The main legal point established in the judgment is that the recovery of an allegedly excess amount for transportation of coal was justified as per the transportation contract agreement.

JUDGMENT :

(Goutam Bhaduri, J.) :

Heard.

1. Instant appeal is against the judgement and decree dated 27/10/2021 passed by the First Additional District Judge, Korba, District Korba in Civil Suit No.25A/2015. The appellant/plaintiff filed a suit for declaratory relief that a direction be issued that Rs.29,42,035 and 86 paise has been illegally recovered and has been withheld in respect of the bill to be paid from 16/07/2015 to 28/07/2015. Admittedly, as per the pleading, the appellant/plaintiff, who is a registered company, was granted a transportation contract by the SECL by Ex.P-2 in April, 2012 for a period from 28/11/2011 to 27/11/2016 and the coal was transported and the plaintiff/appellant was paid an amount of Rs.2,62,15,181.78 paise in lieu of the transportation made from period of 1st October, 2013 to 31/03/2014. Subsequently, the respondent served a letter to the plaintiff stating that excess payment was made in lieu of the transport, therefore as per the contract an amount of Rs.29,42,035.86 paise was a recoverable sum. The plaintiff averred that while the transportation was made it was cross-checked and verified by the SECL officers and the weightment bridge fortifies the same, therefore there was no occasion to recover the said sum on the account that the excess payment was made.

2. Per contra, the defendant asserted that a letter dated 6/08/2015 was sent whereby the plaintiff was apprised of the fact that an amount of Rs.29,42,035.86 paise has been paid in excess and since he was carrying out another transport contract at Gevra the said amount was withheld. SECL further stated that when the complaint was received that excess amount was paid, a committee was constituted and the said committee after due verification found that excess payment has been made of 76152.79 tonnes of coal, therefore the recovery was sought for. They further stated that the plaintiff was given the opportunity to liquidate the said sum but having failed to do so, the amount was withheld subsequently which was due in another bill.

3. On the basis of the pleading of the parties, the learned trial court framed as many as 7 issues and finding was arrived at that in respect of transportation in between 1st October, 2013 to 31/03/2014 an excess amount of Rs.29,42,035.86 was paid in excess to the coal actually transported and accordingly on the basis of such finding the other issues were also answered in favour of the defendant/respondent resulting into dismissal of the civil suit. Hence this appeal.

4. Learned counsel for the appellant would submit that transportation of the coal was done at the instance of the SECL officers which was duly verified by the weightment bridge and the respective notices and vouchers issued, therefore after completion of the period of 18 months, the recovery letter of Rs.29,42,035.86 was not justified. He would further submit that the respondent itself has checked the veracity of the transportation and having paid, the same cannot be subject of question. He would further submit that the evidence adduced by the plaintiff and the defendant would show that there was no dispute about such transportation but when it has been alleged that excess amount was paid it should have been proved by the respondent as it was their allegation. Consequently, the burden of proof was on the SECL to prove those facts. He placed his reliance in Civil Appeal No.7115/2010 in between Thomas Daniel Vs. State of Kerala & ors. He would submit that after a period of three months the recovery of the like nature cannot be done.

5. Per contra, learned counsel for the respondent would submit that the plaintiff/appellant failed to prove its case as the PW-1 who was holding a power of attorney holder on the date 12/09/2015 all transaction took place prior to that date and according to his admission he was not primarily involved in the transaction, therefore the evidence of PW-1 would be of no consequence. She would further submit that the plaintiff has failed