A.N. Varma, J.
1. This is a defendant's appeal arising out of a suit for recovery of Rs. 21.330/- together with pendente lite and future interest at the rate of six per cent per annum. The court below having decreed the suit for those reliefs, the defendant has filed this first appeal.
2. Shortly, the plaint case was that the plaintiff firm was given a contract by the Local Self Government Engineering Department, Saharanpur for laying down sewer lines at Dehradun. The contract was signed, by the parties thereto on 16-8-1980. In the course of the execution of the work which started on 16-9-1960 and completed on 31-12-1962, the concerned officers of the Department discovered that the proposed depth of the sewer lines in the drawings and maps given to plaintiff for execution of the work were shallow. Realising this mistake the Department gave to the plaintiff revised drawings and specifications according to which the plaintiff was required to dig much deeper than originally shown in the plan. The plaintiff protested against this on the ground that this would involve considerableextra work. At first the Department insisted that the plaintiff should carry out the work in accordance with the revised drawings at the same rate as was originally agreed to but subsequently the Department agreed and assured the plaintiff that it might complete the work in accordance with the revised specifications for which extra work it would be paid at extra rates. Upon this assurance the plaintiff completed the work and claimed Rs. 33,000/- on account of this extra work. However, the Department reduced the claim of the plaintiff first to Rs. 25,000/- and thereafter to Rs. 18,000/-. In order to avoid controversy and delay in payment the plaintiff agreed to accept Rs. 18,000/-. On 9th June, 1962 the representative of the plaintiff signed the final bill. The said final bill amounting to Rs. 22,652/- was checked by the officials of the Department on 18th June, 1962. This bill was thereupon forwarded to the Chief Engineer by the officials of the Department for payment having approved the same. However, the plaintiff received a communication from the Superintending Engineer dated 23-1-1963 in the last week of January, 1963 in which it was stated that the Chief Engineer had rejected the claim of the plaintiff by his order dated 4-1-1963. The rejection of the plaintiffs claim was entirely untenable. Thereupon the plaintiff gave a notice demanding the aforesaid amount under Section 80 of the C. P. C. which was served on the defendant on 15-2-1963. In spite of the notice the plaintiff was not paid any amount. In May, 1964 some of the officials of the Department approached the plaintiff with a request to settle the matter through arbitration of the Chief Engineer. Without prejudice to the claim of the plaintiff in regard to which notice under Section 80 C. P. C. was given by the plaintiff, it agreed to the reference of the dispute to the Chief Engineer, Local Self Government Department, Lucknow. This reference was however, not valid or binding on the plaintiff. The plaintiff believed that the request for reference of the matter to the arbitrator was made by the Department simply to defeat the claim of the plaintiff on the ground of limitation and for marking time. On these assertions the plaintiff claimed the amount mentioned above.
3. The suit was resisted by the defendant-appellant who asserted that theDepartment had not agreed to accept either Rs. 25,000/- or Rs. 18,000/- for the extra work. The claim of the plaintiff was rejected by the Chief Engineer. The suit was barred by limitation and estoppel and, in any case, by Section 32 of the Arbitration Act in view of the fact that in pursuance of the reference to the Arbitrator an award had been given on 3-9-1965, rejecting the plaintiff's claim in the suit. On merits also, it was asserted that the plaintiff was not entitled to any amount on account of the extra work.
4. On the pleadings of the parties the following issues were framed by the court below.
'1. Whether the notice under Section 80 C. P. C. is valid? If not, effect?
2. Whether the suit is within limitation? If not, effect?
3. Whether the suit is barred under Section 69 of the Partnership Act?
4. Whether the suit is barred under Section 11 C. P. C.?
5. Whether the suit is barred by Section 32 of the Arbitration Act?
6. Whether the plaintiff is entitled to Rs. 18,000/- towards the extra work? If not, effect?
7. Whether the plaintiff is entitled to get interest? If so, amount?
8. Whether the plaintiff accepted payment in full and final settlement of the claim?
9. Whether the plaintiff is estopped from challenging the award?
10. Whether the suit is barred by the agreement between the parties?
11. To what relief, if any, is the plaintiff entitled?
12. Whether the S. E. was competent to sanction the amount in question? If so, or not, effect?'.
5. The court below after answering all these issues in favour of the plaintiff and against the defendant decreed the suit for the reliefs mentioned at the outset of this judgment.
6. Learned counsel for the appellant has challenged before us the findings given by the court below only on issues Nos. 2, 5 and 6. He did not assail the correctness of other findings.
7. Learned counsel first challenged the finding of the court below as regards the effect of the reference made to the arbitrator and the award giventhereon on the maintainability of the suit. He submitted that in view of the fact that the dispute giving rise to this suit had been referred for arbitration and an award given thereon, the suit was barred by Section 32 of the Arbitration Act.
8. We are unable to agree. The suit is clearly not one inviting a decision upon the existence, effect or validity of any arbitration agreement or award. The suit is simply for recovery of an amount due on the original cause of action. The plaintiff has not sought any declaration either in respect of the arbitration agreement or the award thereon. Section 32 can, therefore, have no application whatever to the present case.
9. Learned counsel, however, submitted that in view of the fact that the dispute upon which the suit is founded had culminated in an award, it was not maintainable even otherwise. He was, however, unable to point out any specific provision of the Arbitration Act, apart from Section 32, in support of this contention,
10. We find no merit in this contention either. In our opinion, a suit based on the original cause of action is not barred on the mere ground that the dispute forming part of the cause of action of the suit has been referred for arbitration and the arbitration proceedings pursuant to that reference are pending on the date of the suit. This is apparent from an examination of a few provisions of the Arbitration Act to which we shall presently advert.
11. Section 34 of the Arbitration Act provides that where any party to an arbitration agreement commences any legal proceeding against any other party to the agreement in respect of any matter agreed to be referred, the other party may at any time before filing a written statement or taking any other steps in the proceedings, apply to the court or authority before which the proceedings may be pending for an order staying the proceedings, and, the court or authority thereupon may make an order staying the proceedings in the absence of any sufficient cause why the matter should, not be referred for arbitration. This provision, in our opinion, clearly implies that the mere fact that there is an arbitration agreement between the parties is not per se sufficient to bar the right of a party to anarbitration agreement to sue on the original cause of action against any other party to the agreement in respect of any matter agreed to be referred. The other party has, however, the right to apply for stay of the legal proceedings or suit under Section 34 of the Arbitration Act and upon the stay of the suit the parties are relegated to arbitration proceedings. In the present case it was not disputed that the defendant-appellant had not applied for stay of the suit under Section 34 of the Arbitration. Act. The court below was hence perfectly free to proceed and dispose of the suit on merits.
12. The next relevant provision is Section 35 of the Arbitration Act which provides that no reference or award shall be rendered invalid by reason only of the commencement of legal proceedings upon the subject-matter of the reference but when legal proceedings upon the whole subject matter of reference have been commenced between all the parties to the reference, all further proceedings in a pending reference, shall unless they are stayed under Section 34 be invalid. This provision againsupports the view which we are disposed to take, namely, that by the mere fact that at the time of the institution of the suit arbitration proceedings were pending could not legally affect the maintainability of the suit or the right of the plaintiff to sue on the original cause of action. It may be noted here that according to the defendant the award was given on 3-9-1965, whereas the suit was filed on 9-8-1965, that is, the arbitration proceedings were still pending, on the own showing of the defendant at the time of the institution of the suit. The defendant, however, chose not to apply for stay of those proceedings under Section 34.
13. The defendant not having applied for stay of the suit under Section 34, there was no bar to the suit filed by the plaintiff-respondent on the original cause of action being allowed to proceed on merits. In our opinion, such a conclusion directly flows from a combined reading of Sections 34 and 35 of the Arbitration Act.
14. Learned counsel next submitted relying on AIR 1970 SC 833 (Satish Kumar v. Surinder Kumar) and another decision in AIR 1974 All 37 (Kedar Nath v. Ambika Prasad) that even though the award had not been made the rule of thecourt and even though the same may not operate as a bar to the maintainability of the suit the same could in any case be set up by way of defence in the suit and the decision relied on by the court below reported in AIR 1965 All 217 (Ram Sahai v. Babu Lal) holding to the contrary was clearly wrong and no longer good law.
15. The above submission too is entirely devoid of any merit. While it is true that, as held by the Supreme Court in the aforesaid decision as well as in AIR 1974 All 37, an award can be set up by way of defence as a final adjudication of the rights of the parties even though not made a rule of the court, in the present case this argument is not available to the defendant-appellant for the simple reason that neither before the court below nor even before us the award was set up as an answer to the claim of the plaintiff on merits. It was set up, as already noted, entirely as a plea that the suit itself was incompetent because in respect of the matter in dispute arbitration proceedings were pending at the time of the institution of the suit and subsequently an award had been given thereon. No attempt was, however made by the defendant to establish that in view of what had been decided by the arbitrator, the plaintiff had no claim on merits or that the claim by the plaintiff in the suit is inconsistent with the findings of the arbitrator. Indeed the defendant did not even so much as file the award or its copy before the court below or even in the appeal to substantiate the plea that the plaintiff was not entitled to any relief in the suit, no evidence was led to prove the contents of the award. As mentioned above, the defendant has throughout been setting up the plea as a proposition of law, namely, that by the mere fact that an award had been given by the arbitrator in respect of the matter in dispute, the suit or the claim on which the suit is founded incompetent. In this state of things it cannot be said that the plaintiff's claim is liable to be negatived by the mere existence of the fact that an award has been given by the arbitrator.
16. We next turn to the issue of limitation. For the appellant reliance was placed on Article 18 of the Limitation Act, 1963 (which corresponds to Article 56 of the Limitation Act, 1908) and it was urged that as the work was completed on 31st of December, 1961 and the suit was filed beyond that date, the suit was clearly barred by limitation.
17. We are unable to accept the above contention. In our opinion Article 18 of the Limitation Act, could have no application, to the facts of the present case. Article 18 of the Limitation Act provides that 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, the limitation is three years beginning from the date when the work is done or completed
18. It is thus evident for the application of Article 18 that no time should have been fixed for payment under the contract and further that the suit must be one for price of work done by the plaintiff for the defendant at his request. We, however, find that in the present case both these conditions are absent. Under Clause 8 of the contract time has been specifically fixed for payment. It provides that on measurement of the works done for the convenience of the contractor, interim payments shall ordinarily be made monthly, but final payment shall not be made until the whole work has been completed and a certifi-cate of completion of the work given. It further provides that all such interim payments shall be regarded as payments by way of advance against the final payment only and not as payments for the works actually done and completed and that final bill shall be submitted by the contractor within one month of the date fixed for completion of the work, otherwise the Engineer's certificate of the measurements and of the total amount shall be treated as final and binding on the parties.
19. Reading Clause 8 as a whole as well as Clause 27 it is apparent that the plaintiff was entitled to payment only when the measurements were made and a certificate granted by the Engineer-in-Chief and on the submission of the final bill. Article 18 shall, therefore, not apply.
20. Another reason why we say that Article 18 cannot apply is that the present suit is not a suit for price of work done, but as mentioned above, the claim is for payment of additional rates over and above the stipulated rate in view of the altered circumstances, and plans and drawings submitted to the plaintiff subsequently to carry out extra work which was not mentioned or stipulated in the original contract.
21. Such a claim under materially identical circumstances has not been regarded by the Supreme Court as a claim for the price of work done so as to attract Article 56 of the Limitation Act, 1908 (corresponding to Article 18 of 1908 Act) but one for increased rates in view of the altered circumstances. See Gannon Dunkerley v. Union of India, reported in AIR 1970 SC 1433. There the Supreme Court was considering a case where the plaintiff claimed certain amounts in a suit by way of enhanced rates on account of additional work which the plaintiff was called upon to carry out by the Union of India involving additional work and increased costs of materials, transportation charges and other similar items. There also, there was a clause which provided that the Engineer-in-charge shall have power to make any alterations in the original specifications, drawings and designs, etc. and the contractor shall be bound to carry out the work on the same conditions in all respects on which he had agreed to do and at the same rate. Like the present case in that case also the plaintiff was subsequently called upon to carry out some additional work not stipulated in the original contract and the plaintiff claimed for that work at additional rate. In defence, the Union of India set up Article 56 and pleaded that as the suit had been filed beyond 3 years of the completion of the work, the same was barred by limitation. Rejecting the plea the Supreme Court observed thus at page 1435:--
'Article 56 of the First Schedule to the Indian Limitation Act, 1908, prescribes a period of three years 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, and the period of limitation commences to run from the date when the work is done. A suit is governed by Article 56 if it arises out of a contract to pay the price of work done at the request of the defendant. The claim in the present case is for payment at an additional rate over the stipulated rate in view of change in circumstances, and not for price of work done by the appellant Company. It is true that additional-work was done at the request of theEngineer-in-charge, but the claim in suit was not for the price of work done but for enhanced rates in view of altered circumstances.'
22. Again while rejecting the plea of the defendant that a suit would be barred by limitation in any case under Article 115 of the Limitation Act, 1908 which prescribes a period of limitation of three years for a suit for compensation for the breach of any contract. Their Lordships observed at page 1436 as follows:--
The suit filed by the appellant Company is not a suit for compensation for breach of contract express or implicit: it is a suit for enhanced rate because of change of circumstances, and in respect of work not covered by the contract. The additional work directed by the Engineer-in-charge when carried out may be deemed to be done under the terms of the contract; but the claim for enhanced rates does not arise out of the contract; it is in any case not a claim for compensation for breach of contract.'
23. Their Lordships applied Article 120 of the Limitation Act, 1908 and held that the suit having been filed within six years from the date of the accrual-right asserted in the suit, the same was within time.
24. In the present case the final bill was submitted on 9th June, 1962, whereas the measurements were taken and checked on 15th June, 1962, by the Engineer-in-Chief and thereupon the said officer passed an order on 1st August, 1962 for payment of Rs. 23,086/- to the plaintiff. The Chief Engineer, however rejected the claim of the plaintiff by an order dated 4th January, 1963 and the suit was eventually filed on 9-8-1965 after a notice sent by the plaintiff under Section 80, C. P. C. failed to achieve any response from the defendant. In these circumstances the suit which was filed within three years of the communication of the rejection of the plaintiff's claim by the Chief Engineer was within time. In any case it was filed within time even from the date of submission of the final bill (excluding the period of two months on account of notice under Section 80, C. P. C.) The court below was therefore right in holding that the suit was not barred by limitation.
25. Learned counsel placed reliance on a decision of this Court in 1979. All LJ 468. (Town Area Committee v. Mohd. Shafi Usmani) in which old Limitation Act was applied in respect of the claim under consideration which was for the price of the work done by the plaintiff for the defendant at his request. This case has no application as in that case no time was fixed for payment unlike the present case. Further, as observed above the present is not a claim for price of work done but for enhanced rates in view of the altered circumstances.
26. The third and the last submission of the learned counsel was that the court below was wrong in decreeing the plaintiff's claim for enhanced rates as he was not entitled to the same.
27. We find no merit in this contention. The evidence on this issue was entirely one way. Apart from the documentary evidence adduced by the plaintiff, if examined one Sri R.N. Tankha in support of its claim who fully substantiated the plaintiff's case. He stated on oath that the plaintiff had protested against the insistence of the Department to dig much deeper than originally shown in the drawings and specifications submitted to the plaintiff for carrying out the contract on the basic rates. The Department, however, insisted that the plaintiff should carry out the additional work in accordance with the revised drawings at the basic rates. But subsequently it agreed and assured the plaintiff that it might complete the work in accordance with the revised specifications for which he would be paid at extra rates claimed by the plaintiff. It was upon this assurance that the plaintiff carried out the work. He has further stated that the bills submitted by the plaintiff had been duly approved by the Engineers of the Department.
28. This witness, in our opinion, has deposed to facts which fully prove that the plaintiff was entitled to get the enhanced rates claimed by it in the suit for the extra work which it way called upon to accomplish under altered circumstances.
29. As against the statement of the aforesaid witness the defendant has not examined any witness whatsoever. The oral evidence, therefore on the record was entirely one way. That the claim of the plaintiff was justified is further proved by the fact that the Executive Engineer and the Superintending Engineer of the Department itself had bothapproved the plaintiff's bill and forwarded the same for payment to the Chief Engineer. The claim of the plaintiff was, therefore, rightly decreed by the court below.
30. Learned counsel for the defendant-appellant, however, placed considerable stress on the letter of the Chief Engineer whereby he rejected the claim of the plaintiff and submitted that the court below has erred in not considering the facts stated by the Chief Engineer in the said letter which is Exhibit A-4 printed at page 225 of the paper book.
31. We reject the above argument. For, the recitals in this letter of the Chief Engineer cannot by themselves constitute substantive evidence. The Chief Engineer not having entered the witness box to depose to the various facts asserted by him in regard to the merits of the plaintiff's claim, the contents of the letter could not be treated as evidence. The court below was, therefore, right in not placing any reliance on this document for deciding the controversy whether the plaintiff has made out a case on facts for the amount claimed by him as additional rates for the extra work done by it.
32. No other point was urged in support of the appeal, nor was any other finding recorded, by the court below assailed before us.
33. In the result, the appeal fails and is dismissed with costs.