the measure of damages is the estimated loss directly and naturally

resulting, in the ordinary course of events, from the buyers breach of

contract.

This principle is also captured in Sec. 73 of the Indian Contract Act, 1872
which clearly stipulates that

compensation for any loss or damage caused to him thereby, which

naturally arose in the usual course of things from such breach.

1. Wherever we are saying Glencore suffered no loss we should also

qualify it alternatively by saying that damages awarded does not reflect
estimated losses , emphasis should be made on the language of sec 50 (2)
of UK Act and on Sec 73 of ICA . No loss despite breach sounds bizarre at
first instance .

2. Whether the Illustration D Of Sec 73 of ICA ( quoted in para 32 of HC

order) and Sec 50 (3) can be read and given effect
independently without first considering it in light of Sec 73 and 50
(2) according to which compensation for damages should correspond with
damages arising directly and naturally in usual course .
3. Whether the inquiry qua damages arising directly and naturally usual
course of business is totally irrelevant when it comes to awarding damages
for loss and courts should be driven by illustrations and prima facie
measures only ? consider making it a question of law - (See para 32 of HC
order)
4. Can we say that there is no concept of prima facie measure of
damages in Indian Law , all damages should qualify test of Sec 73 (
particularly where no liquidated damages are agreed upon) and
illustration U/s 73 is to be tested on the touchstone of Sec 73 , such
illustrations cannot be applied as an independent provision of law . Para
32 and 33 of the HC order must be assailed independently on these lines
5. Please consider adding an para to the effect that refusal of discovery
has resulted into windfall gain /unjust enrichment which are opposed to
public policy of India . Even in the context of Sec 74 ( liquidated damages)
adequacy /reasonableness of damages in rebuttable by the party in breach
( I think Jindal Saw Pipes deals with this)
6. Para 28 of the HC order should also be assailed separately on the line
of suggestions given by us in Synopsis
7. Finding in para 29 of HC order Glencore placed sufficient material to
establish market price must be assailed - because whether market price
difference correspond with damages arising directly and naturally in usual
course to Glencore who is trader has been completely ignored by denying
discovery.
8. The case law mentioned in para 30 of HC order needs to be
examined can we distinguish this from our facts . It is not clear from
quotation that whether it is a ratio or passing remark . To my mind the
second leg of quotation starting from So if Contract to accept and pay
.. appears to be passing remark while judgement is on a suit by
purchaser . In any case what can be true for purchases cannot be true for
Seller in all cases particularly where Seller is not producer himself
9. How are we filing documents which handover in High Court after
hearing ?
10. Finally if in one para in grounds we can give summary of our
other grounds which we took in our objection just for the completion of
record and to not close the window of agitating those at all before
Supreme Court