Delhi High Court
Mahesh Chand Sharma vs The Deputy Director, Cpwd on 26 July, 2024
Author: Rajiv Shakdher
Bench: Rajiv Shakdher, Amit Bansal
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decision delivered on: 26.07.2024
+ RFA(COMM) 289/2024 & CM No.42099/2024
MAHESH CHAND SHARMA .....APPELLANT
Through: Mr J.K. Chawla, Ms Shisba Chawla
and Mr Vinay Chadda, Advs.
versus
THE DEPUTY DIRECTOR, CPWD .....RESPONDENT
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE AMIT BANSAL
[Physical Hearing/Hybrid Hearing (as per request)]
RAJIV SHAKDHER, J. (ORAL):
1. Allowed, subject to just exceptions.
RFA(COMM) 289/2024
2. This appeal is preferred against the judgment and decree dated
18.11.2023. Via the impugned judgment and decree, the trial court has
dismissed the suit filed by the appellant/plaintiff for recovery of
Rs.18,82,669/-, along with interest at the rate of 9% per annum, on the
ground of limitation.
3. Mr J.K. Chawla, learned counsel, who appears on behalf of the
appellant/plaintiff, says that the trial court has committed an error which
needs to be corrected.
RFA(COMM) 289/2024 1 of 5
4. The record shows that the appellant/plaintiff was awarded a contract
on 01.04.2017 by the respondent/defendant.
5. The contract envisaged maintenance of garden features in and around
Central Vista/Rajpath, India Gate, New Delhi. As per the terms agreed
between the parties, the tenure of the contract spanned between 12.04.2017
and 11.10.2017.
6. It is the appellant's/plaintiff's assertion that the work commenced on
10.04.2017 and that it was completed on 25.11.2017. It is against this
backdrop that the appellant/plaintiff filed a claim under clause 10(c) of the
subject contract, concerning release of money on account of labour rate
variations.
7. According to the appellant/plaintiff, the labour rate was enhanced, via
a government notification, from Rs.374/- per day to Rs.513/- per day w.e.f.
01.04.2017.
8. To be noted, the appellant/plaintiff had, in the first instance, filed its
claim for labour rate enhancement, amounting to Rs.14,72,994/-, for the
period spanning between 01.06.2017 and 31.10.2017.
8.1 The claim was duly approved and bore an endorsement, dated
18.12.2017, of the concerned officer of the respondent/defendant.
9. The appellant/plaintiff avers that the claim for the labour rate
variation was later enhanced to Rs.18,82,669/- by including the period
between 01.11.2017 and 25.11.2017.
10. As noted above, the suit action was also filed for the said sum. It was
the appellant's/plaintiff's assertion before the trial court that despite
addressing several communications to the respondent to release the amount
i.e., Rs.18,82,669/-, there has been no movement in the matter.
RFA(COMM) 289/2024 2 of 5
10.1 In this context, reference is made by the appellant/plaintiff to the
letters dated 01.06.2018, 11.07.2018, 18.10.2018, 29.01.2019, 16.05.2019
and 20.11.2019. To buttress its claim, the appellant/plaintiff has also
adverted to a legal notice dated 20.08.2020.
11. According to the appellant/plaintiff, it is the failure of the respondent
in releasing the amount, as claimed, which led to the institution of the suit
action on 24.09.2022.
12. It is the contention of the learned counsel for the appellant/plaintiff
that the trial court has found that the claim is sustainable on merits but has
denied grant of relief only on the ground of limitation.
13. The contention of the learned counsel for the appellant/plaintiff is that
the cause of action for the purposes of calculation of limitation finally arose
when no response was received to the legal notice served on the respondent.
13.1 In sum, it is the contention of learned counsel for the
appellant/plaintiff that since there was no refusal by the respondent with
regard to the claim, the suit action was within the period of limitation.
14. We have heard the learned counsel for the appellant/plaintiff.
15. While the learned counsel for the appellant/plaintiff is right that the
trial court has held that the appellant/plaintiff had been able to make out a
case for recovery of the suit amount along with interest, the court was
unable to grant relief as the suit was barred by limitation.
16. With regard to the finding on limitation, the trial court has returned a
finding of fact in paragraph 13 of the impugned judgment, which is set forth
hereafter:
"13. In the present case, the plaintiff has claimed the amount due from the
defendant due to the increase of the labour rates for the period 10.04.2017 to
25.11.2017. Even if the document Ex. PW1/3 is taking to be some sort of a
RFA(COMM) 289/2024 3 of 5
document acknowledging the debt due to the defendant dated 18.12.2017,
even then the limitation to file the present suit for recovery would expire on
18.12.2020. Even taking into account the judgment of the Hon'ble Supreme
Court in Suo Motu Writ Petition (c) No. 3 of 2020 with Miscellaneous
Application No. 21 of 2022 & Miscellaneous Application No. 665/2021
dated 10.01.2022 in which it has been held as under :
III. In cases where the limitation would have expired during the
period between 15.03.2020 till 28.02.2022, notwithstanding the
actual balance period of limitation remaining, all persons shall have
a limitation period of 90 days from 01.03.2022. In the event the
actual balance period of limitation remaining, with effect from
01.03.2022 is greater than 90 days, that longer period shall apply.
The plaintiff should have filed the suit till 28.02.2022 and in view of the said
judgment, the plaintiff would get additional period of 90 days to file his suit.
The plaintiff has resorted to pre-institution mediation of The Commercial
Courts Act, 2015 on 27.05.2022, which failed on 13.07.2022. Therefore, the
said period has to be excluded, therefore, the plaintiff would only entitled the
exclusion of the limitation of five days period, as the limitation would be
extended by five days, as the same would have expired on 31.05.2022,
whereas the suit of the plaintiff has been filed on 24.09.2022. Therefore, the
suit of the plaintiff is barred by limitation, which is three years from the said
acknowledgment of debt dated 18.12.2017."
17. A perusal of the aforesaid extract would show that the trial court, for
the sake of argument and in order to test the submission of the
appellant/plaintiff, treated the endorsement made on the bill by the
concerned officer of the respondent/defendant on 18.12.2017 as the period
when the limitation would commence.
17.1 Thereafter, the trial court, by taking the said date into account, also
noted that the period of limitation would expire on 18.12.2020. Since the
limitation had expired during the period when Covid-19 had kicked-in, the
directions contained in the judgment of the Supreme Court in the suo motu
Writ Petition No.3/2020 with Miscellaneous Application Nos.21/2022 &
665/2021, dated 10.01.2022, were also taken into account.
RFA(COMM) 289/2024 4 of 5
17.2 After excluding the period, as indicated by the Supreme Court in the
aforementioned judgment, the trial court has held that the suit action had
been filed beyond the period of limitation.
18. In this case, the suit action, concededly, had been filed on 24.09.2022,
whereas the endorsement was made on 18.12.2017.
19. A submission of learned counsel for the appellant/plaintiff that since
there was no refusal by the respondent concerning the claim made by the
appellant/plaintiff, the cause of action was alive is a submission with which
we are unable to agree upon.
20. We find no error in the impugned judgment. The appeal is,
accordingly, dismissed.
21. Consequently, the pending application shall stand closed.
22. The parties will act based on the digitally signed copy of the
judgment.
RAJIV SHAKDHER, J
AMIT BANSAL, J
JULY 26, 2024
aj
RFA(COMM) 289/2024 5 of 5
