Burrakur Coal Co., Ltd. vs Sachindra Mohan Ghosh

Macpherson, J.—The petitioner is defendant 2 in a suit brought by the receiver of the Jharia Raj Estate for recovery of commission on coal raised and despatched by the petitioner or his predecessor in interest, defendant 1 (the original lessee now in liquidation) from certain leasehold property. The suit substantially is for recovery of commission in respect of slack coal on the provision contained in para. 6 of the lease which, so far as relevant, runs as follows:

You shall pay me commission or royalty at the rate of three annas per ton on all kinds of coal (except dust coal) that shall be raised, or manufactured and despatched from or sold upon the said lands, that is to say, steam coal, rubble coal, hard coke and soft coke. No commission or royalty shall be paid on dust coal....

The material defence was that, upon construction of the above provision, the royalty was payable only in respect of the classes of coal therein expressly specified, namely, steam coal, rubble coal, hard coke and soft coke, so that all coal and coke which might be despatched or sold otherwise than as steam, rubble, hard coke or soft coke is to be treated as coming within the category of dust coal which is expressly exempted from payment of royalty. The suit was brought on 17th August 1931, and issues were settled on the 3rd December following. On 19th September 1932, the plaintiff applied for amendment of the plaint to admit of his claiming commission on coke manufactured from all coal, whether rubble, slack or dust, his particular point being that coal dust sold or despatched or carried outside the leasehold property for the manufacture of coke and sold and despatched as such should bear commission.

It was vaguely averred that dust from the mine in suit had been carried to Mauza Loyabad as the defendant company had installed a coking plant there. Loyabad is, it is stated, outside the leasehold property in suit and the coal mining lease of that village is held at a fixed annual rent so that the plaintiff gets no royalty on raisings there. The defendants objected that the amendment ought not to be allowed both, because it changed the nature of the suit and because it was asked for at a late stage, the suit being ready for trial. The learned Subordinate Judge set out:

There is raised an interesting question as to whether the plaintiff is entitled to royalty on coke manufactured elsewhere with the dust coal raised from colliery in suit.

I do not think it proper to shut up (sic) this question by rejecting the prayer of amendment though it has been made at a late stage. In spite of the expediency of avoiding a multiplicity of suits, it appears to me that the amendment ought not in this instance to have been allowed, both being made at so late a stage and as it substantially changes the character of the suit. In the ordinary course the new point raised 13 months after the plaint was filed will very greatly delay the trial.

There must be new interrogatories and parties will take a long time to collect the evidence. The original suit has for some time been ready for hearing. Again the suit proceeds on the assumption that no commission is chargeable on coal dust, and expressly sets out that plaintiff is entitled to commission on all coal except dust. It is inexpedient to express any opinion on the interpretation of para. 6 quoted above; but it cannot be denied that the interpretation placed upon it by the plaintiff himself when he brought his suit is prima facie reasonable. The important and perhaps the only issue between the parties, briefly put, would appear to be whether slack coal is or is not coal dust within the meaning of para. 6.

The proposed amendment has nothing to do with this question. It will introduce an entirely different question namely, whether the plaintiff is entitled to commission on what is admittedly coal dust in spite of the express provision that "No commission or royalty shall be paid on dust coal," when it is sold or despatched from the property for certain purpose. The fact that the question raised is interesting is not a sound reason for allowing the application. In my judgment, in the circumstances I have set out, the amendment ought not to be allowed merely on that ground and in spite of the unreasonably late stage at which it was raised on the vague allegation of information and belief that coal dust had been carried outside the leasehold property for manufacture of coke. The rule is made absolute and the order under revision is set aside with costs: pleader''s fee five gold mohurs.