JUDGMENT This is a suit for recovery of Rs. 4,22,869.75p, being the amount outstanding on account of work done but not fully paid. The plaintiff's case shortly stated is that the plaintiff entered into a contract with the defendant for mining operation for extraction of iron ores, removal of rejects, transportation of ores from the defendant's Belkundi Mines at Barbil to railway siding or to a site of equivalent distance as directed. The contract was executed on 30.7.83 initially for 2 years but was extended with mutual consent. It is plaintiff's case that the contract came to an end on 14.7.86. The contract stipulated that in addition to the earnest money amounting to Rs. 31,800/- deposited by the plaintiff, the defendant would recover 2% of the value of the work done on the gross value from each running bill of the plaintiff to make up a total security deposit of 3% of the total value of the work done. The security deposit is not to carry any interest. The plaintiff continued its business till 14.7.86 and submitted bills in respect of such work done. In accordance with the agreement the defendant deducted 2% of the value of the work done on the gross value of each running bill and thereby the total deduction was for a sum of Rs. 66,296/- and thus the security deposit amounted to Rs. 98,096/-. It is plaintiff's case that the said security deposit has been retained by the defendant despite the fact that the contract came to an end on 14.7.86 and demand has been made for its refund. 2. It is plaintiff's case that between September 1983 and June 1986 the plaintiff submitted running bills to the extent of Rs. 33,14,923.67p. The defendant acknowledged the said bills and has not raised any dispute thereto so far. Out of the amount due on the said bills the defendant deducted 2% on account of security deposit. The defendant also deducted 10% out of the said bills for paying the amount to the plaintiff subsequently. The defendant paid to the plaintiff the said 10% amount deducted upto the period of May 1985 for despatches to IISCO and upto March 1985 for despatches to Bokaro Steel Plant and Durgapur Steel Plant but has not paid any amount thereafter although the said deductions were made regularly out of the running bills. As a result sum of Rs. 91,589.75p. As a result sum of Rs. 91,589.75p. is due and payable by the defendant to the plaintiff on that ground. 3. It is the plaintiff's case that it was his responsibility under the contract to sort out the ores having proper specification and transport the same to No. 2 railway siding at Barbil and it was the duty of the defendant under the contract to make arrangement to load the same on railway wagons. The plaintiff was entitled to get from the defendant transportation charges from the pit head to the railway siding. On the date when the contract came to an end there were 8328 M.Ts of iron ores at the rail head transported by the plaintiff for which the plaintiff is entitled to a sum of Rs. 2,33,184/- at the rate of Rs. 28/- per M.T. being the rate prevailing at the time when the contract came to an end. 4. It was the term of the contract that bills for despatched quantity would be submitted to the Manager (Accounts) supported by copy of the analyst's report and the railway receipt showing actual weighment or volumetric measurement as the case may be. Since the goods had not been despatched on the day the contract came to an end the bills in respect thereof could not be filed in respect of the said stock. 5. The plaintiff alleges that plaintiff carried out its part of the contract by raising and sorting and transporting the stock. The plaintiff lawfully did the work for the defendant not intending to do so gratuitously and the defendant having enjoyed the benefit thereof is bound to make compensation to the plain tiff which the plaintiff assesses at Rs. 2,33,184/- only. 6. Therefore, there is now due and owing by the defendant to the plaintiff a sum of Rs. 4,22,869.75p. (Rs. 98,096 + 91,589.75 + 2,33,184). 7. For failure of the defendant to certify the bills submitted long ago the plaintiff could not get refund of the security deposit. A Notice of Demand was issued on behalf of the plaintiff by a letter dated 2nd September, 1989 for refund of the security deposit but to no avail. Plaintiff initiated a proceeding for winding up of the Defendant Company in Company Petition No. 29 of 1990 in this Hon'ble Court which was contested by the defendant. A Notice of Demand was issued on behalf of the plaintiff by a letter dated 2nd September, 1989 for refund of the security deposit but to no avail. Plaintiff initiated a proceeding for winding up of the Defendant Company in Company Petition No. 29 of 1990 in this Hon'ble Court which was contested by the defendant. By an order dated 19th March, 1990 the defendant was directed to furnish a security to the extent of Rs. 1 lakh in favour of the Registrar, High Court, Calcutta within 4 weeks from the date of the order and if such security was furnished the plaintiff was relegated to a suit which was to be filed within a fortnight thereafter. Since the defendant has furnished security in terms of the order, the plaintiff by filing this suit has prayed for a decree for recovery of Rs. 4,22,869.75p. along with cost and interim interest and interest on judgment. 8. The defendant contests this suit by filing a Written Statement and stating inter alia that the plaintiff stopped the work and abandoned the site prior to 30th June, 1986 without giving any prior intimation to the defendant and so it is not a fact that the contract came to an end on July 14, 1986. The defendant has also alleged that the security deposit at the rate of 2% on gross value of the bill along with initial earnest money does not amount to Rs. 98,096/- but to Rs. 97,508.89p. The defendant has also alleged that the plaintiff did not ask for issuance of certificates as per Clause 12(b) of the contract regarding disbursement of all labour payments and statutory payments. The plaintiff did not ask for any certificate from the defendant Company’s agent or Deputy General Manager to the effect that plaintiff had performed all its obligations under the contract. In absence of such certificate the plaintiff is not entitled to get refund of the amount of security deposit or to raise the claim for refund of the amount. The defendant has denied that the plaintiff submitted running bills of Rs. 33,14,923.67p. The defendant has also denied that the sum of Rs. 91,589.25p. is due and payable by the defendant to the plaintiff. It has been stated that the claim as made in the said paragraph in respect thereof is vague and is devoid of material particulars. The defendant has denied that the plaintiff submitted running bills of Rs. 33,14,923.67p. The defendant has also denied that the sum of Rs. 91,589.25p. is due and payable by the defendant to the plaintiff. It has been stated that the claim as made in the said paragraph in respect thereof is vague and is devoid of material particulars. It has been stated that plaintiff's claim is barred under the provisions of Order 2 Rule 2 C.P.C. inasmuch as in the previous proceeding i.e. Company Petition No. 29 of 1990 plaintiff had not made such claim. Furthermore plaintiff had failed and neglected to submit any final bill and analysis report in respect of the despatches allegedly made to IISCO for the period subsequent to May 1985 or to Bokaro Steel Plant and Durgapur Steel Plant subsequent to March 1985. In fact, plaintiff never made any claim on that account at any stage. It is also the case of the defendant that the plaintiff having failed to submit bills to the Manager (Accounts) supported by returns and Railway Receipt/Weighment or volumetric measurement as requires under Clause 9(2) of the contract there was no scope for verifying or certifying the correctness of the quantity and quality indicated in the running bills. The defendant have also denied that when the contract came to an end, there were 8,328 metric-tonnes of iron ores at the railhead transported by the plaintiff. On the contrary, on physical verification it was found that as on 30th June, 1986, there were shortage of 3,068 mt. iron ores in the account of the plaintiff. The plaintiff have also raised 408 metric tonnes off-grade iron ores and wrongfully supplied the same to the customers of the defendant on account of which the customers of the defendant made deduction from the bills. The value of 3,028 metric tonnes of iron ores found short and the amount of deductions made by the defendant's customers on account off-grade iron ores wrongfully despatched by the plaintiff amounted to Rs. 1,59,894.96p. The plaintiff is liable to compensate the defendant for the said sum of Rs. 1,59,894.96p., Plaintiff's claim for a sum of Rs. 2,33,184/- is denied. It is further denied that plaintiff is entitled to make any claim at the rate of Rs. 28/- metric tonnes or that rupees 28/- was the prevailing rate at the time when the contract came to an end. 1,59,894.96p., Plaintiff's claim for a sum of Rs. 2,33,184/- is denied. It is further denied that plaintiff is entitled to make any claim at the rate of Rs. 28/- metric tonnes or that rupees 28/- was the prevailing rate at the time when the contract came to an end. It is denied that any stock of iron ores raised by the plaintiff was lying in the stockyard of the railways. 9. The defendant has counter-claimed the sum of Rs. 1,59,894.96p. and they paid court fees thereon. Defendant has also claimed interim interest and interest on judgment on the said sum. It has been alleged by the defendant that in the event any amount is held payable by the defendant to the plaintiff, the defendant may be allowed to set-off the said sum of Rs. 1,59,894.96p. against such amount as may be found due and payable to the plaintiff by the defendant. 10. Upon pleadings of the parties the following issues were framed :- (1) Is the suit maintainable in its present form? (2) Is the plaintiff entitled to claim a sum of Rs. 98,096.00p. as pleaded in paragraph 7 of the plaintiff? (3) Is the plaintiff entitled to claim a sum of Rs. 91,589.75p. as pleaded in paragraph 8 of the plaint? (4) Is the plaintiff entitled to claim a sum of Rs. 2,33,184.00p. as pleaded in paragraph 10 of the plaint? (5) Did the plaintiff perform all its obligations under the contract as claimed in the plaint? (6) Is the defendant entitled to counter-claim and set off a sum of Rs. 1,59,894.96p. as claimed in paragraphs 8, 17 & 18 of the written statement? (7) What relief or reliefs the parties are entitled to ? Findings with reasons : Issue No. 1 : Not Pressed. Having regard to the materials on record the issue is answered in plaintiff's favour in the affirmative. issue No. 2 : In paragraph 4 of the written statement the defendant has practically admitted plaintiff's claim on this account excepting that instead of Rs. 98,096/-, the amount would be Rs. 97,508.89p. as pleaded in the written statement. 11. The learned Advocate for the plaintiff has agreed to the said correction and the said sum. 12. issue No. 2 : In paragraph 4 of the written statement the defendant has practically admitted plaintiff's claim on this account excepting that instead of Rs. 98,096/-, the amount would be Rs. 97,508.89p. as pleaded in the written statement. 11. The learned Advocate for the plaintiff has agreed to the said correction and the said sum. 12. In paragraph 12 of the contract it is provided that the security deposit would be refunded within 30 days from the date of completion of the contract subject to the condition that contractor produces certificates from the Agent and the Deputy General Manager (P & L) of the company to the effect that all labour payments have been disbursed. It is further provided that the contractor shall also furnish a certificate from the Company's agent or the Deputy General Manager (P & L) that he has cleared and performed an his obligations under the contract. It is the defendant's case that since the plaintiff failed to produce such certificates steps could not be taken to refund the security deposit. But now that the suit has been filed and there being no dispute regarding the amount of security deposit liable to be refunded to the plaintiff and further that it is not the defendant's case that there is in fact any claim of undisbursed labour payment or any statutory payments against the plaintiff there shall be no question of not refunding the security deposit to the plaintiff. The letter dated 9th/12th August, 1989 written by the Manager of the Mines to the Asstt. Labour Commissioner. Ext. J.-shows that the defendant admitted that there was no complaint that any labour payment was due and that as such the security deposit could be refunded. Regarding certificate as to performance of all obligations under the contract, there is also no complaint or any notice served upon the plaintiff that it had not performed its obligations under the contract. Considering the facts, circumstances and evidences on record, I therefore hold that plaintiff is entitled to recover Rs. 97,508.39p. as admitted by the learned Advocate for the plaintiff on this score during his argument. The issue is answered in the affirmative with the modification as stated above. 13. Issues No. 3, 4 & 5 : These three issues are taken up together for sake of convenience. 97,508.39p. as admitted by the learned Advocate for the plaintiff on this score during his argument. The issue is answered in the affirmative with the modification as stated above. 13. Issues No. 3, 4 & 5 : These three issues are taken up together for sake of convenience. The issues relate to plaintiff's claim on account of refund of 10% deduction in respect of despatches to IISCO beyond May 1985 and for despatches to Bokaro & Durgapur Steel Plants beyond March 1985 amounting to Rs. 91,589.75p. The other claim relates to the charges on account of extraction and transportation of 8328 MT of iron ores upto the railhead but not despatched by the defendant and as a result for want of R/R the plaintiff could not submit any bill. The plaintiff has charged Rs. 28/- per MT which is said to be the rate prevailing at the time when the contract came to an end. His total claim under this head is Rs. 2,33,184/-. 14. Two preliminary objections have been taken by the defendant on this score. The first is that the claims are barred under Order 2 Rule 2 CPC inasmuch as in the previous proceeding (Company Petition No. 29 of 1990) the plaintiff claimed only the refund of the security deposit and as a result his other claims arising out of the said contract should be treated to have been abandoned by him. The other preliminary objection is that the plaintiff never made any claim on account of refund of 10% deduction at any stage so far and further that as the plaintiff failed to submit bills to the Manager (Accounts) supported by returns and railway receipts, there was no scope for verification and as a result the plaintiff should be precluded from preferring any claim on that account. 15. Section 433(e) of the Companies Act, 1956 lays down that a company may be wound up by the Court if the Company is unable to pay its debts. 15. Section 433(e) of the Companies Act, 1956 lays down that a company may be wound up by the Court if the Company is unable to pay its debts. Section 434 goes to show that a company shall be deemed to be unable to pay its debts if a creditor to whom the company is indebted in a sum exceeding 500 rupees has served on the company a demand notice requiring the company to pay the sum so due and a company has for three weeks thereafter neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor. 16. Ext.-E is the demand notice dated 2nd September, 1989 issued through the Solicitor of the plaintiff to the defendant demanding payment on account of all the claims of the plaintiff as made in the plaint of the suit. It was made clear in the said demand notice that unless Rs. 98,000/- and odd being the amount due on account of security deposit was paid immediately by the defendant within three weeks from the date of receipt of the notice the plaintiff would initiate necessary proceedings for winding up of the company without any further reference. Mr. Ashim Banerjee, the learned Advocate appearing for the defendant submitted that since in the said notice demand was made for payment of only Rs. 98,000/- and odd the plaintiff should be precluded from making any further claim in the suit as his other claim should be treated to have been abandoned under the provisions of Order 2 Rule 2 of the Civil Procedure Code. It is needless to point out that winding up proceeding often taken recourse to by a creditor is not for adjudication of mutual demands between the parties but for pressurising the defendant to payoff the dues or to come to terms. That being so, the order that may be passed by the Company Court in this regard cannot and should not operate as resjudicata in respect of resolution of all disputes and differences between the parties. Such a petition may be called a step-in-aid to the litigation and particularly when, the parties are relegated to a suit subject to security being furnished, I do not find any reason why the plaintiff cannot file the suit covering all claims against the defendants. Such a petition may be called a step-in-aid to the litigation and particularly when, the parties are relegated to a suit subject to security being furnished, I do not find any reason why the plaintiff cannot file the suit covering all claims against the defendants. The demand notice under Section 434(1) of the Companies Act is a statutory pre-requisite for moving the winding up petition and cannot be a pre-condition for bringing the whole claim of the plaintiff in a subsequent suit. In this view of the matter Mr. Banerjee's contention that the plaintiff should be treated to have abandoned his other claims not demanded earlier has no logic and should be dismissed. 17. Regarding the other objection that the plaintiff did not raise any final bill in respect of the despatches alleged to have been made to IISCO, Bokaro and Durgapur Steel Plants and that for such a failure the defendant could not verify the correctness of the said bills, it appears from Exts. F,G,H and I that the plaintiff by letters addressed to the General Manager (Mines) drew attention of the defendant company that the 10% deduction on the total quantity of the despatched bills was not being finalised and value thereof refunded in respect of despatches to IISCO since June 1985 and to Bokaro Steel Plant and Durgapur Steel Plant since April 1985. The letter dated 1st January, 1986 written in this regard marked Ext. ‘F’ was received by the defendant company as would be evident from the endorsement recorded thereon. The letter dated 24th October, 1985, Ext. 'G', was also received by the defendant company. Ext. 'H' is the letter dated 12th March, 1986, written by the defendant addressed to the plaintiff. It shows that the company was agreeable to resolve all the pending bills of the plaintiff but some more time was required as the concerned officer was scheduled to come after some time. Ext. ‘I’ which is the letter dated 22nd March, 1986, shows that owing to non-receipt of dues from the Steel Plants, funds could not be remitted by the head office to the office at Barbil and the plaintiff was assured that all out efforts were being made to collect the dues from the Steel Plants for payment to the plaintiff. Ext. ‘I’ which is the letter dated 22nd March, 1986, shows that owing to non-receipt of dues from the Steel Plants, funds could not be remitted by the head office to the office at Barbil and the plaintiff was assured that all out efforts were being made to collect the dues from the Steel Plants for payment to the plaintiff. The correspondence rule out any deduction made by the Steel Plants from the bills of the defendant and that being so, there is no reason why refund shall not be made of the amount involved. D.W.1, Sri Hari Narayan Sinha, who is the incharge of the accounts of the defendant company says (answers to question Nos. 12 to 17) that it is true that a certain amount was deducted from the plaintiff's bills on account of despatches to different steel plants but the amounts were deducted because the amounts had already been deducted from the claims of the defendant by the Steel Plants on the ground that the ore supplied was below specifications and off-grade. The defendant has not, however, submitted any document to show that their purchasers i.e. Steel Plants deducted any amount from the despatches made by the plaintiff from Barbil and if so, what is that amount? On the contrary, it would appear from the correspondence cited above coupled with plaintiff's oral and other documentary evidences that on account of such deduction, Rs. 91,589.25p is due and liable to be refunded to the plaintiff. As a matter of fact, the defendant does not contradict the total amount involved as per bills exhibited. In such circumstances, in my view, there can be no reason why the plaintiff shall not get a decree for Rs. 91,589.25p, as well. The preliminary objections fail and plaintiff's claim as made in paragraph 8 of the plaint is sustained. 18. Let us now examine how far the plaintiff has succeeded in proving its other claim; namely, on account of extraction of and transportation upto the Railway siding 8328 MT. of iron ores at the alleged prevailing rate of Rs. 28 per MT. amounting to Rs 2,33,184.00p. In paragraph 10 of the plaint it is stated that such quantity of iron ores lay at the Railway siding not despatched by the defendant on the date the contract came to an end. 19. In the Agreement (Ext. of iron ores at the alleged prevailing rate of Rs. 28 per MT. amounting to Rs 2,33,184.00p. In paragraph 10 of the plaint it is stated that such quantity of iron ores lay at the Railway siding not despatched by the defendant on the date the contract came to an end. 19. In the Agreement (Ext. ‘A’) there is no provision for making any payment for extraction work or transportation charges to the contractor for stock extracted and transported to the Railway siding but not dispatched by the defendant. The nature of work as the contractor is supposed to do is to arrange and execute works for excavating, sizing sorting of iron ores. removal of rejects/fines at the mine site and to transport the are for delivery at the stock pile at the Railway siding or to any other site of equivalent distance as directed in the size range of + 10 mm to 50 mm @ 5000 tonnes per month by weight or volumetric measurement. The ore product and transported should conform to the physical and chemical specifications as detailed in the contract. Sampling and analysis while under transport and from wagon are also provided. If the average guality and size as detailed are net maintained the contractor is not entitled to any payment. Bills are to be submitted on the basis of weight recorded in the R/R which is to be made either on the Railway weighbridge or by volumetric measurement. Thus it is a composite contract having no scope for demanding part-payment for part work done. It is also not plaintiff's case that the contract broke down for fault of the defendant and he is entitled to get damages for part work done. The contractual rate is Rs. 23.50 per DMT. The alleged prevailing rate Rs. 28.00 per MT carries no sense. To show that 8328 MT of iron ores was excavated and transported upto the Railway Siding, plaintiff has exhibited the alleged stock ledger, Ext. L P.W.1, P.K. Konar admits in Cross-examination that there is no document to show whether there was any stock at the pit head or Railway siding when the plaintiff started the work. He admits that when plaintiff left the site, it did not request the defendant to take a joint measurement as to the stock left at the pit head or Railway siding. He says that stock ledger Ext. He admits that when plaintiff left the site, it did not request the defendant to take a joint measurement as to the stock left at the pit head or Railway siding. He says that stock ledger Ext. 'L' was maintained by 3/4 clerks but a cursory galance would reveal that all the entries in the stock ledger are of one hand and perhaps in one sitting. The pen-movement, pen-pressure, pen-hold and pen-style so indicate, clearly this document is manufactured for the purpose of the suit. The again, what about sizing and chemical analysis report, without which plaintiff's part of the job cannot be said to have been done? In all considerations in my view the plaintiff has miserably failed to establish his claim in this respect. Therefore Issue No. 3 is answered in the affirmative and Issue No. 4 in the negative. Issue No. 5 is answered partly in the affirmative and partly in the negative as already indicated in the discussions made above. Issue No 6 : In paragraph 8 of the written Statement defendant states that when the can tract came to an end, an physical verification it was found that as on 30th June, 1986, there were shortage of 3068 tonnes of iron ores in the account of the plaintiff. It is further stated that the plaintiff had also raised 408 M.T. off-grade iron ores and wrongfully supplied the same to the customers of the defendant, who made deductions from defendant's bills. As a result of the shortage and deductions, the defendant suffered a lass of Rs. 1,59,894.96 paise. The defendant has claimed the said sum by a counter-claim and prayed for setting off the same against plaintiff's total claim as may be allowed by the Court. 20. In support of this counter-claim, the defendant has submitted only two documents. Ext. 1' (Collectively) shows the stock as 4853 seized ore at pit head and Railway siding on 1.7.1986 and Ext. 2' is the certificate of analysis dated 10th June, 1989 showing the stock to be off-grade and unsaleable. By themselves these two documents prove nothing. Shortage must be with reference to the earlier position but no such earlier physical stack position is available. Old stack cannot be taken to be fines only. Analysis report of 10th June, 1989 has no relevance. By themselves these two documents prove nothing. Shortage must be with reference to the earlier position but no such earlier physical stack position is available. Old stack cannot be taken to be fines only. Analysis report of 10th June, 1989 has no relevance. The two witnesses examined by the defendant cannot improve defendant's case than what is sought to be made out by documentary evidence. The evidences on record on the side of the plaintiff are of no help to the defendant either. 21. In all considerations I, therefore, hold that the defendant has signally failed to establish its case and the issue is answered accordingly in the negative. 22. Issue No. 7 : In the result the suit succeeds in part. The plaintiff is entitled to get a decree for Rs. 97,508.39p. and Rs. 91,589.75p. aggregating Rs. 1,89,098.14p. only. Hence it is ordered. 23. That the plaintiff do get a decree far Rs. 1,89,098.14p. against the defendant an contest with proportionate cast which is assessed at the amount of court fees leviable an the aggregate sum allowed by me. The plaintiff do recover the said sum from the defendant. Let the decree be drawn up expeditiously. It is further ordered that if the decretal dues is not paid within two months from the date of drawal of the decree, interest an the decretal dues shall be charged @ 10 p.c. per annum from the date of presentation of the plaint till the date of realization.