Breach of Contract Penal Clauses: Understanding Section 73-75 of the Contract Act and Case Laws


Contracts form the foundation of business transactions and agreements, offering a legal framework for parties to ensure the fulfillment of their obligations. However, in the real world, not all parties adhere to their contractual commitments, leading to breaches. To protect against such breaches, parties often include penal clauses in their contracts. Penal clauses are intended to serve as a deterrent and provide compensation for losses incurred due to a breach. In this blog, we will explore the concept of penal clauses, and the relevant provisions under the Contract Act, and analyze significant case laws related to breach of contract and penal clauses. 

1.    Understanding Penal Clauses

A penal clause, also known as a liquidated damages clause, is a contractual provision that stipulates the predetermined amount of damages to be paid by the party in breach. The primary objective of including a penal clause is to provide certainty and avoid litigation when a breach occurs. By agreeing to the penal clause, both parties acknowledge the extent of the damage that would result from a breach and agree to the specified amount as compensation.

Penal clauses are commonly used in complex commercial agreements, construction contracts, and software development contracts, among others. They provide a level of security to the non-breaching party by establishing the maximum damages they can recover if a breach occurs.

However, penal clauses must not be punitive in nature. If the amount stipulated in the penal clause exceeds the actual loss suffered by the innocent party, the courts may consider it as a penalty rather than liquidated damages. In such cases, the courts have the authority to intervene and either reduce or set aside the penal clause.

2.    Section 73 of the Contract Act

Section 73 of the Indian Contract Act, 1872, deals with compensation for loss or damage caused by the breach of contract. It states that when a contract is breached, the party suffering from the breach is entitled to receive compensation from the party responsible for the breach. The compensation must be equivalent to the loss or damage that naturally arose in the usual course of things as a result of the breach.

The section further mentions that compensation is not payable for any remote or indirect loss that might have been caused by the breach. This provision is essential to prevent excessive claims that are not directly related to the breach.

For instance, if Party A, a manufacturer, fails to deliver goods to Party B, a retailer, as per the agreed-upon timeline, Party B may suffer losses due to lost sales opportunities, damage to its reputation, and additional storage costs. Section 73 allows Party B to claim compensation for these direct losses caused by Party A's breach.

3.    Section 74 of the Contract Act

Section 74 of the Contract Act addresses the issue of penal clauses. It states that when a contract contains a penal clause for a breach, the party suffering from the breach is entitled to receive compensation for the actual loss suffered. The court has the discretion to determine the reasonable amount of compensation, not exceeding the penalty specified in the contract.

For instance, if Party A fails to deliver goods to Party B as per the agreed-upon timeline and the contract includes a penal clause of Rs. 10,000 for each day of delay, but Party B only suffers Rs. 5,000 in actual losses, the court may award Rs. 5,000 as compensation.

However, to claim compensation under Section 74, the innocent party must prove that the specified amount in the penal clause is a genuine pre-estimate of damages and not a penalty. The burden of proof lies on the party seeking to enforce the penal clause.

4.    Section 75 of the Contract Act

Section 75 of the Contract Act is complementary to Section 74. It allows the court to increase the amount of compensation if it finds that the penal clause specified in the contract is inadequate. If the court believes that the actual loss suffered is greater than the amount mentioned in the penal clause, it can award additional compensation, subject to the limits of Section 74.

For instance, if the penal clause mentioned in the contract between Party A and Party B is Rs. 10,000 for each day of delay, but Party B can prove that it suffered losses of Rs. 15,000 per day due to the breach, the court may award additional compensation to cover the full extent of Party B's losses.

Case Laws on Breach of Contract and Penal Clauses

1.    Fateh Chand v. Balkishan Das (AIR 1963 SC 1405)

In this landmark case, the Supreme Court of India distinguished between genuine pre-estimates of damages and penalties. It ruled that penal clauses are unenforceable, but genuine pre-estimates of damages are valid and enforceable. The court held that penal clauses are meant to punish the party in breach, whereas genuine pre-estimates are designed to compensate for the loss suffered.

In this case, Party A entered into a contract to sell goods to Party B, with a stipulated penal clause in case of late delivery. Party B refused to accept the goods and later claimed a refund of the advance paid. The court held that the penal clause was unreasonable and, instead, awarded Party B reasonable compensation based on actual losses incurred. 

The court laid down the principle that when a penal clause is inserted in the contract, the burden of proving that it is a genuine pre-estimate of damages lies on the party seeking to enforce it. If the party fails to prove it as a genuine pre-estimate, the clause may be treated as a penalty and unenforceable.

2.    Maula Bux v. Union of India (AIR 1969 SC 523)

In this case, the Supreme Court clarified that Section 74 of the Contract Act grants the court the power to grant reasonable compensation only when the party claiming damages has suffered actual loss. The court cannot award compensation when there has been no actual loss or damage, even if the contract includes a penal clause.

In this case, a contractor failed to complete a government project within the stipulated time, and the contract contained a penal clause for delay. The court held that the contractor was liable to pay compensation only for the actual loss suffered by the government due to the delay, and not for the penalty specified in the contract. The court emphasized that the purpose of awarding compensation is to indemnify the aggrieved party for the loss suffered and not to punish the party in breach. 

Practical Tips for Drafting Penal Clauses

1. Consult Legal Experts: When including a penal clause in a contract, it is advisable to seek the expertise of legal professionals to ensure that the clause is enforceable and not considered punitive.

2.  Reasonable Pre-Estimate: When drafting a penal clause, parties should carefully calculate and specify a reasonable pre-estimated amount of damages based on potential losses that might arise from a breach.

3. Review Industry Standards: It is essential to review industry standards and practices while drafting penal clauses to ensure they align with prevailing norms.

4. Consider Different Breach Scenarios: Anticipate various breach scenarios and assess potential damages for each to ensure the penal clause covers a range of possible situations. 


In conclusion, penal clauses in contracts play a crucial role in ensuring compliance and protecting parties from potential losses due to breaches. However, they must be carefully drafted to avoid being considered punitive and unenforceable. Section 73-75 of the Indian Contract Act provides the legal framework for dealing with compensation in cases of breach of contract and penal clauses. By understanding these provisions, analyzing relevant case laws, and following practical tips for drafting penal clauses, parties can ensure their contracts are enforceable and provide adequate protection in the event of a breach.


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