M/s Triveni Turbine Limited Vs M/s Bhagwati Power And Steel Limited

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2025:CGHC:7976-DB

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Reserved on 6-1-2025

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Pronounced on 14 -2-2025

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FA No. 328 of 2017

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M/s Triveni Turbine Limited Registered Under Company Act, 1956 Having Its Registered Office A-44, Hosiery Complex, Phase- I I, Extension Noida 201305 U.P. And Principle Place Of Business At 12-A, Peenya Industrial Area, Phase-I, Banglore 560058 India ..............Defendant, Uttar Pradesh

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... Appellant/defendant.

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versus

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M/s Bhagwati Power And Steel Limited Registered Under Company Act, 1956, Registered Office D-22, Sector-5, Devendra Nagar, Raipur 492001 Chhattisgarh, Site Workplace Village Siltara, Phase-I I, Raipur, Tehsil And District Raipur, Chhattisgarh ...............Plaintiff, Chhattisgarh

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... Respondent/Plaintiff

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For appellant.	: Mr. Prafull Bharat, Sr. Advocate with Mrs. Sunita Jain, Advocate.
For Respondent	: Mr. Sourabh Sharma, Advocate appears on
	behalf of Ms. Harneet Kaur, Advocate.

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CORAM: DB: Hon’ble Smt. Justice Rajani Dubey & Hon’ble Mr. Justice Narendra Kumar Vyas, JJ)

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C A V ORDER

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Per Narendra Kumar Vyas, J.

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This is defendant’s First Appeal filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 10-4-2017 passed in CS No.18-A/2013 by the Third Additional Judge to the Court of First Additional District Judge, Raipur, District Raipur by which learned Third Additional Judge directed that the plaintiff is entitled to receive back Rs.30,00,000/- from the defendant with interest @ 9% from the date of filing of the suit.

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The parties have been described as per their description in the suit.

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The plaintiff filed a civil suit for declaration and refund of advance before the learned District Judge Raipur mainly contending that :-

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A. The appellant/defendant is a Company incorporated under the Companies Act, 1956 having its principal place of business at Bangalore and is engaged in design, engineering, manufacturing and supplying steam turbine generator set as per customers technical specification. The plaintiff company is a registered company under the relevant provisions of Companies Act and issued tender for supply of 10MW Turbine Generator Set. The defendant sent an offer letter on 12-12-2005 which after due technical discussion was accepted and Letter of Intent (for short, LOI) was executed on 17-6-2006 between the plaintiff and the defendant. The relevant terms of LOI agreed between the parties is as under :-

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5) TERMS OF PAYMENT

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You shall be entitled to the following Terms of payment.

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SUPPLY

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i) 5% of supply order value as advance along with LOI. ii) 5% of supply order value after finalization of Technical contract document within 15 days of LOI against submission of Advance Bank Guarantee (ABG) of 10%.

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iii) 10% of supply order value against submission and approval of HBD'S, equipment layout drawing, P&ID's, Civil load data.

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iv) 10% of supply order value on placement of orders for Turbine casing castings, generator and condenser. rotor forging,

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v) 70% of the supply order value along with taxes and duties against proforma invoice on readiness of the equipment and after inspection and on submission of 10% Performance Bank Guarantee (PBG). This PBG shall be valid for 12 months from the date of commissioning or 18 months from the date of receipt of last and final consignment at the site, which ever is earlier

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ERECTION & COMMISSIONING

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I) 10% of order value against mobilization of site.

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ii) 80% of order value along with applicable taxes on pro rata basis on progress of erection work.

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iii) 10% of order value on commissioning of the equipment.

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6) ORDER COMPLETION PERIOD

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The schedule for the commissioning of TG unit will be 13 months from the date of this LOI along with advance,

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9). PERFORMANCE TRIAL

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SELLER will conduct a performance test for the TG at guaranteed point within 30 days of successful commissioning of the unit.

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The duration of the performance test during the trial period shall be sufficient to obtain the requisite number of readings. The tentative duration considered suitable is 8 hours. In case the equipment is not able to achieve full

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load due to reasons not attributable to SELLER, then the test would be carried out at the maximum possible load. Any stoppages during this period shall not be counted as a break in the 72 hours trial run to demonstrate the performance. Cumulative 72 hours run shall be counted disregarding the stoppages due to the sources outside the boiler proper.

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The unit shall be taken over by the PURCHASER upon completion of the PG test and PURCHASER shall issue a taking over certificate to SELLER. Such a certificate shall not unreasonably be withheld nor will PURCHASER delay the issuance thereof on account of minor omissions or defects, which do not attract the commercial use of the equipment.

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Successful commissioning refers to taking the unit on full load. If, however, the load is not available due to constraints on part of the PURCHASER, loading the unit to the available load would be considered as successful commissioning.

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You are requested to prepare and submit a comprehensive (draft) Technical and commercial contract documents latest by Two (2) weeks from the date of LOI for our review/comments, so that it could be finalized for signing. This shall serve as basic document for further engineering and execution”

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B. It is the case of the plaintiff that the plaintiff as per the LOI paid a sum of Rs.30,00,000/- to the defendant as an advance payment through cheque No.246652 dated 17-6-2006. The defendant has acknowledged the aforesaid amount as mentioned in Clause 12 of the LOI. It has also been contended that as per the Clause 11 of the LOI the defendant has to submit a comprehensive (draft) Technical and Commercial contract documents latest within two weeks from the date of LOI. This will serve as basic documents for further engineering and execution. It is also the case of the plaintiff

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that despite acceptance of LOI by the defendant he did not prepare and submit a comprehensive (draft) technical and commercial contract documents to the plaintiff. In the meanwhile, due to changed circumstances the plaintiff took a commercial decision not to carry out the deal initiated through LOI and vide letter dated 30-9-2006 informed the defendant about the decision and requested the defendant to refund the amount of Rs.30,00,000/-.

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C. Thereafter, the plaintiff received letter dated 29-9-2006 on 4- 10-2006 addressed to Mrs/ M.N. Dastur & Company, Chennai forwarding four sets of certain drawings pertaining to Steam Turbines, Generator set though before receipt of the said letter, the plaintiff has already canceled the deal contemplated by LOI vide letter dated 30-9-2006. Thereafter, on 5-10-2006 again four copies of some drawing of turbo foundation block plan of same contract were also sent. However, both letters dated 299-2006 and 5-10-2006 addressed by the defendant to M/s. M.N. Dastur & Company Ltd., Channai have been dispatched beyond two weeks from the date of LOI whereas the plaintiff has already asked the refund of amount of Rs.30,00,000/- on 30-9-2006 from the defendant.

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D. It is also the case of the plaintiff that LOI was valued at Rs.627.51 lakhs and since no agreement was executed between the parties, therefore, the defendant is bound and liable to pay refund to the plaintiff the entire deposit amount of

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Rs.30,00,000/- with 12 % interest as no monetary loss was occasioned to the defendant as a result of revocation of the LOI by the plaintiff. Accordingly, the appellant has prayed for decree of declaration that no concluded, binding and legally enforceable contract ever came into existence between the parties and the plaintiff is entitled to refund of amount of Rs.30,00,000/- with 12 % interest from 30-9-2006.

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The defendant filed written statement mainly contending that

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A. LOI dated 17-6-2006 was executed between the parties for the work as mentioned in LOI and the defendant prior to execution of LOI vide its offer letter dated 12-12-2005, after due technical discussions with the plaintiff and their technical consultants namely M/s. M.N. Dastur & Company Ltd., Chennai has confirmed the note. It has also been admitted by the defendant that as per LOI, the plaintiff has paid Rs.30,00,000/- towards 5% of the value as advance as per Clause 5 of the LOI. It has also been contended that the LOI is a final, conclusive or binding contract between the parties. It has also been contended that in fact the basic document as referred to in para 11 of LOI to serve as basic document of further contract only. It has been denied that the defendant has not prepared and submitted any technical commercial contract which was to be prepared and submitted on the basis of technical input to be given by the plaintiff and their consultant. Since there was delay in submission of technical input from the plaintiff, the draft of techno-commercial contract got delayed. It is submitted that the plaintiff vide letter dated 30-9-2006

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informed the change in specification and inability to accept the supply of equipment. It is denied that the monetary loss has not been occurred to the defendant as a result of cancellation of LOI. It has also been denied that the plaintiff had unquestionable legal right to cancel the deal reflected by LOI and to claim refund of the advance amount.

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B. The additional plea was also taken mainly contending that payment of advance by the plaintiff to the defendant signifies the conclusion of contract and advance is liable to be forfeited as breach committed by the plaintiff is within 25% of the delivery period from the date of LOI in view of Section 74 of the Contract Act accordingly the defendant has forfeited the advance amount. It has also been contended that defendant has forfeited the advance as the transaction fails on account of default of plaintiff only and prayed for dismissal of the suit.

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On the pleadings of the parties, learned trial Court framed the following issues.

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Whether pursuant to letter of intent (LOI) dated 17-6-2006 being Annexure “A” to the plaint any concluded, binding and legally enforceable contract came into existence by and between the parties to the suit?

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Whether the plaintiff had paid and advance of Rs.30,00,000/- (Rupees thirty lakhs only) to the defendant along with the said LOI?

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3 Whether the defendant failed to comply the said LOI within the period of two weeks from the date of the said LOI?.

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Whether the plaintiff has terminated the said LOI?

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Whether the plaintiff is entitled to refund of a sum of Rs.30,00,000/- along with interest?

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Whether the defendant suffered any pecuniary loss and if so to what extent as a result of termination of the said LOI by the plaintiff?

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Whether the defendant is entitled to forfeit the advance amount of Rs.30,00,000/- (Rupees Thirty Lakhs only) as claimed by it in the absence of any forfeiture clause in the LOI?

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Whether the claim in suit has been properly valued and appropriate Court fee has been paid?

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Relief and costs.

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The plaintiff to substantiate its case exhibited LOI (Ex.P/1), letter dated 30-9-2006 (Ex. P/2), letter dated 26-12-2006 (Ex.P/3), letter dated 29-9-2006 (Ex.P/4), letter dated 5-10-2006 (Ex.P/5) and bank statement (Ex.P/6). Plaintiff to substantiate his evidence examined Rajkumar Kejriwal (PW/1) and closed his evidence. The defendant has not examined any evidence despite grant of opportunities. The order sheet of the trial Court would reflect that after closing of the evidence by the plaintiff on 3-12-2016, the matter was taken up for hearing on 17-1-2017 and 31-1-2017. On 7-2-2017 the defendant had moved an application for adjournment under Order 17 Rule 1 read with Section 151 of the CPC which was considered and allowed by the learned trial Court and fixed the case on 9-3-2017 for evidence of the defendant. On 9-3-2017 the defendant has expressed that he does not intend to lead any evidence and accordingly the defendant’s right to lead evidence was closed by the trial Court.

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Plaintiff has examined himself by way of an affidavit as provided under Order 18 Rule 4 CPC wherein he has reiterated the pleadings made in plaint and the witness was cross examined by the defendant wherein he has admitted that when the plaintiff has demanded advance it has been pointed by the defendant that they have already proceeded ahead in the matter as such, the advance cannot be refunded. The witness has voluntarily stated that this reply was submitted to the consultant M.N. Dastur but he is not recollecting whether he has received the letter or not. The plaintiff has closed its evidence on 3-12-2016. Thereafter the defendant has not led any evidence as reflected from the order sheet dated 9-3-2017. Thereafter the matter was heard and vide impugned judgment and decree the trial Court has decreed the suit in favour of the plaintiff and directed that the plaintiff is entitled to receive back the refund amount of Rs.30,00,000/- with 9% interest from the date of filing of the suit. Being aggrieved with that order, the defendant has preferred this appeal.

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Learned Sr. Advocate Mr. Prafull Bharat assisted by Mrs. Sunita Jain would submit that the learned trial Court has erred in decreeing the suit only on the basis of Clause 11 of LOI. It is also contended that the trial Court has not properly appreciated the other documentary evidence of the plaintiff itself which clearly demonstrates that cancellation of contract was not due to lacunae or any inaction on the part of defendant, but it has been canceled by the plaintiff himself on account non- availability of funds of the main financier of the plaintiff as such they have decided to keep they decided to keep the power project in abeyance as evident from Ex.P/3 dated 16-122006, therefore, the learned trial Court has committed illegality in holding that

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the defendant was responsible for delay in initiating the work contract or there was fault on the part of the defendant. It has been further contended that the learned trial Court has not appreciated the LOI in its proper perspective. Learned trial Court has not considered the evidence of the plaintiff itself wherein in the cross-examination he himself admitted that the defendant has informed the consultant of the plaintiff that they are already proceeded in the matter, as such, the trial Court has committed illegality in allowing the refund amount with 9% interest and has prayed for allowing the appeal. It has also been contended that the defendant was not given opportunity to lead any oral evidence and the learned trial Court has not discussed the evidence, material on record and mechanically allowed the suit. It has been further contended that as per letter dated 12-12-2005 general commercial terms and conditions of Clause No.6 read with Clause No.7 and Clause XI of LOI deals with termination of contract wherein it is clearly mentioned that at any point of time before completion of 13 months, if the contract is terminated within 25% of the delivery period then the advance paid shall be forfeited and further the plaintiff has to pay the cancellation charges which is 10% of the order value. Since the plaintiff within a period of 3 ½ months from the date of LOI has terminated the contract therefore, as per the general terms and conditions and Clause 7, the plaintiff was required to pay the cancellation charges and would pray for setting aside the judgment and decree dated 10-4-2017 passed by the learned trial Court. To substantiate his submission, learned Sr. Advocate has referred to the judgment of Hon’ble Supreme Court in the case of South Eastern Coalfields Limited vs. S. Kumar’s Associates AKM (JV),

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reported in (2021) 9 SCC 166 wherein the Hon’ble Supreme Court has held

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in para 20, 22 and 24 as under.

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“20. A consideration of the matter in the conspectus of the aforesaid pleas leads to a conclusion that it cannot be said that a concluded contract had been arrived at inter se the parties.

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22 We would like to state the issue whether a concluded contract had been arrived at inter se the parties is in turn dependent on the terms and conditions of the NIT, the LoI and the conduct of the parties. The judicial views before us leave little doubt over the proposition that an LoI merely indicates a party’s intention to enter into a contract with the other party in future.12 No binding relationship between the parties at this stage emerges and the totality of the circumstances have to be considered in each case. It is no doubt possible to construe a letter of intent as a binding contract if such an intention is evident from its terms. But then the intention to do so must be clear and unambiguous as it takes a deviation from how normally a letter of intent has to be understood. This Court did consider in Dresser Rand S.A.13 case that there are cases where a detailed contract is drawn up later on account of anxiety to start work on an urgent basis. In that case it was clearly stated that the contract will come into force upon receipt of letter by the supplier, and yet on a holistic analysis – it was held that the LoI could not be interpreted as a work order.

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If we compare the aforesaid scenario in the present case, the period for execution of the contract was one year. The respondent worked at the site for a little over the month, facing certain difficulties – it is immaterial whether the same was of the own making of the respondent or attributable to the appellants. No amount was paid for the work done. The respondent failed to comply with their obligations under the LoI. It is not merely a case of the non-furnishing of Performance Security Deposit but even the Integrity Pact was never signed, nor work order issued on account of failure to execute the contract. We are, thus, of the view that none of the judgments cited by learned counsel for the appellants would come to their aid in the contractual situation of the present case. The judgments referred by learned counsel for

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the appellants Jawahar Lal Burman15 case and Dresser Rand S.A.16 case, if one may say so are not directly supporting either of the parties but suffice to say that to determine the issue what has to be seen are the relevant clauses of the NIT and the LoI”.

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On the other hand, learned counsel for the plaintiff would submit that the learned trial Court after appreciating the evidence and material on record has passed the impugned judgment and decree which does not warrant any interference by this Court and would pray for dismissal of the appeal. He would further submit that as per Section 73 of the Contract Act the plaintiff has rightly been granted interest @9% by way of damages. He would further submit that it is not uncommon in contracts involving detail procedure, in order to save time, to issue a letter of intent communicating the acceptance of the offer and asking the contractor to start the work with a situation that a detailed contract would be drawn up later, thus, looking to the clause 6 wherein the schedule for the commissioning of the TG unit was 13 months from the date of LOI along with advance, thus, the parties are bound by the LOI, and would pray for dismissal of the appeal. He would further submit that learned trial Court after appreciating the evidence, materials on record has passed the well reasoned order which does not warrant interference by this Court.

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We have heard learned counsel for the parties and perused the impugned judgment and decree.

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From the aforesaid discussion, the points emerged for determination of this Court are;

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“1. Whether the LOI (Ex.P/1) is binding upon the parties or not and whether the defendant is entitled to forfeit the advance money paid by the plaintiff?

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Whether the plaintiff is entitled to get decretal amount of interest @ 9% or not.

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Whether proper opportunity of hearing was given to the defendant or not?

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Discussion and finding on Point No.1

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To appreciate the point No.1, it is necessary for this Court to examine the Clause 5, 6, 9 and 11 of LOI (Ex.P/1) which has been already extracted above. From perusal of these Clauses of LOI, it is quite vivid that this LOI is binding in nature as it deals with all the aspects of the contract i.e. Clause 5 deals with term of payment, Clause 7 deals with information submission schedule, Clause 8 deals with Liquidated damages (LD) for delay in deliver/erection and commissioning in the event of delay in delivery of the machinery and equipment beyond the scheduled date of delivery and thereafter for erection and commissioning including any extended time agree to by the purchaser. Similarly, Clause 9 deals with performance trial which provides that seller will conduct a performance test for the TG at guaranteed point within 30 days of successful commissioning of the unit. Clause 11 provides that the defendant has to prepare and submit a comprehensive (draft) Technical and commercial contract documents latest by two weeks from the date of LOI for review/comments so that it could be finalized for signing. This shall serve as basic documents for further engineering and execution. It means that technical and commercial contract documents will

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prescribe the technical specification for further engineering and execution of work. Thus, LOI provides entire steps or consequences of non-performance. Therefore, LOI is a concluded contract and it is a binding contract. From the clauses of LOI as well as evidence of PW/1 Mr. Rajkumar Kehjriwal, it is quite vivid that the plaintiff in is evidence has categorically stated that para 5 of the deposition that LOI is extract of agreement to be executed in future between the plaintiff and the defendant and accordingly for technical and commercial agreement (draft) have to be prepared but the defendant has not submitted any details of draft to the plaintiff. This evidence remained unshaken though after extensive cross examination also nothing has been brought on record to demonstrate that LOI cannot be construed as binding contract. Therefore, in light of the judgment of the Hon’ble Supreme Court in case of S. Kumar’s Associates (supra) and terms of LOI has to be seen it is established that LOI can be construed as binding contract in view of unambiguous intention of the parties made in this regard. When the LOI can have binding effect as come up for consideration before the before the Hon’ble Supreme Court in case of Dresser Rand S.A. v. Bindal Agro Chem Ltd and Khosla Compressors Ltd., (2006) 1 SCC 751 , wherein the Hon’ble Supreme Court has held as under :-

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" 40 . It is no doubt true that a letter of intent may be construed as a letter of acceptance if such intention is evident from its terms. It is not uncommon in contracts involving detailed procedure, in order to save time, to issue a letter of intent communicating the acceptance of the offer and asking the contractor to start the work with a stipulation that the detailed contract would be drawn up later. If such a letter is issued to the contractor, though it may be termed as a letter of intent, it may amount to acceptance of the offer resulting in a concluded contract between the

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parties. But the question whether the letter of intent is merely an expression of an intention to place an order in future or whether it is a final acceptance of the offer thereby leading to a contract, is a matter that has to be decided with reference to the terms of the letter. Chitty on Contracts (para 2.115 in Vol. 1, 28th Edn.) observes that where parties to a transaction exchanged letters of intent, the terms of such letters may, of course, negative contractual intention; but, on the other hand, where the language does not negative contractual intention, it is open to the courts to hold that the parties are bound by the document; and the courts will, in particular, be inclined to do so where the parties have acted on the document for a long period of time or have expended considerable sums of money in reliance on it. Be that as it may."

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The further submission of the learned Sr. Advocate for the defendant that they are justified in forfeituring the advance given by the plaintiff in view of unwillingness shown by the plaintiff to continue with the project is being considered. It is well settled position of law that to justify for forfeiture of advance being part of earnest money the terms of contract should be clear and explicit whereas in the present case there is no such clause in the LOI which entitle the defendant to forfeit the advance money. This issue has come up for consideration before the Hon’ble Supreme Court in case of Satish Batra vs Sudhir Rawl {2013 (1) SCC 345} wherein the Hon’ble Supreme Court has held as under :-

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Law is, therefore, clear that to justify the forfeiture of advance money being part of ‘earnest money’ the terms of the contract should be clear and explicit. Earnest money is paid or given at the time when the contract is entered into and, as a pledge for its due performance by the depositor to be forfeited in case of non-performance, by the depositor. There can be converse situation also that if the seller fails to perform the contract the purchaser can also get the double the amount, if it is so stipulated. It is also the law that part payment of purchase price cannot be forfeited unless it is a guarantee for the due performance of the contract. In other words,

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if the payment is made only towards part payment of consideration and not intended as earnest money then the forfeiture clause will not apply.

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When we examine the clauses in the instant case, it is amply clear that the clause extracted hereinabove was included in the contract at the moment at which the contract was entered into. It represents the guarantee that the contract would be fulfilled. In other words, ‘earnest’ is given to bind the contract, which is a part of the purchase price when the transaction is carried out and it will be forfeited when the transaction falls through by reason of the default or failure of the purchaser. There is no other clause militates against the clauses extracted in the agreement dated 29.11.2011.

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Thus, the submission made by the Sr. Advocate for the defendant that they are justifiable in forfeiting the advance given by the plaintiff deserves to be rejected. Accordingly, it is reject. Therefore, learned trial Court has not committed any illegality in deciding the issue No.1 in favour of the plaintiff. Thus, point No.1 is answered against the defendant.

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Discussion and Finding on Point No. 2

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Learned Sr. counsel for the defendant would submit that the learned trial Court without considering the fact that the plaintiff himself in its letter dated 30.09.2006 Ex.P/2 and 26.12.2006 Ex.P/3 has shown his inability to continue with the LOI on account of change in specification, to keep the power project in abeyance for one year due to non-availability of fund from the main financier, as such, they are also responsible for breaking the LOI, therefore, they are not entitled for interest at the rate of 9% and would pray for allowing the appeal to that extent also. This was vehemently objected by the learned counsel for the plaintiff and would submit that the trial Court after considering the evidence has passed the impugned decree granting interest which cannot be said to be illegal or no a higher side, thus would pray for dismissal of the appeal. These submissions are being considered by this

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Court now. During the course of evidence before the trial Court, the plaintiff’s evidence Raj Kumar Kejhriwal, PW/1 in his cross examination has admitted the fact that the defendant has given reply that they have already proceeded further in the LOI therefore, amount cannot be given back to them. The witness has voluntarily stated that they have submitted this reply to M.N. Dastur but whether it has been received by him or not is not recollected by him. This evidence clearly demonstrates that the defendant has also taken some steps for execution of the LOI, as such, it cannot be solely held that the defendant only was responsible for breach of LOI. Coupled with the fact that the plaintiff has also shown their intention to discontinue with the project due to non-availability of finance as such also it clearly reflects that they were also not in position to continue with the LOI. This clearly establishes that both the parties are not in a position to continue with the LOI, therefore, the learned trial Court has committed illegality in directing the defendant to pay the amount with 9% of interest which is on higher pedestal, without assigning any reason, without assessing the damages caused to the plaintiff due to breach of LOI by the defendant. Even otherwise , it is well settled position of law that when a contract has been broken the party who suffers from such breach is entitled to receive from the party who has broken the contract, compensation of any loss or damages caused to him which naturally arose in the usual course of things for such breach or which the parties knew, when they made contract to be likely to result from the breach of it. Thus, it is incumbent upon the plaintiff to prove that how he has suffered loss due to breach of contract to get 9% interest by way of damages as such the learned trial Court has committed illegality in granting 9% interest to the plaintiff on

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the amount of Rs. 30,00,000/-. This issue has come up for consideration before the Hon’ble Supreme Court in case of Welspun Specialty Solutions Ltd. vs Oil and Natural Gas Corporation Ltd. {2022) 2 SCC 382} wherein Hon’ble Supreme Court has held as under :-

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37.The Arbitral Tribunal construed the aforesaid provision to interpret the term ‘loss’ to mean actual tangible loss provable by evidence, instead of pre-estimated loss. Such interpretation, in the facts and circumstances, could be held to be a reasonable interpretation, as the other party was not able to impugn the same by pointing to any documents or correspondence to the contrary. When a standard form of a contract is utilized, ONGC is assumed in law to have the larger bargaining power to enter into a contract, unless clear intention is shown to the contrary. In this case at hand, a reasonable interpretation against ONGC may be utilized.

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Thus the point No. 2 answered in favour of the defendant and against the plaintiff by setting aside the judgment and decree to the extent of grant of 9% interest in favour of the plaintiff.

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Discussion and Finding on Point No. 3

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Further submission of learned counsel for the defendant/appellant is that no proper opportunity has been given to them to lead evidence, is contrary to the evidence and material on record as after closing of the evidence by the plaintiff on 3-12-2016 the matter was taken up for hearing on 17-1-2017 and 31-1-2017. On 7-2-2017 the defendant had moved an application for adjournment under Order 17 Rule 1 read with Section 151 of the CPC which was considered and allowed by the learned trial Court and fixed the case on 9-3-2017 for evidence of the defendant. On 9-3-2017 the defendant has expressed that he does not intend to lead any evidence and accordingly right to lead evidence was closed. Thus, it cannot be said that no proper opportunity of hearing was given to the defendant. As such,

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submission made by learned counsel for the defendant that the learned trial Court has not given opportunity of hearing to lead evidence is misconceived and deserves to be rejected. Accordingly, point No.3 is answered against the defendant.

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Accordingly, the judgment and decree dated 10-4-2017 passed in CS No 18-A of 2013 by the learned trial Court is modified and it is held that the plaintiff is not entitled to get any interest on the decretal amount of Rs.30,00,000/- but the plaintiff is entitled to get the decretal amount of Rs.30,00,000/- within a period of 45 days from the date of order passed by this court, failing which the decretal amount of Rs.30,00,000/- shall carry 6% interest from the date of judgment and decree passed by this court till payment is actually made.

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