Hindustan Roller Supply Co. vs State Of Utter Pradesh And Anr.
2005 Latest Caselaw 765 Del

JUDGMENT

Rekha Sharma, J.

1. The short question, which arises in this appeal is whether the suit filed by the appellant for recovery of Rs.4,94,824/- was barred by the law of limitation. The learned Additional District Judge, who tried the suit has held the same to have been instituted after the expiry of the period of limitation. The appellant feels it was filed within the period of limitation.

2. Before we come to the point in issue, it is necessary to refer to a few facts.

3. The appellant was into the business of supply of road rollers on hire basis. Two such road rollers were supplied by it to the Executive Engineer Construction Div. I, LNV, Faizabad, UP after an agreement in respect thereto dated 25th March, 1996. As per the terms and conditions of the agreement the hire charges were to be Rs.600/- per day commencing from the day of handing over of the road rollers at Faizabad. The hire was to continue till the road rollers were handed back to the appellant. This agreement was extended by an order dated 8th April, 1997 on the same terms and conditions except that the hire charges were re-determined at Rs.700/- per day and instead of the two road-rollers only one was taken on hire. The appellant says that it had sent seven bills to the respondent for payment of the hire charges. Three of these bills bear the date 30th April, 1997 and are exhibits W-1/5 to PW 1/7. The others are Ex.PW-1/8 dated 24.8.1997, Ex.PW-1/9 dated 24.10.1997, Ex.PW-1/10 dated 31.12.1996 and Ex.PW-1/11 dated 24.10.1997. Nothing more happened till 4th August, 2000 when the appellant is alleged to have sent legal notice addressed to the Executive Engineer, Construction Div. No.1, PWD, Distt. Faizabad (U.P.) under Section 80 of the Code of Civil Procedure stating that the payment in respect of the bills, in all, amounting to Rs.3,20,600/- had not been received and accordingly calling upon the respondent to remit the amount of the bills within 15 days of the receipt of the notice along with interest thereon @ 18% per annum. A copy of the notice was also sent to the Chief Secretary, Government of Uttar Pradesh, Lucknow. The notice so given evoked no response from the respondent. Hence the suit for recovery of the amount. It was filed on 24th October, 2000.

4. The learned Additional District Judge, on the pleadings of the parties, framed the following issues:-

1. "Whether the plaint signed, verified and instituted by a duly authorized person ? OPP

2. Whether the plaintiff is entitled to recover the amount claimed in the suit ? OPP

3. Whether the plaintiff is entitled to recover interest from the defendant. If so, at what rate, for what period and on what amount ? OPP

4. Whether this court has no territorial jurisdiction to entertain and try the present suit ? OPD

5. Whether the suit of the plaintiff is liable to be dismissed for disclosing no cause of action ?OPD

6. Relief."

5. All the issues except issues No. 2, 3 and 6 were decided in favor of the appellant. As is apparent from the issues, no separate issue on limitation was framed. This issue was dealt with by the learned trial Judge as part of issue No. 2.

6. The learned trial Judge, while dealing with the question of limitation, has held that the bills Ex. PW-1/9 and Ex.PW-1/11 both dated 24th October, 1997 for a sum of Rs.98,500/- and Rs.57,200/- respectively were not barred by limitation. Having held so, the Court still did not allow the amounts claimed in the said bills on the ground that the bills were never sent by the appellant to the respondent.

7. The only submission which was raised before us was that the trial Judge wrongly reckoned the period of limitation from the dates of the bills, and that it should have been computed from the date the work was done for it was from that date that the payment became due. The work, it was claimed, was done on 30.9.1997 and in support reference was made to the order dated 8.4.1997, whereby, the previous agreement dated 25.3.1996 was extended up to 30.9.1997. It was also stated in para 2 of the legal notice dated 4.8.2000. The submission was that in view of the order dated 8.4.1997 the work came to an end on 30.9.1997 and therefore, it was only from that date that the price of the work done could be claimed. The basis of the submission was Article 18 of the schedule to the Limitation Act, 1963.

8. This is how it reads. Description of Suit Period of limitation Time from which period begins to run For the price of work Three years When the work is done. Done by the plaintiff for the defendant at his request, where no time has been fixed for payment.

9. In view of Article 18 and the assertion that the work done came to an end on 30th September, 1997, it was argued that the starting point of limitation in respect of all the bills could be no other date than 30th September, 1997. It was further argued that since the amount was being claimed from a Government department, it was mandatory on the part of the appellant to give notice under Section 80 of the Code of Civil Procedure which, in fact, was given, and as such, as is laid down in the said Section no suit could be filed until the expiration of two months next, after notice in writing had been delivered at the office of the respondent. It was, therefore, contended that even though the period of limitation commenced from 30th September, 1997 and in terms of Article 18, it would have expired on 30th September, 2000, the appellant was entitled to an additional period of two months for instituting the same. Consequently, it was argued, that the suit could be filed till 30th November, 2000 and the same having been instituted on 24th October, 2000 was within limitation in respect of all the bills.

10. As against the above submission of counsel for the appellant, it was contended from the side of the respondents that the alleged notice was not under Section 80 of the Code of Civil Procedure and that in any case, it was not served upon or received in the office of the respondents. It was thus, argued that while deciding the question of limitation, the benefit of the said Section could not be claimed.

11. It may also be noticed that while as per the appellant, it is Article 18 of the Limitation Act which would apply the other side referred to Article 12 which reads as under :

Description of suit Period of limitation Time from which period begins to run For the hire of animals, Three years When the hire becomes payable vehicles, boats or house hold furniture.

12. There was also a dispute as to when the cause of action accrued. Whereas the appellant asserted that it accrued when the bills were sent, the other side took the plea that neither the alleged bills were sent nor received and that, in any case, since the hire charges were payable per day the bills or their dispatch had no relevance.

13. Unfortunately, and as noticed above, no specific issue of limitation was framed and the discussion on the point by the learned trial Judge, if we may say so, is rather sketchy. We feel the question of limitation needs to be dealt with squarely and an elliptically. We therefore propose to remand the case to the trial Court. We may, however, with a view to smoothen the edges point out that Article 18 of the Limitation will not apply as the appellant is not asking for the "price of work done", nor shall Article 12 be attracted, as a `road-roller' used generally in the construction of roads, does not fall within the definition of "vehicle". The vehicle is a carriage; conveyance and this may include every description of a wheeled conveyance which is used or capable of being used on a public street. However, since a road roller is not used to convey anything, and is, as already stated, basically used for construction of roads, it would not attract article 12.

14. For what has been recorded by us, we frame the following issues :-

1. Was the notice dated 4.8.2000 one under Section 80 of the Code of Civil Procedure ? If so, was it served and when ? OPP

2. Is the suit within limitation ? OPP

In exercise of power under Order 41 Rule 25 of the Code of Civil Procedure, we refer the above issues to trial Court for determination. The trial Court, while determining the issues shall keep in view Section 15(2) of the Limitation Act which envisages exclusion of the period of notice for the purpose of computing limitation. This aspect however shall be taken into account only if the trial Court feels that the notice in question was served and was one under Section 80 of the Code of Civil Procedure.

15. We direct that the trial Court shall take additional evidence, if required. We further direct it to return the evidence to this Court with its findings thereon and the reasons therefore within a period of six months from the date of communication of this order. Parties are directed to appear before the learned District Judge on 25th May, 2005 who shall assign the case to a Court of competent jurisdiction.