the respondent is upto one month, then 20% of the total BG may be encashed by the appellant. Further, if there is a delay upto two months, 40% of the total BG may be encashed and for the delay of more than two months and upto three months, the remaining BG could be encashed by the appellant. In the present case, the appellant encashed 20% of the total BG on 17.02.2012 after the delay of one month, which amounted to Rs. 1,85,13,000/-. On account of delay of more than two months but less than three months, the appellant encashed both the second and the third BG on 27.03.2012 amounting to Rs. 3,70,26,000/each, although the period of three months delay was to end on 09.04.2012. The project was commissioned by the respondent on 29.03.2012. Therefore, there was a delay of more than two months and less than three months in commissioning the project. The second and the third BG was encashed by the appellant two days prior to the commencement of the project by the respondent which means that the appellant has not suffered any loss of supply of solar power for the entire month. Admittedly, the solar power is utility service and it is difficult to assess the actual loss suffered by the appellant and no evidence has been led by the appellant to prove the actual loss suffered. It is settled proposition of law that if the highest limit is stipulated instead of a fixed sum, in absence of evidence of loss, part of it can be held to be reasonable, compensation and the remaining by way of penalty.
