ORDER : Shree Chandrashekhar, J. This Commercial Appeal has been filed by M/s Deoraj Singh, Transport Contractor to challenge the judgment dated 29th November 2019 passed in Money Suit No. 08 of 2016 (renumbered as Original Suit No. 25 of 2017). 2. Money Suit No. 08 of 2016 was filed by M/s Deoraj Singh, claiming itself a transport contractor, for the reliefs as formulated in paragraph no. 37 of the plaint which are extracted, as under: “(a) That after adjudication a decree for Rs. 12,27,07,806.78 be passed in favour of the plaintiff and against the defendants. (b) That a decree for pendente lite and future loss that may be sustained by the plaintiff during the of the suit be also granted in favour of the plaintiff. (c) That cost of the suit be awarded to the plaintiff. (d) that any relief or reliefs to which the plaintiff be found entitled be also granted to the plaintiff.” 3. In the Money Suit, the plaintiff which is the appellant before us (hereinafter referred to as the ‘plaintiff-company’) claimed a decree for Rs. 12,27,07,806.78/- with a decree pendent lite and future loss. Vide letter of intent dated 5th February 2013, the plaintiff-company was awarded the works of “hiring of shovels, tippers, drills, dozers water sprinklers, etc. for removal of strata including topsoil, various rocks, blasted rocks and blast hole drilling into all kinds of strata, excavation, loading, transportation, dumping, spreading and dozing of specified places”. The other connected works included grading and water spraying on the haul road and maintenance of the haul road; dewatering at the working site at Pandra OCP quarry and hiring of HEMM such as excavators, tippers, drills, dozers and water sprinklers to be deployed at outsourcing patch for the purpose of excavation, drilling, loading, transportation of coal, dozing of specified places, grading and water spraying on the haul road and maintenance of haul road as per the instruction of Project Authority at Pindra OC outsourcing patch. 4. The plaintiff-company pleaded that it mobilized the necessary men and machinery for the execution of the subject works which were to be completed within two years; from 18th February 2013 to 17th February 2015. This is an admitted position that there was no hindrance at the work site and the plaintiff-company which had already executed works at Phase-I of Pindra project was able to execute a part of the subject works. This is an admitted position that there was no hindrance at the work site and the plaintiff-company which had already executed works at Phase-I of Pindra project was able to execute a part of the subject works. Sometime in April 2013, the villagers, particularly, Wali Mohammad and Md. Islam started creating serious obstructions which made it impossible to execute any work at the work site. The plaintiff-company further pleaded that the villagers had an oblique motive and the CCL also made complaints to the administration in this regard. Later on, the civil proceedings and the proceedings under section 107 of the Code of Criminal Procedure vide M.P. Case No. 155 of 2013 and M.P. Case No. 70 of 2014 were initiated by the Sub Divisional Magistrate at Ramgarh on the complaints of the CCL to restrain the villagers from indulging into violence and vandalism at the work site. Simultaneously, a proceeding vide M.P. Case No. 46 of 2013 was also initiated under section 107 of the Code of Criminal Procedure at the instance of the Project Officer at Pindra for restraining the villagers from creating disturbances and obstructions at the work site. Furthermore, the CCL instituted Money Suit No. 21 of 2013 against Md. Ali and Liyakat Mia and Money Suit No. 22 of 2013 against Wali Mohammad, Mohd. Islam and Md. Jabil in the Court at Ramgarh seeking compensation for the losses caused due to their illegal acts. It was further pleaded that the plaintiff-company continued to write letters to the CCL to resolve the issue with the villagers and some efforts were also taken by the management in this regard but only a small portion of the subject works under NIT dated 14th November 2012 could be completed and, consequently, the plaintiff-company suffered huge losses. To establish that it has suffered a loss of Rs. 12,27,07,806.78/- during the contract period, the plaintiff-company produced a calculation chart vide Exhibit-32 prepared by a chartered accountant. 5. The CCL and its officers filed a common written statement taking a specific plea that the contract had frustrated as the subject works under the NIT dated 14th November 2012 became impossible to perform on account of the subsequent unforeseen events. 12,27,07,806.78/- during the contract period, the plaintiff-company produced a calculation chart vide Exhibit-32 prepared by a chartered accountant. 5. The CCL and its officers filed a common written statement taking a specific plea that the contract had frustrated as the subject works under the NIT dated 14th November 2012 became impossible to perform on account of the subsequent unforeseen events. In the written statement, the CCL put forth a plea that the plaintiff-company had clear and complete knowledge about the work site as it had already executed outsourcing work at Pindra Phase-I. It further pleaded that it took all possible steps to prevent obstructions at the work site and filed cases in the Court of the Sub Divisional Magistrate and Sub Judge at Ramgarh. Besides the aforementioned steps taken to mitigate the adverse condition, the CCL offered an additional patch in the vicinity of Phase-II of Pindra project without any fresh tender and on the same terms and conditions as published vide NIT dated 14th November 2012. The report of the chartered accountant was seriously controverted on the ground that the said accounting was prepared on the basis of facts and figures provided by the plaintiff-company and, in fact, there was a specific stipulation in the NIT disentitling the contractor to raise any claim on account of idle men and machinery. The claim of compensation raised by the plaintiff-company was opposed also on the ground that there is no provision in the NIT for compensating the contractor in the event of not achieving the target due to some unforeseen reasons. 6. Both parties laid a host of documentary evidences in support of their respective stands. The plaintiff-company laid oral evidence through seven witnesses who came in the dock to depose that there was a land dispute continuing for several years and within 8-10 days of the start of the work by the plaintiff-company the villagers had started agitation; meetings were organized between the villagers and the representatives of the CCL and; some of the villagers including Wali Mohammad were cultivating lands falling within the work site. As P.W. 6, the proprietor of the plaintiff-company tendered evidence to the effect that proceedings under section 107 of the Code of Criminal Procedure and Money Suit Nos. 21/13 and 22/13 were filed by the CCL. He supported the claims of the plaintiff-company and referred to several communications in his deposition. 7. As P.W. 6, the proprietor of the plaintiff-company tendered evidence to the effect that proceedings under section 107 of the Code of Criminal Procedure and Money Suit Nos. 21/13 and 22/13 were filed by the CCL. He supported the claims of the plaintiff-company and referred to several communications in his deposition. 7. The CCL examined its Project Officers of Pindra project as D.W. 1, D.W. 2 and D.W. 3 and the Senior Managers (Mining) as D.W. 4, D.W. 5 and D.W. 6. The Deputy Manager (Finance) at Pindra project and the Senior Surveyor (Mining) were produced by the CCL as D.W. 7 and D.W. 8 who tendered evidence to the effect that the plaintiff-company did not suffer any loss and, if at all any loss was incurred by it, an additional patch of work was allotted to it. 8. On the basis of materials laid in Money Suit No. 8 of 2016, the following issues were framed by the Commercial Court at Dhanbad: (i) Whether this suit is maintainable in its present form? (ii) Whether this suit is barred by any provisions of law? (iii) whether defendant company refused to perform or disable from performing its promise in its entirety as contained in Tender document (NIT) and other document of contract? (iv) Whether plaintiff sustained loss due to non-availability of land by the defendant company, if so, What would be the quantum of loss? (v) Whether the plaintiff is entitled to compensation from the defendant company for loss sustained in consequence of the non-performance of contractual obligation? (vi) Whether the original site of work at Pindra Phase-II was the vested land of the CCL and was in possession of CCL from prior to the commencement of work on 18.02.2013 and whether the Plaintiff had knowledge of the same? (vii) Whether the plaintiff had found any land dispute regarding the work site of contract during his site visit as per requirement of point-22 of NIT dated 14-11-2012 (viii) Whether the plaintiff was allotted an additional patch due to hindrance caused by villagers and plaintiff commenced work on additional patch with effect from 13-06-2014 to achieve the target? (ix) Whether the plaintiff is entitled for any other relief? 9. The issue nos. (ix) Whether the plaintiff is entitled for any other relief? 9. The issue nos. 3, 4 & 5 were taken up together by the Presiding Officer of the Commercial Court for determination and a finding has been rendered that the plaintiff-company is not entitled to compensation from the CCL. For arriving at such a conclusion, the Commercial Court extensively referred to the documentary as well as oral evidence produced by the parties. The Commercial Court also went into the provision of section 56 of the Indian Contract Act 1872 and various clauses of the General Terms and Conditions as well as Special Terms and Conditions, to hold that the plaintiff-company could not prove that it suffered losses on account of any failure on the part of the CCL to perform its obligations under the NIT. 10. The Commercial Court has held in paragraph no. 71 of the judgment under challenge that the plaintiff-company did not sustain loss and it cannot claim compensation. The relevant portions in the judgment dated 29th November 2019 are extracted, as under: “On the basis of above discussions it can safely be held that the defendant company has not refused to perform or disable itself from performing its promise in its entirety as contained in NIT and other documents of contract. Issue no. 3 is accordingly decided. I have already discussed that the plaintiff/contractor was given additional patch at Pindra Project vide reference no. GM(K)/SO(M)/2014/60 on 28-04-14 to compensate him when there was disturbance due to objection of the villagers on the question of title of the site of Pindra OCP Phase II was disturbed. As per admission of the plaintiff/contractor, he has worked on additional patch and got his payment for the same. No case has been filed regarding any dues of payment by the plaintiff/contractor. Rather, this case is filed for the alleged heavy loss in the tune of Rs. 12,27,07,800.78/- till 17-02-15 by the plaintiff and the amount was mentioned as per the certificate Exhibit 32 given by the Chartered Accountant P.W. 7 as discussed above. I have already held that the defendant company have filed two money suits i.e. Money Suit no. 21/2013 and Money Suit no. 22/2013 which are pending before the Ld. Court of Civil Judge (Sr. Division)-I at Ramgarh. I have already held that the defendant company have filed two money suits i.e. Money Suit no. 21/2013 and Money Suit no. 22/2013 which are pending before the Ld. Court of Civil Judge (Sr. Division)-I at Ramgarh. The plaintiff has claimed for 50% of the estimated income of the defendant company along with the interest pendente lite and future loss, as compensation by filing this suit. Since, the additional patch was granted by the defendant company to work of Pindra OCP Phase II. Since, the offer of the defendant company to work on additional patch on the basis of previous agreement with its terms and conditions was accepted by the plaintiff. So, it can’t be said that he has sustained any loss due to non-availability of the land. I have already discussed in previous paras of this Judgment that the plaintiff has not compiled the provisions of Order VI rule 2 (A) CPC as amended by Commercial Court Act, 2015. So, only on the basis of one certificate (Exhibit 32) by Chartered Accountant P.W. 7, it can’t be said that the plaintiff sustained loss and it also can’t be held that he is entitled for compensation from the defendant company due to non-performance of contractual obligations. Issue no. 4 & 5 are accordingly decided.” 11. Mr. Ajit Kumar, the learned senior counsel for the appellant challenges the findings in Money Suit No. 8 of 2016 on the ground that the grant of compensation shall be a natural consequence in cases of frustration of the contract wherever it is established that the contractor was ready and willing to perform the contract and had, in fact, remained at the work site throughout the contract period. On this issue, the CCL seems to have taken a stand that the plaintiff-company was suitably compensated by offering additional work adjacent to Phase II at Pindra project. However, Mr. Ajit Kumar, learned counsel for the appellant would strenuously endeavor to persuade this Court by referring to clause-C in the NIT on page 17 of the ‘convenience compilation’ under which the plaintiff-company was required to make arrangements for men and machinery for executing the subject works. However, Mr. Ajit Kumar, learned counsel for the appellant would strenuously endeavor to persuade this Court by referring to clause-C in the NIT on page 17 of the ‘convenience compilation’ under which the plaintiff-company was required to make arrangements for men and machinery for executing the subject works. The learned senior counsel has also referred to the communication dated 24th April 2014 by which additional work at Pindra OCP “for extraction of 4.48 lacs tonnes of coal and 11.47 lacs of O.B.” was awarded to the plaintiff-company and the letter dated 28th April 2014 (at page 242 of the paper book) which contained a stipulation that before starting the work the plaintiff-company shall furnish to the CCL the list of equipments proposed to be deployed for the work with the related papers of registration, fitness certificate, permits, licenses, insurance cover, etc. for inspection. 12. In the background of the aforementioned stipulations in the two contracts, the submission made at the Bar is that the award of additional work was not a substitute for the loss of profit incurred by the plaintiff-company on account of non-execution of the remaining works under the NIT dated 14th November 2012. 13. The powers of the Commercial Appellate Division of the High Court under the Commercial Courts Act, 2015 are no doubt extensive in so far as an appeal arising from the judgment of a Court exercising original civil jurisdiction is concerned. The limitations provided under sub-section (1-A) of section 13 by the proviso to section 13 are confined to the matters arising from the arbitration or the order passed under Order XLIII of the Code of Civil Procedure and, in the exercise of the powers under sub-section (1-A) to section 13, the High Court can reappreciate the evidence, record its independent findings, and affirm or interfere with the judgment under challenge. However, there is an implicit limitation on the exercise of the powers by the High Court under section 13(1-A) that every error in law or of fact cannot be gone into and the High Court should not proceed in a manner as if it is on a mistake-finding mission in the judgment under challenge. After all, the appellate Court shall also be guided by the same rule of preponderance of probability while assessing the evidences laid by the parties. 14. After all, the appellate Court shall also be guided by the same rule of preponderance of probability while assessing the evidences laid by the parties. 14. At the initial stage itself, the plaintiff-company was lagging behind the schedule and the CCL had been issuing reminders to it to improve its performance. In the later phase also, the CCL sent reminders to it but the plaintiff-company continued to express its willingness to continue with the project. In this context, we would extract a few letters written by the CCL to the plaintiff-company. 15. Letter dated 16th/20th January 2015 of General Manager (CMC) is extracted below: Central Coalfields Limited Darbhanga House: Ranchi No. GM(CMC)/Kuju/2013/477 Dt. 16 .01.2013 20 To, M/s Deoraj Singh, Naya More, Kuju Sub: For improving performance Dear Sir, You have been awarded a contract for OB removal at Pindra Project of Kuju Area. The daily target as per contract is 4265 CuM. In April 2013 till 14th, you have achieved only 36315 CuM, at an average of 2594 CuM leaving a shortfall of 1671 CuM per day. You are hereby advised to mobilize your equipment not only to achieve the daily target onwards but also to make up the backlog. Yours faithfully, General Manager (CMC) Copy to: 1. Director (T) Opr., CCL, Ranchi 2. TS to CMD, CCL, Ranchi 16. Letter dated 8th January 2015 of Project Officer, Pindra Colliery is extracted below: Central Coalfields Limited Office of the Project Officer Pindra Colliery, Kuju Area Ref. No: …………./2015/1773 To M/S Deoraj Singh Transport Contractor Naya More, PO Kuju 825316 Dist-Ramgarh Dt: 08.01.15 Sub- Regarding no production from 31.12.2014 to 07.01.2015 from Outsourcing patch of Pindra OCP Dear Sir, Since more than a week, there has been no production from Outsourcing patch due to breakdown of shovel. The date wise production from Pindra OCP is given below for your ready reference. Date OB (M³) Coal (T) 28/12/14 1449 315.460 29/12/14 18 434.820 30/12/14 Nil 35.720 31/12/14 Nil Nil 01/01/15 Nil Nil 02/01/15 Nil Nil 03/01/15 Nil Nil 04/01/15 Nil Nil 05/01/15 Nil Nil 06/01/15 Nil 07/01/15 Nil Nil You have been advised verbally on several occasions to ensure production from the outsourcing patch as per agreement. You are once again advised to look into the matter and expedite deployment of loading machines as per agreement so that target as per agreement can be achieved without fail. You are once again advised to look into the matter and expedite deployment of loading machines as per agreement so that target as per agreement can be achieved without fail. Yours faithfully Project Officer Pindra Colliery Copy to:- GM Kuju, Area: for kind information GM (Oprn.), Kuju Area Manager, Pindra OCP Mine Incharge, Pindra OCP 17. The various documents laid in evidence by the plaintiff-company were only indicative of disturbances at the work site and nothing more. The proprietor of the plaintiff-company deposed about the loss caused to the plaintiff-company but, in support thereof, there was no evidence except Exhibit-32. Its witnesses also did not speak about any loss caused to the plaintiff-company. 18. The calculation chart vide Exhibit-32 is reproduced below: Calculation of estimated loss for the period from 18.02.2013 to 17.02.2015 Name of Contractor- M/s Deoraj Singh, Naya More, Kuju, Ramgarh Name of Work- Removal of Over Burden and Extraction including Loading and Transportation of coal at Pindra OCP Outsourcing Patch (A) OBR :- Month Target Qty. (Te.) Actual Qty. (Te.) Un-Executed Qty. (Te.) 18.02.13 To 05.05.13 233900 154200.64 79699.36 06.05.13 To 10.06.13 155000 70535.28 84464.72 11.06.13 To 10.07.13 125500 50884.48 74615.52 11.07.13 To 06.08.13 103500 37168.06 66331.94 07.08.13 To 11.09.13 135000 19446.30 115553.70 12.09.13 To 10.10.13 108000 21048.08 86951.92 11.10.13 To 15.07.14 1079200 39431.25 1039768.80 16.07.14 To 23.08.14 121600 50625.75 70974.25 24.08.14 To 30.09.14 121600 53964.00 67636.00 01.10.14 To 18.10.14 61500 21177.50 40322.50 19.10.14 To 14.12.14 196300 59627.83 136672.17 15.12.14 To 17.02.15 228900 50328.00 178572.00 Total 2670000 628437.17 2041562.83 Average OB removal charges per CuM = Rs. 71.20 Total Gross Loss- 2041562.83 x Rs. 71.20 = Rs. 14,53,59,273.49 (B) COAL Month Target Qty. (Te.) Actual Qty. (Te.) Un-Executed Qty. (Te.) April’ 13 12000 2488.00 9512.00 May’ 13 32000 3771.00 28229.00 June’ 13 31000 5540.78 25459.22 July’ 13 31000 5488.14 25511.86 Aug.’ 13 31000 1177.53 29822.47 Sept.’ 13 31000 4334.78 26665.22 Oct.’13 To July’ 14 457000 0.00 457000.00 Aug.’ 14 25000 2710.00 22290.00 Sept.’ 14 25000 142.32 24857.68 Oct.’ 14 30000 1310.43 28689.57 Nov.’ 14 35000 2699.42 32300.58 Dec.’ 14 35000 4599.02 30400.98 Jan.’ 15 35000 2183.98 32816.02 Feb.'15(17.02.15) 13000 2905.32 10094.68 Total 823000 39350.72 783649.28 Average extraction and transporting charges per Te. = Rs. 127.68 Total Gross Loss- 783649.28 x Rs. 127.68 = Rs. 10,00,56,340.07 Estimated loss of OB Rs. 14,53,59,273.49 Estimated loss of COAL Rs. 10,00,56,340.07 Total loss (A+B) Rs. = Rs. 127.68 Total Gross Loss- 783649.28 x Rs. 127.68 = Rs. 10,00,56,340.07 Estimated loss of OB Rs. 14,53,59,273.49 Estimated loss of COAL Rs. 10,00,56,340.07 Total loss (A+B) Rs. 24,54,15,613.56 Less estimated running & maintenance cost @ 50% of total estimated revenue of Rs. 24,54,15,613.56 Rs 12,27,07,806.78 Net Loss Rs. 12,27.07.806.78 19. The chart prepared by the chartered accountant according to which the unexecuted work of removal of overburden and extraction was to the tune of 2041562.83 tonnes on account of which the plaintiff-company suffered the gross loss of Rs. 14,53,59,273.49 cannot be taken as the material evidence to establish that the plaintiff-company actually suffered losses on account of unexecuted work. The learned senior counsel for the appellant contended that the volume of unexecuted work has been taken from the chart of the CCL and the remaining work could not be executed for no fault of the plaintiff-company and, therefore, it was entitled for compensation. This is fundamental in law that in the matters of contract the parties are governed by the written words of the contract. There is no dispute that by virtue of the stipulation under clause 8 of the Special Terms and Conditions of the contract the plaintiff-company could not have claimed any compensation for the idling of men and machinery even on account of lack of space for unloading or dislocation of route or for “any other reason”. Clause 8 of the Special Terms and Conditions of contract are extracted as under: “Clause 8 of the Special Terms and Conditions: The contractor shall not have any claim whatsoever for the idleness of his tipping trucks/trucks/pay-loaders/equipments/employees for want of coal or non-availability of departmental equipments or lack of space available at the unloading site or in dislocation en-route and/or for any other reason.” 20. On the contrary, the plaintiff-company which showed its willingness at all times to execute the subject works must be held to have taken a calculated risk which is a normal incident of business and accepted additional work in lieu of loss suffered by it. The Commercial Court recorded a finding on page 52 of the judgment under challenge that the plaintiff-company completed the additional work and was paid for the same. The stipulation in the letter dated 14th October 2013 does not establish that the plaintiff-company mobilized “additional resources” for the execution of the additional work. The Commercial Court recorded a finding on page 52 of the judgment under challenge that the plaintiff-company completed the additional work and was paid for the same. The stipulation in the letter dated 14th October 2013 does not establish that the plaintiff-company mobilized “additional resources” for the execution of the additional work. In fact, P.W.6 deposed in the Court that the plaintiff-company had started moving out its men and machinery from Pindra Phase-II. 21. The law on grant of compensation is well settled that the claimant must bring evidence as to anticipated profit on account of non-execution of work. Merely because some part or even where a major portion of the awarded work remained unexecuted that shall not automatically make the claimant entitled to compensation. Like any other fact, the plaintiff-company was required to prove that it would have suffered losses to the tune of Rs. 12,27,07,806.78/- for which the CCL was liable to compensate it. 22. In “Batliboi Environmental Engineers Limited v. Hindustan Petroleum Corporation Limited & Anr.” (Civil Appeal No. 1968 of 2012) the Hon’ble Supreme Court has held at paragraph no. 23 as under: “23. Ordinarily, when the completion of a contract is delayed and the contractor claims that s/he has suffered a loss arising from depletion of her/his income from the job and hence turnover of her/his business, and also for the overheads in the form of workforce expenses which could have been deployed in other contracts, the claims to bear any persuasion before the arbitrator or a court of law, the builder/contractor has to prove that there was other work available that he would have secured if not for the delay, by producing invitations to tender which was declined due to insufficient capacity to undertake other work. The same may also be proven from the books of accounts to demonstrate a drop in turnover and establish that this result is from the particular delay rather than from extraneous causes. If loss of turnover resulting from delay is not established, it is merely a delay in receipt of money, and as such, the builder/contractor is only entitled to interest on the capital employed and not the profit, which should be paid. If loss of turnover resulting from delay is not established, it is merely a delay in receipt of money, and as such, the builder/contractor is only entitled to interest on the capital employed and not the profit, which should be paid. The High Court of Justice Queen's Bench Division in the case of Property and Land Contractors Ltd v. Alfred McAlpine Homes North Ltd. succinctly points the in-exactitude of Hudson's formulae, by observing: “Furthermore the Emden formula, in common with the Hudson formula (see Hudson on Building Contracts, (11th edn, 1995) paras 8-182 et seq) and with its American counterpart the Eichleay formula, is dependent on various assumptions which are not always present and which, if not present, will not justify the use of a formula. For example the Hudson formula makes it clear that an element of constraint is required (see Hudson para 8.185) ie in relation to profit, that there was profit capable of being earned elsewhere and there was no change in the market thereafter affecting profitability of the work. It must also be established that the contractor was unable to deploy resources elsewhere and had no possibility of recovering cost of the overheads from other sources, eg from an increased volume of the work. Thus such formulae are likely only to be of value if the event causing delay is (or has the characteristics of) a breach of contract.” 23. In view of the aforesaid discussions, Commercial Appeal No. 2 of 2020 is dismissed.