General Manager vs Sri Biswajit Saha & Another
2021 Latest Caselaw 547 Tri

                              HIGH COURT OF TRIPURA
                                    AGARTALA
                                      RFA 19 of 2017

     General Manager, B.S.N.L. & Another
                                                                  ..........Appellant(s)
                                         Versus

     Sri Biswajit Saha & Another

                                                                ..........Respondent(s)

     For Appellant(s)            :     Mr. A.K. Deb, Adv.
     For Respondent(s)           :     Ms. P. Dhar, Adv.
                    HON'BLE MR. JUSTICE S. TALAPATRA
                 HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

                                         Order
     06/05/2021

Heard Mr. A.K. Deb, learned counsel appearing for the appellants [the

defendants in the suit] as well as Ms. P. Dhar, learned counsel appearing for the

respondent [the plaintiff in the suit] No.1. None appears for the respondent No.2

despite due notice.

2. This is an appeal under Section 96 of the CPC from the judgment dated

29.10.2014 delivered in Money Suit No.05 of 2013 by the Civil Judge, Senior

Division, Gomati District, Udaipur.

3. It may be noted that earlier the appellants filed the appeal before the

Court of the District Judge, Gomati Judicial District, Udaipur and the said appeal

being T.A.04 of 2015 was returned in consideration of the suit value being more

than Rs.5,00,000/-. Thereafter, the appellants have filed this appeal in this Court.

The respondent No.1 instituted the suit for realizing a sum of Rs.12,36,262/- which

was the final bill for the work named "digging of trance and laying of DHPE Pipes for

protection of OFC and pulling of OFC in Barpathari" he had carried out under

agreement No.WZ-59/Pt-III/09-10/01 dated 13.10.2009. According to the plaintiff

[the respondent No.1 herein] he had completed the work on 24.06.2010.

Acceptance and Testing [AT] was carried out on 08.09.2010. According to the

agreement that has been entered between the parties, the bill was supposed to be

paid within six months from the day of Acceptance and Testing i.e. 08.09.2010. For

purpose of reference, we may refer to the relevant clause in the contract :

"11.1.2 procedure for preparation, processing and payment of final bill.

The contractor shall prepare the final bill in triplicate & acceptance and testing of all the works and submit the same to D.E.-in-charge of work within 30 days of acceptance and testing and payment shall be made within three months if the amount of the contract is up to Rs. two lacs and in six months if the same exceed Rs.two lacs, of the submission of such bill. The final bill shall be prepared for all the measurements of all items involved in execution of complete work order. The contractor shall prepare the final bill containing the following details."

4. For purpose of brevity and in view of the subsequent event, the dispute

is confined to a limited area. According to the plaintiff [the respondent No.1], the

final bill paid was not pleaded within the stipulated period. Till the day of institution

of Money Suit i.e. on 13.11.2013, no payment was made in breach of the said

contract.

5. The respondents by filing the written statement has categorically stated

that on 20.01.2014 the due amount, after deduction of the service tax and income

tax at 5%, was paid to the plaintiff. In para-7 of the written statement the plaintiff

has asserted thus:

"..............it has been cleared on 20.01.2014 as due to some discrepancies cropped up and the decision was taken by the competent authority upon the bills as raised by the plaintiff. The defendant paid an amount of Rs.11,35,939/- to the plaintiff after deducting 5% Service Tax and Income Tax at source for an amount of Rs.85.501/- in total."

6. There is no dispute regarding the payment made on 20.01.2014

inasmuch as the plaintiff being PW-1 has categorically stated in para-5 of his

deposition that the plaintiffs has received the said amount. But the plaintiff did not

amend the plaint for incorporating the said fact. But in the examination in chief he

has admitted that he has received Rs.11,35,939/-. However, he has stated

simultaneously that no interest has been paid for the delayed payment.

In the cross-examination he has further admitted that it is a fact that

the department made the payment of his entire bill after deduction of Service Tax

and Income Tax.

7. The Civil Judge framed three issues for adjudication of the suit on the

basis of the rival pleadings :

"i) Is the suit maintainable in its present form and nature ?

ii) Whether the plaintiff is entitled to get a decree for an amount of Rs.12,36,261/- along with the interest from 24.06.2010 till realization from the defendants ?

iii) Whether any other relief/reliefs the plaintiff is entitled to get?"

8. Having taken the subsequent event i.e. the payment of the entire

amount however after deduction of the tax at source as stated above, the Civil

Judge has observed that the plaintiff is entitled to get simple interest upon the

principle amount from the month of June, 2011 @ 6% p.a. The Civil Judge has

decreed that the plaintiff is entitled to get the simple interest on the amount of

Rs.12,36,261/- from June, 2011 till date and further, it has been directed by the Civil

Judge that if the payment is not made within two months from the date of passing

the judgment, the defendants shall be further liable to pay the additional simple

interest @ 6% p.a. till realization of the decretal amount. In this regard, it is to be

pointed out that a serious issue has been raised in respect of the maintainability of

the suit. According to the Civil Judge, the suit was maintainable and there was no

defect in the suit.

9. However, Mr. Deb, learned counsel appearing for the appellants has

raised the issue of maintainability afresh and has urged this Court to reexamine that

issue. On 08.04.2021, we framed the following issue for reexamining as additional

issue :

"Whether the Civil Judge, Senior Division had any competence to pass the order dated 28.11.2013 delivered in Case No.Misc.43(Con.)/2013 by invoking the power under Order 7 Rule 6 of the CPC and that too without giving any notice to the defendants?"

Today when we took up the appeal for final hearing, we heard the

counsel for the parties on that additional issue first.

10. Ms. P. Dhar, learned counsel appearing for the respondents at the

outset has candidly submitted that filing of the application being Misc.43(Con.)/2013

was not required as the suit was within time, if the time consumed in serving the

notice under Section 80(1) of the CPC is added with the prescribed time of

limitation, Section 15(2) of the Limitation Act clearly provides as under :

"15(1) In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded."

11. Since the notice under Section 80(1) of the CPC was issued, thus the

plaintiff is entitled to get additional sixty days beyond the time as prescribed by the

Limitation Act. The plaintiff was therefore, within the time in instituting the suit. The

plaintiff was entitled to get the final bill within a time of six months from the date of

submission of the bill. That apart, another 30(thirty) days was entitled to the plaintiff

for raising the bill. Thus, the suit was well within the limitation. As such, the issue as

decided in favour of the plaintiff does not require intervention. Thus, finding in the

said application being Misc.43(Con)/2013 is not at all required to be interfered with

and any decision passed in the said application inconsequential as the suit was well

within the period of limitation. Finally, what we find that the question which is

required to be decided in the appeal is that whether the decree of interest as passed

by the trial Court is sustainable or not. As is evident from the contract that the

appellants were obliged to pay the final bill within a period of six months from the

date of filing of the said bill, but that was not paid and that fact has been

unequivocally admitted by the defendants [the appellants] also. The defendants

have submitted that there was some discrepancies in the matter, but they have no

revealed or laid what was those discrepancies unless those are revealed, those

discrepancies are justifiable.

As we have already noted that Acceptance and Testing (AT) was conducted on

10.09.2010, the appellant was supposed to file his bill within a period of thirty days

meaning on or before 10.10.2020. If it is supposed that the bill was filed within

10.10.2020. We can safely so suppose as the defendant did not raise any objection

in that regard in their written statement. The plaintiff was supposed to get the

payment of the entire bill amount within 10.04.2011, but such payment was not

made. Even when the notice under Section 80(1) of the CPC was issued demanding

such payment within two months from the date of receipt, the defendants [the

appellants herein] did not make such payment. The notice under Section 80(1) of

the CPC was issued on 10.05.2013. As no payment was made within a period of two

months, the petitioner filed the suit on 13.11.2013.

12. Mr. A. Deb, learned counsel appearing for the appellants has submitted

that by leave of this Court the appellants have introduced two documents viz. a

communication dated 01.01.2014 addressed to the plaintiff in respect of the

payment of the final bill by the Divisional Engineer [TRAns], BSNL, Agartala and the

communication of the plaintiff dated 07.01.2014. Those documents are respectively

the Annexures-1 and 2 in I.A. No.02 of 2017 which are placed for acceptance under

Order 41 Rule 27 of the CPC. By the order dated 03.04.2018, this Court permitted

the appellant to place those documents in the record of evidence. However, those

were not marked separately. We marked those documents as we consider those

documents as Exbts. X-1 [Communication dated 01.01.2014] and X-2

[communication dated 07.01.2014]. [those documents be segregated from the said

I.A.02 of 2017 keeping the photo copy in their place and be made part of the

original records for future reference]. Mr. Deb, learned counsel has submitted that it

would be apparent from the communication dated 01.01.2014 [Exbt.X-1] that a

discussion was held between the parties and it was decided that the payment would

be made by the BSNL at the earliest. Thereafter, by the communication dated

07.01.2014 [Exbt.X-2] the plaintiff had informed that the case will be withdrawn only

after full payment of the three bills made from the appellant's end.

13. Mr. Deb, learned counsel has tried to impress us that communication of

the plaintiff [Exbt.X-2] would estop the plaintiffs from claiming further relief. We are

unable to accept such submission inasmuch as the plaintiff did not abandon any

relief thereby.

14. True it is that the plaintiff had stated that on having the payment he

would withdraw the suit but he did not withdraw the suit. Doctrine of estoppel will

operate on the day of institution of the suit. That can operate against the plaintiff if

an express agreement is made by abandoning the claim and the plaintiff had acted

on the agreement without reserving his right to pursue the reliefs in the suit.

Nothing of that nature has occurred in the present case.

15. Mr. Deb, learned counsel has submitted that there is no clause in the

entire contract for interest and as such, the plaintiff [the respondent No.1 herein]

cannot raise a claim of payment of interest.

16. From the other side Ms. P. Dhar, learned counsel appearing for the

respondents has submitted that the agreement relating to the time bound payment

in all circumstances would apply. If the payment is not made the party who is

affected by way of nonpayment, may claim the loss for not making the payment in

time. It is breach leading to loss. As such, the plaintiff has rightly claimed the

interest for the delay in payment.

17. We are in agreement with the submission of Ms. P. Dhar, learned

counsel appearing for the respondent No.1 that the loss that occurred for

nonpayment of the bill within the agreed time, the plaintiff being the person affected

by such nonpayment may raise the relief cooping the loss that occasioned for such

belated payment. The interest is of the method to address such loss. But we find the

time-frame as has been determined for payment of the interest is not quite

sustainable.

18. We recalibrate the relief. The plaintiff will not be entitled to get the

interest w.e.f. 24.06.2010 as directed by the Civil Judge. The said interest shall be

paid from 09.04.2011 for the period till 19.01.2014 as the appellants [the

defendants in the suit] paid the entire money on 20.01.2014. For that period i.e.

09.04.2011 to 19.01.2014 the defendants shall pay simple interest @ 6% p.a. It is

made absolutely clear that on 20.01.2014 the amount of the interest that would

accrue by way of computation thus, that would be the money payable to the

plaintiff. If the money is not paid within a period of three months from the date of

decree as would be drawn in this appeal, the appellants [the defendants in the suit]

shall be liable to pay further interest on the accrued money on 20.01.2014 @ 6%

p.a. till realization. It is therefore ordered that the appellants shall pay the interest

for the period from 08.04.2011 to 19.01.2014 @ 6% p.a. If the payment is not paid

within three months from the date of decree as would be drawn in this appeal on

the basis of this order, the appellants [the defendants in the suit] shall pay 6%

additional interest on the said accrued amount on 20.01.2014 till the payment is

made.

In the result, the appeal is partly allowed.

Draw the decree accordingly.

Thereafter, send down the records.

                           JUDGE                                                          JUDGE




Sabyasachi B