Karnataka High Court
Smt. Rupa D/O Narayan Kamat vs The State Of Karnataka on 8 April, 2024
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RFA No. 100395 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.100395 OF 2017 (MON)
BETWEEN:
1. SMT. RUPA D/O. NARAYAN KAMAT
AGE: 53 YEARS, OCC: HOUSEHOLD,
R/O: JAYDEEP APARTMENT,
IIIRD, 5-E, KHANAPUR ROAD,
TILAKWADI, BELAGAVI.
NOW AT: C/O GANESH N. KAMAT, SURAT.
2. SMT. UJAWALA @ SHEETAL
W/O. SATISH SARAF
AGE: 52 YEARS, OCC: HOUSEHOLD,
SHIVAKUMAR
HIREMATH R/O: C/O: SATISH SARAF,2 A,
Location: HIGH COURT
OF KARNATAKA
SNEHA CO-OP HOUSING SOCIETY,
DHARWAD BENCH
Date: 2024.04.15
13:09:12 +0530
PLT NO. 11, SECTOR II, NEW PANVEL,
NAVI MUMBAI-410206.
3. SMT. VANDANA W/O. ATUL SUKHATANKAR
AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
R/O: ATUL SUKHATANKAR,
D-7 SARASWATI COLONY,
SHEETALA DEVI TEMPLE ROAD,
MAHIM, MUMBAI-410216.
4. SHRI. GANESH S/O. NARAYAN KAMAT
AGE: 43 YEARS, OCC: PRIVATE SERVICE,
R/O: A-404, ROYAL ARCADE, NEAR RELIANCE
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RFA No. 100395 of 2017
TOWNSHIP, PIPLOD, SURAT-395007.
APPELLANT NO. 1 TO 4 ARE
REPRESENTED BY THEIR AUTHORIZED
GENERAL POWER ATTORNEY HOLDER
SHRI. RAMESH BALIRAM KAMAT,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: SHIROL, DUMALA,
TAL: KARVEER, DIST: KOLHAPUR.
...APPELLANTS
(BY SRI.SANGRAM S.KULKARNI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
IRRIGATION DEPARTMENT,
M.S.BUILDING, BENGALURU.
2. THE DEPUTY COMMISSIONER
BELAGAVI DISTRICT, BELAGAVI.
3. THE EXECUTIVE ENGINEER,
MINOR IRRIGATION DIVISION,
SHAHAPUR, BELAGAVI.
...RESPONDENTS
(BY SRI.ASHOK T.KATTIMANI, ADDITIONAL GOVT. ADVOCATE)
THIS RFA IS FILED UNDER SEC. 96 READ WITH ORDER 41
RULE 1 AND 2 OF CPC., 1908, AGAINST THE JUDGMENT AND
DECREE DATED 01.09.2017 PASSED IN O.S.NO.155/1995 ON
THE FILE OF THE I-ADDITIONAL SENIOR CIVIL JUDGE AND
CHIEF JUDICIAL MAGISTRATE, BELAGAVI, DISMISSING THE SUIT
FILED FOR RECOVERY OF MONEY.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
E.S.INDIRESH, J., DELIVERED THE FOLLOWING:
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RFA No. 100395 of 2017
JUDGMENT
This Regular First Appeal is preferred by the plaintiffs
in O.S. No.155/1995 on the file of the I Additional Senior
Civil Judge and CJM, Belagavi (for short, the 'the Trial
Court') challenging the judgment and decree dated
01.09.2017 dismissing the suit of the plaintiffs.
2. For the sake of convenience, the parties in this
appeal are referred to in terms of their status and ranking
before the Trial Court.
3. It is the case of the plaintiffs that the original
plaintiff - Shri Narayan Ganesh Kamat (deceased) was
registered PWD Contractor and pursuant to the tender
invited by the respondent-Government, the original plaintiff
had quoted 18.47% above the estimated cost in the tender
and after negotiations, the original plaintiff agreed to reduce
it to 15% above CSR (Compared Scheduled Rate) of 1985-
86. It is further stated in the plaint that the major part of
the work assigned to the plaintiffs was relating to
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construction of cement concrete and uncovered rubble
masonry in cement mortar which required huge cement and,
accordingly, as there was irregular payments made to the
original plaintiff, the plaintiff filed O.S. No.155/1995 seeking
recovery of sum of Rs.35,44,077/- with interest.
4. After service of notice, the suit was contested by
the defendants by filing written statement and additional
written statement. The defendants did not dispute awarding
of contract work to the plaintiff. However, they denied that
there was no supply of cement in time and accordingly, took
up a contention as per clause 16 of the tender document,
the plaintiff is not entitled for any compensation for non-
supply of materials. It is also urged by the defendants, that
the calculation made by the plaintiff is incorrect and
accordingly sought for dismissal of the suit.
5. On the basis of the pleadings on record, the Trial
Court framed issues and additional issues for its
consideration, which read as under:
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"1. Whether the plaintiff proves that the defendant-
Department did not supply the cement in time?
2. Whether the plaintiff proves that the defendants
have made breach of contract by not paying R.A.
Bills regularly?
3. Whether the plaintiff is entitled to loss due to rise in
the costs of materials and labours?
4. Whether the court has territorial jurisdiction to
entertain the suit?
5. Whether the plaintiff is entitled to recover a sum of
Rs.51,000/- along with interest at the rate of 18%
per annum from the defendant - Government?
(MODIFIED)
6. What order or decree?"
Modified Issue No.5 :
Whether the plaintiff is entitled to recover a sum of
Rs.51,000/- or such sum as maybe found due from
the Deft-Govt. After calculation of accounts with
interest at the rate of 18% per annum.?
Additional issues framed on 31.03.2017
1. Whether the court fee paid by the plaintiff on
enhanced amount of Rs.35,44,077/- is proper?
2. Whether the enhanced claim of plaintiff from
Rs.51,000/- to 35,44,077/- is well within limitation?
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3. Whether the defendant proves that the clause
No.29(a)(iii) of Tender Agreement is an Arbitration
Clause and the plaintiff has to avail the remedy
therein? (RECASTED DURING THE COURSE OF
JUDGMENT AS UNDER:-)
3. Whether the defendant proves that the Clause
No.30 of Tender Agreement is an Arbitration Clause
and the plaintiff has to avail the remedy therein?"
6. In order to prove their case, plaintiffs examined
two witnesses as P.W.1 and P.W.2, and produced 40
documents which were marked as Exs.P.1 to P.40.
Defendants examined two witnesses as D.W.1 and D.W.2
and produced five documents and got them marked as
Exs.D.1 to D.5. Court Commissioner was appointed, during
the course of proceedings, and his evidence was recorded as
C.W.1 and the Court Commissioner produced one document
as Report of the Court Commissioner which was marked as
Ex.C.1. The Trial Court, after considering the material on
record, by its judgment and decree dated 01.09.2017,
dismissed the suit of the plaintiffs and being aggrieved by
the same, the plaintiffs have presented this appeal.
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7. We have heard Sri. Sangram S.Kulkarni, learned
counsel appearing for the appellants, and Sri. Ashok
T.Kattimani, learned Additional Government Advocate
appearing for respondents No.1 to 3.
8. Sri. Sangram S.Kulkarni, learned counsel
appearing for the appellants invited the attention of this
Court to the finding recorded by the Trial Court on additional
issue No.2 wherein the Trial Court has held that the suit is
barred by time. In this regard, learned counsel appearing for
the appellant refers to the finding recorded by this Court in
R.S. A. No.5175/2008 dated 28th March 2012, and argued
that, this Court at para 12 of the said judgment, has arrived
at a conclusion that the suit is maintainable and as the same
was well within the time and therefore, it is contended that,
the Trial Court ought not to have dismissed the suit on the
ground of limitation. Accordingly, learned counsel prayed to
allow the appeal.
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9. Per contra, Sri. Ashok T.Kattimani, learned
Additional Government Advocate appearing for the
respondents defended the impugned judgment and decree
passed by the Trial Court.
10. Having heard the learned counsel for the parties,
the points for determination in the appeal is as follows:
i) Whether the plaintiffs proved that the suit
filed was within the period of limitation?
ii) Whether the judgment and decree passed by
the Trial Court requires interference of this
Court?
iii) What order?
11. In the light of the submissions made by the
learned counsel appearing for the parties, it is not in dispute
that, the original plaintiff was a registered PWD Contractor
and had undertaken work of respondents-Government for
repairing the damaged barrage across Doodhganga river
near Karadaga, Chikkodi Taluk. We have perused of the
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finding recorded by the Trial Court, particularly, with respect
to argument advanced by the learned counsel appearing for
the appellant that the Trial Court has wrongly answered
additional issue No.2, and in this regard, we have also
carefully examined the observations made by this Court in
R.S.A. No.5175/2008 disposed of on 28th March 2012,
wherein this Court, at para 12, has held as under:
"12. Having heard the learned for both parties,
we are of the view that so far as the question of
limitation is concerned, we have to answer the same
against the appellants, because the work was
completed on 30.03.1990 within the extended period.
The Appellants' counsel is not also disputing the
drawing up of the final bill on 30.06.1993 and if it is
so, if the suit is filed on 11.08.1995, the suit filed by
the plaintiff has to be held within limitation. Therefore,
the second substantial question of law raised in this
appeal has to be answered against the appellants."
(Emphasis supplied)
12. A perusal of the record would further indicate that
the preliminary decree was passed by the Trial Court and
thereafter, during the final decree proceedings in F.D.P.
No.7/2004, the observations made by the Court
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Commissioner was considered. The Trial Court in F.D.P.
No.7/2004 has held as follows:
"The defendant is liable to pay the following
sums to the plaintiff:
1) Loss due to rise in cost - Rs.6,30,200/-
2) Loss due to office over heads and site over heads -
Rs.9,52,557/-
3) Loss of profit earning - Rs.9,52,577/-
4) Interest on delayed payments of R.A. Bills and final
bill at the rage of 18% p.a. - Rs.51,628/-
5) Refund of penalty recovered - Rs.292.75 paise
6) Refund of balance security deposit - Rs.4,284/-
Further the defendant is also liable to pay the
interest at the rate of 18% p.a. on the amounts under
the head of loss due to rise in cost of material and
labour, loss due to office over heads and site over
heads, loss due to profit earning from 11.08.1995 till
the date of payment.
The defendant is also liable to pay the interest at
the rate of 18% p.a. on the delayed payments of R.A
bills and final bill, refund of penalty and refund of
balance security deposit at the rate of 18% p.a. from
the date of petition till the payment to the plaintiff."
13. The judgment and decree, dated 19.04.2008,
passed in F.D.P. No.7/2004 was challenged before this Cout
in R.F.A. No.3009/2008 and this Court, vide judgment and
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decree dated 28th March 2012, allowed the appeal and
rejected the final decree application filed by the respondents
therein/appellants herein, in view of the judgment in R.S.A.
No.5175/2008. In the meanwhile, the plaintiff filed an
application seeking amendment of the plaint and same was
accepted by the Trial Court. The order passed by the Trial
Court dated 18.08.2004 on I.A. No.11 in O.S. No.155/1995
was challenged before this Court in W.P. No.76452/2013
C/w W.P. No.66423/2012 and this Court, vide order dated
05.02.2015, dismissed the writ petition filed by the
respondent/Government. However, at para 8, it is observed
that the plaintiff has to establish that the claim was well
within the period of limitation before the trial Court. The
Trial Court has misconstrued said observation made by this
Court in para 8 of the order dated 05.02.2015 passed in
W.P. No.76452/2013 C/w W.P. No.66423/2012 and without
looking into the observation made by the Division Bench of
this Court, at paragraph 12 of the judgment passed in
R.S.A. No.5175/2008 (supra), arrived at a conclusion to
dismiss the suit as time barred.
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14. In that view of the matter, without expressing
any opinion on the merits of the case, relating to the claim
made by the plaintiffs, we are of the view that the finding
recorded by the Trial Court on additional issue No.2 holding
that the suit is barred by time cannot be accepted in view of
the judgment and decree of this Court in R.S.A.
No.5175/2008. Hence, we find force in the submission made
by the learned counsel appearing for the appellant and the
same is hereby accepted. Accordingly, the points for
determination favour the plaintiffs. Hence we pass the
following:
ORDER
i) The appeal is allowed.
ii) The judgment and decree dated 01.09.2017 in O.S.
No.155/1995 passed by the I Additional Senior Civil
Judge and CJM, Belagavi, is hereby set aside, and the
matter is remitted to the Trial Court for fresh
consideration after providing a fair opportunity to both
sides.
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iii) It is open for the parties to adduce additional evidence,
if so advised.
iv) Needless to say that, in view of the fact that the suit is
of the year 1995, the Trial Court shall, on priority,
dispose of the suit at the earliest.
v) Since the parties are represented through their counsel,
in order to avoid further delay in the matter, the parties
are directed to appear before the Trial Court on 27th May
2024 at 11.00 a.m. before the Trial Court.
Sd/-
JUDGE
Sd/-
JUDGE
KMS
