Karnataka High Court
The Executive Engineer vs M. Anand on 5 August, 2024
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RSA No. 403 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO. 403 OF 2016 (MON)
BETWEEN:
1. THE EXECUTIVE ENGINEER,
KARNATAKA URBAN WATER SUPPLY
& DRAINAGE BOARD,
BANDIGOWDA LAYOUT,
MANDYA - 571 401.
2. THE CHIEF ENGINEER,
KARNATAKA URBAN WATER SUPPLY
& DRAINAGE BOARD,
5TH FLOOR, JALABHAVAN,
BTM LAYOUT,
BANNERAGHATTA ROAD,
Digitally signed by
MAHALAKSHMI B M BANGALORE - 560 029.
Location: HIGH (PRESENT ADDRESS)
COURT OF
KARNATAKA
3. THE SECRETARY,
KARNATAKA URBAN WATER SUPPLY
& DRAINAGE BOARD,
5TH FLOOR, JALABHAVAN,
dBTM LAYOUT,
BANNERGHATTA ROAD,
BANGALORE - 560 029.
(PRESENT ADDRESS)
...APPELLANTS
(BY SRI. CHANNEGOWDA, ADVOCATE)
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RSA No. 403 of 2016
AND:
1. M. ANAND,
AGED ABOUT 48 YEARS,
S/O MUTHUSWAMY,
R/AT NO.57, 3RD MAIN,
LIC COLONY,
SRIRAMPURA II STAGE,
MYSURU - 570 023.
2. THE CHIEF SECRETARY,
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI. SARAVANA S, ADVOCATE FOR R1;
SRI. RAJENDRA K.R, AGA FOR R2)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE
JUDGMENT AND DECREE DATED 18.08.2015 PASSED IN RA
NO.84/2013 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND CHIEF JUDICIAL MAGISTRATE., MANDYA, PARTLY
ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND
DECREE DATED 03.06.2013 PASSED IN OS NO.163/2009 ON
THE FILE OF THE PRINCIPAL CIVIL JUDGE, JUDICIAL
MAGISTRATE FIRST CLASS MANDYA.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
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RSA No. 403 of 2016
ORAL JUDGMENT
Assailing the legality and correctness of the
judgment and decree in RA. No.84/2013 dated 18.08.2015
on the file of the Addl.Senior Civil Judge & CJM, Mandya,
the defendants are before this Court in the Regular Second
Appeal.
2. This Court while admitting the appeal, has
framed the following substantial question of law on
05.01.2018:
"Whether both the Courts below are justified
in decreeing the suit over looking the question of
limitation?"
3. Heard the learned counsel Sri Channegowda
appearing for the appellants; the learned counsel Sri
Saravana S., appearing for the respondent No.1 and Sri
Rajendra K.R., learned Addl. Government Advocate have
been heard on the substantial question of law framed by
this Court.
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4. Learned counsel appearing for the appellants
submits that the claim of the plaintiff was for December
2003 for Rs.9,600/-, 20.03.2006 for Rs.21,575/- and
30.12.2005 for Rs.41,650/- and suit was filed by the
plaintiff on 03.04.2009, the counsel taking this Court to
Section 3 of the Limitation Act, 1963 ("the Act" for short)
submits that the claim was barred by limitation. That the
Courts below have committed a grave error in decreeing
the suit of the plaintiff insofar as item Nos.1 and 3.
Learned counsel has placed reliance on the decision of the
Orissa High Court in the case of Jagmohan Garnaik and
others vs. Sankar Samal and others,1 and submits that
the substantial question of law framed by this Court is
answered in favour of the appellant.
5. Per contra, learned counsel for the appellant
taking this Court to para No.7 of the plaint averments
submits that, defendant No.1, on receipt of the legal
notice issued by the plaintiff seeking release of the due
AIR 1990 ORISSA 124
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amount of Rs.2,13,165/-, submits that defendant No.1
had made payment of Rs.80,640/- to the plaintiff and non-
payment of the remaining amount of Rs.1,32,525/-, the
present suit is filed and defendant No.1 having admitted
his liability, Section 18 of the Act comes to the aid of the
plaintiff. Learned counsel submits that the claim of the
plaintiff seeking recovery of money is continuing liability
and is a mixed question of law and fact. Further, the
defendants have neither raised the question of limitation in
the written statement nor preferred an appeal against the
decreetal of the suit having held by the trial Court that the
suit is within limitation, the defendants are estopped from
raising the question of limitation before this Court for the
first time by bypassing the first appellate Court. Learned
counsel has placed reliance on the decision of the Apex
Court in the case of Banarsi Das vs. Kanshi Ram and
others2.
AIR 1963 SCC 1165
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6. Suit of the plaintiff is against the defendants for
recovery of suit claim amount of Rs.1,59,030/- with
interest at the rate of 12% per annum from the date of
suit till the date of realization. The plaint avers that the
plaintiff is a registered Class-I contractor in civil works and
defendant No.1 is the concerned Authority for executing
the works pertaining to water supply and drainage in
Mandya District, that the plaintiff completed the work
assigned and raised various bills, details of the said works
as mentioned in Annexure-1 of the plaint. The claim of the
plaintiff was Rs.85,275/- towards Item Nos.2, 3, 4 and 5,
which are pertaining to security deposits and pending
payment in respect of the security deposits furnished at
the time of entering into the agreement for a sum of
Rs.5,650/- and further, security deposit of Rs.9,600/-
totaling to Rs.1,32,575/-. The plaintiff contended that
defendant No.1 was in due of Rs.2,13,165/-, the plaintiff
issued legal notice on 07.08.2007, subsequent to which
defendant No.1 made a payment of Rs.80,640/- to the
plaintiff, and defendant No.1 was due in a sum of
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Rs.1,32,525/-. The plaintiff contended that the amount
due is Rs.1,32,525/- and the damages at 12% per annum
from 01.08.2007 to 01.04.2009 amounting to Rs.26,505/-
and the suit claim raised was for an amount of
Rs.1,59,030/-. On notice, defendant Nos.1 and 2 have
appeared and only defendant No.1 filed the written
statement. Defendant No.1 contended that item No.2 of
Annexure - 1 an amount of Rs.21,575/- and including the
balance amount of Rs.1,905/- totaling to Rs.23,480/- has
already been paid on 04.04.2006 under voucher No.48
dated 24.04.2006 and the same has been entered in the
passbook of the plaintiff. In respect of other items,
defendant No.1 contended that the necessary particulars
have been forwarded to the 2nd defendant and the said
amount is pending with the 2nd defendant and deferring
his liability in respect of other items. The Trial Court on the
basis of the pleadings, has framed the following issues:
"(1) Whether the plaintiff proves that the
defendant No.1 is due to pay a sum of
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Rs.1,32,525/- to plaintiff towards contract work
done by him?
(2) Whether the suit is not maintainable for
want of jurisdiction?
(3) Whether the plaintiff is entitled for suit
claim amount of Rs.1,59,030/- along with interest
from all the defendants?
(4) Whether the plaintiff is entitled for the
relief as sought for?"
7. The Trial Court on the basis of the pleadings,
oral and documentary evidence on record, has partly
decreed the suit holding that the defendants No.1 and 2
are hereby jointly and severally directed to pay a sum of
Rs.1,09,045/- with interest at the rate of 9% per annum
from 01.08.2007 to 01.04.2009. The claim of item No.2
was rejected holding that defendant No.1 has paid the said
amount as per Ex.D4.
8. Aggrieved, the plaintiff preferred the appeal
before the First Appellate Court. The First Appellate Court
re-appreciated the entire oral and documentary evidence,
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modified the decree of the Trial Court holding that the
plaintiff is entitled for Rs.1,30,620/- together with interest
at the rate of 9% per annum from the date of suit till
realization.
9. Aggrieved by the granting of item No.2 to the
extent of Rs.21,525/-, the defendants are before this
Court. The details of the bills at Annexure-1 of the plaint is
culled out as under :
ANNEXURE-1
Sl. Name of Work Agreement Due Actual Date of Amount due to be paid
No. No. & date date of date of expiry of By way of Bid Security Further Total
comple- comple- one year Settle- Security furnished Security amount
tion of tion of mainte- ment of furnished of the recovered (7+8+9+
work as work nance Final Bill at the time of in work 10)
per (Defect (Rupees) time of entering Bills (Rupees)
Agreem Liability Bidding into (Rupees)
-ent period (Rupees) Agree-
since ment
comple-
tion)
1 2 3 4 5 6 7 8 9 10 11
1 Laying jointing 2/02-03 17.3.03 December December - - - 9600 9600
450 mm dia 16.1.03 2003 2004 (Approxi-
RCC pipes for mately)
sludge disposal
from treatment
plant and
construction of
sludge disposal
from chamber
under RWSS to
Malavalli Town
and enroute
villages.
2 Conveying 18/04-05 5.11.04 20.03.05 20.03.0 - 21575 - - 21575
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& Testing &
Commissioning
of PVC
Distribution
Network in II
Stage W/s
scheme to KR
Pete Town
under AUWSP
3 Construction of 25/03-04 9.01.05 0.12.04 30.12.0 - 36000 5650 - 41650
Quarters at
Head works and
Treatment plant
under RWSS to
Maddur and
Malavalli Town
4 Providing Water 2/05-06 9.07.05 15.10.0 15.10.0 - 9200 - - 9200
Supply 19.4.05 5 6
Distribution
System to
Pandavapura
Town under
AUWSP
5 Fixing water 03/05-06 - 15.4.06 15.4.07 28000 22500 - - 50500
meters along 20.4.05 (Approxi-
with necessary mately
materials in
Mandya Town
under AM of
2004-05
Total 132525
10. The claim of the defendants before this Court is
that the claim in respect of item Nos. 2 and 3 is barred by
limitation. Section 3 of the Limitation Act envisages that
every suit instituted, appeal preferred, and application
made after the prescribed period shall be dismissed,
although limitation has not been set up as a defence. The
decision in Jagmohan's case stated supra placed reliance
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by the appellant's counsel the High Court of Orissa
observes that a Court can dismiss a suit on the ground of
limitation even if the defence has not been raised the plea
of limitation, when on the face of the pleadings, the Court
comes to the conclusion that the suit is barred by
limitation. This Court has absolutely no quarrel with the
settled proposition of law, however, the facts in the
present case are distinguishable and the decision of
Jagmohan's case is not applicable to the present case on
hand.
11. In the instant case, the plaintiff issued a legal
notice through his counsel on 07.08.2007, pursuant to the
same, defendant No.1 made payment of Rs.80,640/- and
the amount due from defendant No.1 was Rs.1,32,575/-.
12. Section 18 of the Act prescribes, where, before
the expiry of the prescribed period for a suit or application
in respect of any property or right, an acknowledgement of
liability in respect of such property or right has been made
in writing signed by the party against whom such property
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or right is claimed, or by any person through whom it
derives his title or liability, a fresh period of limitation shall
be computed from the time when the acknowledgement
was so signed. Defendant No.1 acknowledged the liability
and made payment pursuant to the legal notice dated
07.08.2007 which is not in dispute and Section 18 plays
role in the present facts giving rise to a fresh period of
limitation. The claim of item No. 2 was due on
20.03.2006, the plaintiff issued legal notice on
07.08.2007, defendant No.1 by payment of Rs.80,640/-
acknowledged the liability and the period of limitation
starts from 07.08.2007 and the suit is filed by the plaintiff
on 03.04.2009 which is well within limitation. One more
aspect which needs to be considered here is that, the Trial
Court decreed the suit of the plaintiff holding that the
defendant Nos.1 and 2 are jointly and severally liable to
pay a sum of Rs.1,09,045/-. Against the rejection of item
No.2, the plaintiff preferred an appeal before the First
Appellate Court. The defendants did not choose to prefer
any appeal against the decreetal of the suit in part. The
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First appellate Court re-appreciated the judgment and
decree of the Trial Court and held that item No.2 - an
amount of Rs.21,575/- as per Ex.D-4 is deposited on
04.04.2006 whereas, voucher No.48 is dated 24.04.2006,
which is after the alleged passbook entry and thus
contentions of defendant No.1 that they have paid an
amount of Rs.21,575/- was rightly disbelieved by the First
Appellate Court.
13. The question of limitation is a mixed question of
law and fact. The Apex Court in the case of Banarsidas
stated supra, has held at para No. 15 as under:
"15. The High Court has overlooked the fact
that even upon the argument addressed before it
on behalf of Kanshi Ram, the question of limitation
was not one purely of law but was a mixed question
of fact and law and, therefore, it was not proper for
it to be raised for the first time in argument. We
are satisfied that what the High Court has done has
caused prejudice to some of the parties to the suit
and on that ground alone, we would be justified in
setting aside its decision. If the High Court felt
overwhelmed by the provisions of Section 3 of the
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Limitation Act, it should at least have given an
opportunity to the parties which supported the
decree of the trial court to meet the plea of
limitation by amending their pleadings. After
allowing the pleadings to be amended, the High
Court should have framed an issue and remitted it
for a finding to the trial court. Instead of doing so,
it has chosen to treat the pleading of one of the
defendants as conclusive not only on the question
of fact but also on the question of law and
dismissed the suit. It is quite possible that had an
opportunity been given to the defendants, they
could have established, in addition to proving the
dates on which the summonses were served, that
the suit was not barred by time because of
acknowledgments. In the course of the discussion,
the High Court has said that it was not suggested
before it by anyone that the claim was not barred
by reason of acknowledgments. Apparently, no
such argument was advanced before it on behalf of
the plaintiff and the defendant Banarsi Das because
the counsel were apparently taken by surprise and
had no opportunity to obtain instructions on this
aspect of the case. We are clearly of opinion that
the High Court was in error in allowing the plea of
limitation to be raised before it particularly by
defendants who had not even filed a written
statement in the case. We do not think that this
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was a fit case for permitting an entirely new point
to be raised by a non-contesting party to the suit."
14. The Apex Court observed that the question of
limitation is not one purely of law but a mixed question of
fact and law and therefore, it was not proper for it to be
raised for the first time in argument and observed that the
High Court was in error in allowing the plea of limitation
raised before it particularly by the defendants who have
not even filed written statement in the instant case. The
defendant though filed written statement, did not raise a
plea of limitation as in the instant case. The question of
limitation was not one purely question of law, but was a
mixed question of fact and law for the facts stated supra
and the said decision in Banarasi Das is aptly applicable
to the facts and circumstances of the instant case. The
substantial question of law framed by this Court is
answered against the appellants and this Court pass the
following:
ORDER
(i) Appeal is dismissed.
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(ii) The judgment and decree of the first appellate Court
in R.A. No.84/2013 dated 18.08.2015 on the file of
Addl. Senior Civil Judge & CJM, Mandya is hereby
confirmed.
Sd/-
(K.S. HEMALEKHA)
JUDGE
SNC
CT: BHK
