BURRAKUR COAL CO LTD Vs. SACHINDRA MOHAN GHOSH

JUDGEMENT

(1.) The petitioner is defendant 2 in a suit brought by the receiver of the Jharia Raj Estate for recovery of commission on coal raised and despatched by the petitioner or his predecessor in interest, defendant 1 (the original lessee now in liquidation) from certain leasehold property. The suit substantially is for recovery of commission in respect of slack coal on the provision contained in para. 6 of the lease which, so far as relevant, runs as follows: You shall pay me commission or royalty at the rate of three annas per ton on all kinds of coal (except dust coal) that shall be raised, or manufactured and despatched from or sold upon the said lands, that is to say, steam coal, rubble coal, hard coke and soft coke. No commission or royalty shall be paid on dust coal....

(2.) The material defence was that, upon construction of the above provision, the royalty was payable only in respect of the classes of coal therein expressly specified, namely, steam coal, rubble coal, hard coke and soft coke, so that all coal and coke which might be despatched or sold otherwise than as steam, rubble, hard coke or soft coke is to be treated as coming within the category of dust coal which is expressly exempted from payment of royalty. The suit was brought on 17 August 1931, and issues were settled on the 3 December following. On 19 September 1932, the plaintiff applied for amendment of the plaint to admit of his claiming commission on coke manufactured from all coal, whether rubble, slack or dust, his particular point being that coal dust sold or despatched or carried outside the leasehold property for the manufacture of coke and sold and despatched as such should bear commission.

(3.) It was vaguely averred that dust from the mine in suit had been carried to Mauza Loyabad as the defendant company had installed a coking plant there. Loyabad is, it is stated, outside the leasehold property in suit and the coal mining lease of that village is held at a fixed annual rent so that the plaintiff gets no royalty on raisings there. The defendants objected that the amendment ought not to be allowed both, because it changed the nature of the suit and because it was asked for at a late stage, the suit being ready for trial. The learned Subordinate Judge set out: There is raised an interesting question as to whether the plaintiff is entitled to royalty on coke manufactured elsewhere with the dust coal raised from colliery in suit.