Judgment :- K.GOVINDARAJAN, J. The appellants in O.S.A.No.1 of 1998, are the plaintiffs in C.S.No.193/1985 and the appellants in O.S.A.No.25/1998 are the defendants in the said suit. 2.For convenience and easy reference, we refer the ranks of the parties as given in O.S.A.No.1/1998. 3.The appellants filed the suit in C.S.No.193/1985 praying for a decree for a sum of Rs.79,35,180.16 which is refundable to them by the respondents as it was paid towards a contract dated 12.9.1979 for the purpose of execution of certain works in the factory at Tuticorin. 4.The respondents contested the suit contending inter alia that the contract was on the basis of "Turnkey Project" where the original offer was for a sum of Rs.5,40,000,00/- which was based on the payment of customs duty by the respondents for importing machinery. The contract value was reduced to Rs.3,36,52,000/- only on the basis that there would be remission of customs duty payable. Subsequently, the Government of India informed the respondents that the customs duty exemption was not available for supplies made in India against the aid provided by International Development Authorities. Thereafter the respondents revised the offer to Rs.4,46,52,000/- to cover the payment of customs duty. It is also the case of the respondents that in view of the above, there was a slight deviation in the terms of the contract whereby the appellants were asked to pay towards the material and equipment against the delivery of shipping documents against the foreign suppliers. Since the scope of original contract was expanded, there was additional cost of Rs.68,00,000/- estimated to be incurred by the respondents. The same was explained to the appellants and on the basis of the assurance given by the appellants, the respondents proceeded with the contract. Subsequently, in September 1980 the appellants suggested a change in the nature of work and so the contract became totally widened in its scope. It is the further case of the respondents that the work was completed in November 1981, and on 10.12.1981 the plant was commissioned. On 8.1.1982 a detailed statement was submitted indicating the changes made in the contract and explained the extra work executed by them, for a sum of Rs.3,00,85,442/-, and the appellants assured the respondents that they would consider the same. There was a meeting between the appellants and the respondents with respect to the claim made by the respondents. On 8.1.1982 a detailed statement was submitted indicating the changes made in the contract and explained the extra work executed by them, for a sum of Rs.3,00,85,442/-, and the appellants assured the respondents that they would consider the same. There was a meeting between the appellants and the respondents with respect to the claim made by the respondents. The respondents have come forward with the plea that after all the adjustments, they are entitled to a sum of Rs.75,36,000/- from the appellants and so they made a counter claim for the said amount. 5.The appellants filed a reply statement stating that they have no obligation under the contract to finance the respondents for the customs duty payment, as the contract was not duration based, but it should be successful execution meant of the total erected and commissioned system. On that basis, the appellants came forward with the plea that they are not liable to pay any amount as claimed in the written statement. 6.The learned Judge framed as many as 11 issues and after discussion found that the contention of the respondents that the sum of Rs.110 lakhs was agreed to be added with the agreed contract amount of Rs.3,36,52,000/- is untenable, as it was never agreed between the parties for the same. On the basis of the said finding, the learned Judge rejected the case of the respondents that the appellants are liable to refund the customs duty paid by the respondents. It is also found that the respondents failed to produce the documentary evidence to accept the counter claim made against the appellants and establish the same. While considering the limitation to make a counter claim, the learned Judge found that the counter claim is barred by limitation. On the basis that the bank guarantee had already been enforced by the appellants, the learned Judge opined that issue No.10 need not be adjudicated. With respect to the claim of interest, the learned Judge found that the appellants are entitled to claim interest at 9%, but the respondents are not entitled to any interest as they have not established their counter claim. While considering the claim of the appellants, the learned Judge found that the appellants are not entitled a decree for the entire amount claimed but only to the extent of a sum of Rs.58,61,000/- from the respondents as accepted by them. 7. While considering the claim of the appellants, the learned Judge found that the appellants are not entitled a decree for the entire amount claimed but only to the extent of a sum of Rs.58,61,000/- from the respondents as accepted by them. 7. Not satisfied with the quantum of amount decreed by the learned Judge, the appellants filed the Appeal in O.S.A.No.1/1998. The respondents filed the Appeal in O.S.A.No.25/1998 against the judgment and decree in C.S.No.193 of 1985 rejecting their counter claim and also challenging the decree granted in favour of the Appellants. 8. Learned Senior Counsel appearing for the appellants submitted that though the respondents had agreed for the amount claimed by the appellants in the suit under Exs.P31, P32 and P34, the learned Judge is not correct in disallowing a portion of the claim. Referring to the written statement, he also contended that there is no specific denial regarding the amounts as claimed by the appellants and the claim of the appellants had been admitted by the respondents. 9. With respect to the counter claim made by the respondents, learned Senior Counsel appearing for the appellants submitted that no document was produced by the respondents to substantiate their claim. Relying on Sec.14 of the Limitation Act and Order XXIII, Rule 1 of the Code of Civil Procedure, he submitted that the period during which the proceedings taken for appointment of an Arbitrator was pending, cannot be taken into consideration to rely on Sec.14 of the Limitation Act. He also submitted that even the said suit in C.S.No.31/1983 was not dismissed with liberty to file fresh proceedings, but it was dismissed as withdrawn. It is his further submission that both the proceedings do not relate to the same matter. 10. Learned Senior Counsel appearing for the respondents submitted that the value of the contract was originally offered for a sum of Rs.540 lakhs, and the amount was reduced to Rs.3,36,52,000/- on the understanding that they could get exemption from paying the customs duty for a sum of Rs.140 lakhs. Since, subsequently, it was not exempted, the appellant has to bear the said duty and so the amount paid towards customs duty by the respondents has to be reimbursed. According to him, Ex.P32, the minutes cannot be construed as a final one so as to enable the appellant to claim the amount. Since, subsequently, it was not exempted, the appellant has to bear the said duty and so the amount paid towards customs duty by the respondents has to be reimbursed. According to him, Ex.P32, the minutes cannot be construed as a final one so as to enable the appellant to claim the amount. He referred to various documents to show that the respondents agreed for the lesser contract price only on the understanding that the appellants agreed to reimburse the customs duty paid by the respondents. Referring to Ex.P31, he submitted that the withdrawal of Ex.P33 is not unconditional one, but it is conditional one, as the appellants have to consider the claim made in the said letter. Referring to the evidence of P.W.1, learned Senior Counsel submitted that all the documents relating to their claim had already been given to the appellants so as to enable them to consider the same and so they are not able to produce the same before the Court. With reference to the finding of the learned Judge that the counter claim is bared by limitation, learned Senior counsel submitted that it is not barred by limitation, but it is well within time. 11. On the basis of the above said pleadings and arguments, the following points are to be determined in these Appeals:- (1)Whether the appellants are entitled for the entire sum of Rs.75.36 lakhs with interest? (2)Whether the rejection of the respondents counter claim is sustainable in law? (3)Whether the counter claim made by the respondents is barred by limitation? 12.The appellants called for offer from the respondents to carry out work for providing Ammonia Storage and handling facility at Tuticorin. The respondents submitted their offer and revised offer and clarification in Exs.P2 and P3 dated 30.4.1979 and 14.5.1979 respectively. According to the same, the value of the contract was accepted for a sum of Rs.540 lakhs. It was also agreed by the respondents that the said rate was subject to customs duty exemption which would aggregate to Rs.1.1 crore and there will be a corresponding reduction in the quoted price. A meeting was held between the officials of the appellants and respondents on 9.6.1979, the minutes of which is marked as Ex.P4 dated 10.6.1979. It was also agreed by the respondents that the said rate was subject to customs duty exemption which would aggregate to Rs.1.1 crore and there will be a corresponding reduction in the quoted price. A meeting was held between the officials of the appellants and respondents on 9.6.1979, the minutes of which is marked as Ex.P4 dated 10.6.1979. In the said meeting, the parties agreed to the effect that if the project is being implemented on International Development Authorities Credit lines, the respondents should offer a reduction of Rs.110 lakhs from the total contract value of Rs. 507.60 lakhs. On that basis, the learned Senior Counsel appearing for the respondents submitted that the parties agreed for the price of the contract at Rs.507.60 lakhs on condition that if any exemption in customs duty is granted, the respondents should reduce the said amount from the said price. On the other hand, the case of the appellants is the said price agreed upon between the parties is inclusive of the customs duty payable. In the meeting, the parties also agreed for escalation of price in the event of change in piping cost due to difference in actual piping lines, and the respondents have also agreed for reduction of sale price, if the distances happen to be less than the above figures mentioned in the discussion. The learned Senior Counsel also relied on the letter dated 28.7.1979, marked as Ex.P5, sent to the appellants by the Government of India that the export order would come under International Development Authorities and submitted that in view of the said letter the appellants and the respondents were given to understand that there will be an exemption in the customs duty as mentioned above. 13. On the basis of the above meeting and the Government letter marked as Ex.P5, another meeting was held on 11.8.1996, the minutes of which is marked as Ex.P6. The respondents agreed for certain changes in the specifications of the contract. The said discussion was on the basis of the Government letter marked as Ex.P5 in which it is stated that the Government agreed to allocate International development Authorities Credit for Ammonia importation scheme. Ultimately, by reducing the price of the contract, the respondents confirmed the price at Rs.336.52 lakhs as the final price for the entire scheme as agreed, provided the scheme is financed under the International Development Authorities scheme. Ultimately, by reducing the price of the contract, the respondents confirmed the price at Rs.336.52 lakhs as the final price for the entire scheme as agreed, provided the scheme is financed under the International Development Authorities scheme. On the basis of the said meeting, the appellants issued Letter of Intent under Ex.P7, dated 28.8.1979, under clause IV, While dealing with the Price Schedule, it is mentioned therein as follows:- "IV. PRICE SCHEDULE (a) This project is financed by the IDA under the sectoral loan programme (IDA 598 IN). This Letter of Intent is placed on you after approval in principle of scheme by IDA. Further, IDA have also approved in principle your being selected as the contractor for this job. (b) The total lumpsum price payable to you for the scope of work covered above is Rs.3,36,52,000/- (Rupees three crores thirty six lakhs fifty two thousand only). This price shall not be subject to any escalation during the tenure of the contract." 14. Subsequently under Ex.P8, a letter dated 10.9.1979 the Department of Revenue, Ministry of Finance, Government of India, informed the respondents that duty exemption is not available for the supplies made in India against International Development Authorities aided projects. This letter of the Government was sent to the respondents in reply to the respondents' letter to the Government dated 6.9.1979. The respondents sent the said letter only after final price of the contract was agreed between the parties. No reason is available as to why such a query was not made before final price was settled. From the documents marked and referred to before us, we do not find anything to show that the respondents asked the appellants to change the price of contract as mentioned in the Letter of Intent in view of the refusal of duty exemption by the Government, though according to the respondents, they offered price of the contract originally was inclusive of the said duty. But in the Letter of Intent, lumpsum amount has been fixed at Rs.3,36,52,000/-. The case of the respondents is that they have reduced the price of the contract only on the understanding that the said price was only subject to availability of exemption of duty to the tune of Rs.101 lakhs. The respondents agreed for a price at Rs.540 lakhs in Exs.P2 and P3, at Rs.507.60 lakhs in Ex.P4 and ultimately fixed at Rs.332.56 lakhs. The respondents agreed for a price at Rs.540 lakhs in Exs.P2 and P3, at Rs.507.60 lakhs in Ex.P4 and ultimately fixed at Rs.332.56 lakhs. From the quantum of amount quoted and finalised and on the basis of the admitted discussions and correspondence, we can safely come to a conclusion that the reduction of price was only subject to granting exemption of excise duty for a sum of Rs.1.1 crores. 15. Even in the letters written by the respondents to the appellants, they informed only regarding their financial difficulties. In Ex.P12 letter dated 5.2.1980 the respondents informed the appellant only to the effect that in view of the Government's policy not to allow duty exemption, the respondents are affected with a very adverse cash-flow on the contract. Even in the said letter it is not stated that the appellants also have to bear the said duty as per their offer. But, on the other hand, it is specifically stated that they have to meet the customs and excise duty levies. On the basis of their financial difficulties, the respondents sought for provision of additional funds to the tune of Rs.50 lakhs so as to enable the respondents to pay the same towards customs duty. The appellant agreed to pay the amount to the respondents as against the bank guarantee to be furnished by them for which they agreed, which can be seen from the letter dated 23.7.1981, marked as Ex.P25. If the appellants are liable to pay the customs duty, the respondents would have asked the appellants to pay the same, and there is no necessity for the respondents to give bank guarantee for that amount, and there is no whisper in the said letter regarding the liability of the appellant to pay the customs duty. Though learned Senior Counsel appearing for the respondents relied on the minutes dated 23.7.1981, marked as Ex.P26 to support his submission that Mr.Avadhani, the representative of the appellants promised to consider the respondents' request for reimbursement of the customs duty, no explanation is forthcoming as to under what circumstances such a statement was given by Mr. Avadhani. From the minutes, we are able to see the circumstances under which such suggestion was made. The representative of the respondents requested Mr. Avadhani for providing additional money for completing the work before the 15th of August. While considering the said request, Mr. Avadhani. From the minutes, we are able to see the circumstances under which such suggestion was made. The representative of the respondents requested Mr. Avadhani for providing additional money for completing the work before the 15th of August. While considering the said request, Mr. Avadhani pointed out that "this could be considered provided they submit all their claims for customs duty reimbursement." But it is not pointed out whether such a claim has to be made before the customs authorities or before the appellants. It could not be before the appellants because the respondents did not make any such claim for reimbursement, prior to the said meeting as no such document was pointed out to us. Even in Exs.P28 and P29, the letters of the respondents dated 8.2.1982 and 9.2.1982 respectively, the respondents did not claim that the appellants alone are liable to pay the customs duty and they are entitled for reimbursement of the same from the appellants. 16. From the documents, we are able to see only for the first time in the meeting held in February and March 1982, the minutes of which are marked as Ex.P32, the respondents mentioned about the sum of Rs.100 lakhs as if it is due to them as duty drawback. Even from the said document, we are able to see the claim of the respondents was not towards excise duty payment. 17. Ultimately, the work was satisfactorily commenced and completed on 8.12.1981. Learned Senior Counsel appearing for the respondents, also relied on Ex.P33 dated 28.4.1982 sent by the respondents to the appellants, to say that even in the said letter the appellants were reminded to reimburse the said duty paid. But, in the said letter it is mentioned only about "drawback of customs duty of the order of Rs.115 lakhs is still to be realised and till this is received and our overseas liabilities incurred on your project are cleared, interest at a very high rate is a continuing factor." Along with the letter dated 28.4.1982, they submitted a memorandum in which the respondents claimed a sum of Rs.46 lakhs towards their financing project imports under the imprest licence policy and not towards payment of customs duty. Even in the said memorandum, it is not stated that the appellants alone are liable to pay the customs duty amounting to Rs.115 lakhs, though they have narrated about their offer, and their entitlement of customs duty drawback. After submitting the said memorandum, a personal discussion was held between the parties and confirming the said discussion, the respondents sent a letter to the appellant on 17.6.1982, marked as Ex.P31 through which the respondents confirmed the discussions as mentioned in the letter of the appellants dated 15.3.1982 and requested to consider the request made by them in the letter. In the said letter, while withdrawing the memorandum sent along with the letter marked as Ex.P33, they concentrated only about the additional expenses towards interest paid and other liabilities as the project has fallen into and over-run and on that basis they requested to permit them to withdraw the balance amount which has been retained to meet the financial commitments. But no claim was made towards customs duty. While replying to the claim made by the appellants for a sum of Rs.79.35 lakhs from the respondents, the respondents in the letter dated 14.1.1983 marked as Ex.P34, informed that they are not liable to pay the said amount as they had already discharged their contractual obligations. While explaining as to how they are not liable to pay the said amount, they referred to the blocking of money to the extent of Rs.115 lakhs in customs duty drawback for over two years. 18. Though the learned Senior Counsel appearing for the respondents submitted that the agreement between the parties was to the effect that the appellants have to bear the customs duty of Rs.1,10,000/-, the same cannot be accepted. Though originally the offer made by the respondents was on that basis, as rightly found by the learned Judge, ultimately the respondents agreed for the contract value of a sum of Rs.3,36,52,000/-. This amount was not fixed subject to getting exemption of customs duty. But the fact remains, the Government of India in the letter marked as Ex.P8, dated 11.9.1979 informed the respondents, in reply to their letter dated 6.9.1979 that they are not entitled for customs duty exemption. Before accepting the value of the contract, the respondents should have verified from the Ministry of Finance. But the fact remains, the Government of India in the letter marked as Ex.P8, dated 11.9.1979 informed the respondents, in reply to their letter dated 6.9.1979 that they are not entitled for customs duty exemption. Before accepting the value of the contract, the respondents should have verified from the Ministry of Finance. But, the above correspondence would clearly establish that in spite of the said information by the Government, the respondents did not make any such claim to the appellants that they have to bear the customs duty. As pointed out already, no document is pointed out to the Court to that effect. In the absence of any specific agreement between the parties to pay the said duty by the appellants or reimburse the same, if it is paid by the respondents, the respondents cannot be allowed to come forward with the plea that the appellants are liable to pay the said customs duty. 19. Moreover, the contract was on a Turnkey basis. Since the respondents imported the machinery and other materials and paid customs duty, they claim customs duty drawback. Even by cross-examining P.W.1, the respondents did not elicit any answer regarding the same. P.W.1 though referred to Exs.P3 and P4 deposed that he did not know whether it was accepted or not and there was so many discussions and meetings to finally arrive at the contract price of Rs.336.52 lakhs. P.W.1 had deposed that Ex.P1 provides for changes and when parties signed it was very clear that there will be a reduction in price of Rs.110 lakhs towards exemption of customs duty and the price fixed on the basis of the reduction of Rs.110 lakhs towards exemption of customs duty. But P.W.1 had joined in the appellants' company only in April 1980, and he deposed as to the details only from the records. So, from Ex.P7, the Letter of Intent, sent by the appellants the price of the contract was finally fixed. As discussed earlier, the respondents did not make any claim regarding reimbursement of customs duty, subsequent to Ex.P7 in spite of the rejection of the excise duty exemption under Ex.P8. 20. So, we do not find any error in the judgment of the learned Judge in coming to the conclusion that the respondents herein cannot claim the reimbursement of the customs duty paid for importing the machinery. 21. 20. So, we do not find any error in the judgment of the learned Judge in coming to the conclusion that the respondents herein cannot claim the reimbursement of the customs duty paid for importing the machinery. 21. Now we proceed to decide whether the counter claim of the respondents is barred by limitation. The learned Judge rejected the counter claim made by the respondents on the ground that it is barred by limitation. In the cause of action mentioned in the written statement, for the purpose of making counter claim, it is stated as follows:- "12. The defendant states that the cause of action arose at Madras on September, 1979, when the contract was concluded in December, 1981 when contract was completed and plant was commissioned, on 15th March 1982 when the defendant's claim for compensation was acknowledged by the plaintiff and on 11.10.84 when C.S.No.31/83 was allowed to be withdrawn with liberty to take available legal remedies. The period between 24.1.83 and 11.10.1984 during which C.S.No.31/83 was pending is liable to be excluded in computing limitation under Sec.14(1) of Limitation Act. The counter claim is therefore not barred by limitation. Even from the said details mentioned in the above said paragraph of the written statement, the respondents' claim was acknowledged by the appellants on 15.3.1982. Admittedly, the suit should have been filed on or before 14.3.1985. But, admittedly, the claim was made by filing written statement only on 17.8.1987. To claim that the counter claim was made within the time limit, the respondents have come forward with the plea that the period from 24.1.1983 to 11.10.1984 during which C.S.No.31/1983 was pending, has to be excluded. The suit in C.S.No.31/1983 was filed on 25.1.1983 and disposed of on 11.10.1984. Even if the said period is taken into consideration, notwithstanding the dispute whether such period could be excluded in the present proceedings, the said period covers only one year, eight months and 16 days. Even on the basis of the dates mentioned in the cause of action, the suit should have been filed on or before 14.3.1985. But, actually the counter claim was made in the written statement by filing the same on 17.8.1987. If the period between 25.1.1983 and 11.10.1984 is excluded, the counter claim made is beyond the period of limitation as the counter claim, should have been made on or before November 1986. But, actually the counter claim was made in the written statement by filing the same on 17.8.1987. If the period between 25.1.1983 and 11.10.1984 is excluded, the counter claim made is beyond the period of limitation as the counter claim, should have been made on or before November 1986. So, from the above said details, it is clear that the counter claim made by the respondents is hopelessly barred by limitation. Though some arguments were advanced regarding the scope of Sec.14 of the Limitation Act and Sec.35 of the Arbitration Act, we are not inclined to go into the said issue because we are deciding the issue regarding limitation on the basis of the available facts. 22. According to the respondents, in the judgment delivered in C.S.No.31/1983, dated 11.10.1984, the learned Judge dismissed the suit giving liberty to the parties to agitate their claim in any manner without going to arbitration. Such a plea is made in paragraph 9 of the written statement. Even if it is so, the respondents are bound by the Law of Limitation in the same manner as if the first suit has been instituted as contemplated under Order XXIII, Rule 2 of the Code of Civil Procedure. Such a permission gives protection only against the bar contemplated under Order II, Rule 2 of the Code. Moreover, factually, in this case, no such liberty was given by the learned Judge. The learned Judge simply dismissed the suit as withdrawn, though the respondents sought for such a liberty. Even on the basis of the judgment delivered in C.S.No.31/1983, the respondents cannot escape from the period of limitation for making counter claim. 23. The other issue to be dealt with is whether the appellants are entitled to the sum as claimed in the suit. We have to deal with the entire claim in view of the fact that the appellants have filed the said Appeal in O.S.A.No.1/1998 challenging rejected portion and the respondents filed the Appeal in O.S.A.No.25/1998 challenging the decree passed by the learned Judge in the suit. We have to deal with the entire claim in view of the fact that the appellants have filed the said Appeal in O.S.A.No.1/1998 challenging rejected portion and the respondents filed the Appeal in O.S.A.No.25/1998 challenging the decree passed by the learned Judge in the suit. The appellants have filed the suit claiming a sum of Rs.79,35,180.16 on the following basis:- Total value of the contract : 3,36,52000.00 Towards cost of material : 1,14,53,746.92 supplied and other payments by the appellants to the respondents The amount payable towards : 2,21,98,253.08 the value of the contract was Towards extra work done by the : 60,30,000.00 respondents Reduction given by the : 25,13,124.79 appellants in the off-load item So total amount payable to the : 3,07,14,377.87 respondents was The amount already paid to the : 3,86,49,558.03 respondents So, respondents have to return : 79,35,185.16 the said sum of In the written statement in paragraph 3,4 and 5, the respondents have denied the facts mentioned in the plaint. The learned Judge in paragraph 25 of the judgment dealt with the said claim and found that the appellants had established that they are entitled to a sum of Rs.58,61,000/- from the respondents,as the respondents admitted their liability to that extent. The learned Judge also found that the evidence of P.W.1 is not helpful to accept the claim made by the appellants, and equally rejected Exs.P34, as it has no support to the case of the appellants. So, the learned Judge fixed the quantum at Rs.58,61,000/- only on the basis that the respondents had admitted their liability to the said quantum of amount. This finding of the learned Judge is only on the basis of Ex.P32 and not on any other basis. So, to test the case of the appellants, we have to consider Ex.P32, the minutes dated 4.3.1982, of the meeting held between the officers of the appellants and the respondents. 24. Learned Senior Counsel appearing for the appellants also did not rely on any other document to establish their claim independently, but his argument was on the basis of the documents marked as Exs.P30, P31, P32, P34 and P35. He mainly relied on Ex.P32 in support of the findings given by the learned Judge. Ex.P32 is the minutes of the meeting held on various dates in February and March 1982 to decide the extra claim made by the respondents. He mainly relied on Ex.P32 in support of the findings given by the learned Judge. Ex.P32 is the minutes of the meeting held on various dates in February and March 1982 to decide the extra claim made by the respondents. In the said meeting, it was agreed that the appellants are liable for the extra claims of the respondents to the tune of Rs.60.03 lakhs, out of Rs.97.20 lakhs claimed by them. Ultimately, taking into consideration the overall payment position, the balance due from the respondents was arrived at Rs.58.61 lakhs. According to the note mentioned at the end of the minutes of the said meeting, the said statement of recoverables is based on stores advice for the period ending 31.1.1982. Further adjustments can be made depending upon further debit or credit. 25. Referring to paragraph 5 of the said meeting, learned Senior Counsel appearing for the respondents submitted that in addition to the contractual claims, the respondents made certain requests for a sum of Rs.36.62 lakhs over and above the amount of Rs.60.03 lakhs agreed during the discussions. Similarly, with respect to the claim of Rs.100 lakhs incurred by the respondents over and above the contract value, apart from Rs.100 lakhs due to them as duty drawback, the respondents were asked to submit the documentary evidence and the appellants informed that the said claims could be considered at the appropriate time. But the fact remains that the respondents agreed in the said meeting and signed the minutes through his representative stating that the balance due from the respondents was Rs.58.61 lakhs. No evidence is pointed out by the learned Senior Counsel appearing for the respondents that subsequent to the said agreement, the said two claims made by the respondents on the basis that they had incurred more quantum of amount than the one mentioned in the agreement was pressed by them. So, the learned Judge is correct in holding that the respondents are liable to pay the sum of Rs.58.61 lakhs as agreed to under Ex.P32. When the appellants also are parties to the said document, now they cannot come forward with the plea that they are entitled to recover more than the said quantum of amount. 26. Even P.W.1 in his evidence has deposed as follows:- "The final value of the contract after its execution was Rs.221.98 lakhs after setting off recoveries to the extent of Rs.114.54 lakhs. 26. Even P.W.1 in his evidence has deposed as follows:- "The final value of the contract after its execution was Rs.221.98 lakhs after setting off recoveries to the extent of Rs.114.54 lakhs. Extra work was also done by the defendant added to the contract and the extra work was valued at Rs.60.03 lakhs. For the off loaded items we have given the relief of about Rs.25.13 lakhs. The final amount payable by the plaintiff to defendant on completion of the contract is Rs.307.14 lakhs. The total payment made by the plaintiff to the defendant is Rs.386.49 lakhs and we have so far paid an excess amount of Rs.79,35,000/-." But according to Ex.P32, amount towards recoverables is mentioned only at Rs.102.11 lakhs and not Rs.114.54 lakhs as stated by P.W.1 and no explanation is forthcoming for the same. Even for the payment made to the respondents, of a sum of Rs.386.49 lakhs, no details are available. So, we have to fix the liability only on the basis of Ex.P32, which was agreed by the parties. 27. It is not in dispute that the advance amount of Rs.50 lakhs was paid as against bank guarantee. P.W.1 also admits the same in his cross-examination. The said amount was also taken into consideration to arrive at Rs.58.61 lakhs under Ex.P32. But, subsequently, the bank guarantee given towards the payment of Rs.50 lakhs was realised and so the appellants have to give credit to the said amount of Rs.50 lakhs from Rs.58.61 lakhs fixed under Ex.P32. So, the respondents are liable to pay the appellants only a sum of Rs.8.61 lakhs with interest at 9% from the date of the plaint till realisation. 28. In view of the above discussions, the judgment and decree passed by the learned Judge are modified, and the appellants in O.S.A.No.1 of 1998 are entitled to a decree only for a sum of Rs.8.61 lakhs from the respondents with interest at 9% from the date of the plaint till realisation of the same. Accordingly, O.S.A.No.1/1998 is dismissed, and O.S.A.No.25/1998 is allowed in part. No costs.