 Good evening, friends. And today we apologize. It's one of the rare occasion wherein there was some technical glitch. And amongst us, we have Mr. Hasid Sate, who is an independent council and a known name in respect of the arbitration proceeding as such. And we head international dispute resolution and investigation practice. Since we are already running late, as per the schedule, I will straight away ask Mr. Hasid as well as Viapak to take the things forward. Hi, thank you, Vikas. Welcome, Viapak and everybody. So I'll just start off with the format that we have thought about is that will be, it's kind of a discussion between me and Viapak and then we'll see how to involve the audience. But so let me start off asking, so today's topic is how to claim damages successfully. So all of us as lawyers have put in prayers to claim damages, whether in arbitration or litigation, but ultimately, how much of what we have claimed has been recovered or is recoverable, that's something that we all need to put our ideas to. So that's what I thought we'll have as a topic. And to start off, let me start with the very basics by asking Viapak something very basic that under Indian law, can you claim damages and for contractual disputes or otherwise, and what's sort of the basic legal definition and contours of claiming damages. Over to you, Viapak. Sure, thanks a lot, Vikas. First of all, for bringing this program together. I think you have done a fantastic job in conducting this session for several years now, even during the COVID and thereafter. And Hassid, thanks again for joining this session and asking me this question. So let me first put a little more controversial answer in that sense. I think a lot of people talk about damages and the moment the word damages come in anybody's mind, everyone starts thinking what you can claim, whether everything can be claimed, what is my damage, it all goes into the calculations and people throw numbers in lakhs and crores and millions and billions. I think the basic understanding of which one should be aware of that in Indian law particularly, and we'll talk about the comparative law outside India as well, subject to time permitting, what you can actually claim, right? And when you read section 73 and 74 of the Law of Contract Act, what you can actually claim is only a form of compensation. So the moment you use the word compensation, that's where I think everything falls in place. So damages in very simply put is a form of compensation which you claim due to any breach, loss or injury. So if you just dissect this simple one sentence, first it is only that you can claim compensation and compensation has its own meaning. Two, it has to be in context of a breach, so there has to be a breach in the first place. Two, loss, which means you have to show that there is a loss occurred and three, there has to be an injury in case if it's not a contract or otherwise, right? So that's broadly the contours under the Indian law and there are very three simple principles on which compensation is granted and this compensation is basically protecting three kinds of interests which the claimant or the person who is claiming who has not breached the contract or who is basically an innocent party as we call it. Three kinds of compensations are prescribed and depending upon the contract you can calculate the damage or damages. First is the expectation interest which basically means that you put the claimant in a position which the claimant would have if the contract was performed but for the defendant not performing its part of the promise. So that is one way of calculating the compensation. Second is the reliance interest which basically means you put back the claimant in a position what it was had he not taken any steps in performance of his or her promise but for the defendant not performing their part of promise. So basically bring back the position as it was prior to the actions under the contract and third is the restitution expectation which means that if the non-innocent party has gained anything out of the contract then all those gains can also be restituted and provided as part of the compensation. So these are the three main principles under which the calculations fall and we'll discuss this little more in detail but that's what has it broadly it is in terms of the basic principle. I don't know if you have anything further to add but I do have one question for you unless you have something to add. You are on mute. You are still on mute. So thank you Vyapak for a very core introduction to what is the concept of damages in India and particularly under the contract timing. So the only thing I wanted to not add but had a thought is that this is not a mechanism to make a profit. I mean the contract law as you rightly said is based around the concept of compensation. So if that's kept in mind I think it leads to better outcomes. Sure. So that's a very very important aspect that when you are getting into any advice or any calculation of damages and let's look at it from the contours of a compensation. You have to look at it from a perspective that it is in form of a compensation for a breach loss or injury and nothing more. And I think you will land in a situation which is more relevant and more plausible in a court of law. So let me take this discussion forward Hasith and get your perspectives on damages a little bit more. So we have already discussed in general what damages are but then when you get into the discussion and particularly when you want to claim it there are several types of damages that comes to your mind. In terms of what kind of damages you can claim, whether you can claim actual loss, direct or indirect loss, anything further than that. And also before going into those aspects the primary issue first to discuss is about the liquidated damages and general damages as provided under section 73 and 74. So can you give us a little perspective on section 73 and 74 first and then maybe we can go little detailed into what kind of damages we can claim. Correct. Thank you. So the scheme of the contract act is that section 73 provides for what are known as regular damages. In that the quantum can vary from nominal damages in terms of how much you can claim to actual damages like whatever has the loss been caused to you. And as we have said based on reliance or expectation interest, it could be something that you have spent on a cost basis or something that you should have got had the contract been performed. So both the theories are sort of applicable in scenarios where it depends on the kind of breach and the stage and the performance on either side, what has happened and what was expected and what the party is expected. So the broad that's the broad scheme of like how the damages system is coming to section 73 which is the core section for damages or compensation if somebody wants to call it. It has two aspects one is for contractual damages and other is for quasi contracts, which is the word you phrase used by English law, but in Indian law calls it certain relations those resembling the contracts but the measure is the same 73 covers both of them. 74 is liquidated damages. So that's where the parties have specified what the damages should be. In terms of a particular kind of a breach, I mean so they have already pre decided that if such a breach occurs, let's say a building is delayed in construction or certain goods don't reach by this time, then certain penalty would be imposed. Liquid damages are more common where you have continuing contracts or repeatable contracts under an umbrella of a single contract and repeatedly it has to be performed as such. But also common in construction where there are the whole contract is divided into multiple phases and you have liquid damages when certain milestone is not reached or certain conditions occur. The mechanism differs in 73, 74 is that in 74 parties have decided what the damages should be. In 73 it's the court that decides what the damages should be. And courts have within those types, I mean if we want to classify one is like what are the natural consequences of the breach. And the second category that goes beyond it is the consequential damages that if this breach occurred, what would be consequential? And it depends upon what the parties had contemplated. And the whole section 73 if we see it comes from the last paragraph of Adelaide versus Baxendale case, it's literally a reproduction of that case. Two cases last paragraph and that's where the then that's cases actually about consequential damages. So those two types of damages are like contemplated. But the third category which is there and which is spread out over a number of sections are certain kinds of compensation in certain situations. So just to give you two examples of that third category is compensation in case of frustration related issues in under section 56. And also section 65, where if there is a contract is wide, you can still get some compensation if something has occurred as performance under those contract. So that is a less understood and less used category, but 73-74 is where our focus usually is that where parties are specified like what should be the damages in case of this and this could be termed as penalty. The section itself says that it could be termed as penalty. And then it will be like given but it's the section says whether or not actual losses are proved or not. But our case law essentially has tended to that you will have to prove the loss or prove that you cannot prove the actual loss. Okay. No, I think you are right. And only little nuanced distinction if I may make between 73 and 74 is that why people even want to put the penalty or the liquidated damages right at a front, right? What is the advantage? I think today what we are trying to understand is how to successfully claim damages. And therefore it doesn't start when the dispute occurs. Actually it starts when you are drafting the contract itself. And I think what courts have said that look, and I think Hasith also mentioned that whether that kind of a loss was in contemplation is the first precondition to even grant the compensation. Both parties should be added whether it is 73 or 74 that any breach of a nature that occurs, then the non-innocent party should have contemplated that this kind of loss will be given to the innocent party. But why then liquidated damages in the first place? I think the biggest difference if I may put it is yes, you have to prove the breach, right? You cannot claim damages without doing the breach. There has to be a causation. There has to be a formal or an informal or at least some connection built between the breach and the loss. But what comes handy if you put a liquidated damages and how you can successfully claim those damages is if you had identified and calculated the reasonable compensation right at the start of the contract, then you don't have to actually prove the loss and calculate the loss. What you have to prove is the breach and that you have suffered loss in connection to that breach. I think this is where even 74 can be actually interpreted in the manner that liquidated damages in a general sense is always a good idea. Of course, not in situations where it's a large contract and you may want to wait till the breach occurs because you don't know what would be the actual loss would be. But at least in general sense, you may want to consider putting a liquidated damage clause because court is more inclined and possible to get the liquidated damage as contemplated and as agreed between the parties at the start of the contract. So long as it is not termed as, you know, unconscionable or some penalty, which is, you know, be on the contract. You can't say one lakh rupee contract and 10 lakh rupee loss, right? That kind of things can't happen. But if you put a reasonable number, court is more likely to grant it without you proving the actual loss, particularly in complex situations. So I think this is in my view the first step to consider while drafting the contract. If you really want to successfully, you know, claim damages going forward. But when you file the claim, make sure you do two things. One, you show the breach and connect the breach with the loss. You need not show the actual loss in that sense, but actually, but at least you need to connect it. And two, you should show the reasonability that such an amount was in contemplation between both the parties, including the non-innocent party. And therefore, it's a reasonable compensation and not in the nature of penalty. So long as you make those two agreements and, you know, you know, supported by either evidence or the way contract is written or otherwise, I think you are, you know, you have a very good chance of claiming those losses. Very, very interesting. And I agree with all that you have said, I mean, and liquid damages have been difficult to claim in practice in India. So that's what, but people who draft contracts, I mean, love them, love these liquid damages clauses. They sometimes tend to work as interim clauses that people want to avoid liquid damages and hence perform the contract as per its written or some extra effort is put in, particularly in construction world. But what I'm seeing is that invocation of bank guarantees has replaced, you know, like that interim tool to get performance or put as a penalty if the performance is not up to the certain mark, I mean, so, but that's a practice issue, not a doctrinal issue, I mean, as such. So next thing we have a guy wanted to ask you is there is a certain, you know, school of thought, which believes that, you know, let's put indemnity clauses into the contract that, you know, like, let's put a named indemnity quantified indemnity that if certain event occurs and make it a conditional contract that if certain event occurs, then, you know, you'll give us some indemnity. And we are seeing a lot of discussions online regarding arbitration disputes in MNA. And MNA is an area where MNA lawyers love putting indemnity clauses, I mean, so in your side of the world, in your experience, what is a good practice to whether to think that indemnity can replace damages or are they better than damages, I mean, in practice. Sure. No, in fact, I am also one of the, you know, culprit of, you know, negotiating indemnity, I have done several years of, you know, transactional work. You told me, you told me, I recall. And so I am very much part of those negotiations which run into days and nights. But I think it's not a straightforward answer as to whether indemnity is good or not or bad, right? I think, obviously, as every lawyer would say, it would depend upon which side you are representing and what are the facts of the case. So there is no answer whether indemnity is good or damages are good. It all depends whether you are representing a seller in an MNA transaction or a buyer, whether you are representing a company giving certain reps and warranties, whether you are representing the promoters or in other sale contracts, it depends who you are and what kind of situation and what are your negotiating powers. But let me put little first principles on this, which will give you the right ammunitions or right, you know, you know, decision making metrics to, you know, decide whether you need it in a particular situation. So I think first we have already discussed damages by its own principle is only for a breach loss or injury. And two, it requires causation, which means you need to show the breach and also show the connection of the loss connected to the breach. I think this is the fundamental difference if I may say where indemnity differs from damages. Let me put it little simply so that, you know, one can possibly remember while making this decision. So I would put, let's say, four aspects, there are many differences between indemnity and damages, but let me put it in the category of priority and let's say there are four different aspects where indemnity differs from damages. I think the first and the foremost is damages can be claimed only on account of a breach of the parties involved in the contract. So not only that it has to be limited to the parties involved, but it is also limited to the breach committed by that party. While indemnity, you can claim even merely on an action or an inaction of a third party, which is not connected to the contract itself. And you don't have to prove a breach, which means only thing you have to show is that a particular event has happened, which may be a result of an act or inaction of a third party. And that you have suffered a loss, that's about it. So this is in my view, first and the most fundamental difference for between an indemnity and damages. Second, it flows from the first that it can be for a non-breach event means in a damage you have to show the breach of the contract. In indemnity, you don't have to show the breach of the contract. Contract is still intact, but still you are claiming loss because of certain outside event, which contract is still continued. So we can give you examples, but I'm just giving you the first principles at the moment. The third is you don't have to show the actual loss. You can actually claim it before you incur the loss. While in damage, you have to first incur the loss and then claim as a compensation. While in indemnity, you can say that, look, I have to pay because of this. So you can have a direct payment made. It means you are not out of pocket in certain situation subject to, of course, how you draft the indemnity because indemnity is all about how you draft your contract. And there is a wide canvas available under the contract act as to how you draft the indemnity in terms of what it would entail and what it would not entail. And the fourth and the another important category is duty to mitigate. I think we didn't discuss it earlier, but damages come with this very basic duty to mitigate in sense. The innocent party has a duty to take all the steps to mitigate the loss in sense. Even if the non innocent party makes a breach, innocent party has a duty to see that innocent party takes all the steps to avoid that loss. In indemnity, no such duty is prescribed under law. Of course, you can prescribe it under the contract or some other form. But if you whichever side you represent, depending upon how you negotiate it, you can actually exclude the duty to mitigate or remain silent. And therefore, by nature, it is excluded so far as indemnity is concerned. So I think there are many other nuance differences, but I would take a decision to have an indemnity or not have an indemnity based on, of course, which side I am. And to whether these four elements are going to help me to claim that rather than wait for the breach or otherwise under the contract. And bear in mind, indemnity is not a substitution or in lieu of damage clause. It is sometimes in addition so long as you are negotiating in that form. So you can still have damages as a general remedy, but indemnity for your specific remedies or specific loss that you can recover. So that's broadly the contours under which that decision can be made. Very interesting, very interesting. I think this indemnities could be very effectively deployed in parallel contracts where you are not sure whether events would occur first under A and B contract which are running parallelly. Or which are dependent upon some external contracts of when you have a privity problem that a contracts with B and B contracts with C. So in the contract between B and C you really can't control what's happening in the contract of A and B. So indemnities could solve some of that. Also in cases of certain regulatory failures or certain non-compliances or even representation and warranties related to title or IP or otherwise where third party claims are very common. And that may not be direct breach on performance of the contract but still loss has occurred. Or defence has to be made by the innocent party and spend some money on that. So those are the situations particularly where indemnities are very important. But let me progress a little bit here and throw one more question back to you Hasith. There is always this discussion that I want to claim 100 crores because this happened and that happened and I would have made this profit. This would have done and I would have invested in stock markets if the money had come and I would have made a lot of money. So what kind of damages you can claim? Can you claim loss of profits? Can you claim loss of future profits? Direct loss? Indirect loss? What are these elements? Otherwise we have seen in planes in courts where claims go beyond 100,000-200,000 crores. Where ultimately either the suit is not even progressed or even if it is granted it's bare minimum loss or damages which is granted and you just can't prove anything beyond few crores. So what all you can grant? How can you be reasonable and at least foresee what will be granted in terms of successfully claiming those damages in any dispute situation? Very interesting aspect that you have asked about. The loss of profits as an aspect of damages are available under Indian law coming from English law. And the loss of profits essentially depend upon how the contract has progressed. I mean if one of the parties has performed their part of the contract and the other party has breached the contract at a little late stage I would say that's when really the loss of profits claim kind of apply fair and square. Because a lot of loss of profits claim are speculative in the sense that if the contract had been performed I would have got this piece of land in 2020. I would have built a building by 2022 sold so many flats and made like say 1000 crores as you say. But because I could not get the piece of land and hence I could not finish the building and hence I could not make the expected profits. But all this is hit by a very big barrier called remoteness. Or the section 73 itself as a barrier that whatever claims are being made for damages I mean and particularly loss of profit damages don't have to be removed. So what does remoteness mean essentially? So the section says that these should be the damages should be the natural consequences of the breach. And as you have rightly emphasized so many times that breach is a sine qua non it's a necessity to get damages. And then you need causation that this particular breach led to my losses in this one hence I should get this much. Now problem in it's the causation aspect that is the problem with remoteness. That did this breach cause this loss to you? Did you not getting like that piece of land in 2020 has actually caused this loss to you? Or even if you had got that land but you didn't get you were not going to get the investors and that's why you actually lost out on the project. Because some business idea to fail under a contract there could be multiple reasons inside the contract or even outside. So whether your loss is directly related and how remote it is from the cause the reason for the breach I mean the causation that's what controls remoteness of damages. But there have been very successful claims for remoteness of damages recently particularly a preview council decision coming from I think British Virgin Islands if I'm not wrong. Where they were back to back contracts one to create a water filtration system and then to operate and maintain it. So because the site was not given the contractor could not build the water filtration plant. And hence automatically they could not operate and maintain it. But I mean it was declared that they are eligible for loss of profits I mean although there was nothing built I mean. So it's really the course view of what's reasonable and what's not remote. Because both the contracts were signed on the same date they were with the same parties and they were so interlinked and the same party was going to operate and maintain it. That it was foreseeable and that's where this this magic word comes in that whether it was foreseeable that they would lose out on profits if the site is not given. And the courts felt yes it was foreseeable and the reasonable person would foresee that if the site is not given they cannot build the plant and then they won't be able to claim like loss of they won't be able to make profits out of it. So the reasonableness and that's really the course determination nobody can write into the contract and expect that this would be the loss of profits if this is not performed I mean because it's the course measure of what loss of profits would be. But from a planning point of view or litigation strategy point of view, I would say that when the contract is being performed and how much is the quantification of what loss or profits can be. Like expected to be made if this is conveyed and built into communication and in the contract itself. I think it makes a very strong case for loss of profits. Yeah, no I agree with you I think it's a little complicated subject and you know possibly this is the time where you when you are strategizing your claim. I think this is the biggest discussion while, of course as lawyers we advise our clients as to what can be claimed and what cannot be claimed, but it may be a good idea if the claim is large to even involve experts who are you know good on quantifications. One is the law and what law is applicable to your contract, what are the contractual clauses and how those would interplay in terms of what can be claimed and not claim, particularly looking into the facts of the case whether it's a late claim, claim or an early stage claim, what actions have been taken by either parties and what kind of losses were contemplated at the time of entering into the contract and things like that. But it might be a good idea to strategize with this with you know quantum experts who are you know good at actually calculating some of this, you know but for situations or otherwise. Before you, what is the expected, you know losses or compensation that you can ultimately claim. So, this is the time you should bring in, you know different teams together before filing the claim rather than you know, worry about it when you have already claimed on some different basis and then to prove those bases becomes the biggest challenge so don't jump into it while drafting the plane particularly when it comes to damages, but you know try and strategize it before drafting is very easy people, people feel drafting is difficult. I think drafting is not difficult. You know, what is what is important is the case theory, as we call it in legal parlance is to draw out your case theory, based on the proofs that are likely to be, you know, provided at the time of proof as damages, and then draft it. If you do the other way, take it from us that you are going to get it wrong, you will never be able to claim what you think you want to claim it's not about what you think it is about what you are likely to get and that is where you know strategy comes handy. So we are taking upon that. I was wondering if you could throw some light based on your experience and insights about limitation of liability, a lot of contracts have this that your liability is limited to, you know, like certain amount, maybe the money paid particularly the software development contracts as we know I mean that you only can recover what's the money paid or in construction contracts there is sometimes you know like different limitations of liability. So what's been your like experience and thought process around this limitation of liability. You know, snow that's a very, very important point because this comes very often particularly in a construction infrastructure contracts, when you are a contractor from a private entity perspective and the employer is typically a public sector, and then you have the ability to negotiate a contract when you are signing off a tender, where it simply says that look in case of delays or in case of other situations, there will be no compensation only extension will be granted, or you know, as you rightly said, they said they will not pay you more than one leg irrespective of what loss you suffer and things like that. I think the question which comes in, see at the end of the day, the simple answer can be look you contracted it for now you live with it. Law is not that simple law protects certain kind of parties in certain situations, particularly if those situations take away the basic right of compensation from a party in a non, you know, parallel or rather when parties are you know, they are not at same level when they are contracting or if there is an actual loss and the facts are different so if I may use the factual pattern of a delay claim where one is the extension of time and second is the loss suffered because of delay and in that context if I give you the answer possibly then you can apply in different situations. And the law again as in every case is not clear. There has been many contradictory judgments from different high courts and even Supreme Court to some extent, and it's not very clear as to whether these are contracts which are, you know, void or voidable or whether they get hit by section 23 or section 55 where time is a sense of a contract or otherwise. But let me very quickly in, you know, a couple of minutes run through three or four judgments. I think the first judgment and if you know the the participants here need some citations or otherwise will be happy to share those post the session maybe you can coordinate with because but the first one that you need to take into account is the always judgment which in a way said that look if there is a delay on delay claim by the contractor and the extension is granted by the employer where it was made very clear that there will be a compensation claim and the employer accepts that delay and grants the extension. Then, you know, you are definitely, you know, entitled to an additional compensation in addition to the, you know, the extension that you have been granted. While there is another judgment in case of Ramnath International which was again a Supreme Court judgment where typical clause was there that no claim in respect of compensation or otherwise house over arising as a result of extensions, you know, granted, you know, will be provided the typical clause that we see in construction, and it says that no compensation if there is a delay attribute attributable either to the contractor or the employer. Now this was also considered this clause was again considered in another judgment in Asian tax, limited versus Union of India. And then the facts were a little different the contractor had made it clear that it would continue work only on the assurance that the increased rates would be decided and quote did help that such a clause, restricting the liability would not stand in the way, you know, of the contractors claim, but I think the most commonly used judgment is the simplex concrete piles, you know, limited judgment by Delhi High Court, where it basically held that the contractual clauses where limitation of liabilities are prescribed in the nature that we are discussing, particularly if this entitles the agreed party to the benefits of section 55 and 73 would be violative of section 23 of contract act. Now this of course is subject to the facts and circumstances of the cases that it dealt with, including it, it considered both Ramnath International and Asian tech, but it still goes ahead and says, you know, that such clauses, you know, can be considered as void being violative of section 23. And then of course there is a public works department judgment of 2014, which again differentiates simplex by saying that it only applies in those situations where contract absolutely takes away the right to claim and not in other situation. But it also says it applies the position as under section 55, particularly if the, you know, time is the essence of contract. So there are three or four pointers, if I would say, to take into account for limitation of liability clause, at least in the context of, you know, extension or delay claims is one you have to first look at section 55 of the Indian contract act and see by nature whether section 55 applies or not. Evaluate if time is the essence of the contract, you know, practically rather than what is stated in the contract. And most importantly, whether contractor had given a notice for that additional compensation at the time of extension. And so long as those aspects are, you know, available as part of your factual summary, then you can still claim liability in spite of limitation of liability clause under the contract. Otherwise it would be difficult in situations where you have not given those notices or other factual scenario does not apply. So again, while there has been a lot of jurisprudence around this but it's still not as clear as one would want, and therefore at the time of performance of the contract, particularly when extensions are granted. And more importantly, when you are making those claims, you need to ensure that those, you know, notice, notices are there, then you make sure that you include it as part of your submissions or everments in the plaint or the claim as the case may be. Maybe this also answers a couple of questions on the chat box from Harminder and Gaurav, but we will take those separately as things progress. Yes, this is a very interesting area with no hard line answers. I mean, you can't draw a line in the stone. And one judgment which recently in November, which came out is Wellesman versus ONGC, where Wellesman's specialty, where the contract actually says that the time is of essence, but the court found and supported the arbitrator's view that mere presence of liquidated damages, mere presence of clauses which would allow you to grant extension of damages with LD or without LD indicates that time was not essence of the contract. And further, they said that once you waived the liquidated damages in grant of EOT, then automatically next time, so there was a situation that there was waiver of EOTs were granted without liquidated damages and then they were imposed later on for further EOTs. So this court says that once you waived them, essentially you give up your right unless there was specific language in the contract, which would allow you to reimpose EOTs with liquidated damages. And they said this is in line with the second paragraph of section 55. So the jury is wide out there, I mean, based on the contract and this was an arbitration review. So whether the courts were only trying to support or find a plausible way to support the arbitrator's view or they think that this is the law, we'll have to wait a bit I mean for that. So, very interesting and I had some things where both of us, I thought, could share quickly some views on these topics. And Vyappak, you want to initiate some three, four points we had in mind where we could jointly. No, I think we are already strong. Yeah, we are already at 30. So I know we started a little late. But I'm sure people would have made some plans and them and their dinner. But maybe five minutes we can extend subject to what Vikas says. Yeah, so I think, you know, one thing would be that there are two questions if we can take those questions. Yes, you want to take the questions first or because that would take up all the time, I mean, so whichever. Maybe what we can do is we can separately answer those questions to the individuals. And maybe just conclude with a couple of points because I think what we wanted to also discuss is the timing of how what and what and how you do so far as your, you know, damage claims are concerned as part of, you know, successfully claiming them. So, you know, what would be the stage of calculating the damages, whether you need an expert, what are the, you know, situations when you face an international arbitration. And, you know, how do you include them in pleadings or otherwise so maybe you can give a very quick overview of the strategy behind claiming damages first, and then maybe we can also answer one or two questions. Yes, that seems interesting. So the first thing I didn't mind to discuss is what would be the stage when you would actually think about calculating damages, when would you start thinking about calculating or quantifying damages. Sorry, I didn't get the last point. So what would be the stage in the whole like litigation or arbitration process or even before that maybe what would be the stage when you think is the ideal time to like start about quantifying and you know like I think at least you should do it much before you file your claim. Because I think what the biggest problem in the hurry to file claims is that, you know, the, as I said it is important to show the causation, and it is also important to show the proof of loss. And therefore your everments and submissions that what is the basis of claiming that loss is very, very relevant when you ultimately lead evidence to prove the loss. So my, my, you know, you know, suggestion would be that it should be, you know, much ahead of times, even that can be the basis whether you really want to file a case or not. I think I would, I would look at it from that perspective because at the end of the day, we are talking about commercial contracts. I understand if it is injury due to a tort or you know something like that and you, you know, go by different reasons, but in a commercial contract situation unless you have a strong case of any compensation, you know, you are basically spending, you know, good money after bad money and, and it's not worth it. Because ultimately, you don't get anything except paying the lawyers, which we are fine with. But I think that's not the ideal situation from a business perspective. Yeah, so that's what I would agree with also that what really, and I think we had hinted it earlier, that you really work backwards from what you want to argue as your theory of your case, and then work up what evidence is available, and then work up what your pleadings should be. Because towards the end, the arbitrators or the judges who ask that you start that have you, are there pleadings to support your claim? And is there evidence to support your claim? And then, you know, like, essentially, what's your argument about it, whether it's reasonable and reasonable, consequential, liquidated, what's the proof, enough proof or not, I mean, as such. So, in your experience, in international arbitrations, and the damages that are granted, is there like a remarkable difference between say the domestic ones and the international ones? I think the biggest difference is the time factor. I think when it comes to domestic litigation or arbitration, what one feels that this is a question after three years, five years or 10 years. I think what happens in an international scene is that you hit with that question in less than 12 or 18 months and you don't have time at that point, you know, to really calibrate the whole aspect of damages. And I think that's the biggest difference you hit the situation much earlier. And two, I think it's not just that, you know, the tribunals are very, you know, soft on granting damages or otherwise. It's also very, very strict on grant of damages. But yes, if there is a situation where there is a direct loss or situation where you are able to show that it has, you know, connection with the breach itself, then they are also not afraid of granting huge damages. And we have seen in the past, whether it was Ren Backsee versus Daichi, which was a classic damage claim, where, you know, for a breach of, you know, disclosure, I may say, or representation with regard to certain, you know, approvals, damages, you know, running into, you know, more than 2-3,000 crores, including interest was granted and approved by Indian ports. Same thing happened with the Tata Doko Mo Pes, which again is a very, you know, remarkable case where it was not the enforcement of a put option, but it was a damage loss or compensation granted for not fulfilling the performance of the sale either by itself or through a third party. And the damage was equal to the amount invested, which was, you know, reasonable compensation, you know, granted and approved by the Indian courts in many ways. So I think that there has been, you know, quite a few jurisprudence, particularly because of the fast proceedings that happen in an arbitration scenario. And, you know, these are very good examples of how international arbitrators look at damage or compensation claims. We may not have any more time, essentially, for further like points. I mean, we would have like I think there is one very basic question from Gaurav, if EOC is granted with the classic clause with LD maybe levied, then what is the jurisprudence available with respect to whether LD levied is legal? I think I did cover this part as discussion of my Asian tech and simplex judgments. Possibly you would get an answer to that that, you know, those are enforceable in certain situations. So maybe Gaurav, you can look at those jurisprudence and see if that solves your issue. And I think there is a comment from Mohat Dubey, I don't think it's a question. It's on Welleson, I mean. It's a fun to digest, I mean. Then Bhavika had one question. I'm sure we won't be able to cover everything, but it was on take or pay clauses. It's essentially, I think you're probably in mind that what we call as full and final settlement that either you take what we are paying or consider all the settlement is done. Those full and final settlement clauses have, in most cases, the courts have found out mechanisms to work around it and using some interpretational aspects that just because you have accepted a payment doesn't mean that you cannot dispute it. And lots of times, people sometimes accept them under protest. Sometimes they make post payment protest or even just in litigation, but courts have also sometimes said if the amounts are smaller and seems that the litigation is only prolonged to enhance it. They'll say, yes, you agreed to what was given to you. So it's very fact specific, I would say. But in general, courts try to find out ways to say that full and final settlement should not bar further claims. And sometimes the claims are not related to what is termed as full and final settlement. There are other heads to claim beyond the full and final settlement heads, I mean. Yeah, because you're right and sometimes same principles as penalty versus liquidated damages apply in these cases as well as to whether those are enforceable or not. But I think with that we might have to end this session and thanks everyone for such a great participation and also hanging out for the first 10-15 minutes when there was a technical glitch. We really are sorry about it. And hopefully, you know, that has not taken away a lot of time from your evening and we appreciate you all joining at this time. Thank you. Thank you very much. Thank you, Vikas, who runs this wonderful channel Beyond Law CLC. And it's really the quality of speakers that also made me and Vyapak, the earlier speakers, me and Vyapak agree that, you know, we would come on and give this thing and it's a great collection of videos to watch at your free time and some very good insights on very practical aspects of law. So thank you very much, Vikas, and thank you Vyapak also for sparing time to do this session. And on my behalf also, I apologize for the initial, you know, like bit of delay, but that's technology and stuff happens. So I'll respectfully ask for an extension of time for 10 minutes with or without LD. Thank you, Vyapak and thank you, Hasith. It's always a pleasure connecting, especially on the LinkedIn with the insights given by both of you and a lot of insights also on the YouTube. That was one of the things what the team Beyond Law CLC thought that these are the two persons who can actually come on the same page of Beyond Law CLC to give and share the knowledge. And how successfully they have told to claim the damages and how successfully they have also told us what are the deeper insights, the deeper plunges into it, and we would share the judgment shared by both of them. Thank you everyone. Stay safe, stay blessed. Namaskar again. Thank you, thank you.