Amitav K. Gupta, J. - (1.) These two appeals are directed against the common judgment and decree dated 15.09.2005 and 26.09.2005 respectively passed in Money Suit no.2/2000 passed by Sub-JudgeIst, Bermo at Tenughat decreeing the plaintiff's suit and directing the defendants(appellants herein) to pay Rs.3,96,73,455.00 with interest at the rate of 12% per annum till realisation while dismissing the counter claim of the defendants/appellants. The defendants/appellants have preferred F.A.No.134 of 2005 impugning the dismissal of counter claim filed by the defendants and F.A.No.135 of 2005 impugning the money decree and recovery of the amount from the defendants.
(2.) The appellants in F.A.No.134 of 2005 and F.A.NO.135 of 2005 were the defendants in Money Suit no.2/2000 and the respondent, in both the appeals, was the plaintiff in the said Money Suit no.2/2000. For the sake of convenience they will be referred to as plaintiff and defendants.
(3.) The case of the plaintiff is that it is a government company under Section 617 of the Companies Act, 1956 having its registered office at Darbhanga House, Ranchi and having business at Swang Washery, P.O.Swang, District-Bokaro. It is a subsidiary company of Coal India Ltd. The defendant no.1, Jugnu Construction, is a partnership firm comprising of defendants no.2 and 3 as the partners of the said firm. The defendants' firm is engaged in the manufacturing of briquettes from slurry. The plaintiff invited a tender for lifting of slurry for the purpose of manufacturing of briquettes. Defendants submitted their tender which was accepted in the year 1982. They were allowed to dispatch the slurry after converting into briquettes within the premises of the plaintiff on the terms that the conversion factor shall be 1 tonne of briquettes for 1.5 tonnes of slurry and the defendants had agreed to pay other charges including royalty, cess, sales taxes, excise duty, etc. on the slurry. It is pleaded that during the pendency of the contract, the Full Bench of Hon'ble High Court of Patna held that the slurry was not coal and therefore it was not subject to regulation under Mines & Minerals Act. The defendants filed a writ petition CWJC NO.1232/1998(R) before the Ranchi Bench, of Patna High Court, for issuance of writ of mandamus directing the plaintiff not to charge any cess, royalty, sale tax and excise duty on slurry supplied to defendants. The writ was dismissed by order dated 11.10.1988 on the ground that defendants had agreed to pay such charges under the contract. In another decision in CWJC NO.1718/1987 the Hon'ble High Court held that slurry is coal and therefore the defendants and contractors were liable to pay aforesaid charges in terms of the agreement. The defendants filed a S.L.P(C) no.9365/89 in Supreme Court against the judgment/order dated 11.10.1988. The Supreme Court held slurry is coal and State of Bihar had no authority in law to exercise its authority in regulating the slurry[reported in (1990) 4 SCC 557]. After that, the defendants filed an I.A. NO.2, in the said SLP stating, inter alia, therein, that even though defendants had paid full price for slurry supplied to them under the contract but they were not being permitted to remove the ash/residue of the briquettes and slurry lying within the premises of plaintiff. The Hon'ble Supreme Court, vide order dated 25.04.1990, was pleased to permit the defendants to remove the ash subject to condition that all the removal would be accounted by measuring the quantity and by way of security, a cash amount of Rs.10,00,000/-(Rupees ten lakhs) or bank guarantee would be deposited within seven days in a nationalised bank. The Hon'ble Supreme Court found that there was serious controversy with regard to sale regarding the amount of slurry and remanded the case to the High Court of Patna, for deciding the same. On remand, the Hon'ble Single Judge vide order dated 11.03.1998 held that the agreement of the defendants with the plaintiff had come to an end in the year 1988, but the defendants had removed ash for seven years since May, 1991 although they had no right to remove the ash. There was no whisper regarding the measurement of the removed ash and the defendants could not carry/remove the ash for an indefinite period. The above findings of the learned Single Judge was affirmed by the Division Bench. Being aggrieved the defendants preferred S.L.P.(C) No.312/1999 which was dismissed by the Supreme Court on 28.01.1999. It is stated that the Functional Directors of the plaintiff-Company took a decision fixing the price to be charged for the remains of the slurry lifted from June, 1990 to 1998 and held that the defendants were liable to pay a sum of Rs.3,96,73,455/- because the remains which are left after the burning of slurry and after manufacture of briquettes were also slurry and not ash. The defendants did not pay the outstanding amount, accordingly the Money Suit no.2/2000 was instituted.;