Chattisgarh High Court
South Eastern Coalfields Limited vs Mahesh Kumar Agrawal on 6 September, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA No. 65 of 2016
1. South Eastern Coalfields Limited Through The Chairman-Cum-
Managing Director, Seepat Road, Bilaspur, Chhattisgarh,
Chhattisgarh
2. Regional Sale Manager, S.E.C.L., Vishrampur Area, Surguja, At
Present District- Surajpur, Chhattisgarh
3. Chief General Manager, S.E.C.L., Vishrampur Area, Surguja, At
Present District- Surajpur, Chhattisgarh ...........Defendants
---- Appellants
Versus
• Mahesh Kumar Agrawal S/o K.S. Agrawal, Owner- Ambika Coal
Depo, R/o Banaras Road, Nagar Ambikapur, District- Surguja,
Chhattisgarh ...........Plaintiff, Chhattisgarh
---- Respondent
For Appellants : Shri Gautam Khetrapal assisted by
Shri Akash Kedia, Advocates
For Respondent : Shri Sumesh Bajaj assited by Shri Rishabh
Bajaj, Advocates
Hon'ble Shri Justice Goutam Bhaduri &
Hon'ble Shri Justice Radhakishan Agrawal
Judgment On Board
Per Goutam Bhaduri, J.
06/09/2022
1. Heard.
2. The present appeal is filed against the judgment and decree
dated 24.11.2015 passed in Civil Suit No. 11-A/2008 by the First
Additional District Judge, Surajpur, District Surajpur wherein the suit
filed by the plaintiff/respondent seeking relief of delivery of coal and in
alternative to return the amount which was deposited to take the
delivery of coal was allowed to the extent to return of money
amounting to Rs. 10,19,645/-. It was the plaintiff's price of coal which
was retained by the appellant/Company.
3. The brief facts of this case are that the plaintiff/respondent
Mahesh Kumar Agrawal, owner of Ambika Coal Depot filed a civil suit
that he participated in a e-auction on 24.11.2005 and was a successful
bidder whereby he was allowed to life the coal of 990 metric tonnes of
B-grade from the SECL. The delivery order was given on 22.04.2006
as as per the terms of the auction, plaintiff/respondent deposited the
entire sale consideration of coal amounting to Rs. 17,9i6,651/-. It was
stated that by such payment of amount to the extent of 990 metric
tonnes, he became the owner of the said property and as per the
terms, the delivery of the coal was to be effected within 45 days of the
delivery order. As per the averments of the plaint, the plaintiff was
provided with part of the coal out of 990 metric tones B-Grade whereas
561.85 was to be received which was withheld by the defendant/SECL
without any sufficient cause and reason. It was stated that further as
per the terms of e-auction, the entire responsibility of loading of the
coal in the trucks was that of SECL and their employee and in
pursuant to lift coal, the plaintiff deployed trucks through their
transporter.
4. It is further stated when the coal was not delivered, the plaintiff
made representation and eventually filed a Writ Petition bearing No.
3470 of 2006 wherein the High Court by its order dated 26.10.2007
ordered that the representation is pending before the SECL which
would be decided after giving opportunity of hearing to the
plaintiff/respondent. Subsequently, when the plaintiff appeared before
the SECL Officers it was revealed that two trucks i.e. CG04J/1782
when was inspected it was found that there was 2.860 metric tonnes of
overloading and in respect of another truck CG10A/4018 at the front
and CG10A/4030 at the back, different number plates were affixed
therefore it was presumed that the plaintiff was committing theft of the
coal and for which the FIR was lodged. It was further pleaded that on
that basis when the inspection was carried out one of the truck was
found with overloading, the subsequent delivery of the coal was not
allowed. The plaintiff's claim reveals that despite of representation,
exchange of notices, the delivery of coal was not affected which
caused loss to the plaintiff. Therefore for the price of the coal and the
loss sustained in profit a claim of Rs. 13,88,717.70 was filed.
5. The respondent/appellant contended that as per e-auction,
delivery order on 22.04.2006 was granted for lifting of 990 metric
tonnes of coal to plaintiff. It is stated the plaintiff lifted some part of coal
and 561.85 tonnes of coal was remaining. Since the plaintiff was
involved in theft of coal therefore the plaintiff was blacklisted and the
SECL do not transact with the blacklisted company on this ground the
rest of the delivery was not made. It was further stated that when the
inspection was carried out by the inspection team they found that one
of the truck was having different number on the front and the back and
one of the truck was having more than two tonnes of coal in excess. It
was further contended that therefore the plaintiff was not entitled to get
back the coal though the amount was deposited.
6. Learned court below had framed the issued that whether without
any lawful cause, the delivery of 561.85 metric tones of coal was
withheld, the court gave it in-affirmative and directed to pay the
amount of Rs. 10,119,645.40/- and further interest of 8% in respect of
loss of profit was allowed. Being aggrieved by the said judgment and
decree the instant appeal by SECL.
7. Learned counsel for the appellant would submit that the
evidence exist in this case that one truck bearing different number
plates at front and back were operational which shows the intention of
the plaintiff and further when the random checking was done in one of
the truck quantity of coal was more than 2 tonnes therefore the theft
was apparent for which the FIR was lodged. He would further submit
that the learned court below failed to appreciate this fact that the
plaintiff was involved in theft of coal and despite that without any
reason has directed for return of the amount. Counsel would further
submit that when the trucks were caught red handed they were put in
the black list naturally therefore the truck could not have made entry in
the colliery. Consequently the contract itself stands frustrated for which
the benefit cannot be given back as the fault was due to the plaintiff
himself. Counsel further placed his reliance in the matter of Shree
Hanuman Cotton Mills and Others Vs. Tata Air Craft Limited
reported in 1969 3 SCC 522 to submit that the earnest money of
amount was forfeited for the reasons of the frustration of the contract
and the plaintiff failed to execute his part of contract because of his
own conduct of theft in the result contract having been frustrated coal
was not allowed to be lifted.
8. Per contra learned counsel for the respondent would submit that
series of the acts would show that without any reason the plaintiff was
deprived of his right to lift the remaining coal on the pretext that two of
the trucks were alleged to be involved in theft. He would submit that
there is no evidence on record to hold or sustain the plea that one
truck which was having two different numbers was involved in theft in
as much as no charge sheet was filed against such truck despite the
complaint made. It is stated the evidence shows that the entire loading
of the coal was made at the best of the SECL and the employee after
a series of supervision and in a given case, even though if two tonnes
of coal was found in excess in one truck, it could have been adjusted
in the subsequent delivery for the reason that the entire amount of sale
consideration was paid by the plaintiff/respondent. He went through
the statement of DW-1 and DW-2 the witnesses of the SECL to canvas
the fact that even the factum of black listing was not proved and no
document to prove those facts has been filed in this case to
substantiate that the plaintiff was blacklisted ever. He further submits
that after a long period, when the representation was decided after
almost 1 ½ years, the appellant/defendant came out with a plea of
blacklisting which never existed therefore on false pretext the amount
was withheld by the SECL. He would submit that the document filed by
the appellant/defendant would show that two trucks were blacklisted
along with the other which belong to different transporters therefore it
cannot be amalgamated with the firm of the plaintiff/respondent. He
would submit that in the circumstances the judgment and decree of the
learned court below is well merited and does not call for any
interference.
9. We have heard counsel for the parties and perused the
documents.
10. It is not in dispute by the pleading of the parties that pursuant to
e-auction on 24.11.2005, the plaintiff/respondent was a successful
bidder to lift the coal to the extent of 990 metric tonnes and DO letter
was issued to him. It is also not in dispute that the entire amount of Rs.
17,96,626/- was paid by the plaintiff/respondent to the SECL for 990
metric tonnes of B-Grade coal. This fact is also not in dispute that
within a period of 45 days from the date of token i.e. 05.05.2006, the
coal was to be lifted/delivered. The period appears to be logical for the
reasons that after receipt of entire amount of sale consideration if the
delivery is delayed beyond a period of time, then in such case the
purchaser may not suffer the loss for late delivery.
11. Be that as it may, according to the SECL, the theft of coal come
to fore on 08.05.2006. The SECL has proved te document Ex.D-3 that
a complaint to the police dated 08.05.2006 was made wherein it is
stated that a truck was found with two number plates bearing in
CG10J/1782 at the front and CG10A/4030 on the back. When the
truck was intercepted the driver of the truck fled away by leaving the
truck. Ex.D-3 further says that there is all apprehension that the truck
was running away with the coal over the permissible limit for which it
was meant for and it was caught red handed. Likewise, in respect of
the truck NO. CG04J/1782 the report purports that when the truck was
weighed 2,860 tonnes of coal over and above the gate pass and
challan which was found in the truck thereby loss of Rs. 4,290/- was
caused. The charge sheet in this case Ex.D-1 would show that in
respect of allegation with respect to two numbers of the trucks, charge
sheet was not filed but it confined with overloading of 2.860 metric
tonnes in truck bearing No. CG04J/1782. Thereby the initial FIR which
was made on presumption has not been substantiated as to whether
the other truck was having more coal or not. There is no evidence or
document on record to substantiate that the other truck which was
having two different numbers was carrying more coal than its
permissible limit since presence of coal in such such truck is not
shown.
12. Ex.D-4 is the order in a Writ Petition bearing No. 3470/2004
dated 26.10.2007. Perusal of it shows that the plaintiff/respondent filed
a petition when the coal was not delivered to him within the stipulated
time without any communication. As the plaintiff/respondent was being
prevented to lift the coal of the remaining part of 990 metric tonnes, the
High Court in its order, directed to consider the representation dated
20.05.2006 and 01.06.2006 after affording an opportunity of hearing to
the petitioner and pass appropriate order in accordance with the law
within a period of three weeks from such order. The DO letter of SECL
was on 22.04.2006 wherein it contended that because of the fact that
the plaintiff was put into blacklist the rest of the coal was not delivered.
13. G.K.Roy (DW-1) who was working as the Regional Sales Officer
of SECL had deposed that since the plaintiff/firm was involved in
committing of theft of coal therefore he was black listed by the SECL
and SECL do not transact any deal with the blacklisted firm or
Company. He further stated that on 08.05.2006, the plaintiff was orally
informed that his vehicles were involved in theft. The order of the High
Court was of 26.10.2007. In such order there is no whisper of
contention of SECL that plaintiff/respondent Ambika Coal Depot was
informed that they were blacklisted by the SECL but it was stated
SECL would decide the representation of the plaintiff/petitioner for not
allowing the lifting of the coal. Consequently, the oral information about
information of blacklisting given to plaintiff averred by DW-1 is negated
by the own conduct of the SECL.
14. As per DW-1, the delivery order was to be executed within a
period of 45 days and plaintiff/respondent was entitled to get the
delivery of 990 metric tonnes and out of that 404 metric tonnes of coal
was given. The witness further stated his ignorance about putting the
plaintiff/respondent firm in the blacklist. He further stated his ignorance
of the fact that in cross-examination whether any report was made
against plaintiff/respondent Ambika Coal Depot to the police about
theft of the coal. In respect of the procedure of loading of coal the
witness deposed that on presentation of the loading slip only the
vehicle is allowed to enter into the colliery thereafter the empty
vehicles are weighed, subsequently vehicles are sent for loading. He
further stated that entire loading was done at the behest of the
employee of SECL and after loading, it is against weighed and
weighment is also done by the employee of the SECL. He further
stated that the weigh bridge also belongs to SECL and the slips of
loading and unloading of the vehicles are done by the employees of
SECL wherein no intervention is allowed of the third party. He further
submits that loading slip is further checked by the SECL employees
and before the loading, entire documents are being checked.
15. The statement of DW-1 who is the Regional Sales Officer of
SECL would show that during the loading and weighment from the
entry to the colliery it is entirely in hands of the SECL employee
therefore attributing the theft on plaintiff/respondent that he was
involved in theft of coal, the witness himself hss negated the fact.
There is nothing on record to show that who are the other employees
of SECL who were executing such loading, weighment etc.
16. Ex.D-17 is the office order dated 16.05.2006 wherein two trucks
which were alleged to have been involved in the theft of the coal
bearing CG04J/1782 and CG10A/4030 have been said to be
blacklisted. The statement of Ashok Kumar Soni (PW-20 who was the
transporter has deposed that he was entrusted with the job of
transportation of coal by the plaintiff/respondent and the plaintiff's role
was not involved. According to him, it is entirely at the supervision of
the SECL employee the coal was being loaded. The statement of PW-
1 would show that he entrusted the transportation of coal to PW-2.
There is no cross-examination of PW-2 in this issue instead the
document Ex.D-18 which contains number of trucks from 1 to 14 and
at Serial No. 13 and 14 the names of loaded trucks have been shown
and according to the SECL those trucks shown in the list were
blacklisted.
17. How this black listing of the trucks was attributed to the plaintiff,
there is nothing on record to substantiate, instead the SECL came with
a defence that plaintiff/firm was black listed. In statement of Rakesh
Kumar Vishwas (DW-2) he also depose that whenever the truck is
allowed to enter into the colliery the entire documents are checked
thereafter empty vehicles are loaded by the SECL employee and
thereafter they are allowed to fill up with coal. After the coal is loaded
the documents are against checked and it is allowed to go out of the
colliery. This witness also contends that he cannot say that Ambika
Coal Depot of which the plaintiff was the proprietor was blacklisted or
not. He admitted the fact that there is no document exists to show that
Ambika Coal Depot was blacklisted.
18. The written statement of the defendant SECL it is stated that
two trucks were found involved in theft therefore the firm was
blacklisted. In absence of any document that the firm was blacklisted
coupled with deposition of the witnesses of defendants DW-1 and DW-
2 who shown their inability to affirm that the plaintiff/firm was black
listed there cannot be any inference to draw that the firm was
blacklisted. If the documentary proof of black listing the plaintiff which
was in hold with the defendant/appellant was not produced during the
trial and when the entire defence was based on such issue adverse
inference would be drawn against to hold that plaintiff/firm was not
black listed.
19. So on analysis of the evidence n its entirety, the fact that the
plaintiff was involved in theft of coal therefore was blacklisted has not
been proved before the learned court below and it was only
assumption and presumption the case proceeded. This fact also
cannot be ignored that the stoppage of coal when was done initially,
no reasons were assigned and it was at the first time after the plaintiff
approached to the High Court , the SECL came out with a plea after a
period of almost 1 ½ year substantiating the reasons to withhold the
supply of coal the order to return of purchase money by the trial court
cannot be said to be a wrong finding.
20. In the result, we are of the view that the finding arrived at by the
learned trial court do not require any interference by this Court.
Accordingly, the appeal fails and is dismissed.
Sd/- Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge
suguna
