ORDER :

1. Heard Mr. A.K. Das, Advocate, appearing on behalf of the appellants along with Mr. Shivam Utkarsh Sahay, Advocate.

2. Heard Mr. Chittaranjan Sinha, Senior Advocate, Mr. Pandey Neeraj Rai, Mr. Rohit Ranjan Sinha, and Mr. Akshansh Kishore, Advocates, appearing on behalf of the respondent.

Arguments of the Appellants

3. This appeal has been filed against the judgment and decree dated 16.03.2001 (Decree signed on 31.03.2001) passed by the learned Sub-Judge - III, Ranchi in Money Suit No. 01 of 1987, whereby the suit was decreed in part, in as much as, the claim as mentioned in Schedule-II of the plaint amounting to Rs. 42,43,347.76, on account of excess amount charged for price of ‘slurry’ as compared to Grade ‘D’ Coal, for the period from 7th January, 1984 to July 1985, has been allowed with interest @ 18 % per annum from the date of filing of the suit till realization.

4. The counsel for the appellants by referring to the plaint, submits that the plaintiff is the proprietorship firm, engaged in the business of undertaking contract for manufacture, sale, supply and distribution of briquettes, after collecting slurry from different sources. The defendant No.1 is a government company, engaged in business of mining, distribution and supply of coal and other allied items, and other defendants are the Officers of the defendant No. 1. It was the specific case of the plaintiff in the suit, as it was initially filed, that the defendants, after mining the coal send the same to the coal washery, where the coal extracted from the mine, is washed by chemical process, and in course of such washing of coal by chemical process, a huge quantity of substance called ‘slurry’ is generated, which is sold as a by–product by the defendants. On 01.09.1983, the defendants had invited quotations from such persons, who would be interested in purchase of ‘slurry’ from Kathara Coal Washery of the defendants, in which, the plaintiff had participated and was declared successful. The tender of the plaintiff was accepted by the defendants on 29.12.1983, after negotiation. Ultimately a work contract was issued to the plaintiff on 07.01.1984 for purchase of 30,000 tonnes of ‘slurry’ to be lifted for a period of one year @ Rs.309.99 per tonne on the terms and conditions contained in their General Terms and Conditions as well as Special Terms and Conditions with respect to contract of sale of ‘slurry’. The rate was subsequently enhanced to Rs.394.74 per tonne with effect from 01.08.1984 under the provisions of the terms and conditions. In addition to the quoted price; sales tax, royalty, local cess and other statutory charges, as applicable from time to time, were also payable.

5. The counsel submits that the specific case of the plaintiff in the suit, which was originally filed, was that the ‘slurry’ which was purchased by the plaintiff, was not ‘coal’ within the term ‘coal’ as defined under the Mines and Mineral (Regulation and Development) Act, 1957 and accordingly, royalty or cess was not payable and for this, the plaintiff had made repeated requests and representations before the defendants indicating that ‘slurry’ is not ‘coal’ and they are two different things and that they are neither identical nor interchangeable. It was also contended in the plaint that ‘slurry’ is neither mineral nor coal on its own right and this was stated in the plaint by referring to a judgment passed by Hon'ble Patna High Court. Counsel for the appellants submits that this judgment of Hon'ble Patna High Court is reported in AIR 1986 Patna 242 (Kundori Labour Co-operative Society Ltd. Vs. State). It was also contended by the plaintiff that the ‘coal’ after payment of royalty and cess, is sent to the Coal Washery by the defendants for the purposes of washing the coal. Accordingly, royalty and cess realized by the defendants from the plaintiff, are not paid by the defendants t