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 AKS,J & ETD,J AS No.256_2005 2 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 AKS,J & ETD,J AS No.256_2005 3 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 AKS,J & ETD,J AS No.256_2005 5 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 AKS,J & ETD,J AS No.256_2005 7 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 AKS,J & ETD,J AS No.256_2005 8 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 AKS,J & ETD,J AS No.256_2005 9 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 AKS,J & ETD,J AS No.256_2005 10 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 AKS,J & ETD,J AS No.256_2005 11 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 AKS,J & ETD,J AS No.256_2005 12 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 AKS,J & ETD,J AS No.256_2005 13 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 AKS,J & ETD,J AS No.256_2005 15 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 AKS,J & ETD,J AS No.256_2005 16 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 AKS,J & ETD,J AS No.256_2005 17 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 AKS,J & ETD,J AS No.256_2005 19 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 AKS,J & ETD,J AS No.256_2005 20 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.
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ABHINAND KUMAR SHAVILI, J
___________________________
TIRUMALA DEVI EADA, J
Date: .04.2025
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