Jharkhand High Court

Smt. Sharda Devi vs Central Coalfields Limited on 29 November, 2021

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            S. A. No. 15 of 2012

Smt. Sharda Devi                           ....    .... Appellant
                           Versus
1.   Central Coalfields Limited, Ranchi
2.   Chief General Manager (B&K) Area, Central Coalfields Limited, Bermo,
     Bokaro
3.   Project Officer (Civil), Bokaro Colliery (B&K) Area, Central Coalfields
     Limited, Bokaro
4.   Staff Officer, Civil (B&K) Area, Central Coalfields Limited, Bokaro
5.   Superintending Engineer (Civil), Bokaro Colliery (B&K) Area, Central
     Coalfields Limited, Bokaro
                                             ....   ..... Respondents
                                 ------

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

------

For the Appellant        : M/s Atanu Banerjee & D.C. Mishra, Advocates
For the Respondents      : Mr. Bhaiya Vishwajeet Kumar, Advocate

C.A.V. ON 02.11.2021                PRONOUNCED ON 29 / 11 /2021

1. This appeal has been filed against the judgment and decree passed by the Principal District Judge, Bokaro whereby and whereunder, the judgment and decree passed in favour of the plaintiff by Sub-Judge-I, Bemo at Tenughat in Money Suit No. 03/2007 was reversed.

2. The appeal has been admitted on the following substantial question of law:

Whether the learned lower appellate court has committed serious error in reversing the judgment and decree of learned trial court by misapplying the principle of Limitation Act?

3. The case of the plaintiff-appellant is that her husband completed work allocated to him vide Tender No. BKO/C/T/12/1999- 2000/687-96 dated 20.03.2000, BKO/C/T/22/1997-98 dated 12.03.1998 and BKO/C/T/22/1999-2000/687-96 dated 29.03.2000. Against these completed works on request for payment an enquiry committee was constituted which submitted report to Defendant No. 2 that the work had been done by the husband of the plaintiff but no action was taken due to non-availability of fund at that time. The husband of the plaintiff died on 06.12.2002 without receiving the payment against the work completed by him. It was against this backdrop that for the outstanding payment on 14.11.2006 a legal notice was given on behalf of the plaintiff to Defendant

No. 3 which remained unanswered and consequently, the suit was filed for a decree of Rs.1,09,207/- along with interest at the rate of 12% from the date of competition of work till its realization.

4. In pursuance to the notice issued, a joint written statement has been filed on behalf of the defendant contesting the claim of the plaintiff/appellant. It has been, inter alia, pleaded on behalf of the defendants that vide Tender No. BKO/C/T/22/1999-2000/687-96 dated 29.03.2000 the work was allocated but it had not been completed. It is further averred that the defendants had neither issued any work order nor given any contract for the work in question and, therefore, the payment against it cannot be made. With regard to the enquiry report it is submitted that there is no such report available in the office. On the basis of the pleading made by the parties, the following main issues were framed:

III. Is the suit barred by law of limitation?

IV. Is the suit hit by Section 34 of the Specific Relief Act? VII. Whether the plaintiff is entitled for the decree of Rs.1,09,207/- with interest at the rate of 12% from the date of completion of work till realization of the said amount?

VIII. Whether the work vide Tender No. BKO/C/T/22/1999-2000/687- 96 dated 29.03.2000 was done or not?

5. On Issue No. VII and VIII the trial court returned a finding of fact that work vide BKO/C/T/22/1999-2000 dated 29.03.2000 was done by the husband of the plaintiff and plaintiff is entitled for the decree of Rs.1,09.207/- with interest at the rate of 12% per annum from the date of completion of work till realization of the said amount.

With regard to Issue No. III and IV, it was held by the trial court that these issues were not pressed at the time of argument by the parties nor any evidence has been led in this regard by the parties concerned. So these issued are decided accordingly.

6. Learned appellate court in First Appeal reversed the judgment and decree mainly on the ground of limitation and held that it is settled principle of law that the limitation for a suit for the price of work done by the plaintiff for the defendant at his request where no time has been fixed for payment as is the case in the suit in question is for three years as per Article 18 of the Schedule of Limitation Act, 1963. The money became due on 14.04.2000 so the plaintiff must have filed the suit within three

years from 14.04.2000. The learned court below has further observed that this is not a case of continuing breach as envisaged under Section 22 of the Limitation Act. While the appellate court admitted that not responding to the notice can be termed acknowledgment in terms of Section 18 of the Limitation Act, 1963, however, the suit was held to be time-barred.

7. The finding of the learned court below has been assailed mainly on the ground that the finding of the suit being barred by law of limitation is not sustainable for the reasons that the issue of limitation was not pressed at the time of argument nor any evidence was led on behalf of the respondents. The act of not responding to the notice on the part of the defendants can be termed as acknowledgement in terms of Section 18 of the Limitation Act. Exhibit-4 filed on behalf of the plaintiff has remained uncontroverted on behalf of the defendants which shows that the work in the schedule of recovery was done by the husband of the plaintiff and due to non-availability of fund payment could not be made. While deciding the issue of limitation, the first appellate court has not considered Article 113 of the Scheduled of Limitation Act. The plaintiff is the wife of the contractor who had no knowledge about the due.

8. Learned counsel appearing for the respondents has defended the impugned judgment on the ground that the instant money suit was hopelessly time-barred as per the time provided for bringing the suit under Article 18 of the Limitation Act as has expired. It is also submitted that Article 113 will have no application in the instant case.

9. In order to put the facts in perspective it shall be desirable to briefly refer to pleadings of the parties, issues framed and finding of facts recorded on the material issues. Plaintiff is the widow of Bimal Kumar Verma who filed the money suit on 5th May, 2007 for non-payment of the work completed between 24.03.1998 and 14.04.2000. Her husband had moved the Authorities for the payment but an enquiry was constituted on behalf of the defendants-respondents and after enquiry it was found that the work had been completed vide report dated 08.06.2001 but no action was taken due to non-availability of fund at that time. Exhibits-4 to 4/3 are the approval paper, tender committee recommendation dated 19.03.1998, 27.05.2000 and Exhibits-5 to 5/2 are the tender notice. Exhibit-4/3 is the tender committee recommendation for the work providing Varandah at Shishu Vikash Vidyalaya made in favour of Sri Bimal Kumar Verma.

Exhibit-4/2 is the tender committee recommendation for the work of Qr. No. M/325 at Sunday Bazar and M/145 of Bokaro Colliery in favour of Sri Bimal Kumar Verma and Exhibit-4/1 is the tender committee recommendation for the work of repair / maintenance of community place at Sunday Bazar in Bokaro Colliery. Exhibit-4 which is an office order dated 30.09.2003 on the subject of approval for outstanding payment of civil construction works by Late Bimal Kumar Verma and Bokaro Colliery. It has been specifically noted herein that the enquiry report has been enclosed but no action had been taken due to non-availability of fund at project level at that time. It was on these materials that the learned trial court recorded a finding with respect to Issue Nos. VII and VIII that the plaintiff had completed the work and was entitled for the decree of Rs.1,09,207/- with interest at the rate of 12% per annum from the date of completion of work till realization of the said amount. The appellate court has not disputed these facts but has allowed the appeal and disposed of and set aside the trial court judgment on the point of limitation. From the above, it is manifest that the work had been allocated to the husband of the plaintiff and non-payment was on account of the non-availability of fund. Husband of the plaintiff died on 06.12.2002 and thereafter she moved the authority concerned for payment of the amount.

10. It is settled principle of law that limitation is not a purely question of law, but a question and fact of law. Under Article 18 of the Limitation Act for the price of work done by the plaintiff for the defendants at his request, where no time has been fixed for payment three years when the work is done. The Hon'ble Supreme Court has held that on technical grounds State should not deny to its citizens just dues.

"Madras Port Trust v. Hymanshu International, (1979) 4 SCC 176 at page 177

2. We do not think that this is a fit case where we should proceed to determine whether the claim of the respondent was barred by Sec- tion 110 of the Madras Port Trust Act (II of 1905). The plea of limi- tation based on this section is one which the court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by

a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable. Here, it is obvious that the claim of the respondent was a just claim supported as it was by the recommendation of the Assistant Collector of Cus- toms and hence in the exercise of our discretion under Article 136 of the Constitution, we do not see any reason why we should proceed to hear this appeal and adjudicate upon the plea of the appellant based on Section 110 of the Madras Port Trust Act (II of 1905)."

Here in the instant case the trial court has recorded a definite finding of fact that the husband of the plaintiff had completed the work which had been allotted to him by the tender allotment committee. It has also come in evidence that payment had not been made due to non- allotment of fund at that time. Before the husband of the plaintiff could have moved the court for the payment for the work already completed by him, he unfortunately died. The wife of the contractor the plaintiff of the case cannot be imputed with knowledge about the amount due in the de- partment against the work done by her late husband. It is logical and un- derstandable that only after she could have come to know about the due with the government department, she would have collected necessary documents and filed the money suit for the amount due. It has also come in the trial court judgment that even the point of limitation was not pressed during trial.

11. Under the circumstance, I am of the considered view that the suit was not barred by limitation and the plaintiff is entitled to the decretal amount of Rs.1,09,207/- with interest @ 12% from the date of completion of work.