JUDGMENT : GAUTAM KUMAR CHOUDHARY, J. 1. The appellant company represented through principal officers are the defendants have preferred the instant appeal against the judgment dated 27.09.2010 and decree dated 02.11.2010 passed by the learned Sub-Judge-V, Dhanbad in Money Suit No. 27 of 1993, whereby the appellants have been directed to pay the decreed amount of Rs. 13,65,551/- with 6% pendent lite and future interest. 2. The case of the plaintiff is that the plaintiff was awarded coal transportation and allied job at Damoda Colliery vide Work Order No. GM/AR-I/Fin/2443/91 dated 05/11.09.1991 covering the period from 14.08.1991 to 31.03.1992 on the terms and conditions set forth therein and thereafter the plaintiff was given extension of work with effect from 01.04.1992 initially upto 30.06.1992 vide letter No. 379 dated 30.04.1992 and thereafter vide letter No. GM/AR-I/PS-F-3/1323/92 dated 30.06.1992 upto 31.08.1992. The terms of the contract besides the general terms included special terms and conditions for picking out all shale/stone, loading coal into tipping trucks by contractor’s pay-orders and transportation of coal from Albion Depot to K.G. siding, Albion depot to BJ-II and BJ-VI sidings. According to the plaintiff under the terms of the work order the plaintiff was to provide 4000 M.T. of coal each day for transportation etc. and keeping in view the same, plaintiff maintained its huge infrastructure but the appellant/defendant failed to provide such quantity of coal to the plaintiff at the colliery for which the plaintiff suffered loss in maintaining such huge infrastructures. The Plaintiff submitted their rates against N.I.T. No. GM(S&P)/F-20/Coal/599 dated 11.3.1992 for transportation and allied jobs at Damoda colliery from 1.4.1992 to 31.3.1992. In view of the facts that the decision on the aforesaid N.I.T. could have taken time resulting in the suspension of transportation work defendant no. 2 asked the plaintiff to continue the work of transportation of coal and allied jobs on the same condition as earlier. On the basis of the assurance given by the defendants the plaintiff kept all its establishment and equipments at the site and continued further work of transportation of coal and allied jobs. The defendants failed to perform the part of contract that is providing adequate contracted quantity of 4000 metric ton coal per day causing substantial loss to the plaintiff. On the basis of the assurance given by the defendants the plaintiff kept all its establishment and equipments at the site and continued further work of transportation of coal and allied jobs. The defendants failed to perform the part of contract that is providing adequate contracted quantity of 4000 metric ton coal per day causing substantial loss to the plaintiff. There was no item mentioned in the contract for (i) track clearing (ii) wagon levelling with the plaintiff had to do because rakes were not moving unless tracks cleaning and wagon levelling was done. This work falls under extra item for which the plaintiff is entitled to payment. 3. The plaintiff firm on the basis of the above averments brought the suit for damages for the loss suffered under the following different heads: (a) Idle man-power. (b) Payment for idle Tippers, engaged by the plaintiff in connection with contracted work, but no actual work allotment. (c) Pay Loaders engaged but no work allotted. (d) Loss and damages sustained by the plaintiff during the period 1992-93 for coal transportation and allied jobs. (e) Idleness of pay loaders. (f) Extra work of track cleaning and wagon leveling. (g) Claim for illegal deductions. (h) Claim for the refund of S. deposit and earnest money. (i) Claim for the work done and for coal stock lying in the railway standing. 4. The case of the appellant/defendants per contra is that the suit is barred under the provisions contained in Section 69 of the Indian Partnership Act. Averments made in paras 4 to 7 of the plaint regarding the tender notice, work order and the clause thereof has not been disputed. However, the interpretation of the terms and conditions of the contract as put forward by the plaintiff has been contested. It is asserted that plaintiff had never deployed 12 numbers of tippers or 4 numbers of pay loaders. Similarly the other assertion of deputing labour force for transportation of the 4000 metric ton of coal per day has also been refuted. On the contrary it is contended that due to failure on the part of the plaintiff’s in deployment of adequate numbers of tippers and pay loaders coal could not be dispatched as a result the management had to suffer heavy loss on account of payment of demurrage etc. to the railway sand, therefore, counter claim for Rs. On the contrary it is contended that due to failure on the part of the plaintiff’s in deployment of adequate numbers of tippers and pay loaders coal could not be dispatched as a result the management had to suffer heavy loss on account of payment of demurrage etc. to the railway sand, therefore, counter claim for Rs. 11,84,394/- has been put forward on behalf of the defendant. The contractor had to execute the work as per the terms and conditions in the work order dated 5.11.1991 and no verbal assurance was ever given by the management to the plaintiff. As per the terms of contract any dispute or controversy relating to rework was to be raised before General Manager, Barora but no such claim was ever raised. 5. On the basis of the pleadings of the parties the following issues were framed: 1. Whether the suit of plaintiff is maintainable? 2. Whether any cause of action of the plaintiff has arisen? 3. Whether the suit of the plaintiff is barred by law of contract, law of partnership, law of evidence, waiver, acquiescence and estoppel? 4. Whether the defendant B.C.C.L. has failed to stock coal in the railway siding for transportation as per agreement? 5. Whether the plaintiff had claimed any information or damages from the defendant caused due to laches on the part of the defendant, as per the provision of the first work order dated 5/11.9.1991? 6. Whether any consent had been taken by the plaintiff from the defendants with regard to work with inflated rate? 7. Whether the plaintiff as per the agreement had not engaged sufficient number of labour and infrastructure to carry out the work, due to which defendant had sustained any loss? 8. Whether the plaintiff is entitled to demurrage? 9. Whether the plaintiff is entitled to any relief? 6. The learned Court below has allowed the damage of Rs. 13,65,551/- for the extra work of track cleaning and wagon levelling under the following heads on the basis of the deposition of DW-4 in Para-17 of his deposition that if a contractor has executed some extra work he is entitled to charges incurred on it: (a) In item (d) of Schedule A Rs. 3,36,211.50 with arrear bill of Rs. 38,935.92 (Total Rs. 3,75,145.42) for the year 1991-92. (b) Item (d) of Schedule B for the year 1992-93 Rs. 4,40,375/- (c) Arrear Bill of Rs. 3,36,211.50 with arrear bill of Rs. 38,935.92 (Total Rs. 3,75,145.42) for the year 1991-92. (b) Item (d) of Schedule B for the year 1992-93 Rs. 4,40,375/- (c) Arrear Bill of Rs. 1,45,031.50 mentioned in Item 1 of Schedule C. (d) Security deposit of Rs. 4,05,000/- 7. The instant appeal has been preferred on the following grounds: (i) The plaintiff having not claimed payment of security money or any arrear bill in the plaint, the claim was confined to damages only on account of the alleged breach of contract, then order of return of security money renders the Judgment to be perverse and fit to be set aside. (ii) The award of compensation is beyond the pleadings. There is no pleading with respect to Rs. 3,75,145.42 under item No. (d) Schedule A. Further, Rs. 4,40,373/- has been awarded under item no. (d) Schedule B without any valid paper of contract, only on the basis of the evidence of the defendant’s witness that in the event a contractor need any extra work he is entitled for payment of the same. (iii) Extra work if any executed by the contractor had to be proved by the plaintiff and the onus could not have been shifted on the defendant. Without any detail of the extra work executed by the contractor the learned Court below has allowed the plaintiff’s claim to the extent of Rs. 1,45,031.50 under Item No. 1 of Schedule C. (iv) With respect to the order for refund of security deposit to the tune of Rs. 4,05,000/- there is no documentary evidence to establish that the security deposit was forfeited by the defendant company. 8. Admittedly the plaintiff was the contractor who was given work order for transportation of coal from the colliery to the railway siding and loading the same in the wagons. The damage has been allowed by the learned Court below for the extra-work of track cleaning and also for refund of the security deposit and arrear bills. Admittedly this extra work was beyond the covenant of the agreement and the work order. 9. The main point for determination is whether the learned Court below was justified in awarding damages which were beyond the terms of the agreement? 10. It is settled principle of law that terms of a written contract cannot be varied unless there is ambiguity in terms of it. 9. The main point for determination is whether the learned Court below was justified in awarding damages which were beyond the terms of the agreement? 10. It is settled principle of law that terms of a written contract cannot be varied unless there is ambiguity in terms of it. S.91 of the Evidence Act reads as under: “When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.” It has been held in Tamil Nadu Electricity Board vs. N. Raju Reddiar, (1996) 4 SCC 551 at Page 555: “7. At the outset it must be borne in mind that the agreement between the parties was a written agreement and therefore the parties are bound by the terms and conditions of the agreement. Once a contract is reduced to writing, by operation of Section 91 of the Evidence Act, 1872 it is not open to any of the parties to seek to prove the terms of the contract with reference to some oral or other documentary evidence to find out the intention of the parties. Under Section 92 of the Evidence Act where the written instrument appears to contain the whole terms of the contract then parties to the contract are not entitled to lead any oral evidence to ascertain the terms of the contract. It is only when the written contract does not contain the whole of the agreement between the parties and there is any ambiguity then oral evidence is permissible to prove the other conditions which also must not be inconsistent with the written contract.” Mc. Dermott International Inc. vs. Burn Standard Co. Ltd. (2006) 11 SCC 181 : “It is trite that the terms of the contract can be express or implied. The conduct of the parties would also be a relevant factor in the matter of construction of a contract.” 11. Dermott International Inc. vs. Burn Standard Co. Ltd. (2006) 11 SCC 181 : “It is trite that the terms of the contract can be express or implied. The conduct of the parties would also be a relevant factor in the matter of construction of a contract.” 11. In the absence of term of contract or work order the claim for payment of extra work being done is beyond the express term of agreement. There is no documentary evidence in support of the pleadings and the learned Court below has awarded the damages without referring to a chit of paper only on the basis of deposition of DW-4 in Para-17 of the evidence. On a close scrutiny of the evidence of this witness, I find that nowhere he has deposed that the extra work had been executed by the plaintiff. It has also not been stated by him that the work had been done on the assurance of the plaintiff. A brief reference to the deposition of this witness shall be necessary. DW-4 S.K. Banerjee has deposed that he was a mining engineer on 14.8.1991 and posted at Damoda Colliery. The plaintiff was given work in Damoda during his term. The nature of work was transportation of coal from Damoda colliery and loading of the same in the railway wagons. The related work is covered under the orders and agreement. The initial period of work had been with effect from 14.8.1991 to 31.3.1992 thereafter it was extended up to 31.8.1992. The extension of work was given on the same terms and conditions. The quantity of coal was to be transported according to his instructions as per the agreement. The performance of the plaintiff in the transportation was not at all satisfactory. At times they had to pay demurrage to the railways because of insufficient transportation of coal and non-availability of pay loaders dumpers from the side of the plaintiff. The claim of the plaintiff has been refuted. In Para-17, he has deposed that in work order that is Exhibit 1/b there is no mention about track cleaning or wagon levelling. This work is done by the BCCI and for that the records are maintained. Wagon levelling is must but track cleaning is required only off and on. It is not a fact that wagon levelling and track cleaning was done by the plaintiff. This work is done by the BCCI and for that the records are maintained. Wagon levelling is must but track cleaning is required only off and on. It is not a fact that wagon levelling and track cleaning was done by the plaintiff. If a contractor does this work, it will be an extra work and for that contractor is paid. 12. So, from the above evidence there is no mention that the plaintiff had done any extra work. No credible evidence in this regard has been adduced on behalf of the plaintiffs except the oral testimony of his own employees who are the witnesses in this case. 13. The extra-work of track cleaning and wagon levelling was beyond the terms of agreement and even on this, there is no evidence on the basis of which the damage has been awarded. The Judgment of the award of damage on this count is not sustainable. 14. With regard to forfeiture of security deposit there is no denial in the written statement that the security deposit had been forfeited. The matter for consideration is whether forfeiture of security deposit was justified? 15. The learned Court below in its finding on Issue No. V has recorded that the Appellants had failed to supply the coal as per the agreement. It is also settled that the plaintiff had been given work extension twice. DW-4 has deposed that the defendant company had to pay demurrage to the Railway on account of laches on part of the plaintiff but no documentary evidence has been proved to show the amount of demurrage paid. Forfeiture of security deposit is in the nature of penalty and the same can be done only on the basis of specific pleading and proof. In Airports Authority of India vs. R.K. Singhal, 2011 SCC Online Del. 4786 : AIR 2012 Del. 51 at Page 258 it has been held: “9. The Trial Court has therefore rightly held that since such loss has not been pleaded and proved, the appellant/plaintiff was bound to refund the earnest money/advance price which was received by the appellant in the auction conducted on 19.12.1998.” 16. Under the circumstance, the plaintiff is entitled to the refund of the security deposit of Rs. 4,05,000/- with interest at the rate of 9% from the date of Judgment and decree of the learned Court below. Under the circumstance, the plaintiff is entitled to the refund of the security deposit of Rs. 4,05,000/- with interest at the rate of 9% from the date of Judgment and decree of the learned Court below. The appeal is partly allowed with the observation as above.