( 2025:JHHC:22145 ) IN THE HIGH COURT OF JHARKHAND AT RANCHI First Appeal No. 271 of 2023 Prem Kumar, son of Late Badri Prasad, proprietor of M/s Kailash Corporation having its office at Hotel Naresh Building, PO and PS- Chas, District-Bokaro, through his power of attorney holder Naresh Prasad Lodha, son of Late Sheo Shankar Lodha, resident of Bye Pass Road, Chas, PO and PS-Chas, District-Bokaro … … Plaintiff/Appellant -Versus- 1. Steel Authority of India Limited/Bokaro Steel Plant, represented by its Chief Executive Officer, having office at Administrative Building, PO and PS-BS City, District-Bokaro 2. General Manager (Materials Management) of Bokaro Steel Plant, having office at Administrative Building, PO and PS-BS City, District-Bokaro … … Defendants/Respondents --- CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellant : Mr. Rahul Lamba, Advocate : Mr. Aditya Mohan Khandelwal, Advocate : Mr. Anish Kamal, Advocate : Mr. Nilesh Modi, Advocate For the Respondents : Mr. Bibhash Sinha, Advocate : Ms. Puja Agarwal, Advocate --- 30/06.08.2025 Heard the learned counsels appearing on behalf of the parties. 2. This appeal has been filed against the Judgment and decree dated 25.07.2023 (decree signed on 04.08.2023) passed by learned Civil Judge, Senior Division-II, Bokaro in Original Suit No. 48 of 2016 whereby the suit for specific performance of the contract and/or for compensation/damages and also for refund of security deposit has been dismissed. 3. The suit was filed for the following reliefs: - (a) A decree may be passed that the contract Dated 20.02.1980 is still subsisting and Defendant is legally bound to supply the material to the plaintiff in accordance with the terms and conditions of the contract (b) A decree may be passed in favour of the Plaintiff directing the Defendant to supply the remaining contracted material i.e. 495.450 M.T. at the contracted rate. (c) A decree may be passed directing the Defendant to pay the compensation in addition to supply of material as the Defendant failed to supply the material as per the contract. ( 2025:JHHC:22145 ) 2 (d) A decree may be passed directing to the Defendant to pay the cost of the suit to the Plaintiff (e) A decree may be passed for any other relief/reliefs which the Plaintiff is entitled to get. (f) A decree may be passed directing the defendants to pay to the plaintiff by way of compensation an amount of Rs. 1,40,46,007/- towards the loss of earning or profit and Rs. 20,000/- towards the loss of reputation, goodwill and mental harassment or any other compensation as this Hon’ble Court may deem fit in the interest of the Plaintiff. (g) A decree may be passed directing the defendants to pay to the plaintiff by way of compensation an amount of Rs. 50,000 along with compound interest @ 18% per annum from 28.01.1980 till the date of payment of the said amount to the plaintiff? 4. The aforesaid prayers seeking damages as contained in the prayers (f) and (g) were introduced vide amendment dated 30.08.2022. No additional written statement was filed by the defendants. However, after allowing the amendment, the plaintiff’s witnesses were examined again. Earlier vide order dated 22.06.2018 both the defendants were debarred from filing written statement. The defendants did not adduce any evidence or cross examined the witnesses. 5. The learned trial court had framed two issues: - (i) Whether the suit is maintainable in its present form? (ii) Whether the suit is barred by law of limitation? 6. The learned trial Court held that the suit was barred by limitation and also held that the suit was not maintainable in its present form. Findings of the trial court “ 13…………………….. Further, if he is guided by the Clause of the judgment discussed later on, he might have filed the required suit within the given time frame of Law of Limitation. Also, if the Defendants were not complying the order and decree in the earlier suit viz. Money Suit 45/1983 then it was open for the Plaintiff to file an Execution Case and if he was dis-satisfied with the judgment of that suit or was waiting for the Defendant to comply the terms of the Contract and the Defendant was waiting to get the Criminal suit disposed off, he ought to have filed appropriate ( 2025:JHHC:22145 ) 3 suit/preferred appeal or revision before the appropriate forum. But waiting for the Criminal case to be disposed off does not appear to be sound contention on the part of the Plaintiff. 16. Now, going through the facts and circumstances of this case as well as the evidences, viz. One oral and forty Documentary evidences, adduced by the Plaintiffs, it is brought on the record that for the same cause of action, the plaintiff Forty Years before brought a Money Suit 45/83 in the predecessor Court, in which a decree and the judgment was passed on 09.04.1992, wherein and whereby the Defendant was directed to refund the advance amount of Rs. 2,03,822.50/- only withheld against the supply of used and old conveyor belts to the plaintiff alongwith 12% interest till the date of Payment. The security money was ordered not to be refunded with the observation that the contract was still subsisting. And further observed that "This court decides that as because the contract is subsisting and the defendant also accepts this as legally valid and correct, the plaintiff is entitled to get balance 495.450MT of conveyer belts at the specified rate as mentioned in the contract. But in a money suit, order for supply of balance 495.450 MT conveyer belts by the defendant to the plaintiff cannot be passed. Hence, the plaintiff shall have a willful and competent right and he will again make request to the company for delivery of the balance material. Even after making of the request to supply the materials, if the defendant does not supply the same, the plaintiff will be within his legal and willful right to recover the same by filing separate civil suit. In view of the findings and examinations stated above, this issue is decided in favour of the plaintiff and against the defendant. Therefore, this court is of the opinion that the plaintiff is entitled to get Rs. 2,03,822.50 plus interest 12% per annum from 7.8.80 till date of payment from the defendant except the security deposit amount of Rs. 50000.00. As far as the question of getting relief about the supply of balance conveyor belts is concerned, the plaintiff can bring a separate suit if on the request of the plaintiff the defendant fails to supply the materials mentioned in the contract. 17. Hence, the submission of Ld. lawyer for the plaintiffs that the Defendants have not paid the compensation as per the judgment and decree in the Money Suit No. 45/1983 and not complied the order as such of the predecessor Court, hence ( 2025:JHHC:22145 ) 4 this suit was filed by the Plaintiff in the year 2016 does not sustain. In the instant Case, the return of the Security Deposit is additionally sought by the Plaintiff, while neither the original suit, it was sought nor in the present suit. Hence, it is an afterthought of the Plaintiff. And PW1 himself admitted in his examination in Chief that the Defendant company has although returned his Rs. 2,03,822.50/- but did not return the Security Money deposited of Rs. 50,000/- that is still with the defendant company. The Plaintiff also failed to prove that the Defendant ever assured the plaintiff to complete the Contract after disposal of the afore-stated Criminal Cases. Hence, the plaintiff is working on his own whims and caprices. 18………………………………. 19. We shall now proceed to consider whether the suit was in fact barred by limitation. The period of limitation would be computed under either Article 55 or Article 113, both of which are laid out below of the facility of reference: - Description of suit Period of limitation Time from which period begins to run 55.For compensation for the breach of any contract, express or implied not herein specially provided for. Three years When the contract is broken or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs or (where the breach is continuing when it ceases). 113. Any suit for which no period of limitation is provided elsewhere in this Schedule Three years When the right to sue accrues. 20. It would be pertinent, at this point, to recall the decision of the Hon'ble Apex Court in Gannon Dunkerley and Co. Ltd. vs. Union of India (1969) 3 SCC 607, though that matter dealt with the provisions of the Indian Limitation Act, 1908. The Plaintiff therein filed a suit seeking an enhanced rate of compensation in light of the deviation in the nature of the work being rendered more complex, the increase in costs due to undue prolongation of the period of work, the increase in the quantity of work, and the grant of contracts to other competing parties at substantially higher rates. The Hon'ble Supreme Court held that the "suit filed by the Defendant ( 2025:JHHC:22145 ) 5 Company is not a suit for compensation for breach of contract express or implied: it is a suit for enhanced rates because of change of circumstances, and in respect of work not covered by the contract." The claim for enhanced rates was found to arise outside the contract and for this reason was not in the genre of an action for compensation for breach of contract. It was therefore held that the claim was not covered under Article 115 of the 1908 Act (which is in pari materia to Article 55 of the Limitation Act), and would have to fall within the ambit of Article 120 of the 1908 Act (which is akin to Article 113 of the Limitation Act). The facts at hand are similar to those in Gannon Dunkerley in that the damages sought by the present Plaintiff are for work covered by the contract, and the change in circumstances was directly caused by breaches ascribable to the Defendant BSL in not handing-over the articles on time. Facially, the suit claims are damages incurred due to the extension of the contract period and the resultant damages are incurred by the Plaintiff but no extension of time has been proved or brought on record by the Plaintiff. The suit would therefore fall within the ambit of Article 55. Article 113, which is a residuary provision, cannot be resorted to. 21. It also appears to us that the contract was clearly not broken as the Plaintiffs chose to keep it alive despite its repeated breaches by the Defendant BSL. The factual matrix presents a situation of successive or multiple breaches, rather than of a continuous breach, as each delay in handing over the articles by the Defendant BSL constituted to a breach that was distinct and complete in itself and gave rise to a separate cause of action for which the Plaintiff could have rescinded the contract or possibly claimed compensation due to prolongation of time and resultant escalation of costs. Of course, the Plaintiff is enabled to combine all these causes of action in one plaint, as postulated in the C.PC provided each claim is itself justiciable. Even the Plaintiff has argued before this Court that the suit was based on successive breaches committed by the Defendant. In my opinion, the suit was required to be filed within Three years of the happening of each breach, which would constitute a distinct cause of action. Article 55 specifically states that in respect of successive breaches, the period begins to run when the breach in respect of which the suit is instituted, occurs. In this vein, Rohtas Industries Ltd vs. Maharaja of Kasimbazar China Clay Mines ILR (1951) ( 2025:JHHC:22145 ) 6 1 Cal 420 is apposite as it has held that when a party agrees to deliver certain goods every month for a duration spanning certain years, the cause of action for breach for failure to deliver in a particular month arises at the end of that month and not at the end of the period of the contract. The situation before us is similar in that the cause of action had arisen on each occasion when the Defendant failed to hand over the articles at the contractually stipulated time. 22. Thus, the period of limitation did not commence at the termination of the contract period or the date of final adjudication of Marafari RS. No. 15(11) 80. For each breach, a corresponding amount of damages for additional costs could have been sought. The suit, however, was filed on 27.05.2016, well 21 years after the limitation period of Three years for even the final breach, as the various causes of action became time barred on 06.08.1980, 07.08.1980, 11.11.1980, 05.06.1982, 16.07.1983 and 09.04.1992, respectively. But it did not arose on 09.09.2015 in absence of any evidence to that effect. 24. It is therefore not legally possible for the Plaintiff to contend that there was a continuous breach which could have been litigated upon when the contract was finally concluded. In other words, contemporaneous with the extensions granted, it was essential for the Plaintiff to have initiated legal action. Since this was not done, there would be a reasonable presumption that the claim for damages had been abandoned and given a go-by by the Plaintiff. In a works contract, more often than not, delays occur, and that is why it is allow a fresh period of limitation with regard to the 'existing debt in respect of which acknowledgment and payment has been made. It would not extend the period of limitation for any fresh claim, or any amount not accepted by the other party. In the factual scenario before us, the payment of the Final Bill and Security Deposit could not be construed to accept or acknowledge the damages raised by the Plaintiff and therefore Section 19 would not per se extend the period of limitation. Furthermore, there could be no extension under Section 18 on account of the acknowledgement in writing, as at each point that the Plaintiff raised a claim for damages, it was specifically refuted by the Defendant and the amounts that were accepted by the Defendant were limited to the liabilities within the contract, not fresh liabilities for damages. ( 2025:JHHC:22145 ) 7 25. It has relied on M/s Disha Constructions vs. State of Goa (2012) 1 SCC 690 to this end. However, since the limitation period for the last breach alleged by the Plaintiff itself ended on 09.04.1992, this provision is irrelevant. It is thus clear that the Plaintiff failed to file the suit for damages within the given time-line of the Limitation Act. Even, the Plaintiff never appeared in person before the Court to portray his case on his own. Hence, both these issues: - ISSUE No. 1: Whether this suit is maintainable in its present form? ISSUE No. 2: Whether this suit is barred by the Law of Limitation? Are decided against the Plaintiff as per above discussions.” 7. The learned Trial court held that after the judgment passed in the earlier Suit i.e. Money Suit No. 45 of 1983, it was open to the plaintiff to file an execution case if the defendant did not act as per the judgment in the money suit and if the plaintiff was dissatisfied with the judgment an appeal ought to have been filed but waiting for the disposal of the criminal case did not appear to be sound contention on the part of the plaintiff. Vide judgment dated 09.04.1992 in Money Suit No. 45 of 1983, the defendant was directed to refund the advance amount of Rs. 2,03,822.50 which was withheld against the supply of material to the plaintiff along with interest but the security money was ordered not to be refunded with observation that the contract was still subsisting. It was also observed in the said judgement that as far as the contention of supply of balance material was concerned, the plaintiff could file a separate suit if on the request of the plaintiff the defendant failed to supply the materials mentioned in the contract. The learned court held that the plaintiff did not take appropriate steps in connection with the judgment passed in the money suit and the plaintiff failed to prove that the defendants ever assured the plaintiff to complete the contract after disposal of the criminal case. The learned trial court considered the point of limitation in the light of the Article 55 and Article 113 of the Limitation Act and held that the suit would be governed by Article 55 and not by Article 113 (the residuary article). ( 2025:JHHC:22145 ) 8 8. With respect to the claim for damages, the learned trial court held that the suit claimed damages incurred due to the extension of the contract period but no extension of time has been proved or brought on record by the plaintiff. The argument of the plaintiff that the suit was based on successive breaches committed by the defendant was rejected by the learned trial court. The learned trial court was of the view that the suit was required to be filed within three years of the happening of each breach which would constitute a distinct cause of action and Article 55 specifically provided that in respect of successive breaches, the period begins to run when the breach in respect of which the suit is instituted, occurs. 9. The learned court held that the suit was filed on 27.05.2016 well 21 years after the limitation period of three years for even the final breach as the various causes of action became time barred on 06.08.1980, 07.08.1980, 11.11.1980, 05.06.1982, 16.07.1983 and 09.04.1992 respectively but it did not arise on 09.09.2015 in absence of any evidence to that effect. The learned court held that the plaintiff failed to file the suit for damages within the period of limitation and decided that the suit was not maintainable and it was barred by limitation and answered both the issues against the plaintiff. 10. Arguments of the appellant A. The suit was filed for delivery of 495.450 MT of ‘used and old conveyer belts’ and was valued at Rs. 33 lacs at the time of filing of the suit on 27.05.2016. However, at the time of amendment in the plaint since the claim for damages and refund of security deposit was also introduced, the suit valuation was revised to Rs.1,40,46,007/- and deficit court fee was also paid for the same. The records further reveal that a petition was also filed by the plaintiff stating that the suit was required to be transferred to commercial court in view of the revised suit valuation, but the same was simply kept on record and no order was passed on the same. Ultimately the suit proceeded and it was decided on merits. However, the appellant has raised a plea before this Court that the trial court had lost its jurisdiction to ( 2025:JHHC:22145 ) 9 decide the suit and consequently, the impugned judgment on this ground alone cannot be sustained. B. The learned counsel for the appellant while assailing the impugned judgment and decree on merits submitted that there being no written statement filed on behalf of the defendants, the facts mentioned in the plaint remain uncontroverted. He has also submitted that the evidences were also produced in support of the case of the plaintiff. C. The learned counsel has submitted that a tender notice was floated by the defendants way back in the year 1979-80 inter alia for sale of ‘used and old conveyer belts’ on ‘as is where is’ basis in which the plaintiff participated against serial no. 33 of the material list being “used and old conveyer belts of assorted size” of quantity 714.800 MT along with requisites earnest money of Rs. 30,000. Upon negotiation a letter dated 20.02.1980 was issued by the then Controller of Stores of the defendant company communicating to the plaintiff that the offer of the plaintiff for purchase of 714.800 MT of used and old conveyer belt of assorted size on ‘as is where is basis’ @ Rs. 6650/- per MT plus sales tax as applicable subject to terms and conditions of the tender was accepted. The learned counsel has further submitted that the defendants instructed the plaintiff to lift 50 MT of used and old conveyer belts of 1st installment after making necessary payment and thereafter in 9 installments. Consequently, the amount of Rs. 30,000/- deposited on 26.06.1979 and further Rs. 20,000/- deposited on 28.01.1980 was converted as security deposit amounting to Rs. 50,000/-. The learned counsel has also submitted that the plaintiff had deposited a sum of Rs. 16,62,500/- by way of advance payment to the 1st and 2nd installment of 50 MT each and 3rd and 4th installment of 75 MT each towards lifting of material and the plaintiff was supplied only 219.350 MT out of 250 MT for which the money was deposited and consequently a balance amount of Rs. 2,03,822.50 was lying deposited with the ( 2025:JHHC:22145 ) 10 defendant. Thus, the remaining material to be supplied was 495.450 MT. Further the last payment was made by the plaintiff on 30.07.1980 and the last delivery was made to the plaintiff on 06.08.1980. D. It was further case of the plaintiff that while the 4th installment of the material delivery was going on, a criminal case was instituted being Marafari P.S. Case 12(8) 80 on 06.08.1980 against several persons and another case being Marafari P.S. Case No. 15(11) 80 was instituted against some of the officers of the Bokaro Steel Plant in connection with allegation of malpractices in awarding the contract to the plaintiff. It was the case of the plaintiff that pending investigation of both the criminal cases, the balance quantity was not supplied on the ground that the delivery will be given to the plaintiff after disposal of the criminal case. It was their case that the defendants started delivering old and used conveyer belts to other parties which was brought to the notice of the defendants by the plaintiff vide letter dated 05.06.1982. However subsequently in one of criminal cases being Marafari P.S. Case No. 12(8) 80 final form was submitted indicating ‘mistake of facts’ and the case was closed on 14.09.1982. E. In such circumstances the plaintiffs served a legal notice dated 16.07.1983 either to give the balance contracted material or to refund a balance amount of Rs. 2,03,822.50 which was lying with the defendants and also for refund of security deposit of Rs. 50,000/- along with the interest. F. Having no response, ultimately a money suit no. 45 of 1983 was filed against the defendants for the relief which has been quoted in paragraph 20 of the plaint which was primarily for a refund of Rs. 2,03,822.50 (advance payment) and refund of security deposit of Rs. 50,000/- with an alternative plea that the defendants be directed to supply the balance quantity of conveyer belts weighing 495.450 MT within a fixed time. By way of amendment, the plaintiff also claimed compensation an ( 2025:JHHC:22145 ) 11 amount of Rs. 1,40,46,007/- towards the loss of earning or profit and Rs. 20,000/- towards the loss of reputation, goodwill and mental harassment. G. Money Suit no. 45 of 1983 was contested and was ultimately decided vide judgment and decree dated 09.04.1992 whereby the defendant was directed to refund the advance amount of Rs. 2,03,822.50 with interest @ 12% till the date of payment. However, the court observed that the contract was still subsisting and therefore there was no question of refund of security money. The court further observed that as far as question of getting relief about supply of balance conveyer belt is concerned, the plaintiff would bring a separate suit, if on the request of the plaintiff, the defendants fails to supply the materials mentioned in the contract. H. By the time the suit was decided, only one of the criminal cases was closed and the other criminal case which was Marafari P.S. Case No. 15(11) 80 was still pending. The defendants had taken a specific stand in the written statement filed in the aforesaid money suit no. 45 of 1983 that as long as the criminal case was pending there was no question of any supply. I. After the judgment and decree dated 09.04.1992 in Money Suit No. 45 of 1983, the defendants refunded advance amount of Rs. 2,03,822.50 along with interest to the plaintiff in the same year while the security deposit of Rs. 50,000/- was retained by the defendants and till date the same continues to be with the defendants. J. The other criminal case namely Marafari P.S. Case No. 15(11) 80 ended in the acquittal of the plaintiff and other accused persons vide judgment dated 13.03.2015 and the copy of the same was forwarded to the Chief Executive Officer of the defendant’s company. Further, vide letter dated 18.09.2015 sent through registered post, the plaintiff made a request to the Chief Executive Officer of the defendant company for resumption of the delivery/lifting of balance contracted quantity of 495.450 ( 2025:JHHC:22145 ) 12 MT of used and old conveyer belts at the contract rate of 6650.00 per MT plus applicable taxes which was the rate fixed as per the contract way back in the year 1980. In terms of the judgment and order dated 09.04.1992 passed in the suit, the plaintiff also expressed willingness to deposit the payment of subsequent installments as soon as communication is received from the defendants. The plaintiff did not receive any communication till the date of filing of the suit and ultimately the suit was filed. K. The learned counsel for the appellant has submitted that after amendment of the plaint seeking relief of damages upon recall of the plaintiff witness or re-examination on 22.05.2023, original copy of letter/notice dated 10.02.1993 issued by the plaintiff to the defendants was produced and marked Exhibit- 10. The learned counsel has specifically placed the said exhibit to submit that immediately after the judgment passed in Money Suit No. 45 of 1983 dated 09.04.1992, the plaintiff had approached the defendants through the managing director for taking the delivery of balance quantity of 495.450 MT of used and old conveyer belts and also disclosed that the officials of the defendants were saying that the supply of balance quantity of material cannot be effected as the criminal case bearing Marafarai P.S. Case No. 15(11) 80 was pending and that the delivery of the material will be made only after outcome of the case. The plaintiff was also advised by the officials of the defendants to wait till the disposal of the case for lifting of the balance material. He submits that by the said letter the plaintiff expressed their readiness and willingness to deposit the material value of the installment as soon as communication is received from the end of the defendants as per the procedure and terms and conditions of the contract and also indicated that plaintiff was waiting till the outcome of the criminal case and the defendant company is estopped from taking any adverse action. The learned counsel has submitted that the said letter was ( 2025:JHHC:22145 ) 13 sent by registered post, however, during court proceedings it has been observed that no registry receipt of the same was exhibited and no receiving of the said letter is on record. L. In absence of any written statement on behalf of the defendants, the evidence brought on record by the plaintiff in support of the case remained undisputed and uncontroverted and therefore there is no legal impediment in taking into consideration the letter dated 10.02.1993. He has submitted that this document was marked without objection from the side of the defendants who were participating in the proceedings. The learned counsel submits that the exhibit-10 was sufficient to hold that delivery could not be made to the plaintiff in spite of the judgement passed in Money Suit No. 45 of 1983 dated 09.04.1992 merely on account of the pendency of the aforesaid criminal case being Marafari P.S. Case No. 15(11) 80. M. Thereafter in the year 2015, when the said case ended into acquittal, the plaintiff served a letter dated 18.09.2015 addressed to the Chief Executive Officer of the defendant’s company giving the entire background and requested for resumption of supply. N. At no point of time, the agreement was not terminated as the defendants were conscious of the fact that supply would resume once the criminal case ended. As the contract was still subsisting, the plaintiff was entitled for supply of the balance quantity as per the terms and conditions of the contract for which the rate per metric ton was fixed at Rs. 6650 per Metric Ton as back as on 20.02.1980. O. Physical running of time after the disposal of money suit no. 45 of 1983 will not be decisive in view of the fact that the entitlement of the plaintiff continued and was only suspended on account of pendency of the criminal case and once the criminal case ended into acquittal, the right to receive goods in terms of the contract revived and therefore the cause of action ( 2025:JHHC:22145 ) 14 for the suit is to be counted from 18.09.2015 and the suit was filed soon thereafter. P. The learned counsel submits that the learned trial court erred in law in holding that the suit itself was barred by limitation. Accordingly, the aforesaid fact regarding non supply of the balance quantity of 495.450 MT as well as the rate remaining undisputed, the plaintiff is entitled for a decree for supply of the said quantity/amount. He submits that if a decree is passed to that effect, then under such circumstances, there is no question of refund of security deposit and if this supply is allowed there is no question of compensation would arise. The claim of compensation/refund of security is only as an alternative plea, the main relief is supply of balance of supply of 495.450 MT at the contract rate of 6650 per metric ton fixed as per the contract dated 20.02.1980. Q. The learned counsel has submitted that the period of contract as such was not fixed and Article 54 of the Limitation Act would be applicable and the period of limitation will be available for 3 years from the date when the plaintiff is informed about refusal of performance of contract. He submits that in spite of request for supply having been given in the year 2015, no response was received, then the suit was filed seeking relief of supply of the remaining material. Therefore, even if no reply to the notice is taken as refusal to supply, then also as per Article 54 of the Limitation Act, the limitation would commence from the year 2015. He has submitted that only after issuance of letter in the year 2015 by the plaintiff, it came to light to the plaintiff that the defendants are not willing to perform their part of the contract which was first and the last cause of action for filing the suit so far as resumption of supply for the balance quantity is concerned. R. The learned counsel has also referred to Exhibit-8 to submit that as per Exhibit-8, the defendants used to demand the amount to be deposited by the plaintiff with respect to the material ( 2025:JHHC:22145 ) 15 which was available for supply. He submits that supply was to be made in installments and the payment was also required to be made in installments after the communication of the availability of the material for supply as provided in Exhibit-8. 11. Arguments of the respondents I. At the time of filling of money suit no. 45 of 1983, two criminal cases were pending and at the time of judgment, one criminal case was pending. In spite of pendency of one of the criminal case, the learned court while decreeing the suit had directed the plaintiff to approach the defendants for the purposes of taking the balance quantity. Marking of the letter dated 10.02.1993 requesting for supply of balance quantity in terms of judgment in Money Suit as exhibit-10 without any objection, does not amount to proof of the document, much less, even proof of dispatch of the said document. II. The suit was filed through the power of attorney holder, but the proprietor of the plaintiff namely Prem Kumar never deposed before the court. He has also submitted that in his evidence, the power of attorney has not disclosed the content of the letter dated 10.02.1993 and it has only been exhibited. On account of non-examination of Prem Kumar on behalf of the plaintiff, the proprietor of plaintiff could not be cross examined with respect to the said document dated 10.02.1993 (exhibit-10). III. The learned counsel has also submitted that in the plaint, there is no reference to the letter dated 10.02.1993 and there is no reference as to what the plaintiff has done during the intervening period from the date of disposal of the money suit no. 45 of 1983 in the year 1992 till 2015. The letter dated 10.02.1993 was not placed on record when the plaintiff witness was initially examined. It was placed on record only after the amendment was allowed and the plaintiff witness was recalled and apparently this document is an afterthought. In absence of any foundational pleading in connection with any action taken by the plaintiff after the disposal of the money suit till 2015, ( 2025:JHHC:22145 ) 16 exhibit-10, the letter dated 10.02.1993, has no value in the eyes of law. Apart from the aforesaid fact, the letter dated 10.02.1993 (exhibit-10) has neither been duly proved nor its dispatch has been proved nor the proprietor of the plaintiff has adduced evidence so as to enable his cross examination, nor the plaintiff witness has stated anything with regard to the contents of the letter dated 10.02.1993 nor there is any foundational pleading with respect to the letter dated 10.02.1993. IV. After the disposal of the money suit no. 45 of 1983, the right to claim balance quantity was given by the judgment and decree of the money suit itself and the court declined to give such relief in the suit by citing reason. It was for the plaintiff to approach the appropriate authority for release of the balance quantity, but no such step was taken and after the disposal of the criminal case in the year 2015 and after expiry of 23 years from disposal of the money suit, the plaintiff has tried to revive his dead claim by referring to the acquittal judgment and claimed the balance quantity at the same rate as the contracted rate which was fixed way back in the year 1980. V. As per the terms and conditions of the tender (terms and conditions of tender sale) clause 10 reveals that the purchaser has to lift the material in installments but the payment has to be made at one go and the payment was to be made within ten working days commencing from the date of tender. He has submitted that admittedly the plaintiff has not deposited the entire value of the material and even after the judgement passed in the money suit, the entire value of the remaining material was not deposited. The contract was enforceable only in connection with the amount which was deposited by the appellant and nothing more. VI. The learned counsel has also referred to the list of materials at clause 33 and has submitted that the specific quantity of material with description and location was given and therefore there cannot be any doubt that the material was available and ( 2025:JHHC:22145 ) 17 earmarked for the purpose of contract. The plaintiff had themselves said that the material was being supplied to 3rd parties earlier but in the money suit ultimately it was held that the contract was continuing and the claim of refund of security deposit was denied. Either party never challenged that judgment. The learned counsel has referred to clause 12(a) of the terms and conditions of contract of tender to submit that in the event of failure to complete the payment of sale value of the material by the purchaser within the stipulated period, the sale of such material was to be cancelled and the security deposit to be forfeited and the material to be resold or otherwise disposed of without any notice to the purchaser and any loss on resale shall be recovered from the purchaser. The learned has submitted that in view of clause 12(a) no further steps were required to be taken by the defendants. The very act of selling the goods to 3rd party itself indicated that there was disruption in the contractual relationship between the parties. There was recession of contract. VII. The cause of action at best arose within 3 years from the date of the judgment in money suit no. 45 of 1983 which expired sometimes in the year 1995 and the suit has been rightly held to be hopelessly barred by limitation which was filed only in the year 2016. The learned counsel has submitted that the letter issued by the plaintiff in the year 2015 after disposal of the criminal case has no bearing as the money suit no. 45 of 1983 never indicated that the plaintiff would be entitled to supply after the disposal of the criminal case. VIII. As per Section 16(c) of the Specific Relief Act, 1963, three basic ingredients are required to be satisfied to seek Specific Performance of Contract they are; (1) there is a valid and effective contract; (2) the plaintiff has performed his part of contractual obligations and is all along ready and willing and (3) the defendant has failed to discharge its contractual obligations. Tn the instant case, the contract entered into the ( 2025:JHHC:22145 ) 18 parties stood impliedly cancelled in terms of Clause 12(a) of the Exhibit 2 and furthermore in the said clause, it is specifically provided that in the event of failure on the part of purchaser for payment of sale value of the said material within the stipulated period, sale of such material will be cancelled, security deposit will be forfeited and the materials will be resold without any further notice. This inaction of almost 23 years without any valid explanation clearly demonstrates that the plaintiffs have accepted the implied cancellation of contract. The suit is hopelessly barred by limitation. IX. The learned counsel has further submitted that once the suit is held to be barred by limitation, there is no question of entering into the merits of the matter. He has referred to the judgment passed by the Hon’ble Supreme Court reported in (2008) 12 SCC 577 (Kamlesh Babu and Others versus Lajpat Rai Sharma and Others) paragraph 17,18,19 22 and 23. With respect to examination of power of attorney, the learned counsel has relied upon paragraph 12 of judgment reported in 2024 SCC Online SC 981 (Rajesh Kumar versus Anand Kumar and Others). 12. Rejoinder argument of the appellant In response, the learned counsel for the appellant has submitted that clause 10 of exhibit-2 is wrongly interpreted by the counsel for the respondents. He submits that the payment was to be made to the extent of availability and readiness on the part of the defendant to supply and the parties had understood it in that manner. Consequently exhibit-8 was issued asking the plaintiff to make payment with respect to the quantity which was ready for supply. With respect to clause 12(a), the learned counsel has submitted the fact that 3rd parties were being supplied was already on record in the earlier money suit and in spite of that, the learned court had decreed the suit and had held that the contract was still valid and had permitted to plaintiff to approach the defendants for the supply of the balance quantity. The said judgment having not been challenged, it is ( 2025:JHHC:22145 ) 19 not opened to the defendants to say that by their conduct of selling the property to the 3rd party, the contract stood terminated. Under such circumstances, the plaintiff is entitled to refund of the security deposit as the defendants have not foreclosed the contract so far and has retained the security deposit throughout. 13. Points for determination are as under: - (1) Whether the impugned judgement is wholly without jurisdiction on the ground that the learned trial court lost jurisdiction to decide the case during the pendency of the suit upon amendment of the commercial courts Act, 2015 in the year 2018 and also upon amendment of the plaint in the year 2022 enhancing the suit value to more than 1 crore and accordingly the suit was required to be transferred to the commercial court? (2) Whether the suit is barred by limitation? (3) Whether the plaintiff is entitled for relief for Specific Performance of Contract? (4) Whether the plaintiff is entitled for damages/ monetary compensation or for refund of security deposit of Rs. 50,000/-? 14. Case of the plaintiff A. The defendant issued a tender notice in the year 1979-80 for disposal of unserviceable / salvaged materials from Stores Deptt. on ‘AS IS WHERE IS BASIS’ in which the plaintiff participated against serial no. 33 of the material list being "used and old conveyor belt of assorted size” quantity 714.800 MT and was awarded the contract @ Rs. 6,650/MT plus applicable taxes. The earnest money /security deposit was to the extent of Rs.50,000/- and letter dated 20/02/1980 was issued to the plaintiff which he accepted subject to the terms and conditions of the tender. It was the case of the plaintiff that the contract got concluded and the title in the goods passed from the defendant to the plaintiff. By the aforesaid letter the defendant instructed the plaintiff to lift 50 MT of used and old conveyor belts in 1st installment after making necessary payment and thereafter in 9 installments. ( 2025:JHHC:22145 ) 20 B. The plaintiff on different dates deposited a total sum of Rs. 16,62,500.00 by way of advance payment towards 1st and 2nd Installment of 50 MT each and 3rd and 4th installments of 75 MT each towards lifting of the materials against money receipts granted by the defendant. Against the advance payment of Rs.16,52,500.00 for 250 MT materials, the defendant supplied 219.350 MT worth Rs. 14, 58.677.50 on various dates. C. Thus, a balance advance amount of Rs. 2,03,822.50 was lying deposited with the defendant towards cost of materials against which delivery was not given. Thus, out of the total contracted quantity of 714.800 MT only 219.350MT has been delivered and therefore, 495.450 MT materials remained to be delivered by the defendant to the plaintiff. The last payment was made by the plaintiff on 30/07/1980 and last delivery was made to the plaintiff on 06/08/1980. D. It is the case of the plaintiff that while the 4th installment of material delivery/lifting was going on, a criminal case being Marafari---P.S. case no. 12(8) 80 was instituted on 06/08/1980 against several persons, inter alia, against some employees of the defendant as well as some persons of the plaintiff on certain allegations on a complaint by CISF and thereafter further supplies to the plaintiff was stopped by the defendant. Another criminal case being Marafari P.S. no. 15(11) 80 was instituted against some officers of Bokaro Steel Plant by the police with allegation of malpractices in awarding the aforesaid contract to the plaintiff. E. Pending investigation of both the criminal cases referred above, the plaintiff on a number of occasions approached the defendant for supply of the balance quantity of 495.450 MT of used and old conveyor belts but was told every time by the defendant that the delivery will be given after disposal of the criminal cases. In spite of repeated requests and reminders by the plaintiff the defendant did not give delivery of the remaining quantity of the contracted material to the plaintiff. However, the defendant started deliveries to other parties which was duly brought to the notice of the defendant by the plaintiff in his letter dt 5.6.82. F. The police submitted Final Report no. 87/82 dt. 06/09/1982 as "mistake of facts" in Marafari P.S. case no. 12 (8) 80 and the case was closed. G. The plaintiff served a legal notice dt. 16/07/1983 to the defendant, inter alla, demanding that either the balance contracted material be supplied or in the alternative, a sum of Rs 2,03,822.50 and Rs 50,000.00 being security deposit be refunded along with interest. The defendant neither supplied ( 2025:JHHC:22145 ) 21 the remaining quantity nor refunded the advance amount. The plaintiff filed a money suit no. 45 of 1983 against the defendants praying as follows: (i) That a decree may be passed in favour of the plaintiff against the defendant for a sum of Rs. 3,90,322.50 (Rs 2,03,822.50 on account of advance payment plus Rs 50,000.00 on account of security deposit plus Rs 1,36,500.00 on account of interest plus pendentilite interest) or in the alternative a decree may be passed in favour of the plaintiff and against the defendant and directing the defendant to supply the balance quantity of conveyor belts weighing 495.450 MT on taking balance amount from the plaintiff within a time to be fixed by this learned court failing which to pay the said sum of Rs. 3,90,322.50 with further interest @18% per annum. (ii) That a decree may be passed for costs of the suit and interest pendent lite and future. (iii) That any other relief or reliefs to which the plaintiff is found entitled to, may also be granted to him. H. That the defendant in their "written statement" filed in the said money suit no. 45 of 1983 categorically admitted the aforesaid facts and the defendant in Para 11 of the "written statement" made averment that "so long the criminal case is pending, the defendant is not in a position to release the contracted material either under law or under the specific terms of the contract any sum much less the sum alleged to be due and payable to the plaintiff". I. The judgment was passed in money suit no. 45 of 1983 followed by decree dated 09.04.1992 whereby the defendant was directed to refund the advance amount of Rs 2,03,822.50 withheld against the supply of used and old conveyor belts to the plaintiff along with 12% interest till date of payment. The security money was ordered not to be refunded with the observation that the contract was still subsisting. The Learned Sub Judge II, Bokaro in its judgment referred above has also observed to the following effect: - (i) As because the contract is subsisting and the defendant also accepts this as legally valid and correct, the plaintiff is entitled to get balance 495.450MT of conveyer belts at the specified rate as mentioned in the contract. ( 2025:JHHC:22145 ) 22 (ii) But in a money suit, order for supply of balance 495.450 MT conveyor belts by the defendant to the plaintiff cannot be passed. (iii) Hence, the plaintiff shall have a willful and competent right and he will again make request to the company for delivery of the balance material. (iv) Even after making of the request to supply the materials, if the defendant does not supply the same, the plaintiff will be within his legal and willful right to recover the same by filing separate civil suit. (v) the plaintiff is entitled to get Rs 2,03,822.50 plus interest @ 12% per annum from 7.8.80 till date of payment from the defendant except the security deposit amount of Rs 50000.00. (vi) As far as the question of getting relief about the supply of balance conveyor belts is concerned, the plaintiff can bring a separate suit if on the request of the plaintiff the defendant falls to supply the materials mentioned in the contract. J. In compliance with the judgment and order dated 9.4.1992 in money suit no. 45 of 1983, the defendant refunded the amount of Rs. 2, 03,822.50 along with Interest to the plaintiff in the same year while the security deposit of Rs 50,000.00 was retained by the defendant and is still lying with the defendant. K. That the other criminal case bearing Marafari P.S. case no. 15 (11) 80 also ended in acquittal by judgment dated 13.03.2015. The certified Xerox copy of the said judgment dated 13.03.2015 had been sent by the plaintiff to the Chief Executive Officer of the defendant by registered post on 09.09.2015 which was duly received by him. The plaintiff his letter dated 18.09.2015 sent through registered post has made a request to the Chief Executive Officer of the defendant company for resumption of delivery/lifting of balance contracted quantity of 495.450 MT of used and old conveyor belts at the contracted rate of Rs. 6,650.00 PMT plus applicable taxes as per the direction and observation of the learned Sub Judge II, Bokaro made in his judgment and order dated 09.04.1992 which has been duly received by him. L. In the said request letter, the plaintiff expressed his willingness and readiness to deposit the payments of the subsequent installments as soon as communication is received from the defendant. As per the procedure and practice, the advance installment payment towards value of the material can only be ( 2025:JHHC:22145 ) 23 deposited with the accounts department of the defendant company after receiving written communication by the plaintiff from the defendant company as evident from past such communication dated 22.04.80 and 25.04.80. M. The plaintiff had not received any communication whatsoever from the defendant regarding resumption of the delivery of the balance quantity 495.450 MT of old and used conveyor belts as per terms of the contract. There is a regular arising of old and used conveyor belts in the Bokaro Steel plant in the operation of the factory as conveyor belts are discarded and replaced from time to time in various shops of the plant after their use. It is regular practice the defendant company to sell the contracted material (used and old conveyor belts) since inception of its production process, to various parties through auction, tender, e auction etc. N. Loss and damages. That the plaintiff has suffered huge loss due to non-delivery of the contracted quantity. Without prejudice to the above and the prayer seeking specific performance of the contract for delivery to the Plaintiff of 495.450 MT of the concerned materials, the Plaintiff asserted that if the Defendant would have performed its contractual obligation of delivering the 495.450 MT of the concerned material then the Plaintiff would have sold the said material in the market to 3rd parties and the Plaintiff would have made profit being the amount of market price of such material reduced by the purchase price of the Plaintiff from the Defendant. However, as the Defendants have failed to deliver the said materials to the Plaintiff, the Plaintiff has suffered the direct loss of said profit which the Plaintiff shall have made by selling the said material to 3rd parties. The Plaintiff had requested the Defendant vide its said letter dated 18.09.2015 to deliver 495.450 MT of the concerned materials, at the contracted rate of Rs. 6650 per MT plus sales tax. However, the Defendants did not deliver the said materials to the Plaintiff. The rate at which the Plaintiff could have sold the said materials to 3rd parties during September 2015 to early 2016 is Rs. 35,000 per MT. Accordingly, the Plaintiff would have made a profit of Rs. 35000 - Rs. 6650 per MT which comes to Rs. 28,350 per MT. The total profit which the Plaintiff would have earned is Rs. 28350 per MT x 495.450 MT which comes to Rs. 1,40,46,007. In addition to the above, it is humbly submitted that the Plaintiff was waiting for almost 36 years since 06.08.1980 to take delivery of 495.450 MT of the concerned materials, and because of non-delivery to his customers the plaintiff suffered loss of reputation, good will and mental harassment and hence the plaintiff is entitled to a ( 2025:JHHC:22145 ) 24 compensation of Rs. 20,00,000 for the loss of reputation, goodwill and mental harassment for 36 years. The Defendant since 28.01.1980 are enjoying the security deposit amount of Rs. 50,000 given by the Plaintiff without performing their contract obligations of delivering the said materials to the Plaintiff. Therefore, by way of compensation, the Plaintiff is also entitled to payment by the Respondent of interest @ 18% per annum compounded annually on the said amount of Rs. 50,000 since 28.01.1980 along with the principle amount of Rs. 50,000 till the date of actual payment to the Plaintiff. O. Cause of action The cause of action arose on 26.09.1979, when the plaintiff submitted tender; on 28/29th January, 1980 when negotiation committee meeting was taken place and the rate was revised @ Rs.6650/- P.M.T. to lift the materials on installment; On different dates, when the material was lifted by the plaintiff by making payment of material; on 06.08.1980 when Marafari P.S. Case No. 12(8) 80 dated 07.08.1980, was instituted; on 07.08.1980 when the supply of the contracted material was stopped; on 11.11.1980 when another Marafari P.S. Case No. 15(11)80 was instituted. The cause of action further arose on 05.06.1982, when the plaintiff requested the defendant company for supply of balance material. On 16.07.1983, the Learned Advocate of the plaintiff requested the defendant for refund of money and supply of balance material. It also arose on 09.04.1992, when the Learned Court of Sub-Judge II was pleased to pass judgment and decree in money suit no. 45 of 1983 filed by the plaintiff against the defendant and in the said Money Suit, Bokaro Steel Plant submitted that due to pendency of Criminal Case No. 15(11)80, no refund of advance amount would be made to the plaintiff nor any material could be supplied to the plaintiff; Cause of action also arose on 13.03.2015 when the other criminal case ended in acquittal of the plaintiff and others ; It also arose on 09.09.2015 when the plaintiff sent a copy of judgment dated 13.03.2015 to C.E.Ο of B.S.L. by registered post and further on 18.09.2015 when the plaintiff made request to C.E.O. of B.S.L. (defendant company) for resumption of delivery/lifting of balance of contracted quantity of 495.450 MT of used and old conveyor belts as contract was still subsisting. 15. The suit was instituted on 27.05.2016. The records of the case reveal that there were two defendants and the court had issued summons to the defendants by registered post, but both the defendants ( 2025:JHHC:22145 ) 25 did not file their written statement and vide order dated 22.06.2018, both the defendants were debarred from filing their written statements. The record further reveals that although the written statement was not filed, but the defendants had participated in the proceedings and had duly cross examined the witnesses of the plaintiff. The plaintiff (the proprietor) was not examined and the sole witness for the plaintiff was the power of attorney dated 26.05.2016 of the plaintiff who was examined as P.W-1. The plaintiff led numerous documentary evidences. The suit was amended and few paragraphs regarding claim of damages and the two prayers for claim of damages were introduced but the defendants did not choose to file response to the amended plaint. The plaintiff’s witness was recalled and examined and cross- examined. Oral evidence. 16. In course of trial, the plaintiff examined only one witness i.e. PW-1 who filed his examination-in-chief on affidavit stating that he is the power of attorney holder and filed power of attorney (exhibit-1) of the plaintiff and he is fully aware of the facts of the suit. The sole witness has fully supported the case of the plaintiff as pleaded and exhibited the documents mentioned in the chart given in the later part of this judgement. During cross-examination, he admitted at Para-42 that he has not filed the plaint of Money Suit No.45/1983. He also admitted at Para- 45 that it is not stated in the written argument filed in Money Suit No.45/1983 that during pendency of the criminal case, Used and old conveyor belt would not be provided to the plaintiff. He also admitted at Para-46 that the plaintiff did not cancel the contract on non-supply of the goods by the Bokaro Steel Limited to the plaintiff. He also admitted at Para-49 that they came to know that fresh auction of the goods which were to be provided to the plaintiff, was held and the successful bidder is lifting the conveyor belt. He further admitted at Para-54 that the written argument of the Bokaro Steel Limited filed by the plaintiff does not bear the signature of any advocate or any competent officer of Bokaro Steel Limited. He also admitted at Para- ( 2025:JHHC:22145 ) 26 55 that the Bokaro Steel Limited was returned the advance amount alongwith interest to the plaintiff. He also admitted at Para-59 that in the judgment dated 09.04.1992 passed in Money Suit No.45/1983, the learned court had pronounced that the order for supply of conveyor belt cannot be given in a money suit. He denied the suggestion at Para-61 that the plaintiff had not submitted any letter for supply of goods to the Bokaro Steel Limited after the Judgement passed by the court and therefore, he is not in a position to file any letter, but he can file the same after seeing the documents kept at the office of the Kailash Corporation. He admitted at Para-64 that he has not worked at any post in Kailash Corporation. He admitted at Para-69 that the tender form submitted by the plaintiff bears his signature. He further admitted at Para-60 that before lodging the criminal case against the plaintiff Kailash Corporation in 1980, no criminal case was filed against the owner Prem Kumar, but criminal case was filed against other employees, but he cannot say the name of those officers / employees. In 1980, it was alleged that new goods are being taken in place of old goods. He also stated that the defendant company has complied with decree passed in Money Suit No.45/1983. On recall, PW-1 filed his further examination-in-chief stating that if the defendant company had supplied "Used and old conveyor belt of assorted size" to the plaintiff under the agreement period, then the plaintiff would have earned a reasonable profit by selling it, but due to non-supply of "Used and old conveyor belt of assorted size" by the defendant company, the plaintiff suffered huge loss. He further stated that if the defendant company had supplied the remaining 496.450 metric tons of "Used and old conveyor belt of assorted size" after the letter dated 18.09.2015 to the plaintiff, then the plaintiff would have earned a profit of Rs.1,40,46.007/- by selling it at the rate of about Rs.28.350/- per metric ton, which the plaintiff was deprived of due to the arbitrary non supply by the defendant company and the plaintiff is entitled to receive this compensation. He further stated that even after lapse of about 36 years after 06.08.1980, the defendant company has not supplied the plaintiff company's outstanding 495.450 metric tons ( 2025:JHHC:22145 ) 27 of "Used and old conveyor belt of assorted size" due to which the plaintiff company's credit and reputation has been damaged, for which the plaintiff company is entitled to receive Rs.20,00,000/- as compensation. He also stated that the defendant company has retained the security deposit of Rs.50,000/- deposited by the plaintiff company and therefore, the plaintiff company is entitled to receive 18% annual compound interest on Rs.50,000/-. He further stated that a contract was made between the plaintiff and the defendant company in the year 1980 for the supply of a total of 714.80 metric tons of "Used and old conveyor belt of assorted size", out of which the defendant company has not supplied 495.450 metric tons even after a lapse of about 43 years after 30.07.1980, due to which it is impossible to use the "Used and old conveyor belt of assorted size" of 1980 at present and therefore, the plaintiff company is entitled to get new "Used and old conveyor belt of assorted size" at the agreed rate and if the defendant company is unable to supply new "Used and old conveyor belt of assorted size", then the plaintiff company is entitled to get the entire compensation amount. He exhibited the original office copy of the letter dated 10.02.1993 sent to the defendant company as Exhibit-10. He identified the internet downloaded copies of the auction notices dated 09.08.2017, 06.09.2017, 04.10.2017, 11.10.2017, 01.11.2017, 08.11.2017, 06.12.2017, 03.01.2018, 10.01.2018, 07.02.2018, 22.03.2023 and 29.03.2023 of the defendant company as Identification- X/7, X/8, X/9. X/10, X/11, X.12, X/13, X/14, X/15, X/16, X/17 and X/18. He also identified the photocopies of Delivery Order No. 72408, dated 22.09.2022, Delivery Order No. 72282, dated 08.09.2022, Delivery Order No. 71724, dated 02.06.2022, Delivery Order No. 72165, dated 17.06.2022, and Offer Letter dated 22.07.2022 of "Used and old conveyor belt of assorted size" supplied by the defendant company to different buyers as Identification-X/20, X/21, X/22, X/23 and X/24 respectively. He further stated that information regarding the selling rate of "Used and old conveyor belt of assorted size" for the financial year 2015-16 to 2021-22 was sought from the defendant company through letter dated 01.02.2023 under ( 2025:JHHC:22145 ) 28 the Right to Information Act 2005, but the defendant company refused to disclose the rate through its reply dated 22.02.2023. He exhibited the application dated 01.02.2023 and reply dated 22.02.2023 as Exhibits-11 and 12. He stated that the claim of the plaintiff is true and the plaintiff is entitled for the reliefs claimed in the suit on the basis of the Judgment passed in Money Suit No.45/1983 and the written statement and written arguments of the defendants. During cross- examination, he exhibited original copy of letter/notice dated 10.02.1993 as Exhibit-10. He admitted at Para-16 that the Bokaro Steel Plant has complied the order passed in the money suit in 1983. He also admitted at Para-17 that after the order passed in the money suit, no application was filed for refund of the security deposit of Rs.50,000/-. 17. Documentary evidence filed on behalf of the plaintiff Exhibit-1 Power of Attorney dated 26.05.2016 executed by Prem Kumar in favour of PW 1 Naresh Prasad Loha for proceeding on with this Suit Exhibit-2 Tender notice No. STO/DISP/090/79-80/06 dated 25.09.1979 issued by SAIL Exhibit-3 Revised Quotation Letter Dt. 28/29.01.1980 Exhibit-4 Certified copy of Judgment of Money Suit No. 45/83 dt. 09.04.1992 Exhibit-4/1 Decree of Money Suit 45/83 dated 24.04.1992 Exhibit-5 Certified copy of Judgment of Special Case No. 8/1989 with respect to Marafari P.S. Case No. 15(11)80 dated 13.03.2015 Exhibit-6 Copy of letter dated 09.09.2015 from Plaintiff to defendant regarding Judgment of Special Case No. 8/1989 disposed on 13.03.2015 by Spl. Judge, Vigilance, Dhanbad Exhibit-6/1 Postal Receipt dated 09.09.2015 Exhibit-7 Copy of letter dated 18.09.2015 from plaintiff to defendant Exhibit-7/1 Postal receipt dated 19.09.2015 Exhibit-8 Letter No. STO/DISP/090/79-80/06 dated 25.04.1980 sent by N.K. Sinha, Asst. Store Officer (S/C-IIA) to M/s Kailash Corporation regarding removal of used/old conveyor belts. Exhibit-9 Letter dated 22.04.1980 sent by S. Agrawala M/s Kailash Corporation to the Controller of Stores, SAIL BSL regarding Tendor for disposal of unserviceable/salvaged materials ( 2025:JHHC:22145 ) 29 Exhibit-10 Original Copy of letter/notice dated 10.02.1993 from plaintiff to defendant Exhibit-11 Postal Receipt Dated 04.02.2023 under Right to Information Act sent by Ujjwal Kumar to SAIL/Rourkela regarding information Exhibit-12 Reply of Letter dated 22.02.2023 sent by Anju Singh, G.M. (Pers.) & CPIO to Sri Ujjwal Kumar Bhattacharya regarding Application received under the RTI Act, 2005 Mark-X Photocopy of Tender Quotation dated 26.09.1979. Mark-X/1 Photocopy of offer quotation dated 28.01.1980 Mark-X/2 Photocopy of Minutes of Meeting Mark-X/3 Photocopy of letter dated 20.02.1980 from defendant to plaintiff accepting the order o plaintiff Mark X/4 Photocopy of letter dated 05.06.1982 from plaintiff to defendant Mark X/5 Photocopy of Order sheet of Marafari P.S. No. 12(8)/1980 dated 14.09.1982 Mark X/6 Photocopy of W/S filed in Money Suit 45/83 Mark X/7 Internet Auction copy of Auction Notice 07.02.2018 Mark X/8 Internet download copy of auction notice dated 10.01.2018 Mark X/9 Sale of material by auction through internet dated 03.01.2018 Mark X/10 Sale of material by auction through internet dated 06.12.2017 Mark X/11 Sale of material by auction through internet dated 08.11.2017 Mark-X- /12 Sale of material by auction through internet dated 01.11.2017 Mark-X/13 Sale of material by auction through internet dated 11.10.2017 Mark-X/14 Sale of material by auction through internet dated 4.10.2017 Mark-X/15 Sale of material by auction through internet dated 06.09.2017 Mark-X/16 Sale of material by auction through internet dated 09.08.2017 Mark-X/17 Sale of material by auction dated 22.03.2023 Mark-X/18 Sale of material by auction dated 29.03.2023 Mark-X/19 Letter from Ujwal Kumar Bhatacharya to the public information officer SAIL Bokaro Steel Plant dated 01.02.2023 Mark-X/20 Delivery Order 72408 dated 22.09.2022 of scrap conveyor belt indicating sale price Mark-X/21 Delivery Order 72282 dated 08.09.2022 of scrap conveyor belt indicating sale price ( 2025:JHHC:22145 ) 30 Mark-X-22 Delivery Order 71724 dated 02.06.2022 of scrap conveyor belt indicating sale price Mark-X-23 Delivery Order 72165 dated 22.09.2022 of scrap conveyor belt indicating sale price Mark-X-24 Offer Letter Dated 22.07.2022 from CGM, SAIL, Bokaro Steel Plant about scrap conveyor belts indicating sale price. Important Terms and conditions of Tender: 5(b) The earnest money deposit will be forfeited if the tenderer after acceptance of his offer by Controller of Stores fails and comply with or violates the terms and conditions of the tender in any manner or withdraw his tender during the period of six months. 10. Payment: The purchaser(s) will lift the materials in the installment after payment of sale value in full in cash at each counter of SAIL Bokaro Steel Plant or Bank draft drawn on the State Bank of India. Bokaro Steel City within ten working days commencing from the date of …. tender. Cheques will not be accepted towards payment of sale value. In case of huge quantities, whether it is not possible to lift in one installment, the Controller of Store or his representative may at his sale discretion allow materials to be lifted in more than one installment provided full cost of materials has been deposited as stated above. 12(a) In the event of failure to complete the payment of the sale value of the said material by the purchaser(s) within the stipulated period the sale of such materials will be cancelled, the security deposit forfeited and the material shall be resold or otherwise disposed off without any notice to the purchaser(s) and any loss on such resale shall be recovered from the purchaser. List of Unserviceable/Salvaged Materials for disposal as awarded to the plaintiff as per the contract Lot No. SI No. Description of Materials Quantity Location 22 33 Used and Old conveyor Belt of assorted size 714.800 MT MP Stories Constn. Yard Point of determination no. (1) 18. Admittedly the suit was filed in the year 2016 and the valuation of the suit was Rs. 33,00,000/- which was less than the then prescribed ( 2025:JHHC:22145 ) 31 ‘specified value’ under Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015 (herein after referred to as the commercial courts Act) which was prevalent at the time of filing of the suit. By virtue of amendment in the Commercial Courts Act in the year 2018, the ‘specified value’ for the commercial court was reduced to Rs. 3,00,000/- with effect from 03.05.2018 and consequently the suit valuation of the pending suit became more than the ‘specified value’. It is important to note that the amendment of 2018 in the Commercial Court’s Act has been made effective from 03.05.2018 and section 19 of the amending act clearly provides that the amending act would apply only to cases relating to ‘commercial disputes’ filed on and after the date of commencement of the amending Act of 2018. Hence, in the instant case, there was no occasion to transfer the pending suit to the commercial court, on account of reduction of the ‘specified value’ to Rs.3,00,000/- from Rs.1,00,00,00/-upon coming into force of the amendment to the commercial courts Act in the year 2018. 19. The records further reveal that vide order dated 30.08.2022, the plaintiff’s prayer for amendment was allowed so as to incorporate the claim for damages subject to payment of ad-valorem court fees, which the plaintiff paid. Thus, the suit value was enhanced to Rs.1,60,96,007/-. This court is of the considered view that merely because the suit valuation was increased to more than Rs, 1 Crore by virtue of amendment in the plaint vide order dated 30.08.2022, the trial court automatically did not lose the jurisdiction to continue to try the suit. The act of transfer of suit to commercial court is not an administrative exercise but is a judicial exercise as the subject matter of the suit and also the stage of the suit is also required to be considered as per the provisions of section 15 of the commercial courts Act, 2015. The transfer of the suit to the commercial court is also subject to constitution of the commercial court in the district under section 15(2) of the Commercial Courts Act of 2015. Moreover, the consideration for transfer is not merely pecuniary jurisdiction but also the subject matter of dispute, that is, the dispute ( 2025:JHHC:22145 ) 32 should be a ‘commercial dispute’ as defined under the Commercial Courts Act. Further, the stage at which the suit is to be transferred is also relevant as under proviso to section 15(2) of the commercial courts Act, 2015 the suit is not to be transferred if the final judgement in the suit has been reserved by the concerned trial court on the date of constitution of the commercial court. Section 15(5) also provides that in case the suit is not transferred, the High Court may, on the application of any of the parties to the suit, withdraw such suit from the court where it is pending, and transfer it to the commercial court having territorial jurisdiction. 20. The trial court continues to have the jurisdiction over the suit till it is transferred as the provisions of the commercial courts Act apply to those procedures that were not complete at the time of transfer. The transfer to the commercial court is not automatic and it can be done upon an application by the party and upon passing of an order of transfer of suit by the court and if the suit is not transferred an application can be filed before the High court seeking transfer of suit under section 15(5). 21. In the present case, after the amendment in the plaint in the year 2022, the trial court proceeded to record further evidence of the sole witness on behalf of the plaintiff. On 01.06.2023, the argument of the parties was heard in part and the case was then fixed on 02.06.2023 for further arguments. On 02.06.2023, the argument of both the sides was heard and it was also recorded that no petition was pending for orders and that all the pending petitions were already disposed of and the case was fixed on 21.06.2023 for judgement. However, prior to 21.06.2023, on 16.06.2023, a petition was filed by the plaintiff under Section 2(1) read with Section 6 and 15 of the Commercial Courts Act, 2015 read with Order XIV Rule 2 of CPC praying that the case be transferred to commercial court. Along with the petition written arguments were also filed by the plaintiff. The petition was directed to be kept in the records. On 21.06.2023 and on subsequent dates, the matter was again heard and ultimately the ( 2025:JHHC:22145 ) 33 impugned judgment was passed on 25.07.2023 by the learned trial court. 22. Thus, the petition seeking transfer to the commercial court was filed when the case was posted for judgement after conclusion of the arguments, though even after the date was fixed for judgement, the matter was heard as the written arguments and the petition seeking transfer were also filed after conclusion of the arguments. This court is of the considered view that even if it is assumed for a moment that the suit was required to transferred to the commercial court, considering the stage of the suit on 16.06.2023, the day the petition seeking transfer was filed, the suit was not required to be transferred in the light of proviso to section 15(1) as the arguments were concluded on 02.06.2023 and the matter was posted for judgement on 21.06.2023 by a judicial order . This is over and above the fact that the plaintiff did not file any petition before the High Court in terms of the Section 15(5) of the Commercial Courts Act, 2015 and ultimately the suit was decided after hearing the parties. This court is also of the considered view that objection as to loss of pecuniary jurisdiction due to change of law /change in suit valuation on account of amendment in the plaint has to be raised at the earliest possible opportunity. Objection raised after having full-fledged participation in the trial of the suit and after the conclusion of the arguments in the suit cannot be entertained and the judgement rendered by the court ignoring such objection, cannot be said to be without jurisdiction. There is no merit in the argument of the plaintiff -appellant that the trial court lost its pecuniary jurisdiction to decide the suit on account of change of law /change in suit valuation on account of amendment in the plaint during the pendency of the suit and hence the impugned judgement is wholly without jurisdiction. 23. The 1st point of determination is accordingly decided against the appellant and in favour of the respondents. Point of determination No.2,3 and 4 ( 2025:JHHC:22145 ) 34 24. The Notice Inviting Tender ("NIT") is Exhibit 2 dated 25.09.1979. The plaintiff has filed the instant suit for claim of balance material amounting to 495.450 MT on the pretext that the offer was for a total quantity of 714.800 MT out of which the defendant has supplied 219.50 MT till 30.07.1980 and therefore, the plaintiff is entitled to the remaining quantity of 495.450 MT. The paragraphs 8, 9, 10, 11, 12 and 13 of the plaints show that the plaintiff until 30.07.1980 has paid only a sum of Rs. 16,62,500/- for 250 MT out of which he admittedly received supply of 219.50 MT for a value of Rs.14,58,677/- and the balance advance was only Rs.2,03,822/-. On account of non-supply of the balance quantity the plaintiff filed money suit No. 45 of 1983 seeking a relief of supply of balance quantity, or in the alternative, refund of the balance advance amount and refund of the security amount of Rs.50,000/-. The judgment passed in Money Suit No. 45 of 1983 was passed on 09.04.1992 wherein following/observations and directions were made:- a) As because the contract is subsisting and the defendant also accepts this as legally valid and correct, the plaintiff is entitled to get balance 495.450MT of conveyer belts at the specified rate as mentioned in the contract. b) But in a money suit, order for supply of balance 495.450 MT conveyor belts by the defendant to the plaintiff cannot be passed. c) Hence, the plaintiff shall have a willful and competent right and he will again make request to the company for delivery of the balance material. d) Even after making of the request to supply the materials, if the defendant does not supply the same, the plaintiff will be within his legal and willful right to recover the same by filing separate civil suit. e) the plaintiff is entitled to get Rs 2,03,822.50 plus interest @ 12% per annum from 7.8.80 till date of payment from the defendant except the security deposit amount of Rs 50000.00. f) As far as the question of getting relief about the supply of balance conveyor belts is concerned, the plaintiff can bring a separate ( 2025:JHHC:22145 ) 35 suit if on the request of the plaintiff the defendant falls to supply the materials mentioned in the contract. 25. In compliance with the judgment and order dated 9.4.1992 in money suit no. 45 of 1983, the plaintiff claimed and the defendant refunded the amount of Rs. 2, 03,822.50 along with Interest to the plaintiff in the same year. 26. Out of the two criminal cases, one was already closed and the other was pending till the disposal of the money suit. The other criminal case bearing Marafari P.S. case no. 15 (11) 80 also ended in acquittal vide judgment dated 13.03.2015. The certified Xerox copy of the said judgment dated 13.03.2015 was sent by the plaintiff to the Chief Executive Officer of the defendant by registered post on 09.09.2015. The plaintiff vide said letter dated 18.09.2015 sent through registered post has made a request to the Chief Executive Officer of the defendant company for resumption of delivery/lifting of balance contracted quantity of 495.450 MT of used and old conveyor belts at the contracted rate of Rs. 6,650.00 PMT plus applicable taxes as per the direction and observation of the learned Sub Judge II, Bokaro made in his judgment and order dated 09.04.1992 which has been duly received by him. In the said request letter, the plaintiff expressed his willingness and readiness to deposit the payment of the subsequent installments as soon as communication is received from the defendant. It has been submitted that as per the procedure and practice, the advance installment payment towards value of the material can only be deposited with the accounts department of the defendant company after receiving written communication by the plaintiff from the defendant company as evident from past such communication dated 22.04.80 and 25.04.80. 27. The nature of relief as prayed for in the suit read with its amendment dated 30.08.2022 reveals that the suit was filed seeking specific performance of contract dated 20.02.1980 asking the defendants to supply the contracted material i.e. 495.450 MT of old conveyor belts at the contracted rate which was fixed way back in the ( 2025:JHHC:22145 ) 36 year 1980 as per the contract. The plaintiff sought further relief seeking compensation by way of damages to the extent of Rs. 1,40.46,007/- towards loss of earning or profit and Rs. 20,000/- towards loss of reputation, goodwill and mental harassment. A further relief was prayed by way of compensation of Rs. 50,000/- along with compound interest @ 18% per annum from 28.01.1980 till the date of payment. This amount was primarily relating to the security deposit or earnest money. 28. This court is of the considered view that three reliefs are guided by three different Articles of the Limitation Act, 1963. The specific performance of contract is guided by Article 54, compensation of breach of contract is guided by Article 55 and refund of security deposit of Rs. 50,000/- is guided by 113 of the Limitation Act, 1963. 29. So far as plea of specific performance of contract is concerned, this court finds that the suit was filed on 27.05.2016 and the contract is of the year 1980. 30. So far as cause of action to file the present suit is concerned, same has to be seen in the light of the earlier judgment passed in Money Suit No. 45 of 1983 arising out of the same contract in which decree and judgment was passed on 09.04.1992 when the defendants were directed to refund the advance amount of Rs. 2,03,822.50 which was withheld against the supply of used and old conveyor belts to the plaintiff along with interest @ 12%. Further security money was not ordered to be refunded observing that the contract was still subsisting and the court had also found the plaintiff entitled to get the balance of 494.450 MT of conveyor belts at specified rate mentioned in the contract. The plaintiff was asked to approach the defendants to supply of the balance quantity and was also granted liberty to file fresh suit for such relief . 31. This court has gone through the pleadings and finds that the plaint is completely silent as to what the plaintiff did after the judgment and decree dated 09.04.1992 passed in Money Suit No. 45 of 1983 till 09.09.2015 when the plaintiff served notice to the defendants to supply the balance quantity in terms of the judgment ( 2025:JHHC:22145 ) 37 and decree passed in the aforesaid Money Suit at the same rate which was fixed as per the contract entered into in the year 1980. 32. The explanation given by the plaintiff for giving the notice regarding performance of contract as late as on 09.09.2015 is that out of two criminal cases one criminal case being Marafari P.S. Case No. 15(11) 80 was still pending and when the money suit was disposed of and they gave the legal notice only upon disposal of the said criminal case when the plaintiff and other accused persons were acquitted vide judgment dated 13.03.2015 passed by learned Special Judge, Vigilance, Dhanbad and a copy of same was forwarded to the Chief Executive Office of the defendants company and vide letter dated 18.09.2015 the plaintiff made a request to the Chief Executive Officer for resumption of delivery/lifting of balance quantity of 495.450 MT of used and old conveyor belts at the contract rate of Rs. 6650.00 MT which was the rate fixed way back in the year 1980. 33. This court is of the considered view that at the time when the Money Suit was disposed of in the year 1992, out of the two criminal cases, only one of the criminal case was closed and the other one was pending, still the court had directed the plaintiff to approach the defendants for supply of the balance quantity of conveyor belts weighing 495.450 MT meaning thereby such relief was granted to plaintiff irrespective of pendency of one out of the two criminal cases. Admittedly, the judgment passed in Money Suit No. 45 of 1983 remain unchallenged and became final if the plaintiff had approached the defendants immediately after the judgment and decree dated 09.04.1992 seeking supply of the balance quantity and if the defendants had not supplied the balance quantity, the judgment and decree was itself executable and the matter could have been taken by the plaintiff through execution of the judgment and decree. 34. This court is of the considered view that the plaintiff had slept over the matter and did not take any step in spite of the judgment and decree dated 09.04.1992 passed in Money Suit No. 45 of 1983 and the explanation furnished by the plaintiff regarding pendency of one of the two criminal cases is not acceptable to the court. Whatever be the ( 2025:JHHC:22145 ) 38 stand taken by the defendants in the Money Suit No. 45 of 1983 is irrelevant and what is relevant is the findings in the Money Suit and the directions issued pursuant to the judgment and decree. Although there is no foundational pleading in connection with issuance of one Notice dated 10.10.1993 (ext. 10), this court finds that otherwise also the same has not been proved in as much as neither there is any receipt of Ext. 10 nor there is any proof of dispatch of Exhibit-10. Even if the proceeding was ex-parte, it was for the plaintiff to prove their case. The exhibit-10 is neither supported by any pleading nor is supported by any cogent evidence. Mere marking of the letter/notice dated 10.02.1993 as exhibit does not amount to the proof of the same. This court also finds that the plaintiff did not appear as witness in the case and the power of attorney holder deposed in his place on the strength of the power of attorney executed just a day prior to filing of the suit. There is no explanation for non-examination of the plaintiff and the power of attorney holder deposed with respect to the personal knowledge of the plaintiff particularly regarding refusal to supply the balance quantity on account of pendency of the criminal case. There is no explanation as to when, how and in what manner the plaintiff approached the defendants seeking compliance of the judgment and decree passed in Money Suit No. 45 of 1983 dated 09.04.1992 with respect to the supply of balance quantity and if there was any refusal to supply in terms of the judgment on the ground of pendency of the criminal case what steps were taken by the plaintiff to seek compliance of the judgement passed in Money Suit No. 45 of 1983 dated 09.04.1992 and seek appropriate relief at the relevant point of time. The power of attorney holder who came into picture at much later point of time, has deposed on the personal knowledge of the plaintiff with regards to events much prior to his entry as power of attorney holder which are otherwise not based on any acceptable documentary evidence as to what the plaintiff did after judgement passed in Money Suit No. 45 of 1983 dated 09.04.1992 till 2015. The plaintiff has miserably failed to prove his case entitling supply of balance quantity at the rate fixed in the year 1980 as per the contract ( 2025:JHHC:22145 ) 39 and also failed to prove the claim of damages allegedly sufferred by the plaintiff. It is also not the case of the plaintiff that they procured the material from other sources at higher rates so as to entitle them to damages of the differential amount. The plaintiff simply wants to get supply of balance quantity at the rate fixed way back in the year 1980 and is claiming damages on account of differential amount and other related issues relating to non-supply, that is, mental agony etc. By the efflux of several decades, the remedy and relief provided in Money Suit No. 45 of 1983 dated 09.04.1992 has itself become redundant and suit filed in the year 2015 is hopelessly barred by limitation. 35. The plaintiffs tried to explain the delay/non action on their part by stating that they were asked to wait till disposal of Marafari P.S. Case No. 15(11) 80 and asserted that the cause of action arose when the criminal case ended in acquittal in the year 2015 and the defendants did not supply the balance material in-spite of notice issued in the year 2015 although there was no such stipulation in the judgment passed in Marafari P.S. Case No. 15(11) 80 that the plaintiff would be entitled to supply upon disposal of the pending criminal case. The plaintiff was to approach the defendants in terms of the judgment and the defendants were obliged to supply and such a direction was issued in the judgement in spite of the fact that the defendants in the earlier money suit had cited the pendency of the said criminal case as a reason for non-supply. The plaintiff was also held entitled to file another suit if the defendants refused to supply in terms of the judgment and decree. However, the plaintiff did not take steps in terms of the judgment passed in Money Suit No. 45 of 1983 dated 09.04.1992 and filed the fresh suit after expiry of several decades by referring to acquittal of the criminal case in the year 2015. This goes to show that there was no willingness on the part of the plaintiff to act in terms of the contract read with the judgment passed in Money Suit No. 45 of 1983 and the basic requirement to seek specific performance of contract is itself not satisfied. 36. In the instant case, the contract entered into the parties stood impliedly cancelled in terms of Clause 12(a) of the Exhibit 2 read with ( 2025:JHHC:22145 ) 40 the judgement dated 09.04.1992 in Money Suit No. 45 of 1983 as the plaintiff did not approach the defendants for 23 long years showing his willingness to take the balance quantity in terms of the said judgement in the money suit. Clause 12(a) specifically provided that in the event of failure on the part of purchaser for payment of sale value of the material within the stipulated period, sale of such material will be cancelled, security deposit will be forfeited and the materials will be resold without any further notice. 37. The plaintiff having not approached the defendants for taking the balance material in terms of the judgment passed in the money and only took the refund of the sale consideration already deposited in terms of the said judgment, there is complete failure on the part of the plaintiff to show his readiness and willing ness to perform his part of the contract. 38. The argument of the plaintiff that it was for the defendants to notify for payment subject to availability of the balance material is devoid of any merits as the plaintiff was to act in terms of the judgement passed in the money suit and on account of any failure on the part of the defendants the plaintiff could have got his grievance through execution of the decree as the defendants were legally bound to supply the balance material upon approach by the plaintiff in terms of the judgement. As a consequence of the aforesaid inaction on the part of the plaintiff in terms of the aforesaid judgement there is no question of refund of security deposit also. The Plaintiff Witness No.1 (Power of Attorney Holder of plaintiff) in his examination-in-chief has said nothing about what was done by the plaintiff after 09.04.1992 till 13.03.2015. However, on recall after amendment of the plaint he referred to exhibit-10 , a letter to show that the plaintiff approached the defendants for supply of balance material after the judgment but did not receive any response , but such statement is without any foundational pleading with respect to Notice dated 10.10.1993 (ext. 10) and neither there is any dispatch proof of this letter nor there is any receiving to show that it was served upon the defendants. Otherwise also, if the plaintiff had approached the defendants vide ( 2025:JHHC:22145 ) 41 exhibit-10, there was no occasion to wait for 23 years to file the suit seeking supply of balance material/specific performance of contract. This inaction of almost 23 years without any valid explanation clearly demonstrates that there was no readiness and willingness on the part of the plaintiff to perform their pare of the contract when read with the liberty and directions issued in the earlier judgement in the money suit arising out of the same contract wherein similar relief was prayed for by the plaintiff seeking supply of the balance material. There is no evidence available on record to show that there was readiness and willingness on the part of plaintiff. 39. In view of Specific Relief Act, 1963, the onus is upon the plaintiff to aver and prove that he has performed or has always been ready and willing to perform essential terms of contract. The Power of Attorney Holder cannot be allowed to depose for principle with respect of matter for which only the principle can have personal knowledge. The power of attorney was not the employee of the plaintiff and entered into picture just before filing of the present suit in the year 2015 and cannot be said to have any knowledge as to what transpired for long 23 years after the judgment passed in the earlier money suit i.e. from 09.04.1992 till 13.03. 2015. There is no explanation in the deposition of P.W.1 as to what has prevented the principal plaintiff to enter into the witness box. 40. The requirement of Section 12 and 16(c) of the Specific Relief Act, 1963, could not be established by the plaintiff. Furthermore, readiness and willingness are two different aspects. For establishing readiness on the part of the plaintiff, he is required to plead and prove that he is financially competent to perform his part of contractual obligation relating to finance. Evidence of P.W.1, at paragraphs 34 and 35 show that the plaintiff has got no taxable income although for taking supply of balance material substantial finance was required, approximately amounting to Rs. 33 to 34 Lakhs as per their own calculation i.e. 495.450 MT at the rate Rs.6650/- per MT. 'willingness' can only be shown by the plaintiff by his conduct. Even as per the case of the plaintiff which is set up in its pleading and evidence is ( 2025:JHHC:22145 ) 42 taken to be true, a long gap of inaction between 09.04.1992 till 13.03.2015 i.e. approximately 23 years, is sufficient to establish that there was no willingness on his part. 41. As a cumulative effect of the aforesaid findings, the plaintiff is not entitled to specific performance of contract. The plaintiff suffered, if any, on account of his own inaction for 23 years i.e. from 09.04.1992 till 13.03.2015 and hence the plaintiff is not entitled to any damages as claimed. In the instant case the plaintiff has tried to take the balance material in the year 2015 at the same rate as was fixed way back in the year 1980 in the name of specific performance of contract and the damages claimed is primarily the differential amount of price and certain amount of account of mental agony etc and refund of security amount, all with interest. The plaintiff has failed to make out a case for specific performance and contract and also for damages and for refund of security money. The suit is devoid of any merits. 42. Considering the judgment and decree passed in Money Suit No. 45 of 1983 dated 09.04.1992, this court is of the considered view that the learned Trial Court has rightly observed that period of limitation did not commence on the date of final adjudication of Marafari P.S. Case No. 15(11) 80 and it did not arise even on 09.09.2015. The learned court has rightly held that it was essentially for the plaintiff to initiate a legal action in terms of judgement and decree passed in Money Suit No. 45 of 1983 dated 09.04.1992 but this was not done and the plaintiff has abandoned and given a go bye to its rights conferred upon the plaintiff by virtue of judgement passed in Money Suit No. 45 of 1983 dated 09.04.1992 whereby, interalia, the defendants were to supply upon being approached by the plaintiff. The plaintiff has miserably failed to prove that they approached the defendants for supply of balance material in terms of the said judgement in Money Suit No. 45 of 1983 dated 09.04.1992. 43. This court is of the considered view that the claim of specific performance of contract was certainly barred by limitation as the plaintiff did not act in terms of the judgement passed in Money Suit No. 45 of 1983 dated 09.04.1992 for several decades till 2015. It was ( 2025:JHHC:22145 ) 43 only after acquittal in the criminal case in the year 2015 the plaintiff issued legal notice and having no response filed the suit seeking specific performance of contract of the year 1980 for supply of the balance quantity at the same rate as per the contract of the year 1980 and then amended the plaint in the year 2022 seeking damages as an alternative relief. The suit for specific performance of contract was barred by limitation in terms of Article 54 of the limitation Act and the claim for damages was also barred by limitation in terms of Article 55 of the limitation Act as the contract was broken by the plaintiff themselves when the plaintiff did not act in terms of the liberties and directions issued vide judgement passed in Money Suit No. 45 of 1983 dated 09.04.1992. The claim of refund of the security deposit is also barred by limitation as specific performance of contract and also the claim for damages are barred by limitation. 44. This court finds that the period of limitation to seek specific performance of the contract and to claim damages, if any, arising out of alleged non-performance of contract by the defendants expired much prior to the cause of action as disclosed by the plaintiff i.e. much prior to the year 2015 and it is held that the entire claim of the plaintiff was hopelessly barred by limitation. There is no reason to differ with the finding of the learned trial court that the suit was hopelessly barred by limitation. 45. No relief can be granted to the plaintiff regarding monetary compensation or for refund of security deposit of Rs.50,000/- after efflux of inordinate delay of several decades. The right of sue does not survive with the plaintiff for any claim in monetary terms, be it in the form of compensation or for claim towards refund of security deposit. The refund of security deposit is dependent on various factors including mutual obligations. Clause 12(a) of the terms of tender clearly provides that in the event of failure to complete the payment of the sale value of the said material by the purchaser(s) within the stipulated period the sale of such materials will be cancelled, the security deposit forfeited and the material shall be resold or otherwise disposed of without any notice to the purchaser(s) and any loss on such resale ( 2025:JHHC:22145 ) 44 shall be recovered from the purchaser. This court finds that in the present case, the plaintiff did not act as per the relief granted to the plaintiff in terms of the judgment passed in the money suit way back in the year 1992 and could not seek any relief through the executing court in spite of the aforesaid judgment and the present suit is barred by limitation. Once the suit is held to be barred by limitation and the plaintiff has been held not entitled to specific performance of the contract on account of his own inaction and latches, there is no question of granting any relief arising out of the contract between the parties, including refund of security deposit. 46. The point of determination no. (2), (3) and (4) are accordingly decided against the plaintiff-appellant and in favour of the defendants-respondents. 47. All the points of determination having been decided against the appellant-plaintiff and in favour of the respondents-defendants, this appeal is dismissed. 48. Pending interlocutory application, if any, is dismissed as not pressed. 49. Let this judgement be communicated to the concerned court through e-mail / FAX. (Anubha Rawat Choudhary, J.) Dated: 06/08/2025 Binit Uploaded on 07/11/2025