Delhi High Court
Dy. Conservator Of Forests & Anr. vs M/S Tomar Chemicals Pvt. Ltd. & ... on 4 February, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.151/2001
% 4th February, 2011
DY. CONSERVATOR OF FORESTS & ANR. ...... Appellants
Through: None
VERSUS
M/S TOMAR CHEMICALS PVT. LTD. & ANR. ...... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. This case is on the Regular Board of this Court since 3.1.2011. This case
is effective item no.4 on the Regular Board of this court today. No one
appears for the parties. I have therefore perused the record and I am
proceeding to dispose of the matter.
2. The challenge by means of this Regular First Appeal under section 96
Code of Civil Procedure, 1908 is to the impugned judgment and decree
dated 7.2.2001 whereby the suit of the respondent/plaintiff was decreed
RFA No.151/2001 Page 1 of 5
for Rs.4,29,000/- along with the interest and costs. The recovery was
claimed on account of work done of plantation of saplings and also their
maintenance.
3. The facts of the case are that the respondent/plaintiff alleged that the
work of plantation was completed on 31.7.1996 and a bill dated
31.7.1996 for Rs.2,46,000/- was given to the appellant. The respondent
also gave a further bill for Rs.39,000/- to the appellant for maintenance
charges and which was received by the appellant on 6.9.1996. It was
alleged that on account of non- payment by the appellant, a composite
bill of Rs.4,29,000/- was further raised on 1.7.1997 and on account of
non-payment of this composite bill, the suit for recovery came to be
filed. The appellant appeared and contested the suit and one of the
objections raised was that suit was time barred. It was also alleged that
the respondent did not do any work of maintenance and had raised a
false bill.
4. After completion of the pleadings, the trial court framed the following
issues :
"1) Whether suit of the plaintiff is barred by time? OPD
2) Whether no amount is due from the defendants to the plaintiff?
OPD
3) Whether plaintiff is entitled to the amount claimed? OPP
4) Whether the suit of the plaintiff is barred for want of non-
issuance of notice u/s 80 CPC? OPD
5) Whether plaintiff is entitled to interest if so at what rate and for
which period? OPP
RFA No.151/2001 Page 2 of 5
6) Relief."
5. With respect to issue no.1, the trial court has held that the suit is
within limitation. The trial court has held that the suit was filed on
2.6.2000 i.e. within three years from raising of the last composite bill
dated 1.7.1997.
I am afraid that the trial court has clearly misapplied itself and
committed a gross illegality. The bills in question issued with respect to
plantation of saplings and their maintenance are dated 31.7.1996 and
6.9.1996. Suit with respect to the claiming of amount for plantation of
saplings ought to have been filed within three years from the bill dated
31.7.1996 i.e. by 30.7.1999. With respect to the claim for maintenance
of saplings the suit ought to have been filed by 5.9.1999 as the bill for
maintenance was submitted to the appellant on 6.9.1996. Suit has
admittedly been filed only on 2.6.2000. In my opinion the suit is
therefore clearly barred by time. Merely because a composite bill has
been subsequently raised, it cannot change the fact that the payment
became due to the respondent once the bills dated 31.7.1996 and
6.9.1996 were received by the appellant. Merely by raising subsequent
bills, limitation cannot arise afresh. As per Section 9 of the Limitation
Act, 1963, once time has begun to run no subsequent disability or
inability to institute the suit stops the period of limitation. In my
opinion the suit was clearly therefore time barred and the suit is
RFA No.151/2001 Page 3 of 5
therefore dismissed as time barred. I have gone through the terms and
conditions of the execution of the work and there is no clause that the
bill will be paid after a particular date or after a particular period for
postponing the commencement of limitation. Limitation therefore, will
have to necessarily begin from the date of bills or date of their
submission to the appellant.
6. On the issue of maintenance charges, I also feel that the suit was liable
to be dismissed on merits. This is because the appellant had rightly
pleaded that no work was done for maintenance of the saplings. In
fact, the appellant claimed to have terminated the contract by issue of
a show cause notice. A reference to the judgment of the trial court, as
also the trial court record which has been perused by me, shows that
no proof whatsoever was filed by the respondent to show that
respondent did the work for maintenance of the saplings. In a case like
this where monetary liability is sought to be imposed, mere oral
statement of maintenance is not good enough. The respondent/plaintiff
had deposed that he used to maintain the plants by water tanker,
however, no details with respect to what was the numbers of the water
tankers, who were the employees employed by him and what
payments were made to them, other documentary evidence to
substantiate actual maintenance, were filed in the trial court. The
respondent/plaintiff was therefore even on merits not entitled to the
RFA No.151/2001 Page 4 of 5
sum of Rs.39,000/- claimed towards the maintenance of the saplings.
7. In view of the above, the appeal is accepted. The impugned judgment
and decree is set aside by accepting the appeal and the suit of the
respondent/plaintiff shall stand dismissed. Decree sheet be prepared.
Interim orders are vacated. Trial court record be sent back.
February 04, 2011 VALMIKI J. MEHTA, J.
vld
