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Judgment
S. Thangaraj, J.—Suit for Rs. 25,74,000/- with further interest at 18% per annum on Rs. 16,71,473/- from the date of plaint till the date of
realisation. The main averments found in the plaint are as follows:
The plaintiff, Padmavathi Transport Contractors represented by its Partner N. Balasubramanian, is Civil and Transport Contractors. By
agreements dated 10.11.1987, 10.3.1988, 11.4.1988 and 14.7.1988 they entered into contracts with defendants for segregation of coal from
Stack Yard at Mettur Thermal Power Station Campus to Stacker reclaimer. A total quantity of 4,43,293 Tonnes of coal was unloaded from the
railway wagon manually within the campus of Mettur Thermal Power Station and they stacked the same at the defendants'' coal yard in the said
campus. The plaintiff manually unloaded 3,86,678 Tonnes of coal and other Agencies unloaded 56,614 Tonnes of coal. The plaintiff segregated
3,99,506 Tonnes of coal and the defendants paid for 3,00,894 Tonnes and failed to make payment for 98,612 Tonnes of coal segregated by the
plaintiff. On 13.6.1989 the plaintiff requested the defendants to pay for the segregation of 98,612 Tonnes of coal and the 2nd defendant
recommended for payment for 50,403.07 Tonnes of coal and the matter was referred to the 1st defendant Board for approval for payment of Rs.
8,54,332.03/-. As per the agreement, the amount payable per Tonne is Rs. 16.95/- and the defendants are liable to pay at that rate for 98,612
Tonnes on 1.5.1988. On 22.12.1990 the plaintiff sent registered letters claiming Rs. 16,71,473/- towards the principal and 18% interest on the
said sum with effect from 1.5.1988. The 2nd defendant in his reply dt. 23.1.1991 without denying the liability to pay, refused to pay the amount on
the ground that final bill has already been paid, that the security deposit and retention amount were also refunded and that the agreement entered
into between the parties had been terminated. The contentions of the defendants are totally unreasonable and unjustified. The plaintiff is entitled for
a sum of Rs. 16,71,473/- and 18% interest on the said sum from 1.5.1988 till the date of plaint, Rs. 9,02,527, a total sum of Rs. 25,74,000/-. The
plaintiff is also entitled to claim interest at the rate of 18% per annum as the plaintiff had borrowed from open market on interest payable at the rate
of more than 18% per annum.
The main averments found in the written statement filed by the 3rd defendant and adopted by the defendants 1 and 2 are as follows:
The contract entered into between the plaintiff and the 3rd defendant is admitted. The plaintiff is not entitled for segregation charges for 98,612
Tonnes of coal. As the bills of the plaintiff were finally settled, the question of payment of Rs. 16,71,473/- does not arise. In the letter
dt.13.6.1989, sent by the plaintiff to the 2nd defendant, they claimed charges for 98,612 Tonnes of coal segregated by the plaintiff. The plaintiff
has also sent a registered letter dt.22.12.1980 claiming a sum of Rs. 16,71,473/- towards principal amount and interest at the rate of 18% per
annum from 13.1988. The 2nd defendant sent a reply disowning his liability to pay as the final bill has been submitted by the plaintiff. The plaintiff
has also received the security deposit and retention amount as a token of completion of contract and final settlement. As the amount has been
finally settled and accepted by the plaintiff as to the final measurement of work done, the claim of the plaintiff is misconceived, the plaintiff is also
not entitled to interest at the rate of 18% per annum from 13.1988 on the principal amount. Hence the suit may be dismissed.
The following issues were framed on 19.10.92.
(1) Whether the plaintiff has segregated 3,99,506 Tonnes of coal?
(2) Whether the defendants are liable to pay a sum of Rs. 16,71,473/- being the charges for segregating 98,612 Tonnes of coal being the
difference between 3,99,506 and 3,00,894 Tonnes with interest at 18% per annum?
(3) Whether the defendants are entitled to withhold payment on the ground that the account was settled on the basis of final bill submitted by the
plaintiff, in spite of the fact that the first defendant recommended payment of Rs. 8,53,332.03?
(4) To what other reliefs are the parties entitled?
Issue Nos. 1 and 2: The plaintiff firm is a Civil and Transport Contractors and they entered into four agreements dated 10.11.1987, 10.3.1988,
11.4.1988 and 14.7.1988 with the defendants for segregation of coal from stack-yard at Mettur Thermal Power Station Campus to Stacker
reclaimer. According to the plaintiff they have segregated in all 3,99,506 Tonnes of coal and the defendants have paid for 3,00,894 Tonnes and
failed to pay the charges for the balance 98,612 Tonnes of coal. The plaintiffs have claimed Rs. 16,71,473/- towards segregation charges of
98,612 Tonnes of coal. As the amount was not paid in time, the plaintiffs have demanded interest at the rate of 18% per annum from 1.5.1988 to
31.7.1991, a total sum of Rs. 9,02,527/-. The agreement dated 10.11.1987 was entered into for segregation of coal at a face value of Rs.
8,12,500/-. The plaintiff by their letter dated 13.6.1989 have stated that under various agreements they segregated 1,08,000 Tonnes of coal from
the total quantity of 4,43,293 Tonnes and out of the balance quantity of 3,35,293 Tonnes after making deductions the total balance quantity
stocked was 2,91,596 Tonnes and the defendants have paid the charges for 1,92,894 Tonnes of coal. The balance quantity is 98,612 Tonnes of
coal for which the plaintiffs have made the claim. In all the four contracts there were uniform technical terms and conditions. Clauses 5,6 and 7 of
the terms and conditions are as follows:
(5) The contractor has to segregate the coal a least 3000 Tonnes/day required for Unit I. Sometimes this quantity may be less, according to the
consumption of Unit I. There should be always a minimum of 10000 Tonnes of segregated coal stacked near the stacker reclaimer reach.
(6) The measurement will be taken on the basis of consumption of coal in the mills and recorded at UCB. Any balance coal stacked at coal yard
will be measured actually in volume and then will be converted into weight.
(7) Payment will be made on pro rata basis, based on the quantity segregated and stacked as per Board Engineer''s instruction.
According to the terms and conditions of the contract the measures will be taken on the consumption of coal and then it will be converted into
weight and the payment will be made on the pro rata basis, based on the quantity segregated and stacked as per the instructions of the Engineers.
The plaintiffs have based their claim on their letter dated 13.6.1989 and they have not filed any document to substantiate their claim that the
defendants are liable to pay for the balance of 98,612 Tonnes. From the terms and conditions it is clear that the measurement will be taken on the
basis of the consumption and thereafter it will be converted into weight and the payment will be made on pro rata basis. The plaintiffs have agreed
to the said terms and conditions and thereafter executed the four contracts on which the plaintiffs have made their claim in the instant case. Unless
the plaintiffs show that they had segregated 2,91,596 Tonnes of coal, they cannot make any claim for 98,612 Tonnes of coal after getting the
payment of 1,92,894 Tonnes. The plaintiffs have admitted that out of 4,43,293 Tonnes of coal they had already been paid for 1,08,000 Tonnes of
coal and from out of the remaining 3,35,293 Tonnes of coal they made the claim for 2,91,596 Tonnes after deducting the payment received by
them for 1,92,894 and for the balance of 98,612 Tonnes. There is no satisfactory evidence on the side of the plaintiffs to show regarding the
balance for which they made the claim.
P.W.1 Balasubramani has stated these arithmetical calculations in his evidence in chief, however he has not substantiated his oral evidence by
producing documents which would prove the claim of the plaintiffs. Even in the arithmetical calculations there is some mistake.
He has stated that the claim was made at the rate of Rs. 16.75 per Tonne.
In the contract dated 10.11.1987 the accepted schedule shows that the rate fixed was 16.25 per Tonne. For the contract dated 10.3.1988 the
rate was fixed at Rs. 16.90 per Tonne. For the remaining two contracts rate was Rs. 16.95 per Tonne. Though the plaintiffs have filed the suit in
respect of four contracts, they have not differentiated the rate or the quantity of coal which they have segregated in each contract. Their claim for
Rs. 16.95 per Tonne towards segregation charges is not well founded and the same cannot be allowed on flat rates.
Apart from that in the contract dated 10.11.1987 as per the accepted schedule the quantity required to be segregated was 50 Tonnes and the
amount of Rs. 8,12,500/- has been stated in the said schedule. Accordingly in the contract dated 103.1988 the total quantity was 50,000 Tonnes
and the total amount shown in the schedule is Rs. 8,45,000/-. In the 3rd contract dated 11.4.1988 in the accepted schedule the total quantity was
shown as 58,000 Tonnes and the total amount at Rs. 9,83,100/-. In the contract dated 14.7.1988 the total quantity was 25,000 Tonnes for a total
sum of Rs. 4,27,750/- as per the accepted schedule. As per these four contracts the total quantity, of coal to be segregated was Rs. 1,83,000/-
Tonnes. As per the letter dated 13.6.1989 they have admitted that the segregation charges for 1,80,000 Tonnes have already been paid. Their
claim for segregated coal for further quantity of 2,91,5% Tonnes and the defendants have paid the charges for 1,92,894 Tonnes and the balance
has to be paid was challenged by the defendants on the ground that the claims made by the plaintiff are not in accordance with the contract and any
claim made in variation of the terms and conditions of the contract is unsustainable. The plaintiffs have not shown any document that the authorities
concerned permitted the plaintiffs to segregate more quantity of coal than what was prescribed tinder each contract. The evidence of P.W.1 is also
not satisfactory on this aspect.
P.W.1 in his evidence has stated that the quantity of the coal segregated has not been weighed correctly due to the error in the gravimetric
feeder which showed less than 20% of the actual weight. This is not the case of the plaintiff either in their notice or in the plaint. P.W.1 when
examined in the box had stated these reasons without any pleading to that effect. It is well settled that any amount of evidence without pleading will
be of no relevance. Therefore the error in gravimetric feeder showed less than 20% of the actual weight, is an after-thought and introduction at a
later stage and the same, cannot be accepted. P.W.1 has further stated that as per the accounts they were paid for 4,40,000 Tonnes of unloading
stock. He has further contended that unloading of coal from railway wagon within the campus of Mettur Thermal Power Station was also part of
the contract. In all the four contracts the segregation of coal from Iron tramps, wooden pieces, stones, etc. was the work entrusted with the
plaintiffs and the segregated powdered coal should be transported in lorries to a distance of one kilometer and to stack the coal to a height of 4 to
5 mts. as directed by the Engineer incharge. Though segregated powdered coal has to be loaded into lorries as per the contract, unloading coal
from railway wagon within the campus of Mettur Thermal Power Station was not part of the contract entered into between the parties. Further, the
statement of P.W.1 that as per the accounts they were paid for 4,40,000 Tonnes unloading stocks also cannot be accepted for the simple reason
that the task of unloading was not given to the plaintiff as per the contract.
P.W.1 has also admitted that in March 1988 he did not know the quantity of coal segregated ""by them and the payment was made less than the
actual work done. He has not substantiated the said reason also. Further he has admitted that before signing the bill he has verified the
measurement book maintained by the defendants. If so, he could have raised the objection before signing the measurement book saying that the
same did not contain the actual measurement of the coal segregated, whereas it contained a lesser quantity. P.W.1 has been signing the
measurement books one after the other without raising any objection. A contractor well trained in the work will not sign the measurement book
when it contained lesser quantity of coal segregated. If he was compelled to sign or out of necessity to get the money by signing the measurement
book and also by the preparation of bill, even then he ought to have raised this objection at the appropriate time. At the worst he could have
received the bill subject to objection. The plaintiff has not done any such thing and the various explanations offered by the plaintiff are not
substantiated.
It was further contended on the side of the plaintiff that after entering into a contract, the plaintiff was permitted to segregate more quantity of
coal than what was actually fixed under the contract. The plaintiffs have not filed any document to prove the said contention. Learned Senior
Counsel appearing for the defendants has relied on two decisions of the Apex Court.
In Puran Lal Sah Vs. The State of U.P., the Supreme Court held that the contractor has relied on a letter issued by the Assistant Engineer
wherein it was stated that as no stone was available in the place shown in the agreement, the contractor had-to obtain stones from other places for
which he was ""entitled to get the load for the full quantity of stones brought by him to complete different items requiring the use of stones"".
Considering the above facts at page 715 Their Lordships have held -
This letter seems to be a recommendatory letter by a subordinate to the higher officer but it does not in anyway establish the right of the Appellant
to obtain a higher rate, nor does the evidence justify this conclusion. In our view neither the terms and conditions of the contract nor the oral or
documentary evidence justify the conclusion that the Appellant was entitled to any extra lead.
In the instant case there was no document to show that the plaintiff were permitted to segregate coal of excess quantity than what was actually
permissible under each one of the four contracts. So for the said act of the plaintiff, segregating coal from the excess quantity, was unauthorised
and the plaintiff cannot compel the defendants to pay for the said work as the terms and conditions of the contract do not permit such increase.
In Tamil Nadu Electricity Board and another Vs. N. Raju Reddiar and another, is a case where there was certain discussions between the
contractor and the authorities and in that discussion contractor had expressed to charge for the job on multi slab basis and the same was accepted
by the authorities and some of the Superintending Engineers have already passed bills on multi slab basis. While deciding such a contention on the
side of the contractor, the Apex Court held
But such recommendation or such passing of bills on one count or multi slab basis cannot be construed to have conferred a right on the plaintiffs to
get the payments on multi slab basis, until and unless it is proved by the plaintiff that the defendants agreed under the written contract to pay on
multi slab basis.
From the said decision of the Apex Court, it is clear that only the terms and conditions found in the written contract bind the parties and not the
oral undertakings alleged to have been promised by the Engineers or the authorities concerned. In the instant case also the plaintiff thought fit to say
that the authorities permitted the plaintiff to segregate more quantity of coal than what was actually covered under the contract, cannot be accepted
in view of the above decisions of the Apex Court. Apart from that the plaintiffs herein have also failed to substantiate such claims.
The plaintiffs have stated in para-3 of the plaint that out of 4,43,293 Tonnes of coal unloaded from the railway wagon, they have unloaded
3,86,678 Tonnes of coal and other agencies 56,614 Tonnes of coal. Out of the total stock, the plaintiffs have segregated 3,99,506 Tonnes of coal
and the defendants have paid only for 3,00,894 Tonnes and failed to pay 98,612 Tonnes of coal segregated by the plaintiff. The claim in the suit is
for sum of Rs. 16,71,473/- for the said segregation work and 18% interest from 1.5.1998 on the said amount. The defendants have filed the M-
Book on the basis of the measurement the quantity arrived at in each contract. Accordingly under -
Ex.P.1 59,971-29 Tonnes
Ex.P.2 49,974-64 Tonnes
Ex.P.3 57,978-24 Tonnes
Ex.P.4 24,972-17 Tonnes
Total 1,92,896-34 Tonnes
The accounts based on the records, maintained by the defendants, show that the total quantity of the coal segregated was 1,92,896.34 Tonnes
and not 3,99,506 Tonnes as contended by the plaintiff. In the letter dated 13.6.1989 the plaintiff have stated that they have segregated coal to the
total quantity of 2,91,596 Tonnes and the defendants have made payment for 1,92,894 Tonnes and failed to make payment for 98,612 Tonnes,
for the said claim also there is no proper record on the side of the plaintiff. Though some arithmetical calculations have been shown by the plaintiff
in their letter dated 13.6.1989, the same has not been substantiated by documentary evidence.
The next claim of the plaintiff is based on notice sent by the Chief Engineer, Mettur Thermal Power Project to the Tender Committee wherein
there was an error of 20% in the gravimetric feeder and out of the total stock, the plaintiff had done segregation work to the total weight of
3,51,299.41 Tonnes of coal and the amount paid was for 3,00,89634 Tonnes and for the difference of 50,403.07 Tonnes of coal segregated at
the rate of Rs. 16.95/- per Tonne, the total amount to be paid comes to Rs. 8,54,332.03. If we take that calculation, as the basis, then he is
eligible for payment of 50,403.07 Tonnes only and not for 98,612 Tonnes. As already stated the claim made on the basis of the letter sent by the
Chief Engineer, MTPS to the Tender Committee, cannot be taken as a valid claim as per law. However, the plaintiff have made their claim for
98,612 Tonnes and not for 50,403.07 Tonnes.
There is discrepancy regarding the total weight of coal segregated by the plaintiff in the figures shown in the plaint and the letter of the plaintiff
dated 13.6.1989. The recommendation of the Chief Engineer MTPS to the Tender Committee though inadmissible in evidence shows a different
quantity. Therefore there is no proof that the plaintiffs have segregated 3,99,506 Tonnes of coal. For all the foregoing reasons issue No. 1
answered against the plaintiff.
The plaintiffs have not proved that they segregated 3,99,506 Tonnes of coal and payment has been made for 3,00,894 Tonnes and the
defendants have to pay for the balance 98,612 Tonnes of coal. Hence issue No.2 is also decided against the plaintiff.
Issue No.3: The Chief Engineer, MTPS, by his Office Note to the Tender Committee (Head Quarters) has recommended a sum of Rs.
8,54,332.03 in favour of the plaintiff on the basis of the error of 20% in the gravimetric feeder. The plaintiff by relying upon the said document have
made the claim saying that inspite of the recommendation made by the Chief Engineer, MTPS, the defendants have not paid the amount. The
defendants have contended that by signing the final bills of settlements based on the measurements shown in the measurement book, the plaintiff
have received the total amount under each one of the four contracts by signing below the words ""rates and measurements accepted"" and having
accepted the rates and measurements, the plaintiff are not entitled to go back and make a claim on the basis of the recommendation made by the
Chief Engineer, MTPS.
It was contended on the side of the plaintiff that Exs.P.1 to P.4 were marked by consent of the defendants and when once consent has been
given by the defendants and the documents were marked the defendants are bound by those documents and their contents. However, the legal
position of such marking of documents is well settled through various decisions of the High Courts and the Apex Court.
In (Judah v. Isodyne Shrojbashini Bose) AIR (32) 1945 P C 174 it was held that a letter written by a witness is no evidence of the facts
therein stated, and the only legitimate use to which the letter can be put would be to use it in cross-examination for the purpose of discrediting the
witness if what he had written was inconsistent with his evidence. When a telegram was also considered by their Lordships in the said case it was
decided that the contents of the telegram are not evidence of the facts stated in it.
Similar view was expressed in (Palaniappa v. The Bombay Life Assurance Co. Ltd.) 1947 (II) MLJ 535 = 60 L.W. 803 and it was held that
agreeing to the document being marked by consent certainly does not mean that the consenting party accepts the correctness of every statement
made in that document.
In (Karuppanna v. Rajagopala) WIA (II) MLJ 260 265 = 87 L.W. 771 a Division Bench of this Court held -
The consent given by a party for marking a document does not dispense with either the proof of contents of the document or the truth or otherwise
of the contents.
In (Perumal v. Vadivelu) 1986 (I) MLJ 283 = 99 L.W. 561 a Division Bench of this Court held that permitting a document to be marked by
consent only means that the party consenting is willing to waive his right to have the document in question proved. It does not mean the acceptance
of the correctness of every statement therein.
Learned counsel appearing for the plaintiff has argued that when once the document is marked by consent, thereafter the opposite party cannot
raise any objection in respect of the document including its contents and relied on a decision of the Supreme Court in support of his contention.
In (Purushothama v. Perumal) AIR 1972 SC 608,613 = 85 L.W. 39 S.N. the Supreme Court held -
It was next urged that even if the reports in question are admissible we cannot look into the contents of those documents. This contention is again
unacceptable. Once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not
be conclusive evidence.
Similar argument was already advanced before this Court in (Perumal v. Vadivelu) 1986 I MLJ 282 = 99 L.W. 561 stated supra and the
learned Judges of The Division Bench considered the above decision of the Supreme Court elaborately, and held at pages 286 & 287
It was argued before the Supreme Court that the reports of the Head-Constable were inadmissible in evidence on the ground that the Head-
Constable who covered those meetings had not been examined. The Supreme Court pointed out that the reports were marked by consent and,
therefore, it is not open to the respondent to object to their admissibility. With reference to the argument that though the reports in question are
admissible because of the consent the Court cannot look into the contents of those documents, the Supreme Court observed that once the
document is properly admitted the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.
It could be seen from the facts that so far as the reports of the Head-Constable are concerned, the Inspector of Police himself spoke, to the fact
that he deputed the Head-Constable to cover the meetings and report the same. He produced the original reports submitted to him by the Head-
Constable. The Inspector had also spoken to the fact that those reports disclosed that as per the permission granted the meetings were held. It has
to be noted that only with reference to the factum of holding the meeting that those reports were relied on by the Supreme Court and not for any of
the other statements as to what transpired or what was spoken to in that meeting. Since the reports themselves were filed through the Inspector at
whose instance the Head-Constable covered the meeting, the Supreme Court considered that would be admissible to prove the holding of the
meeting on those days. Even here, the Supreme Court hastened to add that those contents may not be conclusive evidence. (Para.5)... ... The
consent given by a party for marking a document does not dispense with either the proof of contents of the document or the truth or otherwise of
the contents.
Which considering the view expressed by this Court, there need not be any further explanation in the matter. The view expressed by the Apex
Court in the above decision cannot be taken in favour of the arguments advanced on the side of the plaintiff herein. Since their Lordships have held
those contents may not be conclusive evidence"" indicates that the contents of the documents marked by consent cannot be taken as conclusive
evidence and they are subject to proof as required under law"". Therefore the argument advanced on the side of the plaintiff that when once the
documents are marked by consent, the contents of the documents have been proved, is not well founded.
It was argued on the side of the plaintiff that the defendants have documents to reveal the correct weight of coal segregated by the plaintiff and
the defendants have wantonly withheld those documents with a view to defeat the claim of the plaintiff and in support of their said contention the
plaintiffs have relied on some decisions.
In Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, the Supreme Court held -
It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which
is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.
A Division Bench of this Court in (Irudayam Ammal v. Salayath Mary) AIR 1973 Mad 421, 425 = 86 L.W. 122 quoted well known maxim
Omnia praesumuntur contra spoliatorem"" applies (Vide Broom''s Legal Maxims 1939, 10th Edn. pp.637 to 640). ""If a man by his tortious act,
withholds the evidence by which the truth of his case would be manifested, every presumption to his disadvantage will be adopted"" and the Court
had drawn an adverse inference against the persons those who were in possession of the original Will for its non-production.
In Life Insurance Corporation of India Vs. Narmada Agarwalla and Others, in a case under Insurance Act (4 of 1938) the Orissa High Court
held that any statement made by proposer knowing to be incorrect would amount to nondisclosure.
By citing the above decisions, the plaintiffs have further contended that the defendants who were in possession of the documents showing the
correct particulars about the weight and the amounts due to the plaintiffs have failed to produce those documents in spite of the notice given by the
plaintiff and thereafter the plaintiff filed two applications in the suit. No doubt, the plaintiff have filed two applications before this Court and this
Court rejected those applications. Thereafter the plaintiff have preferred O.S. Appeal Nos. 112 & 113/1997 and C.M P. No. 6015/1997 before
the Appellate jurisdiction of this Court and their Lordships of the Appellate Court allowed the O.S. Appeals and permitted the marking of three
documents mentioned in the petition by summoning witness. Accordingly Exs.P.1 to P.4 were marked by consent. As those documents were
marked by consent, there was no need to examine any witness regarding the marking of those documents concerned. However, the contents of the
documents cannot be looked into. In P.C. Purushothama Reddiar Vs. S. Perumal, the Supreme Court held that though the documents are admitted
their contents cannot be conclusive evidence. Therefore the plaintiff cannot rely upon the contents of those documents.
It was argued on the side of the plaintiff that for not producing those documents which were in possession of the defendants, an adverse
inference has to be drawn against the defendants. The adverse inference can be drawn u/s 114 (g) of the Indian Evidence Act, 1872.
Section 114 (g) says - ""that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it"".
As per the order of the Appellate Court the documents have been produced and marked as Exs.P.1 to P.4. Even the copy of the letter
addressed by the Chief Engineer, MTPS to the Tender Committee has been produced. Now the entire question is whether the Court can rely
upon the contents of the said documents. We have given a negative reply to the said question for the reason that though the documents are marked
by consent, the contents cannot be looked into. Therefore the defendants cannot rely upon the contents of those documents already produced and
marked and in such circumstances they cannot ask the Court to draw a presumption u/s 114 (g) as the documents have already been produced.
It was contended on the side of the plaintiff that the Office Note of the Chief Engineer, MTPS addressed to the Tender Committee (Head
Quarters) shows that due to the error of 20% in the gravimetric feeder, the coal segregated by the plaintiff to the extent of 50,403.07 Tonnes was
not included in the final bills and therefore at the rate of Rs. 16.95 per Tonne, the plaintiffs are entitled to claim Rs. 8,54,332.03. The plaint claim is
not on the basis of the said letter for the sum of Rs. 8,54,332.03, whereas it was based on the omission in calculation for the payment of 98,612
Tonnes of segregated coal for a sum of Rs. 16,71,473/-. Therefore when the plaintiffs themselves have not relied on the said letter and the amount
stated by the Chief Engineer, while making the claim in the plaint, the contents of the said letter will not be of avail to them.
In the first decision relied on by the learned senior counsel for the defendants in Puran Lal Sah Vs. The State of U.P., stated supra it was held
in similar circumstances that such letters seems to be a recommendatory letter by a subordinate to the higher officer, but it does not in any way
establish the right to obtain a higher rate.
The 2nd decision in ( Tamil Nadu Electricity Board and another Vs. N. Raju Reddiar and another, stated supra the Apex Court held that the
recommendation or such passing of bills on one count or multi slab basis cannot be construed to have conferred a right on the plaintiffs to get the
payments on multi slab basis, until and unless it is proved by the plaintiff that the defendants agreed under the written contract to pay on multi slab
basis. While considering the view expressed by the Supreme Court in these two decisions, we cannot agree with the plaintiffs when they say that in
spite of the recommendation by the first defendant for payment of Rs. 8,53,332.03 the defendants have withheld the payment on the ground that
the account was settled on the basis of final bill submitted by the plaintiff.
The argument advanced on the side of the plaintiff that the settlement of the final bills and the payment of the amounts on the basis of the final
bills will not disentitle them from claiming the recommended sum of Rs. 8,53,332.03 is also not well founded. As already stated the plaint claim is
not based on the said reason. The final bills prepared by the defendants for the payment of amount on full settlement on each one of the four
contracts are marked as Exs.D.1, D.3, D.5 and D.7. The plaintiff in each one of the said bills had signed by accepting the rates and quantities
stated therein. The plaintiffs have not received the amounts shown in those four bills with objection or without prejudice to their future claim, if any.
With the full knowledge and consent they have accepted the said amounts as the final settlement for each one of the four contracts. Having
accepted the final settlement of each one of the contracts without reserving any right to make any claim in future in respect of four contracts, they
cannot be permitted to go back from their earlier acceptance and to make any claim in respect of those contracts. The plaintiffs have tried to shift
the blame on the defendants by saying that the defendants are refusing to look into their claim on the ground that already full and final settlement
have been effected under the final bills. On the contrary the true facts remain that the plaintiff had accepted the rates and quantities, signed the bill
and received the amount on their free Will and consent without any insistence or coercion, undue influence, fraud or mis-representation on the part
of the defendants. When the plaintiffs have made this claim, the defendants thought fit to say that the plaintiffs have received the amount as per the
final settlement of the bills and thereafter they cannot make any claim. When the plaintiffs have made the claim much against the contract entered
into between themselves and the defendants, such an objection has been raised by the defendants in their written statement and the plaintiffs are not
entitled to take shelter under such objections rightly raised by the defendants.
For the foregoing reasons, this issue is answered against the plaintiff. Issue No. 4: In the result, suit is dismissed and parties shall bear their
respective costs.