Full Judgment Text
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PETITIONER:
THE STEEL AUTHORITY OF INDIAAND ORS.
Vs.
RESPONDENT:
NEW MARINE COAL CO. (PVT.) LTD.
DATE OF JUDGMENT: 14/02/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
AHMAD SAGHIR S. (J)
CITATION:
1996 AIR 1250 JT 1996 (3) 62
1996 SCALE (2)581
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This appeal by special leave arises from the judgment
and order dated May 20, 1982 in F.A. No.30 of 1973 of the
Division Bench of the High Court of Patna dated May 20,
1982. The admitted facts are that M/s. Kirkend Coal Company
which is now renamed as New Marine Coal Company Ltd. [for
short, the ’plaintiff’] laid a suit to recover a sun of
Rs.1,13,000/- towards the value of the coal supplied to the
appellant-defendant. The case of the appellants is that the
plaintiff was to supply Grade-I coal between December 7,
1962 to June 1967. Instead of Grade-I coal, Grade-II coal
was supplied but price of Grade-I coal was collected. Under
the agreement Ext. C series, a clause in the contract was:
"We agree for any adjustment as may
be necessary on account of quality
or quantity of supply to be made
from our bills or subsequent bills
."
Thereunder they are entitled to adjust the over payment made
during the period of December 1962 to June 1967 and
accordingly they made adjustment. After framing of issues
and adduction of evidence, the trial Court found that though
there was such an agreement for adjustment, unless the
appellants plead either set of or counter claim and pay the
court fee, they are not entitled to the relief.
Consequently, the suit was decreed. On appeal, the High
Court found that in the light of the agreement and
adjustment from future bills the appellants were entitled to
adjust the same from the future supplies since fraud was
discovered for the first time under Ext. D in the year 1969,
After it was pointed out by the Audit Department that the
plaintiff had supplied Grade-II coal but collected the price
of Grade-I coal, the appellants were entitled to adjust the
same. But from the evidence on record about 12,038 tones of
coal was supplied but what was the total quantity of the
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coal supplied between December 7, 1962 and June 1967 has not
been brought on record and even the price which prevailed
for Grade-II and Grade-I coal during the relevant period was
not produced. Consequently, the appellant cannot succeed in
avoiding the decree. Thus, the appeal was dismissed.
The question, therefore, is: whether the High Court was
justified in dismissing the appeal and confirming the decree
of the trial Court on the facts of this case? It was found
by the High Court, as a fact, and we agree with the same,
that under the agreement between the parties the excess or
over-payment was required to be adjusted in the pending or
subsequent bills and the parties were bound by the same.
Consequently, the appellants are entitled to adjust the
over-payments from the future supplies made by the
plaintiff. It is also found that the plaintiff committed
fraud in demanding and collecting payment of the price of
Grade-I coal while in fact Grade-II coal was supplied to the
appellants. After the discovery of the fraud, the appellants
started adjusting the amounts of over payments from the
future bills payable to the plaintiff. Having found this
fact, necessarily, the High Court either would have called
for a finding from trial Court, after giving opportunity to
the parties, and adjudged the rights of the parties or would
have remitted the matter to the trial Court to give an
opportunity to the appellants to place on record evidence in
that behalf. We think that the latter course would be more
feasible. Accordingly, we set aside that part of the
judgment of the High Court and the decree of the trial Court
and remit the suit to the trial Court. The trial Court is
directed to give an opportunity to the appellants to adduce
evidence of the total supplies made during the period from
December 7, 1962 to end of December 1967 and also the
prevailing price of Grade-I and Grade-II coal. It is seen
that if the supply is in excess of 12,038 tones, as found by
the High court, the same should also be taken into account
to find out what was the amount actually of over-payment
received by the plaintiff, adjust the same towards the
amount payable to the plaintiff, and then to draw decree
accordingly. This would be done within a period of six
months from the date of the receipt of the copy of the
order.
The appeal is accordingly allowed. No costs.