M.R. Verma, J.

1. This suit has been instituted by the Plaintiff for recovery of Rs. 25 lacs on account of damages.

2. The case of the Plaintiff as made out in the plaint is that the Plaintiff is a sole proprietary concern of M.R. Rattan dealing with earth works. The Defendant entered into an agreement dated 24.6.1993 with Nathpa Jhakri Joint Power Corporation Limited for construction of Civil Works for head race tunnel and surge shaft for which the Defendant required Tippers at the project site for carriage of muck. The Plaintiff offered to provide Tippers for the execution of the said work and the parties thus entered into an agreement dated 10.9.1996 whereby the Plaintiff was awarded work of transporting the excavated material from Mangled Head Race Tunnel to the dumping areas for a period of one year from the date of the award of the work. As per the terms and conditions of the agreement, the Plaintiff was to make minimum seven numbers of Tippers available at the work site for mucking and the agreement between the parties could be terminated by either party after giving six weeks notice. The Plaintiff was further required to provide a loader for loading muck at the loading point and dozing the muck at the dumping site. On assurances of the Defendant that the Plaintiff would be provided substantial work, the Plaintiff was allured to undertake the said work considering it to be a means of his livelihood and source of re-employment, therefore, raised huge loans from Tata Finance Limited and purchased six new Tippers. The Plaintiff already had one Tipper. All the seven Tippers were taken to the site on 6.10.1996 to commence the work. However, on that day the Plaintiff could not arrange sufficient funds for the front line loader whereas the Defendant insisted to start the work of transportation of muck immediately because the Pollution Control Board, Himachal Pradesh was pressing hard the Defendant for removal of the muck to the dumping site. The Defendant provided front line loader to the Plaintiff for immediate execution of the work and, thus, the agreement entered into between the parties was violated by the Defendant at the first instance. While the Plaintiff was carrying out the work, the Defendant adopted totally indifferent, uncooperative and unaccommodating attitude towards the Plaintiff regarding operational requirements and the Plaintiff took up the matter with the Defendant that because of the poor condition of the road and over loading, the Tippers were getting frequently damaged but the Defendant did not pay any heed to it. After some time the Defendant, with some ulterior motive, started insisting upon the Plaintiff to arrange for loader and finally on this lame excuse stopped allotting the work to the Plaintiff resulting in stranding of the Tippers at the site. The Plaintiff made several requests to the Defendant to allot work to it as per the agreement but of no avail. Even a legal notice dated 30:7.1998 was served on the Defendant in this regard and damages sustained by the Plaintiff were claimed. The Defendant in violation of the conditions of the agreement unilaterally determined the contract and stopped giving work to the Plaintiff resulting in great financial loss to the Plaintiff and non employment of the Tippers resulted in default of repayment of the loan by the Plaintiff to the financers and huge liability for repayment of outstanding amount. It is further claimed that the default in repayment of the loan and incurring of the huge liability occurred because of the "indifferent high handed attitude" on the part of the Defendant. Thus the Defendant is solely and exclusively liable for the loss suffered by the Plaintiff and is liable for payment of damages and compensation to the extent of Rs. 25 lacs. Hence this suit.

3. The Defendant contested the suit. In its written statement the Defendant raised preliminary objections that the Plaintiff has no cause of action to file the suit, that the suit is bad for mis-joinder and non-joinder of necessary parties, that this Court has no jurisdiction to entertain the suit in view of Clause 17 of the sub-contract agreement, that the plaint lacks in material particulars, that the Plaintiff is estopped by its own acts, deed and conduct to institute the suit as it has executed No Claim Certificate in favour of the Defendant and the contract was concluded by it, that the Plaintiff is guilty of suppression of material facts and that the suit is barred by limitation. On merits, it has been averred that the agreement with the Plaintiff was executed by the constituents of Nathpa Jhakri Joint Venture and not by the Nathpa Jhakri Joint Venture. It is also averred that by pleading the misleading and distorted facts, a mala fide attempt has been made by the Plaintiff to make out an illegal claim against the Defendant. Giving of an assurance of providing substantial work to the Plaintiff as claimed in the plaint, has been denied and the allegation of any allurement has also been denied. Any liability regarding the loans raised by the Plaintiff has also been denied. It is further claimed that the Defendant more than once warned the Plaintiff to improve the quantity and quality of its work but of no avail. In this regard the Defendant wrote letter dated 30.11.1996 to the Plaintiff who responded with a letter of apology but failed to execute his part of the contract despite warning letter dated 20.2.1997 issued to it and instead of improving the work, the Plaintiff unilaterally abandoned the work which resulted in huge losses to the Defendant. It is thus claimed that the Defendant did not violate the terms and conditions of the contract but always adhered to the same and thus the Defendant has denied any liability to pay any damages to the Plaintiff.

4. The Plaintiff filed replication wherein a preliminary objection was taken that the written statement was not properly verified. In reply to the preliminary objections and the written statement on merits, the grounds of defence as taken were denied and the claim as made out in the plaint was reaffirmed.

5. On the pleadings of the parties the following issues were framed:

1. Whether the Plaintiff has no cause of action to file the present suit OPD

Whether the suit is bad for non joinder and mis-joinder of necessary parties, as alleged OPD

Whether this Court has no territorial jurisdiction to try the present suit OPD

Whether the Plaintiff is estopped by his acts, deeds and conduct to file the present suit OPD

Whether the suit is barred by limitation OPD

Whether the Plaintiff resiled from the sub-contract agreement voluntarily. If so, its effect OPD

Whether the rescinding of sub-contract agreement dated 10.9.1996 entered into between the parties was illegal on the part of Defendant OPP

If issue No. 7 is proved, whether the Plaintiff is entitled to the damages/compensation If so, to what amount OPP

Whether the written statement filed by Defendant is not properly verified If so, its effect OPP

Relief.

6. Parties led evidence. Arguments were heard.

7. My issue wise findings are as follows:

Issue No. 1 :

8. The sum and substance of the plaint has already been set out heretofore. The averments apparently disclose a cause of action in favour of the Plaintiff. This issue is, therefore, held against the Defendant.

Issue No. 2 :

9. It was contended by the learned Counsel for the Defendant that it is an association of persons between IMPREGILO on Italian Co. registered at Milan and Hindustan Construction Co. an Indian Co. registered at Bombay, therefore, said companies were necessary parties to the suit but have not been so joined, therefore, the suit is bad for non joinder of necessary party. It was further contended that joining of the Defendant as such, in view of the above, is a case of mis-joinder.

10. A bare perusal of agreement Ext. PW-1 /A reveals that it is between the parties to the suit and has been signed for them. The Defendant admittedly has its own Head Office at Rampur in H.P. The privity of contract is between the parties to the suit. Therefore, the Defendant has rightly been joined as such and the above said companies are not necessary parties to the suit. This issue is accordingly decided against the Defendant.

Issue No. 3 :

11. It was contended by the learned Counsel for the Defendant that vide Clause 17 of the agreement Ext. PW-l/A the parties had agreed that this agreement shall be deemed to have been executed in Delhi and the Courts at Delhi alone shall have jurisdiction to settle and decide any dispute between them. According to the learned Counsel for the Defendant as per the law such a condition could be lawfully agreed to between the parties and they having so agreed, only the Courts at Delhi had the jurisdiction to try the suit and this Court has no jurisdiction to try it.

12. On the other hand, the learned Counsel for the Plaintiff had contended that the agreement Ext. PW-l/A in fact was executed in Jeori, the work subject matter of the agreement was to be executed at Manglad and the Defendant has its Head Office at Rampur, all of which places are within Himachal Pradesh, therefore, it is only this Court which has the territorial and pecuniary jurisdiction to try the suit and Clause 17 of the agreement conforming jurisdiction on Courts at Delhi which have no jurisdiction to entertain the suit within the frame work of Sections 16 - 20 of the Code of Civil Procedure (hereafter referred to as the Code) is against public policy and invalid.

13. There is no dispute that jurisdiction of a Court to try a civil suit has to be decided as per the provisions contained in Sections 16 - 20 of the Code. It is by now well settled that the parties to an agreement can agree for settlement of their disputes arising out of the agreement by a Court of their choice provided that the Court so chooses to decide the disputes between them is one of the two or more Courts which have the jurisdiction to try the same within the scope of the provisions of Sections 16 - 20 of the Code. However, parties cannot confer jurisdiction on a Court to decide their disputes if it had no jurisdiction to try such disputes within the scope of Sections 16 - 20 of the Code. If the parties so agree, the contract will be invalid.

14. In Hakam Singh v. Gammon (India) Ltd., : AIR 1971 SC 740 , while dealing with a question as in hand the Honble Supreme Court held as under:

3.... The Code of Civil Procedure in its entirety applies to proceedings under the Arbitration Act. The jurisdiction of the Courts under the Arbitration Act to entertain a proceeding for filing an award is accordingly governed by the provisions of the Code of Civil Procedure. By Clause 13 of the agreement it was expressly stipulated between the parties that the contract shall be deemed to have been entered into by the parties concerned in the City of Bombay. In any event the Respondents have their principal office in Bombay and they were liable in respect of a cause of action arising under the terms of the tender to be sued in the Courts at Bombay. It is not open to the parties by agreement to confer by their agreement jurisdiction on a Court which it does not possess under the Code. But where two Courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such Courts is not contrary to public policy. Such an agreement does not contravene Section 28 of the Contract Act.

15. In Globe Transport Corporation v. Triveni Engineering Works and another, : (1983) 4 SCC 707, the Apex Court held as under:

3. It is now settled law that it is not competent to the parties by agreement to invest a Court with jurisdiction which it does not otherwise possess but if there are more than one forums where a suit can be filed, it is open to the parties to select a particular forum and exclude the other forums in regard to claims which one party may have against the other under a contract.

16. In A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies Salem, : AIR 1989 SC 1239 , the Honble Supreme Court held as under:

16. So long as the parties to a contract do not oust the jurisdiction of all the Courts which would otherwise have jurisdiction to decide the cause of action under the law it cannot be said that the parties have by their contract ousted the jurisdiction of the Court. If under the law several Courts would have jurisdiction and the parties have agreed to submit to one of these jurisdictions and not to other or others of them it cannot be said that there is total ouster of jurisdiction. In other words, where the parties to a contract agreed to submit the disputes arising from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law their agreement to the extent they agreed not to submit to other jurisdictions cannot be said to be void as against public policy. If on the other hand the jurisdiction they agreed to submit to would not otherwise be proper jurisdiction to decide disputes arising out of the contract it must be declared void being against public policy. Would this be the position in the instant case

17. In Shriram City Union Finance Corporation Ltd. v. Rama Mishra, : AIR 2002 SC 2402 the Apex Court held as under:

9. In the present case the impugned order of the High Court and the order passed by the appellate Court arises out of the order passed by the Civil Judge, Bhubaneshwar. We have to keep in mind there is difference between inherent lack of jurisdiction of any Court on account of some statute and the other where parties through agreement bind themselves to have their dispute decided by any one of the Court having jurisdiction. Thus the question is not whether the Orissa Courts have the jurisdiction to decide Respondents suit but whether the Respondent could have invoked the jurisdiction of that Court in view of the aforesaid Clause 34. A party is bound either by provision of the Constitution, statutory provisions or any rule or under terms of any contract which is not against the public policy. It is open for a party for his convenience to fix the jurisdiction of any competent Court to have their dispute adjudicated by that Court alone. In other words if one or more Court has the jurisdiction to try any suit, it is open for the parties to choose any one of the two competent Courts to decide their disputes. In case parties under their own agreement expressly agrees that their dispute shall be tried by only one of them then the party can only file the suit in that Court alone to which they have so agreed. In the present case as we have said through Clause 34 of the agreement, the parties have bound themselves that any matter arising between them under the said contract, it is the Courts in Calcutta alone which will have jurisdiction. Once parties bound themselves as such it is not open for them to choose a different jurisdiction as in the present case by filing the suit at Bhubaneshwar. Such a suit would be in violation of the said agreement.

18. In view of the above settled position in law, the parties can agree to get their disputes settled by a Court which is one of the Courts which may have the jurisdiction to try the dispute between them. However, the parties cannot validly and lawfully agree to oust the jurisdiction of competent Court of law having jurisdiction to decide their disputes and confer jurisdiction on a Court which by virtue of the provisions of Sections 16 - 20 of the Code has inherent lack of jurisdiction to try such dispute.

19. In the case in hand, the parties have their Head Offices within the territorial jurisdiction of this Court. The agreement Ext. PW-l/A was executed between them at Jeori and the work was to be executed at Manglad both of which are within the jurisdiction of this Court. There is no other factual aspect of the case which may confer territorial jurisdiction to try this suit on any Court in Delhi except Clause 17 of the agreement which provides (i) that this agreement shall be deemed to have been arrived at in New Delhi and (ii) the Courts at New Delhi alone shall have exclusive jurisdiction to settle the dispute between the parties. An admitted fact cannot be belied even by a deemed provision in the agreement. It is admitted case of the parties that the agreement was executed at Jeori. The expression deemed to have been arrived at New Delhi, therefore, is simply intended to confer jurisdiction in Delhi Courts whereas no such Court had jurisdiction to entertain the suit within the frame work of Sections 16 - 20 of the Code. Therefore, Clause 17 of the agreement which is apparently intended to oust the jurisdiction of the Courts which will ordinarily have the jurisdiction to entertain the suit and to confer it on a Court which otherwise has no jurisdiction to entertain it is invalid and on the strength of this clause it cannot be held that this Court has no territorial jurisdiction to entertain the suit. This issue is accordingly decided against the Defendant.

Issue No. 4 :

20. It was argued by the learned Counsel for the Defendant that after having stopped the work the Plaintiff accepted full and final payments for whatever work was done by it under the contract and issued no claim certificates Exts. DB, DC and DD certifying that all dues have been recovered by it and have no further claim against the Defendant. It is further certified vide Ext. DD that the agreement between the parties would be treated as closed. Thus having accepted the full and final payment in full and final satisfaction and closed the agreement, the Plaintiff is now estopped from filing the present suit.

21. It is evident from the perusal of the said certificates that each of them certifies receipt of amount in full and final satisfaction of a particular work and not of the claim which the Plaintiff might be having for damages if any. Ext. DD further treats the agreement dated 2.12.1996 as closed. There is nothing on the record to show that there was any agreement dated 2.12.1996 between the parties. Therefore, there is nothing in Exts. DB, DC and DD which may be construed as an act, conduct or deed of the Plaintiff to constitute the bar of estoppel against it. It is, therefore, held that the Defendant has failed to prove that the Plaintiff is estopped from filing this suit. This issue is accordingly held against the Defendant.

Issue No. 5 :

22. This issue was not pressed for the Defendant. Even otherwise the suit is not shown to be barred by limitation and had been instituted within time. Therefore, this issue is decided against the Defendant.

Issue No. 6 and 7 :

23. It was contended by the learned Counsel for the Plaintiff that in terms of the agreement Ext. PW-l/A, it could be terminated by either party after giving six weeks notice to the other party. The Defendant, however, stopped allotment of work to the Plaintiff on 30.11.2002 and entered into a new contract with a different party on 2.12.2002, that is, within two days of stopping of the work and did not issue any notice of termination of the contract as per the condition of the agreement. Thus, the rescinding of the contract being contrary to the condition of the agreement, the termination of the contract by the Defendant is illegal.

24. It was further contended by the learned Counsel for the Plaintiff that the agreement between the parties was operative for a period of one year and the Defendants having terminated the contract without notice within four months of the contract had deprived the Plaintiff of the benefits he would have earned had he been allowed to work for the full term of the agreement. According to the learned Counsel, in the event of allowing it to work the Plaintiff would have earned Rs. 10,000 per day as had been earned by the firm to which the work was subsequently allotted, as stated by PW-3. Therefore, the Plaintiff is entitled to the damages caused to him because of illegal termination of contract by the Defendants for a period of about 9 months @ Rs. 10,000 per day.

25. On the other hand the learned Counsel for the Defendant con tended that the Defendant committed breach of the contract and resiled to perform his part of the contract in as much as it did not engage a loader for loading the muck at loading point and dozing the muck at the dumping point from the day he commenced the work till 30.11.1996 despite instructions and demands by the Defendant. To engage such a loader by the Plaintiff was one of the conditions of the agreement which he failed to perform, therefore it cannot complain that the Defendant committed the breach of the contract. It was further contended that the claim of the Plaintiff is not based on loss of profit and Defendant had no opportunity to meet this claim now raised for the first time.

26. The Plaintiff has not laid foundation for its claim for damages for loss of profit as now claimed in the pleadings and even evidence was not led in the affirmative to prove the damages as is now sought to be chimed at the stage of arguments. It was in rebuttal evidence that PW- 3 had stated that his daily net profit from the job was about Rs. 10,000. Except this bare statement, there is nothing on record to corroborate this statement. In the given circumstances of the case, the Defendants had no opportunity to meet the claim as now sought to be made either in the written statement or by leading evidence. Further, there is neithe pleadings nor evidence as to what steps the Plaintiff took for mitigation of the damages and how far the damage caused to it stood mitigated by admitted assign ment of work to it by the Defendant at a later stage.

27. As per Clause 8.2(6) of the agreement Ext. PW-1/ A the work order under the agreement could be terminated by either of the parties after giving six weeks notice to the other party. The Defendant admittedly had not given any such notice to the Plaintiff. As per Clause 8.2(2) of the agreement Ext. PW-1/A the loader for loading and dozing the muck respectively at the loading point and dumping point was to be arranged by the Plaintiff. It is not in dispute that the Plaintiff did not arrange a loader from the date of contract till 2.12.1996 when the Defendant entered into a contract with another firm and entrusted the work to it. In view of the admitted failure of the Plaintiff to arrange for a loader it had committed breach of contract and such failure continued for a considerable long time, therefore, the Plaintiff virtually resiled from performing his part of the contract.

28. The case of the Plaintiff itself vide para 4 of the plaint is as follows:

4. That on 6.10.1996 the Plaintiff could not arrange sufficient funds for the front line loader but the Defendant insisted to immediately start the work of transportation of muck through Tippers which the Plaintiff started executing on the spot with effect from 6.10.1996. It is submitted that Nathpa Jhakri Joint Venture was in dire need of Tippers at the relevant time for carrying out transportation of muck as the Pollution Control Board, Himachal Pradesh, had been pressing hard to the Defendant for removal of the muck to the dumping site and as a matter of fact on account of this reason only, Defendant also provided front line loader to the Plaintiff for immediate execution of the work transportation of muck. It is submitted that in this manner sub-contract agreement entered into inter-se the parties was violated by the Defendant in the first instance.

29. It is writ large in the contents of the above Para that the Defendant was under pressure to remove the muck from the spot so much so that to avoid legal consequences it was forced to provide its own loader to the Plaintiff to do the needful though contrary to the terms and conditions of the agreement Ext. PW-l/A. This enabling act on the part of the Defendant, however, cannot be termed as a breech of contract as claimed by the Plaintiff but is an unwarranted favour under the compelling circumstances. The Defendant had to discontinue providing its loader to the Plaintiff because it was required for work by the Defendant elsewhere as stated by S.K. Dharmadhikari (DW-3) and Sandi Shrinivasan (DW-1). The Plaintiff was under obligation as per the terms of the agreement to arrange for the loader and it was none of the obligation of the Defendant to arrange a loader for the Plaintiff.

30. As per Clause 5 of the agreement Ext. PW-l/A the Plaintiff was to start the work immediately after the execution thereof on 10.9.1996. However, till 30.11.1996 it failed to arrange the most necessary equipment i.e. the loader despite directions and instructions by the Defendant to perform its part of the contract as stated by DW-1, DW-2 and DW-3.

31. In view of the above discussed evidence, it is held that the Defendant has not given the requisite notice terminating the contract but it was the Plaintiff who had committed breach of the contract by not executing the work in accordance with the terms and conditions of the agreement. These issues are accordingly disposed of.

Issue No. 8 :

32. It has already been held hereinabove that the Plaintiff has committed the breach of contract and has failed to perform its part of the contract. To succeed in a claim for compensation on the basis of breach of contract the Plaintiff has to prove that he was ready and willing to perform the contract on the agreed date in accordance with the agreed terms and conditions. A party who himself has committed breach of the contract cannot claim damages because such a claim will be inequitable and inconsistent.

33. In Narendra Lai Khan v. Manmotha Ranjan Pal and others AIR 1919 Cal 1000 , Calcutta High Court had held that a Plaintiff who has himself failed to perform his part of the contract and had not suffered damages because of the breach of contract by the Defendant cannot succeed in a suit for damages in breach of contract.

34. In Jiwa Ram v. Man Singh and others AIR 1934 Lah 84, Lahore High Court held that a Plaintiff cannot profit by his own breach of contract and to enforce contract against the opposite party, therefore, will be inconsistent and inequitable.

35. In Bhalchandra Pandurang Rajandekar v. Mahadeo Laxminarayan Shraogi and others : AIR 1947 Nag 193, it was held as under:

15. The Plaintiff had claimed in the alternative, if specific performance were refused, a sum of Rs. 9,000 by way of damages. It has been laid down by the Privy Council in 52 Bom. 597, that a suit for damages for breach of a contract is incompatible with a claim in the plaint for specific performance. Again in : AIR 1936 PC 236 , it was laid down that the Plaintiff cannot maintain an action claiming damages for the breach of an alleged contract unless he can aver and prove that he has performed or has at all times been ready to perform his part of the contract.

36. In view of the above position in law, the Plaintiff itself having committed breach of the contract is not entitled to claim damages.

37. It may also be pointed out that a person will be entitled to damages for breach of contract if the injury sustained by him could be contemplated by the parties and must be the immediate consequence of the breach of contract and not a remote consequence of such breach. In the case in hand even if the Plaintiff was not served with the six weeks requisite notice before the allotment of work to other firm, the direct consequence thereof may be loss of work till the expiry of the contract in the normal course and thereby loss of profit. It was, therefore, for the Plaintiff to aver and prove such damages. However, the claim of the Plaintiff is based on the following averments as in Para 7 of the plaint:

7. That the Plaintiff on several occasions requested to the Defendant to allot the work to him in accordance with sub-contract agreement executed between the parties but no heed was paid. In this regard a legal notice dated 30.7.1998 (copy enclosed) was also sent to the Defendant, whereby the Plaintiff claimed damages/compensation from the Defendant for the loss sustained by him. It is submitted that the sub-contract entered into inter-se the parties was for a period of one year and as per terms and conditions of the contract six weeks notice by either party was necessary to terminate the contract but the Defendant in high handed manner unilaterally determined the contract and stopped giving work to the Plaintiff whereby he was put to a great financial loss. It is stated that the Plaintiff had purchased new Tippers for execution from Tata Finance Limited and when those Tippers were stranded on account of rescinding of the contract by the Defendant vide letter dated 30.11.1996 (copy enclosed) the default occurred on the part of the Plaintiff in re-payment of loan to the Financers and now the Plaintiff is under huge liability for payment of outstanding amount as the Tippers since thereafter could not be engaged in some heavy work. It is submitted that Tata Finance Limited is stressing hard to claim the defaulted amount due along with heavy interest from the Plaintiff and as a matter of fact the default has occurred on account of totally indifferent high handed attitude on the part of the Defendant and as such the Defendant is solely and exclusively responsible for financial loss suffered by the Plaintiff and hence is liable for payment of damages and compensation to the extent of Rs. 25,00,000 (Rs. Twenty Five Lacs) which the Plaintiff is claiming by way of filing the present suit before this Honble Court.

38. The basis for claim as set out hereinabove, apparently is not the direct consequence of the alleged breach of contract by the Defendant but can be said only a remote consequence of closure of contract.

39. In view of the above discussion, the Plaintiff is not entitled to the damages claimed or any other amount. This issue is accordingly decided against the Plaintiff.

Issue No. 9 :

40. Since there is nothing illegal in the verification of the written statement, therefore, this issue was not pressed and is accordingly held against the Plaintiff.

Issue No. 10 :

41. In view of the findings given on Issue Nos. 6, 7 and 8 above, the suit merits dismissal and is accordingly dismissed with costs.