Telangana High Court
The Singareni Collieries Company ... vs V. Prabhakar Reddy on 17 April, 2025
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA
APPEAL SUIT No.256 OF 2005
JUDGMENT:
(Per Hon'ble Smt. Justice Tirumala Devi Eada)
This is an appeal filed by the appellant - plaintiff, being
aggrieved by the judgment and decree, dated 18.11.2004 passed
in O.S.No.04 of 2001 by the learned I Additional District Judge at
Karimnagar (for short "the trial Court").
2. The parties are addressed herein as they were arrayed in
the suit before the trial Court for the sake of convenience and
clarity.
3. The case of the plaintiff before the trial Court is that the
plaintiff company is engaged in mining industry and it involves
exploration, excavation, extracting and winning of coal. The
defendant is a contractor and he was entrusted with the work of
blast, hole drilling and earth work excavation of various
rocks/earth cutting, loading, transportation, dumping etc., by
using machines as per the scope of work at Ramagundam Open
Cast Project-II. The order was placed on the defendant on
15.09.1998. As per the said order, the defendant executed 89% of
the work worth 88.84 L.B.Cubic Meters and stopped the work on
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31.07.1999 and the final bill was settled for a volume of 90.68
L.B.Cubic Meters. It is their case that on 14.02.2000, the survey
team and check survey team, surveyed the work done by the
defendant and recorded the measurements and the final bill was
settled according to the said measurements. But subsequently,
the plaintiff company called fresh tender for further excavation
work and the work was entrusted to M/s.A.B.C.Engineering Work,
Vijayawada on 12.02.2000. Subsequently, the plaintiff company
conducted the re-survey of the work done by the defendant for the
purpose of handing over the remaining work to ABC Company and
they noticed some discrepancies in the quantity of the work done
by the defendant, therefore, they conducted re-survey in the
month of March, 2000 and their resurvey revealed that the data
entered into the computer was erroneous and the same was
informed to the defendant and was asked to attend the proposed
joint survey on 16.04.2000. The defendant requested the plaintiff
to postpone the survey till 25.04.2000, accordingly the same was
postponed and on 19.04.2000, the plaintiff received a letter from
the defendant questioning the authority of the plaintiff company
in conducting joint survey and did not attend the survey on
25.04.2000. The plaintiff company proceeded with the resurvey
and it was found that the initial team and check survey team had
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wrongly recorded the quantity of work as 90.68 L.B.Cubic Meters
and that the excess volume of work was found to be 1.84
L.B.Cubic Meters and the value of the said work was estimated at
Rs.56,75,520/- and that they have initiated disciplinary
proceedings against the concerned officers. It is their contention
that there was no defacing of levels due to natural factors like
rains etc., The defendant completed the work in the month of
July, 1999, while the re-survey was conducted in April, 2000 and
they addressed a letter dated 21.06.2000 to the defendant
informing him that they have paid an excess amount and they
would recover the same from the running bills of other works
being executed by the defendant. The defendant replied to the
said letter requesting the plaintiff company not to recover the
amount from the running bills and also filed two suits i.e.
O.S.No.44 of 2000 and O.S.No.77 of 2000 before the Senior Civil
Judge, Peddapalli and obtained temporary injunction restraining
the plaintiff from recovering the said amounts from the running
bills. Therefore, the plaintiff's grievance is that 1.84 L.B.Cubic
Meters was erroneously recorded in excess to the work executed
by the defendant and thus, the plaintiff is entitled for the recovery
of the sum paid for the said work. Hence, the suit.
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4. The defendant filed written statement denying the
averments of the plaint. The defendant further stated that he
undertook similar works over a period of time and completed them
without any adverse remarks and that he was executing similar
works at the time of filing his written statement and as per the
terms of the contract, the levels, depths and quantities, there
would be plus or minus 10% variation. The approximate quantity
expected to be removed was 100 L.B.Cubic Meters with 10%
variation. He further stated that while the excavation work was
going on, periodical payments were made to the defendant on the
measurements recorded by the survey team and after the
completion of work also the survey team and check survey team
surveyed the work and recorded the final measurements and
depending on their report, the plaintiff has paid him for the final
quantity of work i.e. 90.68 L.B.Cubic Meters. It is also his case
that the survey team after taking final measurements issued a
certificate dated 09.12.1999 showing the quantity of the final bill
and based on the said measurements, the defendant submitted a
final bill and the same was paid by the plaintiff on 14.01.2000 i.e.
seven months after the completion of work. A certificate was also
issued by the General Manager on 01.03.2000 and after nine
months of completing the work, the General Manager and Chief
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Vigilance Officer addressed two different communications on
12.04.2000 alleging certain discrepancies. The defendant further
expresses doubt with regard to the possibility of the survey being
accurate as the rainy season passed by, which might have caused
variation in the levels of the work. The defendant submitted in
the written statement that the said doubt was expressed by him
vide his letter to the plaintiff company but the General Manager
without clarifying his doubt has sent a reply that re-survey was
proposed to be conducted on 25.04.2000 and that he again
addressed a letter on 21.04.2000 but the plaintiff insisted on the
defendant's participation without answering any of the questions
raised by him and proceeded with the re-survey. Therefore, the
case of the defendant is that the result of the re-survey does not
bind him and he denied the liability to make any payments to the
plaintiff company.
5. Based on the above pleadings, the trial Court has framed
the following issues for trial.
"1. Whether 1.84 L.B.Cubic Meters quantity was
recorded in excess by the subordinate officials of
the plaintiff company, in collusion with the
defendant and the value of the said work is
Rs.56,75,520/-?
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2. Whether the plaintiff is entitled for the above said
value of the work with interest as prayed for in the
plaint?
3. To what relief?"
6. At the time of trial, the plaintiff got examined PWs 1 to 5
and got marked Exs.A1 to A33. On behalf of the defendant, DWs
1 and 2 were examined and Exs.B1 to B16 were marked.
7. Considering the evidence on record, the trial Court has
dismissed the suit. Aggrieved by the said judgment and decree,
the present appeal is filed by the plaintiff.
8. Heard the submissions of Sri J.Prabhakar, learned Senior
Counsel for the appellant and Sri M.Jayaram Reddy, learned
counsel for the respondent.
9. The learned appellant counsel has submitted that the
judgment and decree of the trial Court is contrary to law and facts
of the case and that the trial Court has misconstrued the scope
and ambit of the suit and that the trial Court has come to a
conclusion that the appellant is entitled for compensation on the
principle of quantum meruit but has finally rejected his claim,
which is not proper. He further argued that the contractor who is
the defendant played fraud upon the company and therefore, he is
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not entitled to get the benefit of excess payment. He further
argued that certain officials of the plaintiff company got colluded
with the contractor and therefore, the excess amount was paid to
the defendant and as such, they are entitled to claim the same.
The decision to conduct resurvey was intimated to the defendant
but he failed to appear in a joint survey and thus, the findings of
the re-survey are binding on the defendant and that the defendant
is liable to return the excess amount received by him. It is his
argument that the plaintiff has proved the error in the
measurement but still the trial Court failed to consider the same
and misunderstood the statement of PWs 1 and 2 in respect of the
actual extent of disturbed area. Thus, he prayed to set aside the
decree of dismissal and prayed to allow this appeal.
10. The learned respondent counsel has submitted that the
plaintiff has totally failed to prove its case and that conducting a
resurvey was not proper on part of the plaintiff and that
measurements could have been varied due to the rain and the
intervening factors. He further argued that the defendant was
paid the amount after the survey team and check survey team
have conducted survey and submitted the quantity of work that
was completed by defendant to the company and that after a
proper scrutiny, the bill was paid to the defendant and that the
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defendant has been executing so many works with the plaintiff
company and at the relevant time of filing the suit also he was still
proceeding with other works entrusted by the plaintiff company.
He therefore submitted that the defendant has been enjoying good
reputation and that he never committed any default and he never
enjoyed any benefit of excess payment and that the defendant is
not liable to pay any amount to the appellant herein and he
therefore, prayed to dismiss the appeal by upholding the decree of
the trial Court.
11. Based on the above rival contentions, this Court frames the
following points for consideration:
1. Whether any excess amount was paid by the
plaintiff company to the defendant in lieu of the
work done by the defendant? If so, whether the
plaintiff is entitled to recover the same?
3. Whether the judgment and decree of the trial
Court is sustainable under law and in the facts?
4. To what relief?
12. POINT NO.1:
a) The admitted facts are that the defendant was entrusted
with excavation work by the plaintiff company and that the
defendant completed the work on 31.07.1999. It is also admitted
that a survey was conducted and the value of the work done by
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the defendant was assessed as 90.68 L.B.Cubic Meters and
money to that extent was paid to him on 14.02.2000 based on the
certificate issued by the Mine Survey Team and Check Survey
Team. The dispute lies with regard to the assessment made by
the resurvey team on behalf of the plaintiff company. It is the
contention of the plaintiff that after entrusting the remaining work
to M/s.ABC Engineering Work, they had conducted a survey to
assess the amount of work that is to be entrusted to M/s.ABC
Engineering Work and that they noticed some discrepancies in the
work that was completed by the defendant and the quantum of
work that was assessed by their team at the time of payment of
bill to the defendant. Therefore, they wanted to conduct a joint
survey and thereafter, inspite of the doubts raised by the
defendant, they have addressed a letter to the defendant and
proceeded to conduct the resurvey and on this survey, they
noticed that 1.84 L.B.Cubic Meters of difference was noticed in
the work carried out by the defendant, thus, it is their case that
they want the defendant to refund the amount paid in lieu of that
excess assessment of work that was done in the earlier survey
when compared to the resurvey, while the defendant denies the
same. His case is that he has completed the work to a tune of
90.68 L.B.Cubic Meters and it was assessed by the check survey
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team and mine survey team and thereafter, the plaintiff company
has paid him the amount, so the question of difference in
assessment does not arise and that he has not received any
excess amount.
b) In the evidence of PW1, it is elicited that the following
discrepancies were noticed by the joint survey team:
a) The reduced levels obtained in joint survey
differed at many places to a tune of 0.5 M. to 3.0 m
which was considered to be abnormal.
b) The data entry into the computer done by the
Mine Survey Team, when compared to their own field
books differed at nearly 400 entries.
c) According to the check survey plans, the reduced
levels at about 1200 places are not tallyup with the
field book of the check survey.
d) When the results of mine survey and check
survey are compared in the sectional areas the
variations are abnormal, the error in positive side in
certain lines are compensated with the error on
negative side in other lines, thus compensating the
error, the aggregated quantity was tallied, from this
they came to know that the survey was not conducted
in scientific manner.
c) In the cross examination of PW1, he stated that the
discrepancies were noted by them only when it was brought to
their notice through M/s.ABC Engineering Work. It is elicited
through him that they have issued disciplinary proceedings
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against their officers of Mine Survey Team and Check Survey
Team who were alleged to have made wrong entries with regard to
the quantities of work done by the defendant. It is further elicited
that the enquiry proceedings were completed and the results are
awaited. The officers against whom the disciplinary proceedings
were initiated were not examined in this case but he produced the
statement recorded by them during the course of enquiry.
d) A perusal of the statement of K.Nagabhushanam reveals
that the representatives of the defendant approached the survey
officers and requested to see the plans for the purpose of tallying
them with the mine plan and the statement of one
M.Venkatesham, the Assistant Survey Officer, is to the effect that
the defendant's representative was involved while noting the field
reading in the field book and also while entering the field data into
the computer, which gave scope for manipulating the field data.
But PW1 could not state whether there was a garland drain
around the catchment area in which the suit quarry is located.
Moreover, PW1 admitted that the suit quarry is in a low lying
area. This falsifies the case of the plaintiff. The contention of the
plaintiff was that the suit quarry is not in low lying area and that
the rains and the natural calamities would result only in an
advantage to the defendant and that the suit quarry is not a low
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lying area but the defendant contended that the suit quarry was
in a low lying area and it is prone to the natural calamities such
as rain, which would make all the difference with regard to the
levels, thus, the admission of PW1 that the suit quarry is in a low
lying area supports the case of the defendant. It is further elicited
through PW1 that the resurvey was made only in a portion of the
suit quarry and he also stated that it took place in a deeper side
portion of the quarry and that he did not prepare any plan of the
quarry resurvey and any field book in the resurvey. He further
admitted that he has not mentioned in Ex.A12 whether the
re-survey was being conducted in the entire quarry or in a portion
of the quarry and it is also admitted by him that the resurvey was
done after nine months of stoppage of work by the defendant.
Another material admission by PW1 is that while excavating coal,
the overburden material would be disturbed upto a length of
2 meters from the blasting zone and that there is a possibility of
the black cotton soil in the catchment area and part of the quarry
getting eroded into the quarry especially during rainy season
subject to the provision of setting up of drains. He further
admitted that the water got stagnated in the quarry after the
defendant stopped his work and before the resurvey was done. It
is further elicited during his cross examination that there may be
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slight errors in noting the levels because of different instruments
used in the survey. It is further elicited through him that the
officers who were suspended by their company were again
reinstated but the process of their reinstatement and the result of
enquiry against them is not placed on record.
e) PW2 also stated that there were discrepancies which were
brought to their notice by M/s.ABC Engineering Work and on
such notice PW2 advised the mine survey team to conduct the
random survey. It is elicited through him during cross
examination that the pre-levels of undisturbed area and the
disturbed area entrusted to ABC Engineers was noted in the plan
but the said plan is not filed in the Court. He could not state
about the actual extent of the disturbed area pertaining to the
defendant.
f) PW3 is the survey officer and he is a member of joint survey
team and he stated that the mine survey team and check survey
team could not carry out the survey in a scientific manner and
that the joint survey was conducted only in the undisturbed
portion entrusted to the defendant, even the survey sheets are not
filed by them.
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g) PW4 has stated that the survey sheets were handed over to
the representatives of the defendant and according to him the
check survey was conducted by one Ansari.
h) PW5 is a surveyor in the Survey Office of India and he also
could not state about the area in which the overburden was taken
away by the defendant and he further admitted that there may be
slight difference in the measurements.
i) The plaintiff filed the statement of Ansari under Ex.A26,
which shows that he conducted the check survey of pre-level in
the final survey of the defendant and that as the data between
check survey and the mine survey was completely tallying, he
submitted the report without any doubt and the said statement
shows that he was asked to conduct pre-level survey for the next
contractor and it is further revealed that Ansari has found that
there was no mark on the field survey at every 12 meter chain and
that he asked the survey officers to mark the staff stations and he
noticed that out of the old Ammonia print copy which refers to the
total plan, which was taken before giving the work to the
contractor, only one sheet was found to be available. The
boundaries fixed to the quarry of the defendant were also not
surveyed at the end of the contract and he could not state about
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the difference of the value in the defendant's quarry as per the re-
check survey, as the calculations were not completed by then.
The plaintiff's company has recorded the statement of
Nagabhushanam who is examined as PW4 herein. The said
statement is marked under Ex.A28. It is revealed from the said
statement that a blue print of the original plotting to prevent
alterations was taken out but the said blue print is missing.
Another statement under Ex.A27 is marked by the plaintiff which
pertains to M.Venkatesham who is the Assistant Survey Officer
and he expressed his inability to explain the difference in the
levels and further stated that it may be because of some geological
disturbance in the ground movement which caused a little
difference in the surface contours. He stated that he took the help
of the contractors and surveyors for reading out the data from the
field book and he did not tally the data entry with the field book
because of time constraint.
j) Another statement is marked under Ex.A25 which pertains
to R.Ravi Kumar the Senior Survey Officer. His statement reveals
that a pre-level survey was conducted for giving contract to
M/s.ABC Engineering Work and he has further stated that as per
the circular of the Director of CP and P, the company has to fix
the leveling points around the quarry at 12 meter interval to avoid
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confusion but they are not fixing the 12 meter grid points because
of insufficient man power and transport. It is further elicited from
him that the survey was not conducted in part of the quarry and
as the volumes of final survey and that of check survey tallied
well, he did not get any doubt about the final survey.
k) Thus, through this oral and documentary evidence on
record, it is elicited that the original blue print about the plan of
work is missing. It is further elicited that though the plaintiff
alleged that their officials got colluded with the defendant and
have conducted the survey wrongly and gave a wrong finding of
excess work, they did not chose to place any evidence with regard
to the result of the disciplinary proceedings or they did not chose
to examine any of the said witnesses. But it is elicited, on the
other hand, that they were reinstated and they are working in
their company.
l) During the evidence of DW1 it was elicited that large
quantity of water flowed and percolated into the suit quarry, as a
result of which the large quantity of the soil, sand and silt got
collected in the suit quarry raising the bottom levels of the quarry
and that there was no garland drain around the suit quarry to
stop the flow of drain water. Due to blasting in the disturbed
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area, as admitted by the plaintiff there was a lot of disturbance
which resulted in storage and dumping of material over the
bottom level in the final excavation of the suit quarry. In the
cross examination of DW2, who is an employee of the defendant it
was elicited that there was no garland drain around the suit
quarry. The said fact is also elicited in the evidence of PW1 that
there was no garland drain around the suit quarry. Thus, the
possibility of rain water entering into the suit quarry and the
disturbed material surrounding the quarry entering into the suit
quarry cannot be ruled out as contended by the defendant.
m) The other documents relied upon by the plaintiff are with
regard to the communication made to the defendant and also the
data entry sheet, mine survey plan and the field entry book but as
discussed supra, they could not place the material that is relevant
to assess the discrepancies i.e. the original plans were not filed
and also they could not place it on record that the resurvey which
is done is perfect without any loss being caused by the natural
calamities. Therefore, there is no point in relying upon all these
documents which do not aid the plaintiff in any way to prove its
case.
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n) The defendant in support of his case has filed the letters of
communication addressed by him to the plaintiff company and his
final bill pay sheet summary under Ex.B1, the work done
certificate issued by the General Manager, Ramagundam under
Ex.B3. All the other documents refer to the work orders issued by
the company and letters addressed by the defendant to the
plaintiff company.
o) Thus, an overall perusal of the evidence on record reveals
that the plaintiff could not place clinching evidence on record to
show that there was a difference in the quantity of work that was
actually done by the defendant and the assessment made by their
own team. Though fraud is alleged to be played by their own
employee in collusion with the defendant, the said fact is not
proved through the evidence of the witnesses whom they have
examined. Moreover, when it is brought out that the possibility of
change in the level due to the natural reasons such as rains, it
further strengthens the case of the defendant and at the same
time, it demolishes the case of the plaintiff. When the levels of the
quarry itself get changed due to natural calamities or the natural
factors such as rains and it is also brought out on record that the
defendant left the work in the month of July and the survey was
conducted after nine months, in the meantime the said quarry
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was prone to all the natural weather condition and the rains must
have caused certain damage as there was no garland drain
around the suit quarry and further the disturbed material around
the quarry must have entered into the quarry and therefore, the
re-survey conducted by the plaintiff cannot be held to have given
out the exact result. When the re-survey itself cannot be held to
give perfect result and it is based on several natural factors, the
same cannot be compared to the original final survey that was
conducted after the completion of work conducted by the
defendant. Thus, the discrepancy between the final survey and
the re-survey projected by the plaintiff cannot be held to be
genuine. When the discrepancy cannot be made out, the plaintiff
has no case at all to say that the excess amount was paid to the
defendant because of the discrepancy. Therefore, the plaintiff
failed to prove his case that he has paid excess amount due to the
miscalculation of the work done by the defendant. Hence, he is
not entitled to recover any amount from the defendant. Point
No.1 is answered accordingly.
13. POINT NO.2:
In view of the reasoned findings arrived at point No.1, it is
held that the judgment and decree passed by the trial Court do
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not need any interference and the same are held to be sustainable
in law and under the facts and circumstances of the case.
14. POINT NO.3:
In the result, the appeal is dismissed upholding the
judgment and decree, dated 18.11.2004 passed in O.S.No.04 of
2001 by the learned I Additional District Judge at Karimnagar.
No costs.
Miscellaneous Applications, if any, pending in this appeal
shall stand closed.
________________________________
ABHINAND KUMAR SHAVILI, J
___________________________
TIRUMALA DEVI EADA, J
Date: .04.2025
ns
