Eastern Coalfields Ltd vs Vsaippl-Pe-Si(Jv) & Ors
2023 Latest Caselaw 3988 Cal

21.06.2023
 SL No.2
Court No.37
  (gc/sg)
                     In The High Court at Calcutta
                      Civil Appellate Jurisdiction
                         Commercial Division

                             FA 187 of 2022
                             CAN 1 of 2022
                             CAN 2 of 2022

                         Eastern Coalfields Ltd.
                                  Vs.
                        VSAIPPL-PE-SI(JV) & Ors.

                                 Mr. Debnath Ghosh,
                                 Mr. Syed Nurul Arefin,
                                 Mr. Rahul Singh,
                                 Ms. Rashmi Binayak,
                                                     ...for the Appellant.
                                 Mr. Partha Pratim Roy,
                                 Mr. Srijib Chakraborty,
                                 Mr. Satyaki Mukherjee,
                                 Mr. Aditya Mondal,
                                                  ...for the Respondents.

By consent of the parties, the appeal and the stay

application along with the application for evidence are

taken up together and disposed of by this common order.

The plaintiffs have filed an application for judgment

upon admission. The claim for judgment upon admission

is based on two letters being letter dated 27th June, 2018

addressed to the respondent by the agent of the mine

concerned and the letter dated 23rd July, 2018 from the

Eastern Coalfields Ltd. to the plaintiffs.

Mr. Debnath Ghosh, learned Counsel appearing on

behalf of the appellant submits that the tenor of the said

letter would not show that there has been an admission of

the claim of the plaintiffs as the recommendation of the

agent is dependent upon an approval being obtained from

the competent authority regarding the quantity mentioned

by the agent with regard to the excavation of coal and

removal of Over Burden (in short "O.B"). Mr. Ghosh

further submits that the plaintiffs have abandoned the

site and did not complete the work for which there is a

requirement of retender and the plaintiffs are liable for the

costs and expenses to be incurred for completing the

balance work.

Mr. Partha Pratim Roy, learned Counsel

representing the plaintiffs submits that the said two

letters unequivocally show the work done by the plaintiffs

and the amount is required to be paid on the basis of the

works carried out by the plaintiffs under the work

contract awarded to the plaintiffs. Mr. Roy also submits

that pursuant to the recommendation of the agent, the

plaintiffs, in fact, have accepted the quantification made

by the agent towards O.B. and coal quantity at the colliery

concerned and having regard to the fact that the offer of

the agent has been accepted by the plaintiffs, it is a

concluded contract and the appellant is bound to release

the payments on the basis of the acceptance

communicated to the agent on 26th July, 2018.

We have considered the submissions made on

behalf of the parties. We could not find any satisfactory

reply from Mr. Ghosh for not releasing the amount after

there is an acceptance of the offer duly communicated to

the E.C.L on 26th July, 2018. In the written statement

filed before the Commercial Court, there is no whisper of

any decision being taken by the competent authority of

the E.C.L. suggesting a contrary recommendation than

what was suggested by the agent. In fact, as rightly

pointed out by the learned Counsel for the plaintiffs under

the works contract "all measurements of O.B. removed

will have to be certified by Colliery Surveyor, Management

and Project Officer/Agent". In the instant case, the agent

has duly certified for the O.B. and the other works and

has forwarded his recommendation to the competent

authority for consideration. One would have expected

from the appellant to disclose in the written statement the

reason for non-acceptance of the recommendation of the

agent. Surprisingly, till date no counter-claim has been

made in the pending proceeding and by this time it may

have been time barred. The plaintiffs cannot suffer due to

lackadaisical approach of the competent authority in not

considering the recommendation of the agent. We have

not been shown a single document emanating from the

competent authority with regard to the recommendation

of the agent.

However, in view of the fact that there is no

unequivocal admission per se, in terms of money and that

in the written statement, it has been alleged that by

reason of abandonment of the work retendering was

necessary and the entire amount may not be payable, we

modify the order passed by the learned Trial Judge to the

extent that the appellant shall furnish an unconditional

bank guarantee of Rs.2.60 crores within two weeks from

date to the satisfaction of the learned Trial Court, in

default, the decree shall revive and would be immediately

executable.

The learned Trial Court is requested to follow the

case management strictly and conclude the trial as

expeditiously as possible without granting any

adjournment to either of the parties unless unavoidable.

The judgment of the learned Trial Court is modified

to the aforesaid extent.

In the event the suit is decreed, it is needless to

mention that the plaintiffs shall be entitled to interest

from the date of presentation of the plaint till the decree

is passed. The impugned order is modified to the

aforesaid extent.

With the aforesaid observation, the appeal and the

connected applications stand disposed of.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on usual undertaking.

(Uday Kumar, J.)                            (Soumen Sen, J.)