercial Court being totally in consonance with the evidence as led by the parties, does not deserve any interference by this Court and the finding on Issue No. 2 is hence, affirmed. 31. 30,35,000/- which was evidently more than the security amount of Rs.21,38,000/- as forfeited by it. 30. The considerate finding as recorded by the learned Commercial Court being totally in consonance with the evidence as led by the parties, does not deserve any interference by this Court and the finding on Issue No. 2 is hence, affirmed. 31. So far as the judgments in the cases of Maula Bux (supra), M/s Kailash Nath (supra), Fateh Chand (supra) and Brojo Nath (supra) relied upon by learned counsel for the plaintiff-Company are concerned, there is no quarrel regarding the settled position of law that where loss in terms of money can be determined, the party claiming compensation must prove the loss suffered by him. Further, the aggrieved party is entitled to receive compensation from the party who has broken the contract subject to the actual damage or loss been proved to have been caused by the breach. Furthermore, in all cases where there is a stipulation in the nature of penalty for forfeiture of an amount deposited pursuant to the terms of a contract which expressly provides for forfeiture, the Court has jurisdiction to award such sum only as it considers reasonable, but not exceeding the amount specified in the contract as liable to forfeiture. 32. While applying the above ratio to the present matter, specific pleadings regarding the actual loss suffered by the RSMML were made in its written statement/reply and oral evidence to the said effect was also led. The exact amount of Rs.30,35,000/- had been averred as an excess cost incurred by the RSMML. Therefore, in the present case not only the actual damage was pleaded and proved on record, moreover the same was forfeited in terms of the specific conditions of the contract. As reproduced in the preceding paras, Clause 4.74 of the agreement specifically provides for forfeiture of the whole of the security deposit and hence, it cannot be held that the amount forfeited exceeds the amount claimed or penalty stipulated in the agreement. The judgments as relied upon by learned counsel for the plaintiff-Company therefore do not support his case. 33. A challenge to the finding on issue No. 3 by the defendant-RSMML is also not tenable in view of Clause 4.76 of the agreement. The judgments as relied upon by learned counsel for the plaintiff-Company therefore do not support his case. 33. A challenge to the finding on issue No. 3 by the defendant-RSMML is also not tenable in view of Clause 4.76 of the agreement. The said clause specifically provides that the termination of the contract shall not prejudice or affect the rights of the Company which had accrued up to the date of said termination. The amount of Rs.76,907/- was admittedly due of the plaintiff-Company qua the work done before the termination of the contract and hence, it was rightly held entitled for payment of the same. The finding on Issue No. 3 also therefore, does not deserve any interference and is hereby, affirmed. 34. Findings on Issue Nos. 4 & 5 being qua the consequential reliefs, in view of the above findings, are affirmed. 35. As a consequence, the judgment and decree dated 17.02.2024 does not deserve any interference and is hereby affirmed. Both the appeals D.B. Civil Misc. Appeal No. 1678/2024 & D.B. Civil Misc. Appeal No. 1726/2024 are hence, dismissed.