05.03.2025 Sl No.2 Court No.37 (gc) In the High Court at Calcutta Civil Appellate Jurisdiction (Commercial Division) FMA 1402 of 2024 CAN 1 of 2024 CAN 2 of 2025 Sar Parivahan Pvt. Ltd. Vs. Eastern Coalfields Ltd. & Ors. Mr. D. N. Sharma, Sr. Adv., Mr. Debdoot Mukherjee, Mr. Kritin Saraf … For the Appellant. Mr. Amritam Mandal, Ms. Swati Agarwal …for the Respondent Nos.1 to 4. 1. The appeal and the applications are taken up together and disposed of by this common order. 2. The plaintiff filed a suit for a declaration that the letter dated 1st February, 2017 issued by the defendants and the letters dated 11th June, 2017, 13th June, 2017 and the Advocate notice dated 14th June, 2017 are illegal and void. A money decree was claimed along with damages. In the suit, the defendants filed a written statement with the counter-claim in which the defendants alleged that in spite of granting several extensions, the plaintiff had failed to perform the contract as a result whereof the defendants imposed a penalty of Rs.95,99,052.72/- in terms of 2 Clauses 6.2 and 6.2.4 of the tender. Out of the amount realizable towards penalty, the defendants had recovered a sum of Rs.1,82,51,938.57/- and are entitled to the balance amount being a sum of Rs.47,32,605.33/-. The learned Judge, Commercial Court on appreciation of evidence dismissed the suit and allowed the counter- claim for a sum of Rs.47,32,605.33/- against the plaintiff along with interest at the rate of 9% per annum from 1st February, 2017 till payment. 3. It appears from the impugned order that although the appellant had relied upon several letters addressed to the police authorities at site, however, the PW-2 during cross-examination could not establish that the said letters were also communicated to the ECL authorities. The principal grievance of the plaintiff appears to be that the situation at the sight was not conducive for the execution of the work due to various disturbances and there other hindrances for which the defendants were approached for extension. Non availability of explosives was another factor for what the work delayed. In this regard, the plaintiff/appellant during trial had referred to a letter dated 14th March, 3 2013. However, the said letter could not be produced by the appellant. During the course of hearing, the appellant had filed an application under Order 41 Rule 27 of the Code of Civil Procedure for additional evidence. In the said application, the letter dated 14th March, 2013 has been disclosed along with few letters from which it would appear that the communications have been made with the respondents/decree-holders regarding the issues highlighted above. 4. In the light of such disclosure and having regard to the fact that the letter dated 14th March, 2013 could have a bearing in the outcome of the suit and few of the letters may also be relevant for the purpose of deciding the suit, we dispose of this appeal by directing the appellant to deposit Rs.30 lacs in the Trial Court within a period of fortnight from date as a condition precedent for retrial restricted to the additional evidence. In default, the decree shall revive and becomes executable. 5. The learned trial Court shall keep the amount invested in a suitable fixed deposit account with any nationalized bank yielding highest return till the disposal of the suit. 4 6. The admission and denial of additional documents shall be governed by the Commercial Courts Act, 2015. 7. The decree-holders do not intend to rely upon any further document. 8. We request the learned Judge, Commercial Court to dispose of the suit as expeditiously as possible. 9. This order shall be immediately placed before the learned Judge, Commercial Court by the parties so that further steps may be taken with regard to the conclusion of the trial. 10. With the aforesaid observation, the appeal and the connected applications are disposed of. 11. However, there shall be no order as to costs. 12. Urgent Photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities. (Soumen Sen, J.) (Biswaroop Chowdhury, J.)