Orissa High Court
State Of Orissa And Ors. vs Debendranath Mohapatra on 12 October, 1999
Equivalent citations: 1999(II)OLR623
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. Defendants have filed the appeal against the decree of the trial Court directing payment of Rs. 26,223/- with proportionate cost and pendente lite and future interest at the rate of six per cent on sum of Rs. 15,941/-.
A Cross-objection has been filed by the plaintiff-respondent claiming further sum of Rs. 37,304.90 paise from the defendants.
2. The suit was filed for realisation of Rs. 66,011/-. There is no dispute that the plaintiff, a contractor, had been entrusted to do the work relating to "Water Supply and Sanitary Installation in the Utkal Bhavan, Calcutta" and a Contract in Form-F2 was executed on 21.9.1966. It is claimed that plaintiff completed the work under the supervision of the authorised Engineers. The then Executive Engineer after verification of the measurements endorsed his satisfactory remark in the Measurement Book on 16.11.1967 and on the following day, the plaintiff handed over the work to the S.D.O., who took charge of the work on behalf of the Department and handed over the work to the Manager, Utkal Bhavan, Calcutta, on 18.11.1967. During continuance of the work, some running bills had been prepared and interim payments had been made. Subsequently, Shri B. Mishra, who succeeded as Chief Engineer, with intention to harass the plaintiff directed the Executive Engineer to make fresh verification of the materials and to make check-measurements. Shri P.K.Rath, who had previously verified and made check-measurements submitted another report against the plaintiff without making any fresh verification stating that plaintiff had used non-specified materials and had cheated the Government. Such a false report was submitted at the instance of Shri B. Mishra, the then Chief Engineer, as previously a suit for damages had been filed by the plaintiff and two others against Shri B. Mishra. It is also claimed that Shri P.K.Rath had demanded illegal gratification and the same having not been acceded to by the plaintiff, had subsequently submitted a false report with a view to harass the plaintiff. It is further claimed that plaintiff submitted a final bill, but no payment was made, though correspondence was going on between the defendants and the plaintiff. Ultimately, the plaintiff issued notice Under Section 80, C.P.C. on 22.9.1976 which was received by the defendants on 23.9.1976. As the amount claimed was not paid, the suit was filed on 11.9.1978.
3. A joint written statement was filed on behalf of all the defendants. While denying the allegations in the plaint relating to mala fides on the part of the then Executive Engineer and Chief Engineer, the defendants took the plea that the work had not been executed in accordance with the specifications and the extra works had been executed without instruction of the competent authority. While denying the claim, it was stated that the suit was barred by limitation.
4. The trial Court framed several issues. However, no specific issue relating to question of limitation was framed and no specific finding was recorded on the plea of limitation raised by the defendants. The trial Court relying upon Ext. F/l, which had been subsequently prepared by the Executive Engineer of the Department, directed for payment of Rs. 26,223/-.
5. In the present appeal, the main contention raised relates to question of limitation. The plaintiff, however, while contending that the suit was not barred by limitation has claimed that the amount claimed by the plaintiff in the plaint should have been decreed in full by the trial Court.
6. Section 3 of the Limitation Act, 1963, enjoins a Court to dismiss a suit if the same is barred by limitation irrespective of the fact as to whether such a defence has been raised by the defendants or not. In the present case, defendants had specifically stated that the suit was barred by limitation. In view of the specific provision of Section 3 of the Limitation Act, it was incumbent upon the trial Court to consider the question of limitation and to record a finding one way or the other. The question of limitation is ordinarily a question of law though sometimes it may be a mixed question of law and fact. In the present case, it has been stated by counsels for both parties that the entire evidence relevant to the point is on record and the question can be decided on the basis of materials on record.
7. The learned counsel for the appellants contended that the suit is for the price of work done by the plaintiff and as such is governed by Article 18 of the Limitation Act, 1963. The learned counsel appearing for the plaintiff-respondent submitted that Article 18 may not be applicable and the suit is governed by Article 55. He further submitted that even assuming that Article 1 8 is applicable, in the present case the work can be said to have been completed only after the certificate of completion has been furnished by the Engineer-in-charge. He, therefore, submitted that in the present case, no such certificate of completion having been furnished by the Engineer-in-charge of the work, it cannot be said that the suit was barred by limitation.
8. Article 18 of the Limitation Act reads as follows :
"18. For the price of work done Three years When the work by the plaintiff for the is done"
defendant at his request where no time has been fixed for payment.
If Article 18 is to be applied, the suit should be for the price of work done at the request of the defendant and no time has been fixed for payment. In such a case, the period of limitation is three years from the date when the work is done. There is no doubt that in the present case, the work was done by the plaintiff for the defendants at the request of the defendants. Furthermore, no specific time has been fixed for payment. However, in the contract (Ext. 25), it has been indicated that on completion of the work, the contractor shall be furnished with a certificate by the Engineer of such completion. It is further indicated :
"..........no certificate shall be given nor shall the works be considered to be complete until the said works shall have been measured up by the Engineer or by his authorised representative......"
In Clause 8 of the contract, it has been indicated that interim payment shall ordinarily be made monthly, but final payment shall not be made until the whole of the works shall have been completed and a certificate of the completion thereof has been given. In my opinion, the inclusion of such terms in the contract does not take out the case from the ambit of Article 18 of the Limitation Act. Of course, as interpreted by the Full Bench decision of the Rajasthan High Court reported in AIR 1977 Rajasthan 165 (FB) (State of Rajasthan v. Ram Kishan), the work can be taken to be completed only after certificate is furnished after measurement of the work is done. The inclusion of the term relating to final payment only after completion of the work and measurement thereof cannot be construed to be a time fixed for making payment. Article 1 8 is thus applicable.
9. In the present case, it is the own case of the plaintiff that the final measurement had been done by the S.D.O. and the Executive Engineer on 16.11.1967 and the work was handed over to the S.D.O. on 17.11.1967. It is claimed that the Executive Engineer had made endorsement in the measurement book relating to final measurement which was also signed by the plaintiff himself. So far as the plaintiff is concerned, such endorsement in the measurement book after final measurement can be taken to be the certificate of completion. There is no dispute that the work was handed over to the Department on 17.11.1967 and thereafter handed over to the Manager, Utkal Bhavan, on 18.11.1967. If payment was not made in spite of such handing over of the work, the suit should have been filed within three years thereof. The Full Bench decision of the Rajasthan High Court does not lay down anything to the contrary.
10. Assuming that the suit.was not governed by Article 18,but was governed by Article 55, still then it must be taken to be barred by limitation. Article 55 reads as follows :
"55. For compensation Three years When the contract is broken for the breach of any or (where there are successive contract, express or breaches) when the breach in implied not herein respect of which the suit is specially provided for. instituted occurs or (where the breach is continuing) when it ceases."
If the above article would be applicable, the time shall commence from the date of the breach of the contract. In the present case it is the specific case of the plaintiff that after completion of the work' and handing over of the same, payments were not made in spite of the request of the plaintiff. The plaintiff has further admitted that subsequently, the Executive Engineer submitted a report indicating that the work has not been done in accordance with the specification and the plaintiff was liable to pay about Rs. 50,000/ - to the State Government. Once such a letter is received from the Executive Engineer, there cannot be any doubt that the contract was repudiated by the defendant when the letter as per Ext. C/l. dated 3rd April, 1968, was written to the plaintiff rejecting his claim. Admittedly, the plaintiff had submitted his final bill before such repudiation by the defendant. Therefore, the cause of action as envisaged in Article 55 of the Limitation Act arose on the date on which one of the defendants, that is to say, the Executive Engineer, repudiated the claim of the plaintiff and indicated that plaintiff was liable to pay certain amount. In such a case also, the suit having not been filed within three years thereof, was barred by limitation.
11. In this context it is interesting to note that a notice Under Section 80 of the Code of Civil Procedure had been issued on behalf of the plaintiff on 10th May, 1968, as apparent from Ext. K. In the said notice reference was also made to letter dated 3rd April, 1968 (Ext. C/l) whereunder the plaintiff was called upon by the Executive Engineer to deposit Rs. 52,210/-. In the said notice, apart from claiming a sum of Rs. 40,000/- towards final bill and other amounts towards earnest money deposit and security deposit, the plaintiff had also claimed damages. Though such a notice was issued on 10th May, 1968, the plaintiff did not file the suit for a decade. From Ext. K, it is apparent that plaintiff himself was aware that his final bill had not been accepted and, on the other hand, the Department had already called upon the plaintiff to make a deposit of Rs. 52,210/-. It is, of course, true that thereafter certain correspondence went on between the parties, but merely because there was subsequent exchange of correspondence between the parties, limitation which had already started to run was not arrested in view of the provisions contained in Section 9 of the Limitation Act. The plaintiff has relied upon certain correspondence to contend that he was subsequently called upon to attend certain discussions relating to the matter. However, there is no specific material on record indicating that the defendants had acknowledged their liability in writing so as to extend the period of limitation as contemplated in Section 18 of the Limitation Act, and since the period of limitation had already started running, the subsequent correspondence between the parties did not arrest the period of limitation. The suit was thus hopelessly barred by time and as such, the appeal itself is to be allowed and the suit is to be dismissed.
12. In view of such finding, it is not necessary to consider the merit of the Cross-Objection filed by the plaintiff, though prima facie, the contentions raised by the plaintiff in respect of m,any items cannot be said to be baseless.
13. For the aforesaid reasons, the appeal is allowed and the suit is dismissed. Since the suit is being dismissed on the ground of limitation, parties are directed to bar their own costs throughout. The dismissal of the suit would not stand in the way of,the Stale Government in making payment of the dues of the plaintiff. No costs.