William Vivian John Partner Luthra & Luthra Law Offices Damages in EPC Contracts 5th Annual Senior Management Forum, Mumbai April 26, 2012 William Vivian John Partner Luthra & Luthra Law Offices © Luthra & Luthra Law Offices

Topics Clauses in EPC contracts Indian Contract Act, 1872 Sections 73, 74 Case Law Principles Indian & English Back to the Contract…

Contract Law Professor: “How would you go give someone an orange?” Student: “Here’s an orange.”  Professor: “No! No! Think like a lawyer!” Student: “Okay, then I’d say: “I hereby give and convey to you all and singular, my estate and interests, rights, claim, title, claim and advantages of and in, said orange, together with all its rind, juice, pulp, and seeds, and all rights and advantages…” “…with full power to bite, cut, freeze and otherwise eat, the same, or give the same away with and without the pulp, juice, rind and seeds, notwithstanding anything to the contrary herein before or hereinafter or in any deed, or deeds, instruments of any nature or kind whatsoever…” © Luthra & Luthra Law Offices www.luthra.com

Contract Clauses Liquidated Damages If the Contractor [fails to do x], he shall pay, Owner by way of liquidated damages and not by way of penalty, [amount]. The Contractor acknowledges that the liquidated damages are reasonable and a genuine pre-estimate of the loss and damage that will be suffered by the Owner. © Luthra & Luthra Law Offices www.luthra.com

Contract Clauses Limitation of Liability The aggregate liability of the Contractor shall not exceed a sum equal to the Contract Price, except for [exceptions] Neither party shall be liable to the other for any indirect, remote, special, or consequential damages provided, such limitation shall not apply to [carve- outs] © Luthra & Luthra Law Offices www.luthra.com

Indian Contract Act Section 73. Provides for: compensation for loss or damage caused which (a) naturally arose in the usual course of things, or (b) which the parties knew to be a likely result, when they made the contract. No compensation for remote and indirect loss or damage. Expln - In estimating loss or damage means which existed of remedying the inconvenience caused by non-performance must be taken into account. © Luthra & Luthra Law Offices www.luthra.com

Damages - Principles A. Compensation Restitution not Penalty “Pecuniary difference between the existing state of plaintiff and that which it would have been had the contract been performed.” [Subbarama Sastri AIR 1987 SC 1257] Easier said than done © Luthra & Luthra Law Offices www.luthra.com

Damages - Principles B. General v. Special naturally arose, usual course (General damages) parties knew to be likely (Special damages) [Special circumstances, whether the party knew or not] [Hadley v. Baxendale 1854] Why? You need to know how far you will fall. Parties should have opportunity to price risk while contracting C. Loss of Profit? [State of Kerala v. Bhaskaran AIR 1985 Ker 49] Loss of profit can be ‘reasonable forseeable consequence’ © Luthra & Luthra Law Offices www.luthra.com

Damages - Principles D. Caused: Actual Loss No loss, no compensation. Can’t bluff ! [Asiatic Steam Navigation AIR 1941 Sind 146] ‘no evidence of damages’ v. ‘difficulty in assessing damages’ Plaintiff to prove his case but the court cannot decline to estimate damage. Must look at all facts and circumstances to get to a measure. E. Duty to Mitigate means to remedy the inconvenience’ [Murlidhar Chironjilal AIR 1963 SC 332] © Luthra & Luthra Law Offices www.luthra.com

Indian Contract Act Section 74. When the contract contains a sum named to be paid in case of breach… …or any other stipulation by way of penalty then, …whether or not actual damage or loss is proved, …plaintiff is entitled to reasonable compensation not exceeding the sum named or penalty stipulated © Luthra & Luthra Law Offices www.luthra.com

LIQUIDATED Damages - Principles A. Reasonable Compensation not Exceeding.. [Fateh Chand AIR 1963 SC1405] B. Whether or not Actual Damages are Proved.. [Maula Bux AIR 1970 SC 1955] Does not mean damages have not ‘occurred’ Applies where damages are difficult to assess Where loss can be determined, party must lead evidence for loss © Luthra & Luthra Law Offices www.luthra.com

LIQUIDATED Damages - Principles C. Genuine Pre-estimate of Loss [ONGC v. Saw Pipes AIR 2003 SC 2629] D. Burden of Proof Party claiming compensation has to prove loss [Maula Bux] But if it is a genuine pre-estimate of loss, the other party has to prove that it is not ‘reasonable compensation’ [ONGC] © Luthra & Luthra Law Offices www.luthra.com

LIQUIDATED Damages - Principles E. Earnest Money Nominal amount of being ‘earnest’ to complete the contract If reasonable, can be forfeited If not reasonable, treated under S.74 F. Time is of the Essence v. Liquidated Damages S. 55 Contract Act [Hind Construction Contractors (1979) 2 SCC 70] © Luthra & Luthra Law Offices www.luthra.com

BACK TO THE CONTRACT Liquidated Damages Limitation of Liability Wording is important [However, wording is not everything] Specific breach Limitation of Liability Consequential damages – specify Is it enforceable? © Luthra & Luthra Law Offices www.luthra.com

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