Karnataka High Court
Krishna Bhagya Jala Ningam Limited vs T Prabhakar Reddy on 27 October, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.2337/2008 (REC. OF MONEY)
C/W
RSA NO.7224/2009 (DEC/INJ)
RSA NO.2337/2008:
Between:
Krishna Bhagya Jala Nigam Limited
Rep. by its Executing Engineer, KBJNL
(Earlier functioning as ID, UKP, Indi Cananl
Division No.3, Honnalli Camp)
Now renamed as:
The Executive Engineer, KBJNL
IBC Division No.3, Golageri, Tq. Sindagi
District Bijapur
...Appellant
(By Sri Krupa Sagar Patil, Advocate)
And:
T. Prabhakar Reddy
S/o Krishna Reddy
Contractor, Honnalli Camp
Honnalli, Tq. Sindagi, Dist. Bijapur
...Respondent
(V/o dt. 13.03.2018, notice to respondent is
Held sufficient)
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This Regular Second Appeal is filed under Section
100 of CPC praying to set aside the judgment and decree
dated 11.03.2008 passed by the III Additional District
Judge, Bijapur in RA No.468/2004 and judgment and
decree dated 31.08.2004 in O.S.No69/1996 passed by the
Court of the II Additional Civil Judge, Sr. Division, Bijapur.
RSA NO.7224/2009:
Between:
Krishna Bhagya Jala Nigam Limited
Rep. by its Executing Engineer, KBJNL
(Earlier functioning as ID, UKP, Indi Cananl
Division No.3, Honnalli Camp)
Now renamed as:
The Executive Engineer, KBJNL
IBC Division No.3, Golageri, Tq. Sindagi
District Bijapur
...Appellant
(By Sri Krupa Sagar Patil, Advocate)
And:
Sri M. Krishna Reddy
S/o Lachma Reddy
Age: Major, Occ: Contractor
R/o Honnalli Camp
Tq. Sindagi, Dist. Bijapur
...Respondent
(V/o dt. 23.10.2017, notice to respondent is
Held sufficient)
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This Regular Second Appeal is filed under Section
100 of CPC praying to set aside the judgment and decree
dated 11.03.2008 passed by the III Additional District
Judge, Bijapur in RA No.469/2004 at Annexure-A and the
judgment and decree dated 31.08.2004 in O.S.No.73/1996
passed by the II Additional Civil Judge, Sr. Division,
Bijapur.
These Appeal are coming on for further hearing this
day, the Court delivered the following:
JUDGMENT
These matters were adjourned on the last date to enable the counsel on record to assist the Court as to how the plaintiffs could have sought a negative declaration to direct the defendants not to recover a sum of Rs.65,342/-. Therefore, the following additional substantial question of law would arise for consideration:
"Whether both the Courts erred in granting a negative declaration declaring that the defendants are not entitled to recover a 4 sum of Rs.65,342/- paid under Agreement Nos.98 and 99 of 1987?"
2. These two captioned second appeals arise on same set of facts. Two contractors initiated recovery proceedings against the defendants authority, both the suits were clubbed.
3. For the sake of convenience, the parties are referred to as per their rank before the trial Court.
4. The plaintiffs in both the suits claimed they are the Class-III contractors and they were allotted excavation of Indi Branch Canal. The plaintiffs claimed that in terms of agreements, they have completed work and therefore demanded the defendants to pay full bill amount of Rs.35,088/- and Rs.91,450/- respectively. The plaintiffs in both the suits have claimed that the defendants have refused to make the payments, which were legally due to the plaintiffs. On 5 the contrary, both the plaintiffs alleged that defendant No.2 has infact proposed to effect recovery of Rs.25,071-58/- in O.S. No.69/1996 and Rs.65,342- 50/- in O.S.No.73/1996. The plaintiffs claimed that under the second agreements, allotted the work treating it as an excavation in limestone. It is specifically alleged in the plaint that the plaintiffs while executing the work found that the work site had a hard rock and both plaintiffs were compelled to use full blasting with detonators and giletine. The plaintiffs have further alleged that though, request was made to the defendants, under agreement Nos.300/17 of 1987 and 300/14 of 1987, it is claimed that the defendants have refused to settle the bills. Both the plaintiffs have also contended that the respective suits were well within time, as no final bills were prepared.
5. On receipt of summons, the defendants contested the proceedings by filing written statement. 6 Defendant No.2 admitted that the plaintiff is Class-III contractor and further admitted the execution of three agreements in O.S.No.73/1996. The defendants further specifically contended that since excess payment was made and the same was noticed by the authorities, deductions were made partially and the balance amount sought to be recovered under agreement bearing No.300/1.
6. Since common issues were involved, both the suits were clubbed and common evidence were recorded. The plaintiff in O.S.No.73/1996 was examined as P.W.1 and produced documents vide Exs.P.1 and P.2, while defendants examined its official as D.W.1 and produced documentary evidence vide Exs.D.1 to D.3. The trial Court having examined the oral and documentary evidence held that both the plaintiffs have succeeded in proving that they have executed the contract work. Therefore, proceeded to 7 hold that the plaintiffs are entitled to interest on the amount due under agreements. While answering issue No.2 in the negative, the trial Court was of the view that defendant No.2 was not justified in deducting a sum of Rs.27,843/- out of the amount due to the plaintiffs under the second agreement. While examining common additional issue in both the cases relating to limitation, the trial Court answered in the negative and against the defendants and held that the suits are well within time. Consequently, decreed both the suits.
7. The defendants authorities feeling aggrieved by the judgment and decree of the trial Court in both the suits, preferred appeals in RA No.468/2004 and 469/2004. The appellate Court having examined the material on record has concurred with the findings of the trial Court. While dealing with limitation, the appellate Court has also applied Article 8 137 of the Limitation Act (for short, 'the Act') and has come to the conclusion that the period of limitation has to be computed from the date the claim is denied. On these set of reasoning, the appellate Court has proceeded to concur with the findings and conclusions and consequently, both the appeals are dismissed.
8. These captioned second appeals are filed by the Krishna Bhagya Jala Nigama Limited feeling aggrieved by the concurrent judgments of the Courts below. This Court vide order dated 07.06.2018 has formulated the common substantial question of law, which reads as under:
"When the plaintiffs have stated that they executed the work in the year 1987 itself, and that the amount payable to them under contract became due in the year 1987, if they filed the suit in the year 1996 by issuing legal notice under Section 80 of C.P.C. on 18.09.1994, whether issuance of 9 this notice would enure to the benefit of the plaintiff to hold that the suit is not time barred?"
9. This Court while hearing the appeals in hearing has formulated additional substantial questions of law, which reads as under:
"Whether both the Courts erred in granting a negative declaration declaring that the defendants are not entitled to recover a sum of Rs.65,342/- paid under Agreement Nos.98 and 99 of 1987?"
10. Regarding substantial question of law framed on 07.06.2018, in Cl.No.7 of Paragraph No.4 of the plaint filed in O.S.No.73/1996 and O.S.69/1996, it is clearly indicated that the work was completed in 1987. The plaintiffs have instituted the present suits by issuing the notice under Section 80 of CPC on 18.09.1994 vide Ex.P.2. If the amount was due in 1987, the cause of action to seek recovery first 10 accrued in 1987 and the same cannot be extended by issuing notice under Section 80 of CPC. Section 80 notice contemplates that wherever a suit is instituted against the Union of India or State Government and where immediate relief was sought, plaintiff is required to issue a notice within two months in writing addressed to the authorities. Therefore, this Court is of the view that both the Courts erred in misinterpreting this notice as a demand notice. As per the averments made at Paragraph No.4 of the plaint, the amount was already due in 1987, then it was incumbent on the part of the plaintiffs to seek recovery within three years as contemplated under Article 80 of the Act, 1963. This Court is also of the view that both the Courts erred in applying Article 137 of the Act. Article 137 of the Act has no application to the present case on hand. The present case is governed by a contract and therefore, the limitation 11 stipulated under Article 80 of the Act is applicable and not Article 137 of the Act. Therefore, this Court is of the view that both the Courts erred in wrongly applying Article 137 of the Act while recording finding that the suits are well within time. The concurrent findings recorded by both the Courts in holding that the suits are well within time suffers from perversity and such finding recorded on additional common issue in both the suits is not at all sustainable and accordingly substantial question of law framed by this Court has to be answered in the affirmative and against the plaintiffs.
11. Regarding additional substantial question of law framed on 07.06.2018, it is a trite law that a negative declaration can neither be claimed nor can be granted by the Court.
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12. Whenever a declaration is sought by the plaintiff to enable an order of declaration, the plaintiff has to establish the following:
"(i) The right of the plaintiff, ie, the plaintiff is entitled to any legal character or any right as to property.
(ii) The infringement, ie, that the defendant is denying, or interested to deny the plaintiff's title to such legal character or right.
(ii) The declaration, ie, the declaration sought is that the plaintiff is entitled to such legal character or right.
(iv) The consequential relief, ie, where the plaintiff is able to seek further relief than mere injunction, he seeks such relief."
13. Section 34 of the Specific Relief Act does not sanction every form of declaration, but only a declaration that the plaintiff is entitled to 'any legal character or any right as to any property'. Though 13 Section 34 of the Specific Relief Act is not exhaustive, a declaration can be granted independently of the provisions of this Section. That does not mean the plaintiff is entitled to any form of declaration, more particularly, a declaration which is virtually in the form of injunction. The Court will not make a declaration of mere facts which are not ripe for determination of their legal consequences. The Court will not grant any declaration on mere speculative grounds, unless the plaintiff establishes his some right based on which relief of declaration is sought.
14. Now let me consider the present case on hand. In the present case, the plaintiffs virtually seeking a declaration that the defendants are not entitled to recover amount from the plaintiffs. The relief that is sought in the present case virtually amounts to injunction. Therefore, the cause of action does not indicate infringement of any right, but 14 injunction is sought but in the form of declaration to virtually restrain the defendants from initiating recovery proceedings.
15. It would be useful for this Court to cull out the relief sought by the plaintiffs at Sl.No.1, which read as under:
In OS No.73/1996:
"1. It be declared that the defendants are not entitled to recover a sum of Rs.65,342-50 ps. paid to the plaintiff under the agreement bearing Nos.98 & 99 from the bill amount of Rs.91,450/- payable to plaintiff under agreement No.300/4 of 1987 for Rs.91,450."
In OS No.69/1996:
"1. It is declared that the defendants are not entitled to recover a sum of Rs.25,071-58 paise paid to the plaintiff under the agreement bearing No.94 from the bill amount of Rs.35,088-99 paise 15 payable to plaintiff under agreement No.300/17 of 1987."
16. On perusal of the relief sought at Sl.No.1, this Court would find that the plaintiffs intend to restrain the defendants from recovering the amount from the plaintiffs and seek a declaration that the defendants are not entitled to recover the sum. Such a negative declaration could not have been entertained by the Courts. Both the Courts have granted a negative declaration holding that the defendants are not entitled to recover. The relief of declaration granted by both the Courts in holding that the defendants are not entitled to recover a sum of Rs.25,071-58/- and Rs.65,342-50/- is palpably erroneous and contrary to the dictum laid down by the Apex Court in the case of Hardesh Ores (P) Ltd. Vs. Hede and Company reported in (2007) 5 SCC 614. Accordingly, the additional substantial question of law 16 is also answered against the plaintiffs. The judgment and decree of the Courts below are not sustainable. For the foregoing reasons, I proceed to pass the following:
ORDER Both the appeals are allowed.
The judgment and decree passed by the appellate Court dated 11.03.2008 in R.A.Nos.468/2004 and 469/2004 confirming the judgment and decree dated 31.03.2004 passed by the trial Court in O.S.Nos.69/1996 and 73/1996 are set aside. Consequently, the suits are dismissed.
Draw decree accordingly.17
In view of disposal of the main matters, pending interlocutory applications, if any, do not survive for consideration.
Sd/-
JUDGE RSP