JUDGMENT : (Goutam Bhaduri, J.) : Heard. 1. Instant appeal is against the judgement and decree dated 27/10/2021 passed by the First Additional District Judge, Korba, District Korba in Civil Suit No.25A/2015. The appellant/plaintiff filed a suit for declaratory relief that a direction be issued that Rs.29,42,035 and 86 paise has been illegally recovered and has been withheld in respect of the bill to be paid from 16/07/2015 to 28/07/2015. Admittedly, as per the pleading, the appellant/plaintiff, who is a registered company, was granted a transportation contract by the SECL by Ex.P-2 in April, 2012 for a period from 28/11/2011 to 27/11/2016 and the coal was transported and the plaintiff/appellant was paid an amount of Rs.2,62,15,181.78 paise in lieu of the transportation made from period of 1st October, 2013 to 31/03/2014. Subsequently, the respondent served a letter to the plaintiff stating that excess payment was made in lieu of the transport, therefore as per the contract an amount of Rs.29,42,035.86 paise was a recoverable sum. The plaintiff averred that while the transportation was made it was cross-checked and verified by the SECL officers and the weightment bridge fortifies the same, therefore there was no occasion to recover the said sum on the account that the excess payment was made. 2. Per contra, the defendant asserted that a letter dated 6/08/2015 was sent whereby the plaintiff was apprised of the fact that an amount of Rs.29,42,035.86 paise has been paid in excess and since he was carrying out another transport contract at Gevra the said amount was withheld. SECL further stated that when the complaint was received that excess amount was paid, a committee was constituted and the said committee after due verification found that excess payment has been made of 76152.79 tonnes of coal, therefore the recovery was sought for. They further stated that the plaintiff was given the opportunity to liquidate the said sum but having failed to do so, the amount was withheld subsequently which was due in another bill. 3. They further stated that the plaintiff was given the opportunity to liquidate the said sum but having failed to do so, the amount was withheld subsequently which was due in another bill. 3. On the basis of the pleading of the parties, the learned trial court framed as many as 7 issues and finding was arrived at that in respect of transportation in between 1st October, 2013 to 31/03/2014 an excess amount of Rs.29,42,035.86 was paid in excess to the coal actually transported and accordingly on the basis of such finding the other issues were also answered in favour of the defendant/respondent resulting into dismissal of the civil suit. Hence this appeal. 4. Learned counsel for the appellant would submit that transportation of the coal was done at the instance of the SECL officers which was duly verified by the weightment bridge and the respective notices and vouchers issued, therefore after completion of the period of 18 months, the recovery letter of Rs.29,42,035.86 was not justified. He would further submit that the respondent itself has checked the veracity of the transportation and having paid, the same cannot be subject of question. He would further submit that the evidence adduced by the plaintiff and the defendant would show that there was no dispute about such transportation but when it has been alleged that excess amount was paid it should have been proved by the respondent as it was their allegation. Consequently, the burden of proof was on the SECL to prove those facts. He placed his reliance in Civil Appeal No.7115/2010 in between Thomas Daniel Vs. State of Kerala & ors. He would submit that after a period of three months the recovery of the like nature cannot be done. 5. Per contra, learned counsel for the respondent would submit that the plaintiff/appellant failed to prove its case as the PW-1 who was holding a power of attorney holder on the date 12/09/2015 all transaction took place prior to that date and according to his admission he was not primarily involved in the transaction, therefore the evidence of PW-1 would be of no consequence. She would further submit that the plaintiff has failed to prove his case as the primary evidence was withheld by it and though one affidavit was filed of another witness but he was not presented to cross-examination. Consequently, that evidence also cannot be looked into. She would further submit that the plaintiff has failed to prove his case as the primary evidence was withheld by it and though one affidavit was filed of another witness but he was not presented to cross-examination. Consequently, that evidence also cannot be looked into. It is further submitted that the agreement itself gives the right to set off the excess amount if already paid and accordingly the SECL, after due verification of the facts came to a conclusion that excess amount is paid and exercised its right which was guaranteed under the agreement which was subsisting for 5 years from 2011 and such exercise was done within the agreed period and set off was exercised, therefore no claim could have been entertained. She placed her reliance in (2005) 2 SCC 217 in between Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & ors. and (2019) 9 SCC 358 in between Mohinder Kaur Vs. Sant Paul Singh to submit that the power of attorney holder when he is not in personal knowledge of the facts could not adduce evidence, therefore the judgement and decree of the learned court below is well merited, which do not call for any interference. 6. We have heard learned counsel for the parties and perused the documents and evidence on record. 7. Primary averments of the plaintiff is that he was awarded a contract of transportation of coal in the year 2011. The agreement is filed as Ex.P-2. Perusal of the said agreement clause 29 gives a power to the company that they will have the right and liberty to adjust the same, if some amount is due from the other contract and further clause 33 purports that even after the transportation is done, the company would be at liberty to verify the facts about veracity of such transport. 8. For the sake of brevity, clause 29 and clause 33 of the transport agreement is reproduced hereunder:- “29. If any sum is found due and payable to the company from the Ex-Servicemen Transport Company in connection with the contract, the company shall have the right and the liberty to adjust the same under other contracts, if any. 33. The Ex-Servicemen Transport Company shall be paid on the basis of weight as recorded at the weighbridge at the colliery. If any sum is found due and payable to the company from the Ex-Servicemen Transport Company in connection with the contract, the company shall have the right and the liberty to adjust the same under other contracts, if any. 33. The Ex-Servicemen Transport Company shall be paid on the basis of weight as recorded at the weighbridge at the colliery. In case the weighbridge goes out of order, the payment will be made on volumetric measurement taken at the respective colliery and with the conversion factor as per the grade of coal to a tone provided however, the company shall have right to verify the quantity of coal transported in any manner it finds suitable or necessary and on the basis of this verification if it turns out that the quantity so arrived at on the basis of the weighment widely differs, the company reserves the right to determine the quantity loaded/transported according to any method it considered suitable and shall make payment to the Ex-Servicemen Transport Company accordingly." 9. The plaintiff claimed that an amount of Rs.2,62,15,181.78 was paid in lieu of the transportation made and subsequent issuance of letter Ex.P-5 dated 6/08/2015 whereby allegation was clamped that they have been paid excess amount of Rs.29,42,035.86 is unsustainable. The clause of the agreement postulates that the recovery could be made if it is found subsequently that the amount is due, meaning thereby the actual amount of transportation has been paid in excess. The plaintiff, while attacking the said averments, relied on the documents of transport vouchers and lorry receipts to say that the amount of payment was actually made was correct. Statement of one PW-1 Brahma Dev Prasad was adduced. Another affidavit of one Rakesh Singh was though produced but he was not exposed to cross-examination, therefore the Court was left with only statement of Brahma Dev Prasad (PW-1). We have perused the statement of Brahma Dev Prasad (PW-1). As per cross-examination para 16 he was deposing on the basis of a power of attorney dated 12/09/2015 by the company. Another affidavit of one Rakesh Singh was though produced but he was not exposed to cross-examination, therefore the Court was left with only statement of Brahma Dev Prasad (PW-1). We have perused the statement of Brahma Dev Prasad (PW-1). As per cross-examination para 16 he was deposing on the basis of a power of attorney dated 12/09/2015 by the company. Further in para 17 categorical admission exist that prior to 12/09/2015 in respect of the transaction which took place in Amera area of the Narendra Transport i.e. the plaintiff who was looking after the job, he was not aware meaning thereby he was not in hold of the facts while the contract of transportation was being carried out in between period 1/10/2013 to 31/03/2014. As against this, the defendant has filed a document of committee report Ex.D-4 wherein after detailed enquiry it was found that the plaintiff was paid excess amount of Rs.29,42,035.86 of total billed trips of 38652 whereas the actual trips as per form E-1 were 32279. On the basis of that, the recovery proceeding was initiated and the process to set off was initiated as the plaintiff was carrying out another transportation contract. 10. If the entire issue was revolving around the work done in between 1/10/2013 to 31/03/2014 then what were the state of affairs during such time should have been produced and proved by the person by the primary evidence of the person who has personal knowledge of those facts of transportation. The Supreme Court in the case of Janki Vashdeo Bhojwani (supra) contemplates that Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to “act” on behalf of the principal and the “acts” employed in Order 3 Rules 1 and 2 CPC confines only to in respect of “acts” done by the power-of-attorney holder in exercise of power granted by the instrument. In para 13 the observation reads as under:- “13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3 Rules 1 and 2 CPC confines only to in respect of "acts" done by the power-of-attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In our view the word "acts" employed in Order 3 Rules 1 and 2 CPC confines only to in respect of "acts" done by the power-of-attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.” 11. Likewise in the matter of Mohinder Kaur (supra) the similar proposition was reiterated wherein it was held that a power-of-attorney holder, who has acted in pursuance of the power of attorney on behalf of the principal can depose in respect of such act which has been done by him but cannot depose for the principal for the acts done by the principal or not by the power of attorney holder. At para 7 the court held as under:- “7. In Janki Vashdeo (2005) 2 SCC 217 , it was held that a power of attorney holder, who has acted in pursuance of the said power, may depose on behalf of the principal in respect of such acts but cannot depose for the principal for the acts done by the principal and not by the power of attorney holder. Likewise, the power of attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined. In our opinion, the failure of the respondent to appear in the witness box can well be considered to raise an adverse presumption against him as further observed therein as follows : (SCC p. 223, para 15) “15. Apart from what has been stated, this Court in Vidhyadhar v. Manikrao observed at SCC pp. 58384, para 17 that: “17. In our opinion, the failure of the respondent to appear in the witness box can well be considered to raise an adverse presumption against him as further observed therein as follows : (SCC p. 223, para 15) “15. Apart from what has been stated, this Court in Vidhyadhar v. Manikrao observed at SCC pp. 58384, para 17 that: “17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct….” 12. Applying the aforesaid proposition in the instant case, since there is a clear admission of the fact that power of attorney holder was not operating on behalf of the principal while the entire agreement and transaction took place between a particular period which ended on 31/03/2014 and subsequent to that, the power of attorney was executed on 12/09/2015. Therefore the statement of PW-1 would be of no help to the plaintiff and instead the evidence which has been led by the defendant of the committee report Ex.D-4 to show that the excess amount was paid and was arrived after due enquiry and calculation would be more relevant and acceptable. Accordingly, we are of the view that no interference is called for by this Court in the judgement and decree dated 27/10/2021 passed by the First Additional District Judge, Korba, District Korba in Civil Suit No.25A/2015. 13. Accordingly, the appeal is dismissed.