Andhra HC (Pre-Telangana)
Dodla Chenchurami Reddy vs The State Of A.P., Ministry Of Major ... on 11 December, 1996
Equivalent citations: 1997(1)ALT175
Author: K.B. Siddappa
Bench: K.B. Siddappa
JUDGMENT K.B. Siddappa, J.
1. These Civil Revision Petitions are interconnected; they are disposed of by a common order.
2. C.R.P. No. 3868 of 1992 was filed against the order passed in O.P. No. 39 of 1989. C.R.P. No. 3869 of 1992 is directed against the order in O.P. No. 40 of 1989 on the file of the learned Subordinate Judge, Nandyal.
3. The Contractor is the Revision Petitioner. He entered into an agreement with the State of Andhra Pradesh, represented by the Superintending Engineer, under the Agreement No. 12 SE/84-85, dated 27-9-1984 for excavation of Srisailam Right Bank Canal from K.M.O. 107.04 to 1.00 K.M., and formation of bank on either side of the canal as excavated. The work was completed by the end of December, 1986. During the course of the work part payments were made. After completion of the Work, final bill was passed in the month of August, 1987.
4. The case of the Revision Petitioner is that there are variations in the work requiring him investment of huge amounts. As and when the variation of the work was undertaken, he used to claim higher amounts. The authorities told him that there are other similar protests and his protest would also be considered in due course. After completion of the work, he received the final bill and no claim certificate was also issued by him. No protest is also recorded on his behalf when he received the final bill. These facts are broadly accepted by him. After a lapse of 14 months, after receiving final bill, he agitated for a claim of Rs. 19,00,000/- p. The Department took the view that there are no such protests during the course of execution of the work. In their counter in para 88, they gave details denying all the allegations or protests, etc. However, they admitted that the petitioner made representations to the respondent on 10-12-1988, requesting for payment of lifts as per Figure No. 9. It is stated that this claim was made after a lapse of fourteen months with ulterior motive to lay a false claim. Therefore, it seems that there was no valid protest. The final bill was also made, that No-dues Certificate was also issued and no claim Certificate was also issued by the Contractor. Now he cannot certainly make any grievance after a lapse of fourteen months.
5. The learned Counsel for the petitioner relied on a judgment reported in Union of India v. L.K. Ahuja and Company, . The facts of this case are not applicable. There was genuine dispute. In the case on hand it is only an after thought. Therefore, that judgment does not help the Contractor.
6. On the other hand, the learned Counsel appearing for the Government relied upon a judgment of the Supreme Court reported in P.K. Ramaiah & Company v. Chairman & Managing Director, National Thermal Power Corporation, 1994 (1) SCALE Page 1, Para 8.
7. In similar circumstances the Supreme Court held:-
"On those facts, this Court held that although there was alleged payment as final satisfaction of the claim, the payment was unilateral, so the dispute still subsisted and therefore it was arbitrable dispute and the reference was valid. In Bhanu Prakash's case also there was no full and final settlement and payment was not received under a receipt. In L.K. Ahuja was no full and final settlement and payment was not received under a receipt. In L.K Ahuja & Company's case this Court while laying the general law held that if the bill was prepared by the department, the claim gets weakened. That was not a case of accord and satisfaction but one of pleading bar of limitation without prior rejection of the claim. Therefore, the ratio therein is of little assistance. The Calcutta High Court merely followed the statement of law laid in Ahuja & Company's case. It is not shown to us that the Chief Construction Manager was competent to acknowledge the liability or an authority to refer the dispute for arbitration. So neither his letters binds the respondent nor operates as an estoppel. Admittedly the full and final satisfaction was acknowledged by a receipt in writing and the amount was received unconditionally. Thus there is accord and satisfaction by final settlement of the claims. The subsequent allegation of coercion is an after-thought and a devise to get over the settlement of the dispute, acceptance of the payment and receipt voluntarily given. In Russal on Arbitration, 19th Edition, Page 396 it is stated that "an accord and satisfaction may be pleaded in an action on award and will constitute a good defence". Accordingly, we hold that the appellant having acknowledged the settlement and also accepted measurements and received the amount in full and final settlement of the claim, there is accord and satisfaction. There is no existing arbitrable dispute for reference to the arbitration. The High Court is, therefore, right in its finding in this behalf. The appeals are dismissed but in the circumstances without costs".
8. In view of the above judgment, there is no cause for reference to the Arbitrator in the present application. Therefore, the C.R.Ps. have to fail.
9. The learned Counsel appearing for the Revision Petitioner submitted that in respect of the claims above Rs. 50,000/- Civil Suit is maintainable. As per the Judgment in Visakhapatnam Urban Development Authority v. Narayana Raju, while interpreting G.O.Ms. No. 160, the Supreme Court held that only Civil Suit lies. In view of this and also in view of the order passed in A.A.O. No. 1051 of 1990, a Division Bench of this Court directed to convert the O.P., as Suit after amendment of cause title and also payment of necessary Court fee directing the lower Court to condone the delay if any in such conversion. He submitted that the same could be done in this case also. The learned Government Pleader has no serious objection for this.
10. Therefore, I direct the lower Court to convert the O.Ps. out of which these C.R.Ps. arise, into Suits after making necessary amendment in the cause title, prayer and other part of the plaint and also after payment of necessary Court fees and proceed with the Suits according to law.
11. The Civil Revision Petitions are disposed of accordingly. No costs.