[Cites 9, Cited by 0]
Karnataka High Court
The Managing Director vs M/S Om Sai Electrical on 17 December, 2025
Author: R.Devdas
Bench: R.Devdas
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NC: 2025:KHC-D:18362-DB
RFA No. 100055 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 17TH DAY OF DECEMBER 2025
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
REGULAR FIRST APPEAL NO. 100055 OF 2018 (MON)
BETWEEN:
THE MANAGING DIRECTOR
KARNATAKA URBAN INFRASTRUCTURE,
DEVELOPMENT AND FINANCE CORPORATION,
NAGARABHIVRUDDI BHAVAN, #22,
17TH F-CROSS, OLD MADRAS ROAD,
INDIRA NAGAR, BENGALURU-560038,
REP. BY THE AUTHORIZED AUTHORITY
AND COMPANY SECRETARY,
SRI. A. KARTHIK, AGE: 38 YEARS,
OCC: COMPANY SECRETARY,
R/O: BENGALURU-560038.
...APPELLANT
(BY SRI. N.G.RASALKAR, ADVOCATE)
AND:
MOHANKUMAR
B SHELAR
1. M/S OM SAI ELECTRICAL
Digitally signed by
A PROPRIETARY CONCERN,
MOHANKUMAR B SHELAR
Location: HIGH COURT OF REP. BY ITS PROPRIETOR,
KARNATAKA DHARWAD
BENCH
Date: 2025.12.19 10:47:41
SRI. MAHESH S/O. SHIVAJI RAO JADHAV,
+0530
AGE: 48 YEARS, OCC: BUSINESS,
R/O: MARATHA COLONY, DHARWAD.
2. THE DEPUTY COMMISSIONER
KARWAR.
...RESPONDENTS
(BY SRI. BAHUBALI A.DANAWADE AND
SRI. N.L.BATAKURKI, ADVOCATE FOR R1;
SRI. P.N.HATTI, HCGP FOR R2)
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RFA No. 100055 of 2018
HC-KAR
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
READ WITH ORDER 41 RULE 1 AND 2 OF CPC 1908 READ WITH
SECTION 5(i) OF THE KARNATAKA HIGH COURT ACT, 1961 AGAINST
THE JUDGMENT AND DECREE DATED 28.07.2017 PASSED IN
O.S.NO.5/2012 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE,
KARWAR, DECREEING THE SUIT FILED FOR RECOVERY OF MONEY.
THIS REGULAR FIRST APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE R.DEVDAS)
This Regular First Appeal is filed at the hands of
defendant No.1 in O.S.No.5/2012 on the file of the learned
Principal Senior Civil Judge, Karwar being aggrieved of the
judgment and decree passed on 28.07.2017.
2. For the sake of convenience, the parties shall be
referred to in terms of their ranking before the trial court.
3. The suit was filed by the plaintiff M/s Om Sai
Electrical, a proprietorship concern seeking to declare that
defendant Nos.1 to 4 are jointly and severally liable to pay
a sum of Rs.33,05,776/- to the plaintiff along with interest
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at the rate of 12% p.a. from the date of the suit till the date
of realization. It was contended by the plaintiff that a works
contract was awarded to the plaintiff who is a Class-I
Electrical Contractor, at the hands of defendant No.1 on
23.12.2004 for execution of electrical works for providing
11KV overhead express feeder transmission lines,
transformers centres and other allied accessories at
proposed raw water intake jack well pumping station,
intermediate pumping station and staff quarters, water
treatment plaint, booster station etc., at Sirsi. The contract
was a package contract in Package No.2207B. It was
contended that initially value of the contract was
Rs.57,13,890/- and the time fixed for completion of the
works was nine months. The work order was issued to the
plaintiff on 23.12.2004. However, when the plaintiff started
erecting electrical poles along Siddapur road, the officials of
HESCOM interrupted the work of the plaintiff and forced him
to stop the work on the ground that plan of the work has
not been obtained and prior sanction was not obtained from
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the HESCOM by the officials of defendant No.1. It was
contended that after delay of nearly 280 days the works
were re-commenced after the plan was sanctioned at the
hands of HESCOM. It is contended that rates approved in
the year 2004 cannot be made applicable to the works
which were commenced late in the month of August, 2005.
It was contended that the new route sanctioned by the
HESCOM officials forced the plaintiff to carryout works in
Siddapur road through a thick forest. The execution of the
work in the thick forest caused further difficulty to the
plaintiff in carrying men and material through the thick
forest. All this was brought to the notice of defendant No.1,
and defendant No.1 and other officials of defendant No.1,
namely, defendant Nos.2 and 3 assured the plaintiff that
they were re-fix the rates taking into consideration the
delay in commencing the work and the additional burden
which would be incurred by the plaintiff. It was contended
that although defendant No.1 is a government company and
strict compliance of requirement of law and the terms of the
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contract was mandated, nevertheless, no written agreement
was made between the parties having regard to subsequent
changes in the works to be undertaken by the plaintiff.
Various other averments are made, which may not be
necessary for consideration at this point of time in this
appeal, since question of delay and the suit is hit by law of
limitation has been raised at the hands of defendant No.1
before us. For short, the plaintiff claimed that it was entitled
for payment of Rs.33,05,776/- along with interest for the
delayed period.
4. Learned counsel for defendant No.1 submitted
that issue No.1 was framed by the trial court, which is as
follows:
"1. Whether the defendants No.1 and 4 do
prove that the present suit is hit by law of
limitation as the plaint is not filed within 3 years
from 18.12.2008 as narrated in para 3 of the
written statement of first defendant?
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5. The trial Court, while considering issue No.1 is of
the considered opinion that the plaintiff got issued a legal
notice through defendant No.1 on 27.02.2012 and the
plaintiff has placed on record Exs.P29 to 32, postal
acknowledgements, which clearly reveal that all the
defendants have received the said notice. The trial Court
has further opined that since the legal notice was received
by the defendants, but they failed to give a reply to the
legal notice, cause of action arose for the plaintiff to file the
suit within three years from 27.02.2012. Learned counsel
submits that such a finding is not supported by any
provision of law. Learned counsel submits that when
admittedly, the plaintiff earlier got issued a legal notice on
04.03.2009 and a reply was given by defendant No.1 on
04.04.2009, declining to accede to the claim of the plaintiff
and clearly refused to accept the contention of the plaintiff,
cause of action, at best arose for the plaintiff from
04.04.2009. If 04.04.2009 is reckoned as the date of cause
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of action for the plaintiff, the suit should fail, since it was
not filed within three years from 04.04.2009.
6. Learned counsel for the plaintiff however
contended that defendants No.1 to 3 orally assured the
plaintiff that his case is being considered and final decision
will be taken even after a reply was given by defendant
no.1 on 04.04.2009. Learned counsel would also submit
that the date 04.04.2009 cannot be taken as the date when
the cause of action arose for the plaintiff. Learned counsel
submits that if an opportunity is give to the plaintiff, the
plaintiff will make endeavour to place on record the
evidence showing the date when which the reply notice was
received by the plaintiff. If possible, defendant No.1 should
also be directed to place the material showing when the
reply notice dated 04.04.2009 was dispatched to the
plaintiff. Learned counsel would submit as an alternative
that having regard to the facts of the case, there is a
continuous cause of action for the plaintiff and therefore,
the trial Court is right in opining that the final notice was
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issued by the plaintiff on 22.07.2012 and failure on the part
of defendants to give a reply to the legal notice should be
taken as the cause of action arising for the plaintiff.
7. Learned HCGP appearing for defendant
No.4/Deputy Commissioner submits that there being no
pleadings at the hands of the plaintiff as to why the
defendant no.4 has been arrayed as a defendant in the suit
and there being no cause of action against defendant no.4,
the suit has to be dismissed against the defendant no.4. No
acceptable reason is forthcoming from the impugned
Judgment as to why the defendant no.4 is also held to be
jointly and severally liable to repay the plaintiff. Learned
HCGP submits that from the pleadings of the plaintiff and
the material placed on record, there is nothing to show that
respondent No.4/Deputy Commissioner was in any way
involved in the contract between the plaintiff and other
defendants. Merely by showing that the Deputy
Commissioner was supervising the works entrusted to the
plaintiff, that by itself will not vest any right in the plaintiff
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to claim that there is cause of action against defendant
No.4. Learned HCGP would therefore submit that the suit as
against defendant no.4 should be dismissed.
8. Heard the learned counsel for the
appellant/defendants No.1 to 3, learned counsel for the
plaintiff, learned HCGP for defendant No.4 and perused the
memorandum of appeal and original records.
9. Since a contention has been raised by the
learned counsel for the appellant/defendants No.1 to 3 that
Issue No.1, question of limitation has not been considered
in the proper perspective at the hands of the trial Court,
this Court has gone through the evidence placed on record,
deposition and finds that the plaintiff has admitted the fact
that earlier a legal notice dated 04.03.2009 was got issued
and a reply dated 04.04.2009 at Ex.D.2 has been given by
the defendants to the plaintiff. In the deposition of the
plaintiff, it is contended that even after such a reply is given
by the defendants, nevertheless it was orally communicated
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to the plaintiff that the defendants are considering the issue
and are awaiting further directions of the higher authorities.
This Court also finds that although elaborate findings are
given by the trial Court regarding Issue No.1, nevertheless
this Court does not find reference to any provision of law
and even in the memorandum of appeal, in the grounds
raised by the appellant/defendants No.1 to 3, there is no
reference to any relevant provision of the Limitation Act,
which should have been considered by the trial Court. We
find that the relevant provision of the Limitation Act, 1963
which may fall for consideration may be Article 18, Article
27 and Article 55 and the substantial provision contained in
Section 15, Section 18 and Section 19 etc., It is also
possible that the parties may pray for consideration of
Article 113, which is a residuary clause. This Court is also of
the considered opinion that the position whether
04.04.2009 should be reckoned the date when cause of
action arose for the plaintiff or whether the said reply was
served on the plaintiff on the subsequent date and therefore
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the cause of action would get extended till the date when
which reply was received by the plaintiff, are all required to
be considered at the hands of the trial Court. It has been
submitted by the learned counsel for the plaintiff that if the
matter is remanded, the plaintiff would endeavour to place
on record the date when which reply given by the
defendants was received by the plaintiff. At the same time,
defendants No.1 to 3 who got issued the reply notice dated
04.04.2009 may also place on record any material to show
when the reply notice was dispatched and when the plaintiff
received the same.
10. Insofar as the contention of the learned HCGP
regarding defendant No.4 is concerned, we are of the
considered opinion that the trial Court has to reconsider the
issue whether defendant No.4 is in any way responsible and
whether it could be held that defendant No.4 is jointly and
severally liable to repay the plaintiff having regard to the
evidence placed on record.
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11. In that view of the matter, this Court proceeds to
pass the following :
ORDER
(i) The appeal is allowed in part.
(ii) The impugned Judgment and Decree
dated 28.07.2017 passed in O.S.
no.5/2012 by the Principal Senior Civil
Judge, Karwar is hereby quashed and
set aside.
(iii) The matter stands remanded back to
the trial Court to re-consider the Issue
No.1 regarding limitation.
(iv) The parties shall be permitted to lead
additional evidence both documentary
as well as oral evidence.
(v) The trial Court is not precluded from
re-considering other issues also, more
particularly, the liability insofar as
defendant No.4 is concerned.
(vi) All contentions are left open.
(vii) The parties are directed to appear
before the learned Principal Senior Civil
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Judge, Karwar on 29.01.2025, without
waiting for further notice from the trial
Court.
(viii) The learned Principal Senior Civil
Judge, Karwar is requested to
endeavour to dispose of the suit as
expeditiously as possible.
Sd/-
(R.DEVDAS)
JUDGE
Sd/-
(B. MURALIDHARA PAI)
JUDGE
MBS/CKK
Ct:vh List No.: 1 Sl No.: 26
