M.Y.EQBAL, J. - (1.) THIS appeal under Clause 10 of the Letters Patent is directed against the judgment dated 9th September, 1998 passed in First Appeal No. 151 of 1986 (R) whereby the appeal preferred by the plaintiff/appellant has been dismissed and the judgment and decree passed by the Subordinate Judge has been affirmed.
(2.) THE facts of the case lie in a narrow compass. The plaintiff/appellant M/s. United Collieries Limited was the erstwhile owner Central Sounda Colliery and was dealing in coal business and in course of such business certain amount of coal was supplied to the defendant Northern Railway prior to 31.1.1973. Against such supply of coal, six separate bills having total amount of Rs. 1,97,887.30 were drawn up in the month of January, 1973 and the balance of Rs. 1,77,210.30 paise remained outstanding. The plaintiffs case was that the Central Sounda Colliery was taken over under the provisions of Coal Mines (Taking over of Management) Ordinance 1973 on 31.1.1973. Thereafter, the said colliery was finally vested in the Central Government under the Central Coal Mines (Nationalisation) Act, 1973. Consequently, all the bills and all types of transactions were taken over by the custodian as per the Coal Mines (Taking over of Management) Act, 1973 and the said custodian appointed by the Central Government was entrusted to realize all the dues of the Coal Mines to the exclusion of all persons. The plaintiffs further case was that the custodian being the statutory authority have realized the dues of the plaintiff from the defendant No. 3, Northern Railway but the said amount allegedly not recovered from the Northern Railway and the plaintiff came to know from the audited accounts which was supplied only on 17.8.1979. The plaintiff then made correspondence with the defendants but no breakup was supplied to them as to whether the amount recovered from six bills towards dues have been realized or not. The plaintiff thereafter served legal notice under Section 80 of the Civil Procedure Code and filed the aforementioned suit for recovery of Rs. 1.34,379.90 paise.
(3.) DEFENDANTS /respondents contested the suit by filing written statement. Their case is that the amount of four bills totaling Rs. 1,34,379.90 paise was paid by cheque to the custodian General CMA, Calcutta and the amount of two bills were also later on paid to the Custodian General. Their further stand was that the amount which have been realized by the Custodian General have already been paid to the plaintiff and any dues even if remained unpaid the same is not payable and the suit is hopelessly barred by limitation. The trial Court although decided some of the issues in favour of the plaintiff/appellant but held that the plaintiffs suit was hopelessly barred by limitation.;