ORDER : 1. Heard Mr. A.K. Das, Advocate, appearing on behalf of the appellants along with Mr. Shivam Utkarsh Sahay, Advocate. 2. Heard Mr. Chittaranjan Sinha, Senior Advocate, Mr. Pandey Neeraj Rai, Mr. Rohit Ranjan Sinha, and Mr. Akshansh Kishore, Advocates, appearing on behalf of the respondent. Arguments of the Appellants 3. This appeal has been filed against the judgment and decree dated 16.03.2001 (Decree signed on 31.03.2001) passed by the learned Sub-Judge - III, Ranchi in Money Suit No. 01 of 1987, whereby the suit was decreed in part, in as much as, the claim as mentioned in Schedule-II of the plaint amounting to Rs. 42,43,347.76, on account of excess amount charged for price of ‘slurry’ as compared to Grade ‘D’ Coal, for the period from 7th January, 1984 to July 1985, has been allowed with interest @ 18 % per annum from the date of filing of the suit till realization. 4. The counsel for the appellants by referring to the plaint, submits that the plaintiff is the proprietorship firm, engaged in the business of undertaking contract for manufacture, sale, supply and distribution of briquettes, after collecting slurry from different sources. The defendant No.1 is a government company, engaged in business of mining, distribution and supply of coal and other allied items, and other defendants are the Officers of the defendant No. 1. It was the specific case of the plaintiff in the suit, as it was initially filed, that the defendants, after mining the coal send the same to the coal washery, where the coal extracted from the mine, is washed by chemical process, and in course of such washing of coal by chemical process, a huge quantity of substance called ‘slurry’ is generated, which is sold as a by–product by the defendants. On 01.09.1983, the defendants had invited quotations from such persons, who would be interested in purchase of ‘slurry’ from Kathara Coal Washery of the defendants, in which, the plaintiff had participated and was declared successful. The tender of the plaintiff was accepted by the defendants on 29.12.1983, after negotiation. On 01.09.1983, the defendants had invited quotations from such persons, who would be interested in purchase of ‘slurry’ from Kathara Coal Washery of the defendants, in which, the plaintiff had participated and was declared successful. The tender of the plaintiff was accepted by the defendants on 29.12.1983, after negotiation. Ultimately a work contract was issued to the plaintiff on 07.01.1984 for purchase of 30,000 tonnes of ‘slurry’ to be lifted for a period of one year @ Rs.309.99 per tonne on the terms and conditions contained in their General Terms and Conditions as well as Special Terms and Conditions with respect to contract of sale of ‘slurry’. The rate was subsequently enhanced to Rs.394.74 per tonne with effect from 01.08.1984 under the provisions of the terms and conditions. In addition to the quoted price; sales tax, royalty, local cess and other statutory charges, as applicable from time to time, were also payable. 5. The counsel submits that the specific case of the plaintiff in the suit, which was originally filed, was that the ‘slurry’ which was purchased by the plaintiff, was not ‘coal’ within the term ‘coal’ as defined under the Mines and Mineral (Regulation and Development) Act, 1957 and accordingly, royalty or cess was not payable and for this, the plaintiff had made repeated requests and representations before the defendants indicating that ‘slurry’ is not ‘coal’ and they are two different things and that they are neither identical nor interchangeable. It was also contended in the plaint that ‘slurry’ is neither mineral nor coal on its own right and this was stated in the plaint by referring to a judgment passed by Hon'ble Patna High Court. Counsel for the appellants submits that this judgment of Hon'ble Patna High Court is reported in AIR 1986 Patna 242 (Kundori Labour Co-operative Society Ltd. Vs. State). It was also contended by the plaintiff that the ‘coal’ after payment of royalty and cess, is sent to the Coal Washery by the defendants for the purposes of washing the coal. Accordingly, royalty and cess realized by the defendants from the plaintiff, are not paid by the defendants to the State or Central Government. State). It was also contended by the plaintiff that the ‘coal’ after payment of royalty and cess, is sent to the Coal Washery by the defendants for the purposes of washing the coal. Accordingly, royalty and cess realized by the defendants from the plaintiff, are not paid by the defendants to the State or Central Government. It was specific case of the plaintiff that royalty and cess was being demanded and charged from the plaintiff under a mistake and the plaintiff had paid the same under a mistake and/or coercion as the legal position at the time of issuance of work order was not clear. The plaintiff had also referred to a judgment passed by Hon'ble Patna High Court reported in C.W.J.C. No. 1530 of 1983 (R) dated 20.12.1985 to state that the mistake stood confirmed on 20.12.1985, when the Hon'ble Patna High Court inter - alia held that ‘slurry’ is not ‘coal’ and in spite of such confirmation the defendant failed and/or neglected to pay back and/or refund the royalty and cess realized from the plaintiff. Counsel further submits that the plaintiff had also stated in the plaint that in addition, if the ‘slurry’ is held to be ‘coal’ then the plaintiff is entitled for payment/refund from the defendants of such sum of money, as is in excess of price prescribed in the Colliery Control Order, 1945, which aggregates to Rs. 42,43,347.76 and was detailed in Schedule-II of the plaint. 6. Thus, the counsel for the appellants submits, that the plaintiff had claimed refund of the amount of royalty, local cess, excise duty, rescue cess etc. paid during the period 07.01.1984 to July 1985 on the ground that these charges were not payable on ‘slurry’, which was supplied to the plaintiff and had also made further prayer for refund of the amount, which was the excess amount charged in the price of ‘slurry’ as compared to the Grade ‘D’ Coal for the period paid from 07.01.1984 to July 1985 based on the Colliery Control Order, 1945. 7. Counsel for the appellants submits that as already indicated above, the original claim of the plaintiff, was based on the pleading that ‘slurry’ is not ‘coal’ and at that stage of the case, the defendants had filed a written statement, wherein a specific stand was taken at Para-9 that ‘slurry’ is generated after processing from ‘raw-coal’ involving process cost. 7. Counsel for the appellants submits that as already indicated above, the original claim of the plaintiff, was based on the pleading that ‘slurry’ is not ‘coal’ and at that stage of the case, the defendants had filed a written statement, wherein a specific stand was taken at Para-9 that ‘slurry’ is generated after processing from ‘raw-coal’ involving process cost. ‘Slurry’ is not sold as a waste, rather the same is sold as a by-product. The plaintiff had submitted quotation for purchase of ‘slurry’ at the rate mentioned by it, and that the plaintiff was bound by the terms of the contract. Further, stand was taken at Para-11 of the written statement that ‘slurry’ is ‘processed coal’ and not ‘pit head coal’ and statutory charges are only recovered as re-imbursement, which the defendants already paid to the colliery at the time of receipt of ‘raw-coal’. The plaintiff had submitted tender knowing fully well that the price of ‘slurry’ includes other charges and demand regarding royalty and cess having been paid voluntarily in terms of the contract, the plaintiff cannot make a grievance at a later stage. It was also specifically pleaded at Para-12 of the written statement that the plaintiff had raised a voice by filing representation that ‘slurry’ purchased by the plaintiff was not covered within the meaning and construction of the definition of the term ‘coal’, but the specific stand of the defendants was that the plaintiff had participated in the tender process and cannot challenge the same. Further, at Para-12 of the written statement, the defendants had taken a specific stand that it is incorrect to say that the ‘slurry’ purchased by the plaintiff from the defendants and ‘coal’, are two different things. It was specifically stated that ‘slurry’ is ‘processed coal’ inclusive of process cost involved in it. At Para-14 of the written statement, it was stated that ‘slurry’ is ‘processed coal’ which is again converted into ‘briquettes’. It was stated in Para-15 of the written statement that it was incorrect to say that ‘slurry’ does not involve any operation of stowing or winning or mining or rescue and that slurry is ‘processed coal’ generated out of raw-material involving process cost. It was stated in Para-15 of the written statement that it was incorrect to say that ‘slurry’ does not involve any operation of stowing or winning or mining or rescue and that slurry is ‘processed coal’ generated out of raw-material involving process cost. Ultimately, at Para-20 of the written statement, it was specifically stated that ‘slurry’ is ‘processed coal’ involving cost of production for processing over and above the raw-coal input and accordingly the price is not governed by the Colliery Control Order, 1945 and the claim of refund by the plaintiff was strongly denied by the defendants. 8. Counsel for the appellants submits that although the plaintiff was of the firm opinion at the time of filing of the plaint that slurry is not ‘coal’, but there was no such confusion in the mind of the defendants and the specific stand was taken in the written statement as well, that ‘slurry’ is ‘coal’. He further submits that however, on account of subsequent pronouncement of judgment passed by Hon’ble Supreme Court that ‘slurry is coal’, the plaintiff sought for amendment in the plaint and the plaintiff had prayed for the amendments, interalia, stating that at the time of inviting quotation, the plaintiff as well as the defendants were under a mistaken notion of an essential fact that ‘slurry’ was not ‘coal’. Accordingly, it was also stated in the amendment that the offer and acceptance including negotiation, are vitiated and void on account of mutual mistake of fact essential to the agreement. 9. It was further the case of the plaintiff at the stage of amendment that ‘slurry’ being ‘coal’ was fully regulated by Colliery Control Order, 1945, by issuance of a notification by the Central Government fixing the price of ‘coal’ on grade wise basis and the statutory price of Grade - D coal was only Rs. 180.00 per metric tonne at the relevant time. 10. The counsel for the appellants further submits that it was specifically mentioned in the amendment that the judgment passed by Hon’ble Patna High Court dated 20.12.1985 passed in C.W.J.C. No. 1530 of 1983 (R) and other analogous cases which had interalia held that ‘slurry’ is not ‘coal’, was overruled by the Supreme Court in the decision reported in (1990) 4 SCC 557 (BCCL Vs. State) and the amendment was sought for on account of subsequent judicial pronouncement by the Hon’ble Supreme Court regarding the fact that ‘‘slurry’’ is “coal”. He submits that such amendment was allowed by the learned trial court and then the specific case of the plaintiff was that, as ‘slurry’ is ‘coal’ and that ‘slurry’ is equivalent to Grade ‘D’ coal, therefore, the price of Grade ‘D’ coal is applicable to sale of ‘slurry’. The price of Grade D coal is governed by the Colliery Control Order, 1945, which in turn is issued under the provisions of Essential Commodities Act, 1955. He further submits that the Colliery Control Order, 1945 was saved by Section 16 of Essential Commodities Act, 1955. 11. The counsel submits that additional written statement was also filed by the defendants indicating that the defendants were never under any mistake since beginning and all along the specific case of the defendants was that ‘slurry’ is ‘coal’ and it is ‘processed coal’ sold as by-product. It was specifically stated in the written statement that the ‘slurry’ being a ‘processed coal’ involving cost of production, is not governed by the Colliery Control Order, 1945 and that the price of ‘slurry’ at no point of time was Rs. 180.00 per tonne. It was also specifically pleaded in the additional written statement that the price as per contract dated 07.01.1984, was not fixed on any mistaken assumption that ‘slurry’ is not ‘coal’ and stated that the contract involved in the present case is not forbidden by law. 12. After filing of the written statement, the following issues were framed by the learned court below: - (i) Is the suit as framed maintainable? (ii) Has the plaintiff got cause of action for the suit? (iii) Is suit barred by limitation? (iv) Has the Court jurisdiction to decide the suit? (v) Is suit barred under the provisions of Indian Contract Act and Sales of Goods Act? (vi) Whether the defendants have right to realise royalty and cess on slurry? (vii) Whether the slurry is D-coal? (viii) If slurry is D-coal, then whether the price of slurry is to be determined by the Government of India, Ministry of Energy and Coal or it is to be determined by the defendants? (ix) Whether the plaintiff as prayed for is entitled for the decree? 13. Counsel for the appellants submits that so far as issue Nos. (viii) If slurry is D-coal, then whether the price of slurry is to be determined by the Government of India, Ministry of Energy and Coal or it is to be determined by the defendants? (ix) Whether the plaintiff as prayed for is entitled for the decree? 13. Counsel for the appellants submits that so far as issue Nos. vi, vii and viii are concerned, they were taken up together and the learned court below, held that ‘slurry’ is ‘D’-coal, whose price is to be determined by the Government of India, Ministry of Energy and Coal, which is apparent from Exhibit- 3. He further submits that the learned court below has held that the royalty and cess, which was realized by the defendants from the plaintiff, although they were not entitled to realize the same, it cannot be refunded to the plaintiff. It was also held by the learned trial court that the defendants did not produce any oral and documentary evidence to substantiate that the defendant-company was entitled to fix the price of ‘slurry’ and under what provision, they have fixed the price of ‘slurry’ at Rs. 309.99 and enhanced the same to Rs. 394.74 per metric tonne. It was also held that the ‘slurry’ is ‘D’-coal and its price has to be determined by the Government of India, which was @ Rs. 180.00 per metric tonne as mentioned in Exhibit–3. It was held that the defendants had entered into agreement with the plaintiff at much higher rate and accordingly, the plaintiff is entitled to the refund of the differential price, which has been realized by the defendants from the plaintiff. Accordingly, issue No. vi was decided against the plaintiff and in favour of the defendants and issue Nos. vii and viii were decided in favour of the plaintiff and against the defendants. 14. So far as issue No. iv is concerned, it was held that the claim of the plaintiff was not barred by limitation and also not barred under the provisions of Sale of Goods Act, 1930 or Indian Contract Act, 1872. It was further held that the plaintiff was entitled to an amount of Rs. 42,43,347.76 as mentioned in Schedule-II of the plaint with interest @ 18% from the date of filing of the suit till realization. So far as claim as mentioned in Schedule-I of the plaint is concerned, the same was rejected. It was further held that the plaintiff was entitled to an amount of Rs. 42,43,347.76 as mentioned in Schedule-II of the plaint with interest @ 18% from the date of filing of the suit till realization. So far as claim as mentioned in Schedule-I of the plaint is concerned, the same was rejected. Accordingly, the learned trial court partly decreed the suit. 15. The counsel for the appellants submits that while considering the evidence on record, the learned trial court has not considered the provisions of the agreement itself. He refers to the additional terms and conditions with respect to contract for ‘slurry’, which was a part of the plaint and was also exhibited. He submits that as per clause-12, there is a specific provision that if there is any upward revision of price of coal by the Government, price of ‘slurry’ shall be increased from such date and the new price would be applicable by increase in the same proportion by which the price of Grade ‘D’ coal is increased. 16. He submits that it was the specific case of the defendants that ‘slurry’ is nothing but ‘processed coal’ and the cost of processing is also included. He further submits that there was no doubt in the mind of the defendants that slurry is Grade ‘D’ Coal, accordingly, it was specifically referred under clause 12 of the additional terms and conditions with respect to contract of sale of ‘slurry’. He submits that as the production of ‘slurry’ included processing cost also, ‘slurry’ is produced in the washery, which is a by-product of the main process taken up at the washery. Accordingly, the contract price was not the pit head price of Grade ‘D’ coal, rather it was the price at the washery level after its processing. Therefore, at clause 12 of the aforesaid terms and conditions, it was clearly indicated that the price of ‘slurry’ would increase proportionately to the increase by which the price of Grade ‘D’ coal would increase. In this background, the counsel for the appellants submits that it was duly contemplated between the parties and also as per the additional terms and conditions of the contract, that the price of ‘slurry’ can never be the same as that of Grade ‘D’ coal and it may increase proportionately with the increase in the price of Grade ‘D’ coal. 17. 17. The counsel further refers to the notification issued under the Colliery Control Order dated 7th January, 1984, issued under the provisions of Clause Nos. 3 and 4 of Colliery Control Order, 1945 which was issued in supersession of the notification of Government of India, Ministry of Energy (Department of Coal) dated 26th May, 1982 and submits that the Central Government with effect from 8th January, 1984 prescribed in tabular form, the classes and grades into which the ‘coal’ and ‘coke’ shall be classified and fix the pit head sale price at which the ‘coal’ or ‘coke’ may be sold by the collieries. The counsel submits that as per the notification itself, it is only the pit head price of coal, which has been fixed and accordingly the ‘slurry’ which was a by-product of coal, when washed in washery, cannot have the same price, as that of what has been fixed by the notification issued under the Colliery Control Order, 1945. He has also referred to Clause Nos. 11, 12 and 15 of the Colliery Control Order, 1945 to submit that the control order itself left enough room for the defendants to realize charges for the processing, which was undertaken by the defendants. (i) Counsel for the appellants submits that so far as the finding by the learned trial court in connection with royalty is concerned, the same appears due to misinterpretation of the judgment passed by the Hon’ble Supreme Court. He submits that in the judgment passed by Hon’ble Supreme Court reported in (1996) 5 SCC 670 which is followed by Hon’ble Patna High Court in 1996 (1) PLJR 404 , the levy of cess was ultimately held to be invalid, but refund was denied. So far as the royalty is concerned, the same was never struck down and royalty is payable on coal and accordingly the observation, which has been made by the learned trial court in the operative portion of the judgment at Para-21, is not in accordance with law. However, the learned trial court has denied refund of both royalty and cess on ‘slurry’ and no cross appeal has been filed by the plaintiff. The counsel also submits that the issue of limitation has been wrongly decided. Arguments of the Respondent 18. However, the learned trial court has denied refund of both royalty and cess on ‘slurry’ and no cross appeal has been filed by the plaintiff. The counsel also submits that the issue of limitation has been wrongly decided. Arguments of the Respondent 18. Counsel appearing on behalf of the plaintiff, on the other hand, has referred to clause 3, 4 and 5 of Colliery Control Order, 1945, and submits that once it is settled by the Hon’ble Supreme Court that ‘slurry’ is ‘coal’, there is no escape for the defendants from the applicability of the Colliery Control Order, 1945 and any price charged over and above whatever has been fixed by Colliery Control Order, 1945, is an exercise of power by the defendants beyond the statute and beyond the provision of law and such levy and realization by the defendants, even if, it has been done through the process of tender, cannot be justified and is ex facie illegal. 19. He submits that the specific case of the plaintiff was that the plaintiff as well as the defendants were under common mistake of fact regarding the status of ‘slurry’ as to whether it was ‘coal’ or not. Accordingly, the defendants had issued tender notice for sale of ‘slurry’ and the plaintiff had participated in the said process. He further submits that so far as grading of ‘slurry’ is concerned, it is equivalent to Grade ‘D’ Coal which cannot be disputed by the defendants, in as much as, the defendants’ witness had stated that ‘slurry’ is equivalent Grade ‘D’ Coal. Therefore, whatever price was fixed regarding Grade ‘D’ Coal, was fully applicable on the sale of ‘slurry’ and as per the Colliery Control Order, 1945, the price was fixed as Rs. 180.00 per metric tonne, which was specifically pleaded by the plaintiff in the amended plaint and the amendment has been allowed by the learned trial court, after considering the notification issued under the Colliery Control Order, 1945 contained in Exhibit 3. 20. Counsel for the plaintiff further submits that the agreement itself is void, in as much as, the same is hit by Section 23 of the Indian Contract Act, 1872 and is against the public policy, only to the extent of excess price, fixed on the basis of negotiation between the parties. He submits that as per Exhibit-3 all coal are covered by it. He submits that as per Exhibit-3 all coal are covered by it. Location of the coal does not make any difference, whether it is pit head or otherwise. He also submits that table-2 of Exhibit-3 speaks about washery middling too, which is inconsistent with the theory that the use of word pit head sales price, would mean that the control price is only applicable to the coal which can be found at the pit head. A washery middling is never found at pit head, therefore, ‘slurry’ which is not found at pit head, may nevertheless be not treated as excluded merely due to this reason. 21. He further submits that keeping in view the object of control order, the expression pit head price should be construed to mean the price at the original point, where the particular variety of ‘coal’ is found in the desired form. In case of washery middling, a slurry pit head is washery or the river-bed from where the ‘slurry’ is collected. He further submits that as per the work order, the slurry is collected in the river-bed from which briquettes are prepared and thereafter on the basis of certain formula, which is given in the terms and conditions of the contract itself, the takeoff of the ‘slurry’ is recorded and then it is to be treated as Grade ‘D’ coal and price is to be taken accordingly. He reiterates that so far as the ‘slurry’ is concerned, the same having been equated to Grade ‘D’ coal, its sale price is fully controlled by the Colliery Control Order, 1945 and the location of the ‘slurry’ does not matter at all i.e. whether it is taken at the pit head or at the washery level because for the purposes of slurry, the river-bed is itself the pit head. 22. He further submits that although the defendants had taken a stand that the ‘slurry’ is ‘processed coal’ and includes processing cost, but there is no pleading in connection with the processing cost with price charged and there is no break up of price and the processing cost, in the pleadings of the defendants. He also submits that this is just an afterthought on the part of the defendants to justify the fixation of cost, which has been done by them over and above the price which has been fixed under the provisions of Colliery Control Order, 1945. He also submits that this is just an afterthought on the part of the defendants to justify the fixation of cost, which has been done by them over and above the price which has been fixed under the provisions of Colliery Control Order, 1945. However, during the course of argument, the counsel for the plaintiff-respondent fairly submitted that the Colliery Control Order dated 4th May, 1982, has not been exhibited before the learned court below and that on the date of entering into the contract i.e. on 07.01.1984, the Colliery Control Order, 1945 which is Exhibit-3, was not in force and it came one day later and became effective from the next day i.e. with effect from 08.01.1984. He further submits that the subsequent notification (exhibit-3) is just a revision of rate and the terms and conditions continued to be the same. He further submits that this is apparent from the Exhibit-B itself, which clearly revised the rate pursuant to the notification, which was made effective from 08.01.1984 and the revision of rate for the entire period of contract was made effective for the entire period and the rate was enhanced on the basis of exhibit-3, just one day after the date of issuance of the work order. He submits that on account of this, the plaintiff himself suffered and the revision of rate was much higher over and above the tender for which the plaintiff had participated. 23. Counsel for the plaintiff further submits that so far as Section 65 of the Contract Act, 1872 is concerned, as already submitted above, it is the specific case of the plaintiff that the agreement itself was void, therefore, as per the provisions of Section 65 of the Contract Act,1872, either the benefits arising out of such void contract, is to be returned or the other party may be compensated. In the instant case, as the ‘slurry’ itself has been consumed, the same cannot be returned to the defendants, accordingly, the defendants at best be entitled to compensation. The compensation can be fixed only on the basis of the legal price, which was payable and the legal price was the price which was fixed for Grade ‘D’ Coal under the Colliery Control Order, 1945 pursuant to the notification dated 08.01.1984 (Exhibit–3). 24. The compensation can be fixed only on the basis of the legal price, which was payable and the legal price was the price which was fixed for Grade ‘D’ Coal under the Colliery Control Order, 1945 pursuant to the notification dated 08.01.1984 (Exhibit–3). 24. The counsel for the respondent submits that Section 72 of the Indian Contract Act, 1872 protects a party, who is under a mistake and no person can enrich oneself, if a mistake is committed by the other party. 25. He also submits that so far as the point of limitation is concerned, this issue has been rightly decided by the learned trial court, in as much as, the law is well-settled that once the amendment is made, the same relates back to the date of filing of the suit, unless there is some indication otherwise. He submits that in the plaint itself, the plaintiff has made a statement in the alternative, in as much as, if the Court found that the ‘slurry’ is ‘coal’, then what are the consequences which are to follow. Therefore, the aforesaid was within the knowledge of the parties at the time of filing of the suit itself, wherein suitable prayer was also made, and it cannot be said that a new plea has been raised at a later stage, which cannot relate back to the date of filing of the suit. 26. He further submits that the amendment which was made pursuant to the judgment passed by the Hon’ble Supreme Court, was just supplemental to what was already indicated in the plaint, particularly in view of the fact that it was only a High Court’s Judgment, which was available at the time of filing of the suit and it was all likely that the same would be the subject matter of litigation before the Hon’ble Supreme Court. Therefore, in the instant case, there is no question of holding that the claim of the plaintiff was barred by limitation. 27. The counsel for the plaintiff also submits that under Section 20 of the Indian Contract Act, 1872, any mutual mistake between the parties has to be taken care of and the conduct shows the mental state, in as much as, the very fact, that the defendants had put the ‘slurry’ for auction, itself indicates, that they were never in doubt at the time of issuing the tender that ‘slurry’ is not ‘coal’. The fixation of price was a consequence of such error in understanding on the part of the defendants, which led to fixation of price other than what was fixed by the then Colliery Control Order, 1945. He submits that merely because the defendants had stated in the written statement that ‘slurry’ is ‘coal’, the same is contrary to their own conduct, in as much as, if the ‘slurry’ is ‘coal’, then there was no occasion for the defendants to put the ‘slurry’ for sale through tender. He further submits that this conduct of the defendants cannot be ignored and mere statement of the defendants which has been taken in the written statement cannot be treated as sacrosanct and totality of the matter has to be taken into consideration. He also submits that whatever be the situation, there is no doubt that the plaintiff was certainly under a mistaken notion that ‘slurry’ was not ‘coal’ and this stand of the plaintiff was based on none less than a judicial pronouncement of the Hon’ble High Court, which held that ‘slurry’ is not ‘coal’. He also submits that once there is judicial pronouncement of the High Court that ‘slurry’ is not ‘coal’, it cannot be said that the defendants were under a right notion that ‘slurry’ is ‘coal’. 28. In short, the case of the plaintiff is that, the contract, whereby the price of ‘slurry’ was fixed contrary to the Colliery Control Order, 1945 , is void, and the consequences, as per Sections 65 and 72 of the Indian Contract Act , 1872 has to follow and accordingly the suit has been partly decreed, considering this aspect of the matter. Findings of this Court 29. After hearing the counsel for the parties, this Court finds that the following are the points for determination before this Court: - a. Is suit barred by limitation? b. Whether the parties were under any mistake of fact regarding the proposition that slurry is coal? c. Whether slurry is Grade ‘D’ Coal? d. If slurry is D-coal, then whether the price of slurry is to be determined by the Government of India, Ministry of Energy and Coal or it is to be determined by the defendants? b. Whether the parties were under any mistake of fact regarding the proposition that slurry is coal? c. Whether slurry is Grade ‘D’ Coal? d. If slurry is D-coal, then whether the price of slurry is to be determined by the Government of India, Ministry of Energy and Coal or it is to be determined by the defendants? e. If it is held that price of slurry was to be determined by Central Government and not by defendants then, Whether the contract, whereby the price of slurry was fixed and subsequently revised due to notification dated 08.01.1984, is void, as the price of slurry, as per the contract (both original and revised) is much higher than the price of grade D coal notified by Central Government under the colliery control order, 1945? f. If the answer to the point no (e) is also in the affirmative, whether the consequences, as per section 65 and 72 of the Indian Contract Act, 1872 has to follow and accordingly, whether the learned trial court has rightly allowed the claim of refund of the differential price as per schedule II of the plaint? 30. The plaintiff examined altogether nine witnesses. The Plaintiff-Witness No.-1 is the employee of the plaintiff-company and as a formal witness, who has exhibited the notice dated 25.06.1984 (Exhibit-1). As per this notice, the plaintiff had informed the defendants that Royalty & Cess is not payable on ‘slurry’ which is required to be considered. The Plaintiff-Witness No.-2 is Mohan Lal who is a formal witness and has exhibited the letter issued by the plaintiff-company, which was marked as Ext.-1/a, wherein the plaintiff-company had informed the defendants that if ‘slurry’ is ‘coal’, then excess amount is being realized from them and that if ‘slurry’ is not ‘coal’, then Cess & Royalty is not payable. The Plaintiff-Witness No.-3 is also a formal witness who is said to have typed letter dated 20.10.1984, which was marked as Ext.-1/b and this letter was issued for the purposes of measurement of slurry area. The Plaintiff-Witness No.-4 is the Manager of the company who has stated that on 29.03.1983, the plaintiff had submitted the tender for purchase of ‘slurry’ and after negotiation the rate of ‘slurry’ was fixed at Rs. 309.99 per metric tonne and the tender of the plaintiff was accepted on 07.01.1984 and accordingly a work order was issued. The Plaintiff-Witness No.-4 is the Manager of the company who has stated that on 29.03.1983, the plaintiff had submitted the tender for purchase of ‘slurry’ and after negotiation the rate of ‘slurry’ was fixed at Rs. 309.99 per metric tonne and the tender of the plaintiff was accepted on 07.01.1984 and accordingly a work order was issued. He has stated that after extraction of ‘coal’ from colliery, it goes to washery where it is mixed with water and chemical for the purposes of washing and thereafter the waste is called ‘slurry’. The ‘coal’ after excavation is subjected to Royalty & Cess and the ‘coal’ extracted is Grade ‘D’ Coal. At that point of time, the rate of Grade ‘D’ Coal was Rs. 180.00 per metric tonne and at the time of tender the rate of ‘slurry’ was Rs. 309.99 per metric tonne, but it was increased to 394.74 per metric tonne by unilateral action of the defendants. Such increase was objected to vide letters dated 25.06.1984 and 19.11.1984 and he stated that ‘slurry’ and ‘coal’ are not one and the same thing and ‘slurry’ is waste product of ‘coal’ and not by-product of coal. During the course of cross-examination, the work order was exhibited by Plaintiff-Witness No.-4 and was marked as Ext.-A which is dated 07.01.1984. He has stated that the defendants had issued letter dated 09.01.1984 indicating that revised price on the basis of Grade ‘D’ coal and this letter dated 09.01.1984 has been marked as Ext.-B. He has also stated that ‘slurry’ cannot be used directly, but the same is converted into briquettes and has stated that at the time of submitting the tender, the rate of Grade ‘D’ coal was Rs. 180.00 per metric tonne. He has further stated that the plaintiffs were forced to pay Royalty & Cess on ‘slurry’. Both the Plaintiff-Witness Nos. 5 and 6 are formal witnesses. The Plaintiff-Witness No.-7 is an employee of the plaintiff-company and is posted at Kathara, where ‘waste slurry’ is being collected and he supervises the loading and unloading activities. The Plaintiff-Witness No.-8 is the owner of the plaintiff-company and he stated that he collects ‘slurry’ and sells the briquettes. He has also stated that ‘slurry’ cannot be taken out by digging, but it is ‘dust’ produced upon washing the ‘coal’ whose value is less than value of the ‘coal’. The Plaintiff-Witness No.-8 is the owner of the plaintiff-company and he stated that he collects ‘slurry’ and sells the briquettes. He has also stated that ‘slurry’ cannot be taken out by digging, but it is ‘dust’ produced upon washing the ‘coal’ whose value is less than value of the ‘coal’. He has also stated that for the purposes of sale of ‘slurry’ quotations were called for and he had participated in the tender. He has specifically stated that the rate is to be fixed by the Government of India and not by the defendants. The Plaintiff-Witness No. 9 is a formal witness. 31. So far as the defendants are concerned, they have examined altogether two witnesses. The Defendant-Witness No.-1 is a formal witness. So far as Defendant-Witness No.-2 is concerned, he is the Area Sales Manager of the defendant-company. He has stated that for the purposes of purchase of ‘slurry’, the plaintiff had participated in the tender and on that basis work order was issued and thereafter an agreement was entered into between the parties and according to the agreement, Cess & Royalty was also payable. He has stated that ‘slurry’ is by-product of the ‘coal’ produced in coal washery and has also stated that the rate of ‘slurry’ is not determined by Colliery Control Order, 1945, but the same is determined by the company. He has stated that the ‘slurry’ is equivalent to Grade ‘D’ coal and in Grade ‘D’ coal, coal is also there apart from ‘slurry’ and there is difference of rate between Grade ‘D’ coal and ‘slurry’. He has stated that as per notification issued by the Government of India, the rate of Grande ‘D’ coal is Rs. 180.00 per metric tonne and the defendant-company had fixed the rate at Rs. 309.94 per metric tonne, which has been increased to 394.74 per metric tonne. 32. The learned trial court decided Issue Nos. vi, vii and viii vide Para-7 and held that at the time of tender the rate of Grade ‘D’ coal was Rs.180.00 per metric tonne (as per the notification issued by the Central Government), but the defendant-company entered into an agreement @ Rs.309.99 per metric tonne which was increased to 394.74 per metric tonne. vi, vii and viii vide Para-7 and held that at the time of tender the rate of Grade ‘D’ coal was Rs.180.00 per metric tonne (as per the notification issued by the Central Government), but the defendant-company entered into an agreement @ Rs.309.99 per metric tonne which was increased to 394.74 per metric tonne. The learned trial court held that ‘slurry’ is Grade ‘D’ coal whose value is fixed by the Central Government, who fixes the Grade as well as the rate of ‘coal’ and this is apparent from Ext.-3. The learned court below also held that the Hon’ble Supreme Court held that the Royalty & Cess is not payable, but the same cannot be refunded. The defendants have not produced any documents to show that the defendants are entitled to fix the rate of ‘slurry’ and under what provision the rate was enhanced from 309.99 per metric tonne to 394.74 per metric. Accordingly, the learned trial court held that the rate of ‘slurry’ which is Grade ‘D’ coal has been fixed at Rs.180.00 per metric tonne and it was held that the plaintiff would be entitled for the refund of the excess amount realized by the defendants. The differential rate was calculated to be Rs.42,43,347.76 which was directed to be refunded with interest @ 18% from the date of filing of the suit till the date of recovery. The relief in connection with the claim mentioned in Schedule-I, relating to amount of royalty, local cess, etc. paid during the period 7th January, 1984 to July 1985, was rejected and the claim in Schedule-II relating to excess amount charged regarding price of ‘slurry’ for the period 7th January, 1984 to July 1985, was fully allowed with interest as aforesaid. 33. For the determination of the aforesaid points , the important documents on record would be notification dated 07.01.1984 issued by Colliery Control Order, 1945 i.e. Ext.-3, then tender notice dated 01.09.1983 which was issued for sale of flowing slurry from washery after converting into briquettes (tender notice formed a part of the plaint and it was annexed with the plaint); then work order (Ext.-A) which was issued to the plaintiff for the period of contract between 07.01.1984 to 06.01.1985 @ Rs.309.99 per metric tonne revisable under clause-12 of the additional terms & conditions of the contract. Ext.-B which is the letter issued by the defendant-company to the plaintiff regarding revision of price of ‘slurry’ on the basis of increased ROM Grade ‘D’ coal price. 34. The following are the sequence of events which is apparent from the records as well as the arguments as advanced by the counsel for the parties: - Date Particulars 26.5.1982 A notification dated 26.05.1982 was issued by the Government of India, Ministry of Energy, Department of Coal, under the Colliery Control Order, 1945 fixing price of, interalia, Grade D coal. This was superseded by the notification dated 07.01.1984 issued under the Colliery Control Order, 1945 [see Ext. 3] made effective from 08.01.1984. Although the notification dated 26.05.1982 is not on record, but Pre-07.01.84 controlled price of Grade D ROM Coal is reflected in Ext. B dt. 9.1.84 as Rs. 139 per tonne and post 7.1.84 rate of Grade-D ROM coal has been mentioned as Rs.177/- per metric tonne which is reflected in the notification dated 07.01.1984 (Ext. 3). 1.9.1983 Tender notice was issued by the defendants for sale of slurry flowing from coal washery after converting into briquettes. The plaintiff was the successful tenderer. 7.1.1984 Work Order [Ext. A] was issued to the plaintiff for the Period of contract - 7.1.84 to 6.1.85 at Price of Rs. 309.99 per tonne, revisable under clause 12 of the Additional terms and conditions. Contract period started from 7.1.1984. 7.1.1984 And 8.1.1984 New controlled price of coal vide notification dated 7.1.1984 (exhibit-3), effective from 8.1.1984, was introduced by notification issued under the Colliery Control Order, 1945. New prices for non-coking Grade-D ROM coal was mentioned in Table-II as Rs. 177 per tonne. 9.1.1984 Revised price was informed by CCL on the basis of the increased rate of Grade-D ROM coal [Ext. B]. The calculation as shown in exhibit B is as follows New price of Grade 'D'ROM Coal Old of Grade 'D'ROM Coal X Tender Price Rs.177 Rs. 139 X Rs.309.99=Rs.394.74 It was also indicated in the said communication that the conversion factor for manufacturing briquettes from ‘slurry’ will be 1: 1.52 and the increase in rate was made effective from 08.01.1984. This calculation is in terms of clause 12 of the special terms and conditions of sale of slurry which provided for proportionate increase in rate upon revision of rate of Grade D coal by the government. This calculation is in terms of clause 12 of the special terms and conditions of sale of slurry which provided for proportionate increase in rate upon revision of rate of Grade D coal by the government. The specific case of the plaintiff is that the revised rate of Rs.394.74 per tonne of slurry was communicated by the defendants vide exhibit B to which the plaintiff protested on the ground that the slurry was not coal. 19.11.1984 Plaintiff also demanded refund of excess price paid, if slurry is subjected to royalty and cess by treating it as coal [Ext. 2/a]. In the mean time the period of work as per the work order expired. Initially it expired on 06.01.1985 but as per plaint the period involved is till July 1985. 20.12.1985 Hon’ble Patna High Court (Full Bench) held that slurry is not coal. [ AIR 1986 Pat 242 ] 5.1.1987 Suit filed by the buyer claiming refund of royalty, cess, etc. (if slurry was not coal) as well as excess price paid over & above the controlled price of Grade-D coal during 7.1.84 to July, 1985 (if slurry was coal). 17.8.1990 Hon’ble Supreme Court held that slurry is coal in judgment reported in (1990) 4 SCC 557 - para 9, 10- BCCL vs. State of Bihar. 1991 1st amendment was sought in the plaint which was allowed on 02.01.1992. 14.8.1997 2nd amendment was sought in the plaint which was allowed on 20.09.1997. Pleadings were added alleging mutual mistake of essential fact, that slurry was not coal. It was asserted that slurry is coal and accordingly and the price-agreement is void as the price is to be statutorily controlled price equivalent to Grade-D coal and asserted the right to get the refund of the differential price as per schedule II to the plaint , for which a prayer was already existing in the plaint. 10.9.1998 2nd Additional written statement was filed by the defendants taking a plea that slurry being processed coal involving cost of production, is not covered by the price fixed for grade D coal as notified by the Colliery Control Order. 16.3.2001 Trial Court decreed the suit partly, directing payment of excess price over and above the Grade-D coal’s-controlled price as per schedule II of the plaint. Refund of royalty and cess was totally denied. 16.3.2001 Trial Court decreed the suit partly, directing payment of excess price over and above the Grade-D coal’s-controlled price as per schedule II of the plaint. Refund of royalty and cess was totally denied. The price of ROM Grade D coal as mentioned in the notification dated 07.01.1984 was Rs.177/- per tonne and rate of slack coal and washery middling of Grade D coal was Rs.180 per tonne. This court finds that the term slurry has neither been mentioned anywhere in the notification dated 07.01.1984 nor any rate has been prescribed for slurry. Moreover, the rate as fixed and communicated to the plaintiff by the defendants referred to ROM Grade D coal and not to slack coal and washery middling of Grade D coal while calculating the proportionate increase in price. Determination of Point No. (a) Is the suit barred by limitation? 35. So far as point of limitation is concerned, this Court finds that the bone of contention between the parties is whether the amendment of the plaint by which the plaintiff had introduced further pleadings would be the date for the purposes of calculating the point of limitation or it would be right from the date of institution of the suit by relating the amendment right back to the date of filing the suit. This court finds that in the original plaint itself , the plaintiff had taken a stand that if the slurry is held to be coal , then the price being charged over and above the price of grade D coal is refundable to the plaintiff and as per the plaintiff, the entire picture became clear when the issue was ultimately decided by the Hon’ble Supreme court and subsequently the plaint was amended. In such circumstances, this court is of the considered view that the amendment in the suit would relate back to the date of filing the suit. There is no dispute that if the amendment relates back to the date of filing of the suit, the case is not time barred. The doctrine of relation back generally governs amendment of pleadings, unless for the reasons the court excludes the applicability of the doctrine in a given case. There is no dispute that if the amendment relates back to the date of filing of the suit, the case is not time barred. The doctrine of relation back generally governs amendment of pleadings, unless for the reasons the court excludes the applicability of the doctrine in a given case. In view of the aforesaid fact, there is no ground to exclude the doctrine of relation back with respect to the amendment to the pleadings allowed in the instant case and it is nobody’s case that the order allowing the amendment reflects any exclusion of the doctrine of relation back. The learned trial court has also rightly held that the suit is not barred by limitation and has answered the issue no. 3 in favour of the plaintiff, though, not much discussions have been made on the point. However, in view of the aforesaid findings, this court holds that the suit filed by the plaintiff is not time barred as the amendment in the instant case would relate back to the date of filing the suit. Accordingly, the first point of determination is decided against the defendants/appellants and in favour of the plaintiff/respondent. Determination of Point No. (b) Whether the parties were under any mistake of fact regarding the proposition that slurry is coal? 36. Admittedly, a tender was issued by the defendants for the purposes of sale of slurry which was guided by the General Terms and Conditions of the tender as well as the additional terms and conditions for sale of slurry. The tender was issued on 01.09.1983 and was for sale of flowing slurry from washery after converting into briquettes. The plaintiff had participated and became successful. The work order was issued on 07.01.1984 and the period of contract was from 07.01.1984 to 06.01.1985. The price was fixed @ 309.99 per tonne, which was revisable under Clause - 12 of the additional terms and conditions with respect to contract for sale of slurry. Clause 12 of the additional terms and conditions reads as under: - “should there be any upward revision of price of coal by the govt. price of slurry shall be automatically increased from such date as the new price is applicable in the same proportion by which the price of grade D coal is increased.” 37. Clause 12 of the additional terms and conditions reads as under: - “should there be any upward revision of price of coal by the govt. price of slurry shall be automatically increased from such date as the new price is applicable in the same proportion by which the price of grade D coal is increased.” 37. This Court finds that as per the original plaint, there was a specific pleading that ‘slurry’ is not ‘coal’, although the reverse situation and its consequences were also mentioned in the plaint itself. So far as the defendants are concerned, it was the specific case of the defendants in the written statement that it is incorrect to say that ‘slurry’ purchased by the plaintiff from the defendants, is not ‘coal’ and it was stated that ‘slurry’ is ‘processed coal’ and price included the processing cost. This Court further finds that even as per clause-12 of the special terms and conditions of sale of slurry, it was apparent that the price of ‘slurry’ was subject-matter of proportionate enhancement, as and when the price of Grade ‘D’ Coal is revised by the Central Government. It appears that the plaintiff wanted to take a point before the learned court below that royalty, cess etc. is not payable on ‘slurry’ on the ground that ‘slurry’ is not ‘coal’. This plea was based on a judicial pronouncement by Hon’ble Patna High Court in the judgment passed in C.W.J.C. No. 1530 of 1983 (R). In such circumstances, this Court finds that right from the stage of tender, there was no doubt in the mind of the parties particularly the defendants that ‘slurry’ is ‘coal’ and the specific stand of the defendants in the written statement was that ‘slurry’ is ‘processed coal’. This Court further finds that right at the stage of filing of the suit, the plaintiff was also conscious that the issue, whether slurry is coal or not, was still live and was yet to be decided by the higher court. Accordingly, the plaintiff himself had taken a plea in the plaint that if ultimately ‘slurry’ is found to be ‘coal’, then what would be the consequences. In view of the aforesaid findings, this Court is of the considered view that there was no element of any mistake of fact, on the point that slurry is coal. Accordingly, the plaintiff himself had taken a plea in the plaint that if ultimately ‘slurry’ is found to be ‘coal’, then what would be the consequences. In view of the aforesaid findings, this Court is of the considered view that there was no element of any mistake of fact, on the point that slurry is coal. The defendants had taken specific stand that slurry is coal right from beginning, and the plaintiff had made pleadings, considering both the situations. 38. It is relevant to point out that the tender was of the year 1984, work order was for the period 07.01.1984 to 06.01.1985 which is claimed to have been continued till July 1985 by the plaintiff. The Clause-12 of the special terms and conditions clearly linked revision of price of ‘slurry’ to Grade ‘D’ Coal by way of proportionate increase. Revision of price pursuant to the said Clause-12, was done vide letter dated 09.01.1984 (Ext.-B). However, the plaintiff claimed that ‘slurry’ is not ‘coal’. After expiry of the period of contract, in the judgment dated 20.12.1985 passed in C.W.J.C. No. 1530 of 1983 (R), it was held that ‘slurry’ is not ‘coal’ and taking a cue from this judgment, the plaintiff filed suit on 05.01.1987 and at the same time mentioned the alternative stand considering the situation if it is ultimately held that the ‘slurry’ is ‘coal’. The written statement clearly asserted that ‘slurry’ is coal’ and is a by-product of processing of coal. The Hon’ble Supreme Court ultimately held in the judgement reported in the year 1990 that ‘slurry’ is ‘coal. 39. Considering the aforesaid facts and circumstances, this Court is of the considered view that the parties were never under any mistake of fact on the point that ‘slurry’ is ‘coal’. However, for some time, after the period of contract was over, there was a judicial pronouncement that slurry is not coal, which was subsequently overruled. In this view of the matter, the point of determination No.-(b) is decided against the plaintiff and in favour of the defendants. 40. However, for some time, after the period of contract was over, there was a judicial pronouncement that slurry is not coal, which was subsequently overruled. In this view of the matter, the point of determination No.-(b) is decided against the plaintiff and in favour of the defendants. 40. In view of this finding that there was no mistake of fact regarding ‘slurry’ being ‘coal’ right from the stage of issuance of tender notice , this Court finds that the arguments which have been advanced by the counsel for the plaintiff regarding applicability of Section 72 of Indian Contract Act, 1872, does not apply to the facts and circumstances of this case. Determination of Point No. (c) Whether slurry is Grade ‘D’ Coal? 41. This Court finds that so far as the point, whether slurry is equivalent to grade D coal is concerned, there is not much dispute over it, in as much as, the witness of the defendants has stated that slurry is nothing but grade D coal. The evidence of the witnesses has been discussed in details in the above paragraphs of this judgment. This Court finds that the learned trial court, by a well-reasoned finding, after considering the evidences on record, has clearly held that slurry is Grade ‘D’ Coal . This court does not find any illegality or perversity in the said findings. Accordingly, the findings of the learned trial court on this point is upheld. Point of determination No. (d) If slurry is D-coal, then whether the price of slurry is to be determined by the Government of India, Ministry of Energy and Coal or it is to be determined by the defendants? 42. In the original plaint it was specifically pleaded in Para-26 that the plaintiff also submits that in addition, if ‘slurry’ is held to be ‘coal’, then the plaintiff is entitled for payment/refund from the defendants of such sum of money, as is in excess of the price prescribed in the Colliery Control Order, 1945, which aggregates to Rs. 42,43,347.76 as detailed in Schedule-II of the plaint. 43. 42,43,347.76 as detailed in Schedule-II of the plaint. 43. Admittedly, a notification dated 07.01.1984 (with effect from 08.01.1984) was issued in pursuance of Clause-3 and Clause 4 of Colliery Control Order, 1945 and in suppression of the notification of Government of India Ministry of Energy (Department of Coal) dated 26.05.1982, giving the classes and the grades into which coal and coke were to be classified as per tabular form and the sale price at which coal and coke could be sold was fixed. This Court finds that the notification dated 07.01.1984 was made effective from 08.01.1984 and accordingly on the date of issuance of work order the notification dated 26th May, 1982 was in force. This Court finds that the notification dated 07.01.1984 was issued in suppression of the earlier notification dated 26th May, 1982 and the notification dated 26th May, 1982 was never exhibited before the learned court below and no steps have been taken to bring the same on record by way of any additional evidence. This Court finds that the notification dated 07.01.1984 made effective from 08.01.1984, apart from fixing the rates, has also given certain relaxation and clause 15 is relevant for the purposes of this case: - "15- For undertaking special sizing or benefication of coal, additional charges as may be negotiated between the purchaser and the producer may be realized over and above the fixed prices." 44. This Court finds by referring to the aforesaid clause-15 of notification dated 7th January, 1984 (exhibit-3) that there is enough room for the parties to enter into negotiation for fixing additional price under the circumstances as contemplated in the said notification. This Court finds that there is nothing on record to suggest as to what was the corresponding provision in notification dated 26th May, 1982 which was applicable on the date, when the tender was issued and, on the date, when the work order was issued to the plaintiff. Admittedly the tender and the work order was issued prior to 08.01.84, the date on which the notification dated 07.01.84 came into force. 45. This court further finds that in view of clause 15 of the aforesaid notification dated 08.01.1984, the defendants had a right to negotiate and claim additional charges. Admittedly the tender and the work order was issued prior to 08.01.84, the date on which the notification dated 07.01.84 came into force. 45. This court further finds that in view of clause 15 of the aforesaid notification dated 08.01.1984, the defendants had a right to negotiate and claim additional charges. This Court finds that there are enough materials as discussed above, that coal was subjected to washing and chemical process in the washery for which expenses were incurred in the production process of coal in the washery and slurry is extracted as its by-product. Thus, although slurry is Grade ‘D’ Coal, but the defendants are entitled to realize additional amount over and above price fixed by the colliery control order in view of clause 15 of the aforesaid notification dated 08.01.1984 (exhibit-3). This court is of the considered view that merely because the grading of slurry has been done as grade - D coal, the same does not mean that the defendants would not be entitled to charge any further amount by way of additional charges for undertaking special sizing or beneficiation of coal, as may be negotiated between the purchaser and the producer over and above the fixed prices. This 46. This Court further finds that it was specific case of the plaintiff in the plaint itself at para - 3 which reads as follows: “In course of its business of mining distribution and supply of coal as aforesaid, the defendants after mining the coal sent the same to their Coal Washries, where the said coal extracted from mine, is washed by chemical process and in course of such washing of coal by chemical process, a huge quantity of substance called “slurry” is generated.” 47. At Para–4 it has been specifically mentioned that slurry is sold as a by- product/waste product by the defendants on contract basis from time to time. Thus, there is no dispute even from the side of the plaintiff that after taking the coal from the mines, the slurry is taken to the Washeries, where it is washed by chemical process which results in formation of slurry and thus the stand of the defendants that for generation of slurry, a production process is undertaken, is not in dispute. The contention of the plaintiff during the course of argument before this Court that no break up regarding the price and the expenses on account of production has been given in the written statement or in the evidence of the defendants, has no bearing in the matter. This Court finds that there was no such requirement particularly in view of the fact that the slurry was put for sale through tender process. The fact remains that it cannot be disputed that the defendants had incurred additional expenses on account of production process, which was undertaken by the defendants, in which slurry was produced. 48. This Court further finds that from perusal of clause - 12 (as quoted above) of the special terms and conditions of the contract which was very much within the knowledge of the plaintiff, itself indicates that there would be a proportionate revision of rate as and when rate of grade - D coal is revised. Accordingly, even at the stage of tender, it was known to the parties that the price of grade - D coal is fixed by virtue of Colliery Control Order, 1945. 49. Accordingly, this Court finds that if the notification issued under Colliery Control Order, 1945, which was made effective from 8th January, 1984 is taken into consideration in its entirety including the various clauses thereof particularly clause-15, there is no illegality on the part of defendant in putting slurry for sale through tender process and there was no illegality on the part of the defendants in realizing certain amount over and above what was fixed for grade - D coal and providing for its revision as per clause-12 of Special Terms and Conditions of Contract linking it to the price revision of Grade ‘D’ Coal. 50. This Court finds that admittedly, the price of slurry was never the same as that of grade D coal and the same was revised by taking the rate of ROM grade D coal. ROM coal stands for run of mine coal which means, coal as mined. Run of mine has been mentioned in the notification dated 8.1.84 itself by providing that run of mine coal is coal comprising of all sizes as it comes out of mines without any crushing or screening. Rate of rate of ROM grade D coal is nothing but price of coal at the pit-head. Run of mine has been mentioned in the notification dated 8.1.84 itself by providing that run of mine coal is coal comprising of all sizes as it comes out of mines without any crushing or screening. Rate of rate of ROM grade D coal is nothing but price of coal at the pit-head. The contention of the plaintiff that the river bed it to be treated as pit head has no foundational pleadings and otherwise also, is totally baseless, hence rejected. 51. This Court finds that so far as revision of rate is concerned, the defendant had taken care to ensure that the revision of rate is done on the basis of the new price of ROM grade D coal @ Rs.177 per tonne and the revision of rate itself indicates that the earlier price as fixed by the Colliery Control Order was on the basis of ROM grade D coal @ Rs.139 per tonne and accordingly the rate was revised from Rs.309.99 to Rs.394.74. This is apparent from exhibit B. In the said letter regarding revision of rate (Exhibit-B), the conversion factor for manufacturing briquettes from slurry was also mentioned. 52. In view of the aforesaid findings, this Court has no hesitation in holding that the price of ‘slurry’, though Grade ‘D’ Coal was not required to be fixed by the Central Government and was not to be the same, as the rate fixed by the Central Government for ROM Grade ‘D’ Coal as additional charges was to be realized pursuant to the process undertaken by the defendants for production of slurry, though as a by-product in the washery which has been contemplated in the notification dated 8.1.84 itself. The realization of additional charges was permissible by virtue of clause-15 of the notification dated 08.01.1984. 53. The learned court below while deciding this issue, has ignored clause-15 of the notification dated 08.01.1984 and has wrongly come to a finding that there was no material to establish that the defendants were entitled to claim any amount over and above Grade ‘D’ Coal price, as fixed vide notification dated 08.01.1984 and has also not considered that the notification prevalent on the date of tender and issuance of work order, was not on record. The learned trial court thus wrongly allowed the claim of the plaintiff with regard to difference in price by ignoring relevant clause of the notification dated 08.01.1984 and has not properly appreciated the scope of clause-12 of the Special Terms and Conditions of the Contract, which provided for proportionate increase in the price of ‘slurry’ as and when there is revision of Grade ‘D’ Coal by the Central Government. 54. Accordingly, the point no. (d) is decided in favour of the defendants. As point no. (d) has been decided in favour of the defendants, the other subsequent points do not require any consideration in this case. 55. Accordingly, the impugned judgment and decree by which a direction was issued to the defendants to refund the amount which has mentioned in Schedule-II of the plaint with interest @ 18%, is hereby set-aside. Consequently, the plaintiff is not entitled to any relief whatsoever, under the facts and circumstances of this case. 56. This appeal is accordingly allowed.