Chattisgarh High Court
Jitendra Bhandari (Died) Through ... vs State Of Chhattisgarh on 16 January, 2023
1
FA No. 346 of 2016
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
(Arising out of judgment and decree dated 13.7.2016 passed by the 5 th
Additional District Judge, Raipur in Civil Suit No.3-B/2013)
FA No. 346 of 2016
Jitendra Bhandari (Died) Through Lrs. As Per Hon'ble Court
Order Dated 14-07-2020.
1.1 - (A). Anju Bhandari Wd/o Late Jitendra Bhandari Aged
About 48 Years R/o House No. 569, Ward No. 35, Ramdev
Mandir Ward, Durg, District Durg Chhattisgarh.
1.2 - (B). Jatin Bhandari S/o Late Jitendra Bhandari Aged
About 12 Years Since Minor, Represented Through Legal
Guardian (Mother) Anju Bhandari, Wd/o Late Jitendra
Bhandari, Aged About 48 Years, R/o House No. 569, Ward
No. 35, Ramdev Mandir Ward, Durg, District Durg
Chhattisgarh. ---- Appellants
Versus
1. State Of Chhattisgarh Through Collector, Raipur, District
Raipur, Chhattisgarh ................Defendant No.1,
2. Executive Engineer, Public Works Department, Government
Of Chhattisgarh, Raipur, Division No.2, Raipur,
Chhattisgarh ................Defendant No.2
3. Executive Engineer, Public Works Department, Government
Of Chhattisgarh, Raipur, Division No.1, Raipur,
Chhattisgarh ................Defendant No.3
4. Engineer-In-Chief Engineer, Public Works Department,
Government Of Chhattisgarh, Sirpur Bhawan, Raipur,
Chhattisgarh ................Defendant No.4
5. Chief Engineer, Public Works Department, Government Of
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FA No. 346 of 2016
Chhattisgarh, Sirpur Bhawan, Raipur,
Chhattisgarh ................Defendant No.5
6. Superintendent Engineer, Public Works Department,
Government Of Chhattisgarh, Raipur Circle No.1, Raipur,
Chhattisgarh ................Defendant No.6
7. Sub Divisional Officer, Public Works Department,
Government Of Chhattisgarh, Raipur, Sub-Division-4,
Raipur, Chhattisgarh ........Defendant No.7 --- Respondents
For Appellants :- Mr. Kshitij Sharma, Advocate &
Mr. Rahul Tamaskar, Advocate
For Respondent/State :- Mr. D.C. Verma, GA.
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Shri Justice N.K. Chandravanshi
Judgment On Board
Per Goutam Bhaduri, J.
16.1.2023
1. Heard.
2. The appeal is against the judgment and decree dated
13.7.2016 passed by the Court of 5th Additional District
Judge, Raipur in Civil Suit No. 3-B of 2013 whereby the suit
filed by the appellant for recovery of ₹55,11,498/- with
interest was dismissed.
3. The plaintiff claims that the suit was filed on the basis of a
contract in-between the parties executed on 13.2.2002
(Exhibit P12) to lay down the bitumen over two parts of the
FA No. 346 of 2016
road that is Bangoli-Murra-Mohrenga of 7.4 Kms and further
to lay down bitumen over the road Kosrangi- Farhada-
Budgaon Koli of 11 Kms. The appellant being the lowest
tenderer, was given the work contract. According to the
appellant, the entrusted work was valued at ₹65.90 Lacs
with addition of 13.86% SOR, total amounting to ₹84.17
Lacs. According to the appellant/plaintiff, the said work was
carried out and the amount was also paid. Plaintiff /
appellant contended that apart from the work comprised in
the contract, he was made to carry out additional work and
he carried out the additional work as per the order issued. It
is stated that according to the prevailing rules, normally for
the additional work carried out apart from the contract are
evaluated and thereafter it is paid for which the respondent /
Executive Engineer and other persons in the site had
affirmed. Plaintiff stated that as per the measurement book
(Exhibit P22) which contains the signature of the Sub-
Engineer at the site, additional work of Rs. 34,57,653/- was
carried out which was revised to Rs. 32,42,058/- by
respondents and despite the different follow up it was not
paid. It is further stated that the Executive Engineer of the
concerned site by its letter dated 22.11.2006 (Exhibit P19)
and the Chief Engineer by letter dated 06.5.2010 (Exhibit
P20) made a correspondence for non payment of such work
carried out, but, the payment was eventually not made.
FA No. 346 of 2016
Therefore, after the service of legal notice, the suit was filed
for recovery.
4. In defense, it was stated that plaintiff/ appellant is not
entitled for any work carried out as no written
communication was ever made. Further ground was raised
that the suit is barred by limitation as for the work of year
2002, eventually the case was filed in the year 2011.
5. The learned Additional District Judge, Raipur on the basis of
the pleadings framed issues and came to a conclusion that
plaintiff has failed to prove that he was legally entitled to
receive the amount and eventually dismissed the suit.
Hence, this appeal.
6. Learned counsel for the appellant would submit that dispute
about execution of the contract of laying down the bitumen
over the two sites is not in dispute. He further submits that
the amount of the main contract was paid but the dispute is
about the non payment of additional work carried out. He
submits that the letter of the respondent would show that
they admitted the fact about carrying out the additional work
on the site which would entitle the appellant / plaintiff for a
claim. Referring to the clause 13 and 7.9 of the contract
(Exhibit P12) he would submit that addition and alterations
are permissible under the contract at the instance of the
FA No. 346 of 2016
Executive Engineer and undisputedly, in the case, the
additional job was carried out at the instructions of the
Executive Engineer. It is stated for such additional work
done would entitle the appellant/ plaintiff to claim for the
amount as execution of the work is proved by the
measurement book (Exhibit P22). He would submit that
despite the fact the learned trial Court held that the suit is
within limitation. The claim is denied only on the ground that
it has not been legally proved. He also refers to the
judgment of the Supreme Court in the matter of Venkatesh
Construction Company Vs. Karnataka Vidyuth Karkhane
Limited reported in [(2016) 4 SCC 119] to submit that in the
claim of like nature that when extra work is carried out apart
from the contract, it was consented by the parties, the
plaintiff/ appellant would be entitled to get it reimbursed.
Therefore, submits that the order of the learned Additional
District Judge, Raipur may be set-aside and a decree may
be passed.
7. Per contra, learned State counsel opposes the submission
made by learned counsel for the appellant and submits that
the order of the Court below is well merited which does not
call for any interference. He would further submit that suit
was apparently barred by the law of limitation and any claim
of the year 2002-06 filed in the year 2011 would be barred.
FA No. 346 of 2016
He would submit that though the cross objection has not
been preferred, the State is entitled to make such
submissions under Section 3 of the Limitation Act, 1963,
therefore, the appeal preferred by the appellant is liable to
be dismissed.
8. We have heard learned counsel for the parties at length and
perused the documents and evidence on record.
9. Since we are in hold of the appeal to decide both facts and
law, the primary question has been raised about the
limitation in view of the Section 3 of the Limitation Act, 1963.
We therefore would first examine as to whether the suit was
within limitation despite the fact that the cross objection has
not been preferred by the State. The learned trial Court in its
judgment had stated that revised estimate was sent by the
Executive Engineer on 22.11.2006 (Exhibit P19). Thereafter,
the notices served by the plaintiff in the years 2007, 2008,
2010 and 2011 and since the demand was not fulfilled, it
would save the limitation. The contract in this case is of the
year 2002 (Exhibit P12). According to the plaintiff he carried
out additional job as per the instructions of the respondent
for which correspondence were made to pass the estimate,
initially by letter dated 22.11.2006 Exhibit P19, followed by
another letter dated 06.5.2010 Exhibit P20. Perusal of both
the Exhibits P19 and P20, the language of it would show
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that certain clarifications were sought for at the end of higher
State officials as to why certain payments were not made.
The letter Exhibit P21, internal correspondence addressed
by the Chief Executive dated 04.10.2010 specifies the
reference of work done which stood completed on
15.6.2004. The query though made as till date why the
payments were not made for work completed in the year
2004 shows that work assigned to appellant was completed
much prior in the year 2004.
10. Corresponding reading of Exhibits P19, P20 and P21 would
show that the work which was carried out by the appellant /
plaintiff was in the year 2004. These letters nowhere
acknowledge the fact of any outstanding dues of liability.
Irrespective of the merit as to whether demand was legal or
not, prima facie, by application of the Article 18 of the
Limitation Act, 1963 would show that for the price of work
done by the plaintiff/ appellant for the defendant at his
request, where no time has been fixed for payment, time
limit for claim would be three years from the date of work.
For ready reference the Article 18 of the Limitation Act, 1963
is reproduced here under:-
FA No. 346 of 2016
Article Description of suit Period of Time from which
limitation period begins to
run
18 For the price of work done Three years When the work is
by the plaintiff for the done.
defendant at his request,
where no time has been
fixed for payment.
11. Exhibit P21 which has been relied on by the plaintiff would
show that the work definitely was completed on 15.6.2004
reckoning such period from 15.6.2004, the limitation would
be for three years. The finding of the learned trial Court
since the notices were served by the plaintiff / appellant
calling upon to release the payment would save the
limitation, in our opinion appears to be wrong and this Court
in exercise of power conferred by Section 3 of the Limitation
Act, 1963 can very well go into such fact of limitation. Prima
facie, it appears that the suit filed by the plaintiff / appellant
in the year 2011 was beyond period of limitation.
12. Now coming to the other aspect of the merit, we went
through the clause of the agreement/ contract, marked as
Exhibit P12. The clause 7.9 which was referred by the
appellant purports that right to increase and decrease the
work is within the domain of the Engineer-in-charge during
the currency of the contract and the contractor will be bound
FA No. 346 of 2016
to comply with the order. In the instant case, the additional
work of laying down the bitumen was carried out as WBM
road was already existing and the specification of the work
which is shown in the Schedule group D also fortified those
facts about laying down of the bitumen over the road.
13. Clause 13 of the contract speaks about addition and
alterations in specification and design. For ready reference
Clause 13 of the contract is reproduced here under:-
"Clause 13 - The Engineer-in-charge shall have
power to make any alterations in, comissions from
additions to, or substitutions for, the original
specifications drawings, designs and instruction,
that may appear to him to be necessary or
advisable during the progress of the work, and the
contractor shall be bound to carry out the work in
accordance with any instruction which may be given
to him in writing signed by the Engineer-in-charge
and such alterations omissions additions or
substitution shall not invalidate the contract and any
altered, additional or substituted work which the
contractor may be directed to do in the manner
above specified as part of the work shall be carried
out by the contractor on the same conditions in all
respects on which he agreed to do the main work
and at the same rates as are specified in the tender
for the main work, provided the total value of such
increased or altered or substituted work does not
exceed 25% of the amount put to tender, inclusive
of contractor's percentage. If such value exceeds
25% it shall be open to the contractor either to
determine the contract or apply for extension."
FA No. 346 of 2016
14.Reading of above clause would show that the Engineer-in-
charge shall have power to make any alterations in,
commissions from additions to, or substitution for, the
original specifications drawings, designs and instructions,
that may appear to him to be necessary or advisable during
the progress of the work.
15.According to the plaintiff, the additional work of bitumen was
carried out which is evident from the measurement book
Exhibit P22. The clause 13 specifically says that direction
for addition and alterations are required to be in writing. It
was not a case of the appellant that apart from the laying
down the bitumen over road Bangoli-Murra-Mohrenga or
Kosrangi- Farhada-Budgaon Koli, additional bitumen on
some other roads was laid down.
16.The plaintiff asserted that the quantity of the bitumen and
other materials exceeded to carry out the work in those
roads, therefore, how it would be within the ambit of addition
or alteration coupled with the fact that even such addition
and alterations are accepted, the requirement in writing was
absent.
17.The reliance placed in the matter of Venkatesh
Construction Company (Supra) by learned counsel for the
appellant would show that it was in respect of the extra work
FA No. 346 of 2016
done for the reason of seepage of water from nearby river
while carrying out foundation to a certain depth. Therefore,
extra earthwork, embankment work, extra bed concrete work
and extra stone masonry work was carried out. The case in
hand is a different one and would not come to help the
appellant as the appellant while accepting the tender to lay
down the bitumen over certain parts of the roads was aware
of the existing reality and without any written
communication, if extra/ additional work by appellant is
carried out, at the instance of some officer, claim cannot be
passed on to the State as it would be an apparent flagrant
breach of the conditions of terms of contract.
18.In view of such discussions, we are of the view that the
judgment and decree passed by the Court below, do not call
for any interference by this Court. Accordingly, the appeal
stands dismissed.
19.Decree be drawn accordingly. No order as to cost.
SD/- SD/-
(Goutam Bhaduri) (N.K. Chandravanshi)
Judge Judge
Ayushi
