Allowed

South Eastern Coalfields Limited And Anr. v. Ajay Kumar Agarwal

Chhattisgarh HC16 Aug 2023FA/157/2015

Case brief

AI extract

What is this about?

The High Court allowed the appeal filed by South Eastern Coalfields Limited, setting aside the trial court decree in favor of the contractor. Holding that the plaintiff accepted the revised rate finalized by the defendant's headquarter, the Court reversed the earlier award.

What did the court decide?

Set aside the judgment and decree dated 16.02.2015; decree to be drawn accordingly per the appeal's direction.

South Eastern Coalfields Limited And Anr. Vs Ajay… — Company and Corporate | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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F.A. No. 157 of 2015

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Reserved on 07.08.2023

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Pronounced on 16.08.2023

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South Eastern Coalfields Limited, Seepat Road, Bilaspur Chhattisgarh Through Its Managing Director.

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South Eastern Coalfields Limited, Bishrampur, Area Bishrampur, District Surguja Chhattisgarh Through Chief General Manager

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---- Appellants

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Versus

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Ajay Kumar Agarwal S/o Bhola Prasad Agrawal Owner Pawan Borewell Service, Nehru Park Road, Shyamji Marg, Surajpur, District Surguja Chattisgarh Through Special Power Of Attorney Pawan Kumar Agrawal S/o Bhola Prasad Agrawal, Chhattisgarh

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---- Respondent

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For Appellants: Shri Pankaj Singh, Advocate. For Respondent: Shri Manoj Paranjpe, Advocate appears along with Shri Anshul Tiwari, Advocate.

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D.B.: Hon'ble Shri Justice Goutam Bhaduri &

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Hon'ble Shri Justice Sanjay S. Agrawal CAV Order/Judgment

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Per Sanjay S. Agrawal, J

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This appeal has been preferred by the defendants-South Eastern Coalfields Limited under Section 96 of the Code of Civil Procedure, 1908 questioning the legality and propriety of the judgment and decree dated 16.02.2015 passed by First Additional District Judge, Surajpur, District Surajpur (C.G.) in Civil Suit No.3B/2002, whereby the learned trial Court has decreed the plaintiff's claim entitling him to recover a sum of Rs.11,00,820/with 9% interest per annum from the date of decree till its realisation. The parties to this appeal shall be referred hereinafter as per their description before the trial Court.

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Briefly stated the facts of the case are that on 26.03.1999, the defendant-South Eastern Coalfields Limited, a registered public company engaged in mining of coal and other related activities, awarded the work order No. G.M./B.S.P.R./S.O.(M)72/99/8325 for drilling 212 numbers 40 meters deep blast holes for fracturing of strata of P-2 Longwall panel and fixing of PVC casing pipe at P-2 panel of Balrampur Longwall project, which was awarded at the rate of Rs.220 per meter for drilling and after its completion, on 06.05.1999, the plaintiff, a proprietor of Pawan Borwell service, was paid a sum of Rs.19,21,920/- on 26.06.1999 and there was no dispute with regard to the work done under the said work order dated 26.03.1999. According to the plaintiff, the defendant was in need of 210 numbers more deep blast holes on an urgent basis after the completion of the said work order, and therefore, no separate tender was issued for the said purpose, but vide letter dated 25.05.1999, the defendant has offered the plaintiff for doing the said work by saying in its said letter that the proposal has been sent to its headquarter for tendering and finalisation of rate and since it is likely to take about two months time and as the work being of urgent nature, he (plaintiff) was asked to confirm in writing by 27.05.1999 (5 P.M.) as to whether he was willing to accept the rate which would be finalised by the headquarter or not for the said work and, in case no information is received by the said fixed date and time, it will be presumed that the rates which will be finalised by the headquarter for the said additional work would be acceptable by the plaintiff. It was pleaded by the plaintiff that in response to the said letter, the plaintiff vide his letter dated 27.05.1999 has shown his readiness and willingness to complete the said additional work as per the rate fixed in the previous work order dated 26.03.1999 and, if for any reason, the rates are finalised/revised by the

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headquarter, it would then be acceptable to him.

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Further contention of the plaintiff is that he agreed to do the said additional work at the rate fixed under the previous work order dated 26.03.1999, i.e., at the rate of Rs.220/- per meter and according to the letter dated 16.07.1999, issued by the defendant, he submitted his bill amounting to Rs.19,23,600/- upon completion of the work and a payment of Rs.9,80,040 was made by the defendant, however, vide letter No. G.M./B.S.P.R./9A/99/4602 dated 16.10.1999, he was informed by the defendant that he is entitled to receive the payment as per the revised rate of Rs.97.75/- as fixed by the headquarter, which is, however, contrary to law, and therefore, he is entitled to obtain the balance amount of Rs.11,00,820/- with 12% interest per annum from the date of institution of the suit till its realisation.

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While contesting the aforesaid claim, it was pleaded by the defendant that the plaintiff is entitled to the payment for completion of the alleged additional work only at the rate of Rs.97.75/- per meter as fixed by the headquarter and the repeat work order dated 16.07.1999 was accordingly amended vide letter No. G.M./B.S.P.R./9-A/99/4602 dated 16.10.1999. The plaintiff is, therefore, entitled to a sum of Rs.8,22,780/- according to the said revised rate fixed by the headquarter and the claim as made by the plaintiff is, therefore, liable to be dismissed.

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The trial Court after considering the evidence led by the parties arrived at a conclusion that the plaintiff was agreed to complete the said additional work at the rate of Rs.220/- per meter and accordingly decreed the claim, entitling the plaintiff to recover the balance amount of Rs.11,00,820/- with 9% interest per annum from the date of pronouncement of judgment and decree till its realisation.

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Being aggrieved, the defendant has preferred this appeal.

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Learned counsel appearing for the appellant/defendant submits that the

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finding of the Court below holding that the plaintiff was agreed to complete the alleged additional work at the rate of Rs.220/- per meter and not as per the rate, i.e., 97.95/- per meter as fixed by the headquarter is apparently contrary to the materials available on record. While inviting attention to the reply/letter (Ex.P.-6) dated 27.05.1999 issued by the plaintiff in pursuance of the defendant's said letter (Ex.P.-8) dated 25.05.1999 submits that the plaintiff has specifically consented to do the said additional work as per the rate fixed by the headquarter. It is contended further that without considering the letter issued by the defendant on 25.05.1999 and the reply given by the plaintiff in pursuance thereof on 27.05.1999 in its proper manner vitiates the entire findings of the Court below and consequent upon the decree. In support, he placed his reliance upon the decision rendered by the Supreme Court in the matter of Ram Sarup Gupta (DEAD) by LRs vs. Bishun Narain Inter College and others reported in (1987) 2 SCC 555.

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On the other hand, learned counsel appearing for the respondent/plaintiff has supported the impugned judgment and decree as passed by the Court below.

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We have heard learned counsel appearing for the parties and perused the entire record carefully.

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The question which involves in this appeal is:-

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“Whether the additional work, i.e., further drilling of 212 numbers more blast holes was to be carried out at the rate of Rs.220/- per meter, or as per the rate of Rs.97.75/- fixed by the headquarter of the defendantSouth Eastern Coalfields Limited?”

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From perusal of the record, it appears that initially the work order No. G.M./B.S.P.R./S.O.(M)/72/98/8325 (Ex.P.-12) was awarded to the plaintiff on 26.03.1999 for drilling 212 numbers (100 mm diameter) 40 meter deep blast holes for fracturing of strata of P-2 Longwall panel and fixing of PVC casing pipe at P-2 panel of Balrampur Longwall project. The said drilling work was provided at the rate of Rs.221/- per meter and which was found to be completed on 06.05.1999 and, admittedly, there is no dispute exists between the parties with regard to the said work, awarded on 26.03.1999.

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It appears that the defendant was in need of 212 numbers more deep blast holes at the said area on an urgent basis as this work of drilling was required to be continued in this panel without any interruption, therefore, instead of issuing a separate tender, an offer was made by the defendant to the plaintiff for doing the said urgent additional work of drilling vide its letter dated 25.05.1999 (Ex.P.-8), wherein it has been informed to the plaintiff that the proposal for doing the said work has already been sent to its headquarter for tendering and finalisation of rate, but since it will take about two months' time, therefore, he was asked to confirm in writing by 27.05.1999 (5 P.M.) as to whether he was willing to accept the rate which would be finalised by the headquarter with the further stipulation that, if no information is received by the said date and time, then it will be presumed that the rates which will be finalised by the headquarter would be acceptable to the plaintiff. It appears further that in response to the said letter, a reply (Ex.P.-6) was given by the plaintiff, beyond the prescribed time, i.e., on 28.05.1999, as evidenced by the endorsement made therein, though it was tried to explain by him that he reached the office in the evening, but since no one was present in the office, therefore, it could have been served only on the next day, i.e., on 28.05.1999.

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However, from perusal of the entire averments made in the plaint, we do not find such a pleading, therefore, in absence of plea to this effect, it cannot be said that he had reached the office in the evening. At this juncture, the principles laid down by the Supreme Court in the matter of Ram Sarup Gupta (DEAD) by LRs vs. Bishun Narain Inter College and others (supra) are to be seen, wherein it has been held at para 6, which reads as under:-

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“6. ….......It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise.............”

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In the light of the principles laid down by the Supreme Court in the above mentioned matter, it cannot be said that the plaintiff had reached the office in the evening on the said date. Besides, it is to be seen further that when reply was not received by the defendant in time pursuance of its letter issued on 25.05.1999 (Ex.P.-8), it was, therefore, informed the plaintiff vide its letter dated 27.05.1999 (Ex.P.-7) that since the reply was not received from his end, therefore, it will be presumed that the rates of drilling, which would be finalised by the headquarter, Bilaspur for further drilling of holes are acceptable to him and despite of the said letter, the plaintiff has not responded to it and kept silent and, instead continued proceeded with the said additional work. In view of such circumstances, it is, thus, evident that the plaintiff was ready to perform the said additional urgent work of drilling as per the rates fixed by the headquarter. Pertinently to be noted here that even prior to the issuance of the repeat work order No. G.M./B.S.P.R./9-A/99/2464 for drilling of additional work/holes on 16.07.1999 (Ex.P.-9), the alleged additional work was

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completed by the plaintiff as evidenced by the completion certificate (Ex.P.-4) issued by the defendant on 19.07.1999. Meaning thereby, the plaintiff was ready to complete the said work as per the rate which will be fixed by the headquarter else he would not have proceeded ahead with the said additional urgent work prior to its finalisation.

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Be that as it may, even if it is presumed that in response to the defendant's said letter (Ex.P.-8), the plaintiff had tried to submit his reply (Ex.P.-6) on 27.05.1999 in the evening of the said stipulated time, then also it cannot be said that he was not ready to do the said additional urgent work as per the revised and/or the amended rate fixed by the headquarter as evidenced by his reply (Ex.P.-6), wherein an unequivocal term, he had accepted to do the said work as per the said revised/amended rate of Rs.97.75/- per meter which was informed to him vide letter dated 16.10.1999 (Ex.P.-2), else the alleged letter (Ex.P.-2) would have been questioned by him. Having failed to do so and as per the conduct of the plaintiff as observed herein above would lead to an irresistible conclusion that the plaintiff was ready and had given his acceptance for the performance of the said additional urgent work of drilling of holes as per the rate fixed by the headquarter of defendant's company (South Eastern Coalfields Limited). 15. Consequently, the appeal is allowed and the judgment and decree dated 16.02.2015 passed by First Additional District Judge, Surajpur, District Surajpur (C.G.) in Civil Suit No.3B/2002 is hereby set aside. No order as to costs.

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A decree be drawn accordingly.

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Sd/Sd/(Goutam Bhaduri) (Sanjay S. Agrawal) Judge Judge

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Nikita

South Eastern Coalfields Limited And Anr. v. Ajay Kumar Agarwal

Case brief

What is this about?

What did the court decide?

South Eastern Coalfields Limited And Anr. v. Ajay Kumar Agarwal

Case brief

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