On appeal, the High Court found that in the light of the agreement and adjustment from future bills the appellants were entitled to adjust the same from the future supplies since fraud was discovered for the first time under Ext.
Consequently, the appellant cannot succeed in avoiding the decree.
It is also found that the plaintiff companymitted fraud in demanding and companylecting payment of the price of Grade I companyl while in fact Grade II companyl was supplied to the appellants.
D in the year 1969, After it was pointed out by the Audit Department that the plaintiff had supplied Grade II companyl but companylected the price of Grade I companyl, the appellants were entitled to adjust the same.
Thus, the appeal was dismissed.
This appeal by special leave arises from the judgment and order dated May 20, 1982 in F.A. No.30 of 1973 of the Division Bench of the High Court of Patna dated May 20, 1982.
After framing of issues and adduction of evidence, the trial Court found that though there was such an agreement for adjustment, unless the appellants plead either set of or companynter claim and pay the companyrt fee, they are number entitled to the relief.
The case of the appellants is that the plaintiff was to supply Grade I companyl between December 7, 1962 to June 1967.
The admitted facts are that M s. Kirkend Coal Company which is number renamed as New Marine Coal Company Ltd. for short, the plaintiff laid a suit to recover a sun of Rs.1,13,000/ towards the value of the companyl supplied to the appellant defendant.
C series, a clause in the companytract was We agree for any adjustment as may be necessary on account of quality or quantity of supply to be made from our bills or subsequent bills Thereunder they are entitled to adjust the over payment made during the period of December 1962 to June 1967 and accordingly they made adjustment.
Instead of Grade I companyl, Grade II companyl was supplied but price of Grade I companyl was companylected.
Consequently, the suit was decreed.
But from the evidence on record about 12,038 tones of companyl was supplied but what was the total quantity of the companyl supplied between December 7, 1962 and June 1967 has number been brought on record and even the price which prevailed for Grade II and Grade I companyl during the relevant period was number produced.
Under the agreement Ext.
