Bombay High Court
State Of Maharashtra vs Sadiq And Company on 11 February, 1992
Equivalent citations: 1992(3)BOMCR335
JUDGMENT A.A. Desai, J.
1. This appeal by the State is directed against the judgement and decree dated 31-3-1981 passed by Civil Judge, Senior Division, Akola directing the State to pay Rs. 25,667/- to the respondent original plaintiff with interest at the rate of 6% per annum with effect from 1-5-1972.
2. The respondent firm on 22-12-1969, in pursuance of the tender, entered in a contract with the appellant State for construction of staff quarters of Punjabrao Krishi Vidyapeeth. The firm during the extended period by 31-7-1971 completed the work. The firm claimed of having carried certain extra items of work, which have not been covered by the scheduled items, during the said period. Payment in that regard was not made on 30-4-1972 when final bill was paid. Hence, on 17-7-1974 the firm served notice under section 80 of Civil Procedure Code on the appellant. However, it was of no consequences. According to the firm, cause of action for recovery of price of extra items of work accrued on 30-4-1972 and also on 17-7-1974. The firm on 14-4-1975 filed a suit for Rs. 34,736/-.
The appellant State denied the work as indicated as extra items. According to them, the work was covered by the scheduled items and payment therefore was made. Moreover, the suit claim is barred by limitation.
3. The trial Court did not frame any specific issue on the question of limitation. However, the learned Judge discussed the same while dealing with Issue No. (9) in para (68) of the impugned judgment. It is observed that the right to sue accrued on 30-4-1972 when Department refused to make payment for the extra items of work through the final bill. The suit claim being a price of extra items of work is governed by Article 113 and not by Article 18 of the Indian Limitation Act. Hence, it is within the limitation. The learned Judge placed reliance on decisions in Gannon Dunerley and Co. Ltd. v. The Union of India, and State of U.P. v. Chandra Gupta & Co., . On merit, the trial Court answered all the issues in favour of the firm and decreed the suit claim. The main challenge put forth by the State is that the time to make payment for the work done since not fixed, the suit claim is governed by Article 18 of the Limitation Act.
4. Shri Mehadia, the learned Counsel appearing for the firm, contended that the question of limitation did not arise since the State has not denied the cause of action as specifically pleaded. Admittedly, as pleaded, the cause of action arose on 30-4-1972. As such, suit filed on 14-4-1975 is within limitation. Moreover, no issue in this regard was specifically framed. As such, this aspect cannot be gone into for the first time in this appeal.
The submissions are legally untenable. It is obligatory for the Court to ascertain from the averments in the plaint as to when the cause of action arose for the suit claim, according to law. In this regard, the Court cannot solely be guided by admission or denial of the opponent. The Civil Court can assume jurisdiction only when the claim is within limitation from the date when the cause of action arises according to law. In this regard, the plaintiff has to stand on its own legs and cannot be permitted to take advantage of the admission or omission of the opponent.
5. Shri Mehadia while supporting the reasoning of the trial Court also placed reliance on the Authorities referred to by the trial Court.
The Supreme Court in Gannon Durkerley, referred to supra, has held that the suit claim for additional rate over the stipulated one, owing to change in circumstances is governed by Article 120(Old) of the Limitation Act. The Authority has no application either to the facts or question as involved.
Shri Mehadia referred to a decision in Gujrat Electricity Board v. S.A. Jais & Co. and others, . This Authority also relied on the decision of the Supreme Court cited supra.
6. The learned Counsel made a submission that Clause 8 of the tender agreement deals with payment. It lays down that the final bill is to be submitted within a month from the date specified for completion of the work and payment is to be made thereafter. This clause of contract fixes the time for payment. As such, Article 18 (new) has no application. The learned Counsel sought support from decisions in State of U.P. v. Chandra Gupta & Co., , State of Bihar v. Rama Bhushan Basu, A.I.R. 1964 Patna 326 and State of U.P. v. M/s. Thakur Kundan Singh, . These Authorities have considered the clause analogous to Clause 8 of the tender agreement and held that time is fixed for making the payment and hence, Article 18 has no application.
I find it difficult to accede to the submissions. Clause 8 of the tender no doubt deals with the payment. It only prescribes the time to submit the final bill by a Contractor. In case of failure, the Engineer-in-charge shall take the measurements and it would be binding and a final bill would be drawn accordingly. Emphasis is to make it obligatory for a Contractor to submit the claim within the prescribed time. No doubt, as provided the payment is to be made thereafter. However, it does not prescribe any time or period for making the payment. Fixing of any such time is neither explicit nor implicit. The suit claim being one for which time is not fixed for payment, cannot escape from the purview of Article 18. Similar is the view taken in a decision in (State of Punjab and another v. Sham Lal Gupta), 1971 PLR 166. As such, right to sue accrued on 31-7-1971 when the firm completed the extra items of work. Hence, the present suit filed on 14-4-1975 is beyond the periods in terms of Article 18 of the Limitation Act.
7. Shri Mehadia referred to a decision in State of Rajashthan v. Ram Kishan, (Full Bench). The Full Bench relying on the decision in Gannon Dunkerley, cited supra, has observed that-
"It is not possible to lay down any rule of universal application. Each case must depend on its own facts."
It is thus explicit that applicability of limitation mainly depends on the nature of claim, viz, non payment under the contract, compensation for breach of the contract or price of the work done at the request which is payable in view of section 70 of the Contract Act.
The firm in para (10) of the plaint averred that the defendant was made aware of he claim from time to time, but the payment was not made in the final bill, which was received by the plaintiff in protest. The plaintiff, therefore, sent a claim notice dated 29-5-1972. As the claim of the plaintiff, was rejected, it served a notice on 17-7-1974 under section 80 of the Code.
It does not appear to be a case of the plaintiff that claim for extra items of work was included in the final bill and rejected on 30-4-1972. As such, on that day there could not be any cause of action in favour of the plaintiff. The same could not thereafter accrue on 29-5-1972 then the claim was lodged or on 17-7-1974 when notice under section 80 of the Code was served.
It is not under dispute that alleged extra items of work were carried the period of contract and completed by 31-7-1971. No payment in this regard was released under the running bills. Moreover, by Exh. 45 dated 23-12-1970 and Exh. 46 dated 29-12-1970, the Department specifically rejected the claim in this behalf. The cause of action being on the date of completion of entire work including the alleged extra items, i.e. 31-7-1971, the suit filed on 14-4-1975 is barred by limitation and is liable to be dismissed.
In view, of this, I do not propose to probe into other grounds as raised in this appeal by the State.
8. In the result, the appeal is allowed. The impugned judgment and decree dated 31-3-1981 is hereby set aside and the suit is hereby dismissed. The respondent shall bear the costs of the appellant.