1. This appeal have been filed on behalf of the Jullundur Improvement Trust. Jullundur the defendant-appetent, against whom the decree for Rupees 175000.00 has been passed by the trial Court.
2. The case of the plaintiff-respondent is that he cantered into the agreement dated May 2, 1966, Exhibit P. 7, with the defendant to construct 90 feet wide road in the development scheme of 84 acres behind Civil Hospital, Jullundur connecting Vijay Nagar Road to Nakodar Road and to finish the work an 14-12-1967. In connection with that work, the payment of the last bill was received by him. au 14-12-1967, under protest as his full dues were not paid. According to him there was a material stipulation in the contract that the work will be done and executed strictly in accordance with the Punjab P.W. D. specifications and that clause 12 of the condition of contract Exhibit P. 6, further provided that if during the procure of the work any additional work was involved for which no rate was fixed in the contract, then such class of work shall be carried out at the rates entered in the schedule of rates of the district. According to him regarding the earth filling item of the work he quoted the rare of the Rs. 56.00 per thousand cubic feet against the scheduled rate of Rs. 81.50, this quotation was accepted by the defendant and that the regular agreement, Exhibit P. 7, was executed. Since no earth was available within a radius of two miles from the site of the work except 27,589 cubic feet earth taken from the borrow-pits along side the road he did the earth work to the following extent-
(a) 16,37,975 cubic feet with a lead of seven miles and two furlongs; and
(b) 27,589 cubic feet with a lead of 75 feet.
The defendant paid the bills for part (a) at the rate of Rs. 56.00 per thousand cubic feet and for part (b) at the rate of Rs. 15.10 per thousand cubic feet. None of the above two items (a) and (b), related to the earth filling actually involved in execution of the work corresponding to the item of earth filling two miles as stipulated to in the contract and therefore a clause 12 of the conditions of contract was to be resorted to for the purpose of arriving at the rates payable to him. The defendant applied the above condition only with regarded to the work involved in item (b) by applying the rates provided in the common schedule of the rate but failed to apply this condition for arriving at the rate fore the earth filling involved for the work at item (a) above. It was thus contended by him that was entitled to 16,37,975 cubic feet earth filling with a lead of seven miles and two furlongs as per the rate provided in the common schedule of rates at the rate of Rs. 1,15,477.23 as the balance amount payable to him. He also alleged that payments were made to him after deduction of earth work at the rate of ten per cent. On account of shrinkage and that this deduction could not be made under the P.W. D. specification because he had executed the work of earth filling to the extent of 18,19,972 cubic feet by layers duty compacted with watering and ramming. According to him, this deduction could be made only in cases of uncomplicated fills Thus, he dammed a further amount of Rs. 23,023.00 on this account.
The plaintiff, also alleged that since he laid the earth in nine inches thick layer, he was entitled to Re. 3,640.00 at the extra rate of Re. 2/- per thousand cubic feet as per Serial No. 6.2 (G)(I) of C. S. R Vol. X read with clause 12 of the conditions of contract. He further alleged that he suffered a loss of Rs. 6,200.00 on account of the washing away of 2 lace cubic feet earth in the storm water in the year 1966. He thus made a total claim of Rs. 1,48,340.23 on account of the above accounts with interest at the rate of 6. per cent per annum thereon from Jan 15, 1968, which amounted to Rs. 26,700.00 as the money was unlawfully detained and retained by the defendant. He, therefore, prayed for a decree in the sum of Rs. 1,75,000.00. As regards limitation, it was alleged in para 12 of the plaint that the cause of action arose to him on 14-12-1967, when the payment of the final bill was received by him under protest and when his full claim was rejected by the defended. It was further stated in para 14 thereof that the suit was within time taking the period of notice of two months which was obligatory under the Town Improvement Act and also as he bad been prosecuting another civil proceeding under the Arbitration Act from May 28, 1968 to Nov. 18, 1970, bona fide under S. 14, Limitation Act. The per-sent suit was filed on Feb. 9, 1971.
3. The suit was contested on behalf of the defendant inter alia on the ground that the suit was barred by time. The plaintiff was debarred from filing the present suit by his own acts and conduct. On merits it was averred that according to clause 12 in tender no additional work was over ordered as claimed by him and therefore the question of carrying out any additional work by him did not areas. It also denied the non availability of the earth within the radius of two miles from the site of work on the issuance of any instructions by the Engineer in charge. It was alleged that he had quoted that rate of Rs. 56.00 per thousand cubic feet irrespective of lead and that the payment bad. been rightly made to him. It also denied his all other claims. On the pleadings. of the parties; the trial Court framed the following issues:
1. Whether the suit is within time?
2. Whether Me plaintiff is barred by rules of estoppel and waiver?
3. Whether the plaintiff is barred by his acts and conduct to file the present suit ?
4. Whether the plaintiff brought earth from a lead beyond two miles as alleged in para 5 of the plaint? If so from what distance and to what effect?
5. Whether the deduction regarding shrinkage had been rightly made according. to P.W. D. specifications to which the plaintiff has agreed in his bond as per contract of work dated 2-5-1966?
6. Whether the Plaintiff is entitled to lese of Rs. 6;200.00 on account of. washing of two lacs of cubic feet earth in storm waters in the year 1966?
7. Whether the Plaintiff is entitled to interest? If so at what rate and how much?
8. Whether the plaintiff is entitled to the amount? If so to what amount and bow much?
8-A. Whether the plaintiff is entitled to Rs. 3,640.00 at the extra rate of Rs. 2.00 per thousand cubic feet according to Serial No. 6.2 (G)(I) of C. S. R. Vol. I read with column 12 of the conditions of contract as alleged in para 8 of the Plaint?
Issues 1, 2 and 3 were decided in favour of the plaintiff. Issues 4 and 8 were discussed together and it was concluded thereunder that the plaintiff brought the earth from a lead beyond two miles from a distance of 7.2. miles and he was, thus, entitled to the payments involving the lead of 7.2 miles the amount, thus, due to him was found to be Rs. 1,15,477.23. Under issue 5, it found t at the deductions on account of the shrinkage were clearly against the provisions of the contract and, therefore, tee plaintiff was entitled to a sum of Rs. 23.023.00. Under issue 6, the claim of Rs. 6,200.00 on account of the washing away of the earth in the storm water was upheld. Under issue 7, it held that the plaintiff was entitled to interest at the rate of 6 per cent per annum from 15-1-1968 till realization. Under issue 8-A, the claim of the plaintiff for a sum of Rs. 3,640.00, for compaction of earth at the rate of Rs. 2.00 per thousand cubic feet was also upheld. As a result, the plaintiff's suit was decreed in toto as stated earlier. Dissatisfied with toe same, the defendant has come up in appeal to this Court.
4. The main controversy in this appeal is: whether the suit of the plaintiff wan within time or not? It is the common case of the parties that it is Article 18, Limitation Act, 1963, which would govern the plaintiffs case. It provides a limitation of three years from the time the work is done. The present suit was filed on 9-2-1971. According to the plaintiff the cause of action arose to him on 14-12-1967, when the payment of the final bill, Exhibit D.19, was received by him under protest whereas the case of the defendant is that the period of three years would commence from the date the work was done which according to it was completed on 28-9-1967, as admitted by the plaintiff himself vide, Exhibit D.4, dated 28-9-1967, written in this own hand wherein he had stated that 90 feet wide road under 84 acres scheme was complete and, therefore, his final bill, be prepared accordingly. In any case, according to the defendant, in the final bill, Exhibit D.19, the certificate to the effect that necessary detailed measurements have been taken as recorded in the Measurement Book No. 44, was given on 7-10-1967, by the Engineer in charge Mohinder Singh, who appeared as D.W. 7. Thus, it was argued on behalf of the defending that even after that date. i. e. 7-10-1967, the present suit filed on 9-2-1971, even after allowing the notice period of two months was barred by time. According to the trial Court, the cause of action would arise to the plaintiff for the price of the work done only on furnishing of the completion certificate by the Engineer in charge. The certificate of the Engineer in charge, according to the trial Court did not bear any date. Since, according to the trial Court the payment of the last bill was received by the plaintiff on 14-12-1967, under protest, the period of limitation will start from that date and that after allowing the notice period of two months, the suit filed by the plaintiff on 9-2-1971, was within time. The trial Court also found that the plaintiff prosecuted with due diligence another civil proceeding founded upon the same cause of action in a Court which could not give the relief and, therefore, he was entitled to get, the period spent in prosecuting those proceedings excluded under S. 14, Limitation Act, (hereinafter called the Act).
5. After hearing the learned counsel for the parries, I am of the considered opinion that the plaintiffs suit was barred by time.
6. It could not be successfully argued that the cause of action for filing the present suit had arisen to the plaintiff on 14-12-1967, when the payment of the final bill, Exhibit D. 19, was received by the plaintiff under protest. The completion certificate given on the. final bill, Ext. D. 19, was required to be recorded for making the payment. The amount which is being claimed in the per-sent suit was never the subject-matter of the bills submitted by the plaintiff at any stage. Therefore 'for the purposes of filing the pre-sent suit, under Art. 18 of the Act, the work bill be deemed to have been done when it was duly entered in the measurement book and on the basis of which the final bill was prepared. As stated earlier, according to the plaintiff, the work was completed by him on 28-9-1967, vide Ext. D. 4, and in any case on 7-10-1967, when it was certified on Exhibit D. 19 by the Engineer in charge Mohinder Singh, D.W., that the necessary detailed measurements had been taken as recorded in, Measurement Book No. 44. The further certificate that the work had been duly completed according to the terms of the contract and that the measurements and other calculations entered into the bill were correct was necessary only for the purpose of 'making the payment of the final bill. It may be that the said certificate does not bear any date, but it does not mean that it will be deemed to have been given on 14-12-1967, when the plaintiff received the payment of the bill under protest. In any case, at certificate does not furnish any cause of action to the plaintiff for filing the per-sent suit for which the limitation began to. run from the date when the work was done. According to the plaintiff, the work was done, the moment it was entered into the Measurement Book and the final bill was prepared accordingly. The furnishing of the final certificate by the Engineer in charge is required under clause 6 of the conditions, of contract, Exhibit P. 6, and is meant for a, deterrent purpose. Besides, as already observed, the plaintiff never claimed the suit amount in the final bill submitted by him i.e., Exhibit D. 19, and, therefore, any final certificate given thereon was immaterial for the purposes of filing the present suit. It is not disputed that in case 28-9-1967, or 7-10-1967, is taken to be the date when the work was done, then the suit filed by the plaintiff on 9-2-1971 even after allowing the notice period of two months, was barred by time.
7. As regards the exclusion of time under Section 14 of the Act, the approach of the trial Court in this behalf was wrong. In para 14 of the plaint, the plaintiff state that the had been prosecuting another civil proceedings under the Arbitration Act from May 25, 1968, to November 18, 1970, bona fide. In the written statement filed on he half of the defendant, it was denied and it was stated that the plaintiff was not entitled to. the exclusion of the time under Section 14, of the Act. In any case, there is no cogent and legal evidence to prove that the plain tiff had been prosecuting the other civil proceeding under the Arbitration Act in good faith as contemplated under S. 14. Th term 'good faith' has been defined under See. 2(h) of the Act, as follow: 'Nothing shall be deemed to be done in good fait which is not done with due care and attention'. From the evidence on the record it is clear that the plaintiff has tailed to prow that the proceedings taken earlier by bit under the Arbitration Act were prosecute with due care and attention. The approach of the trial Court that it was not contained that the proceedings taken by the plaintiff were not bona fide or in good faith was wrong because it was for the, plaintiff to prove that his case fell within the ambit of Section 14 of the Act. When he, did not satisfy the initial burden which. lay upon him, the burden did not shift to the defendant to show the contrary. The provision of Section 14 of the Act, came up for consideration before the Supreme Court in Madhavrao v. Ram Krishna, AIR 1958 SC 767, wherein it was held:--
'The real question material for the purpose of Section 14 was not whether the plaintiff was dissidents or that his acts or omission in this connection were mala fide. On the other hand the question was whether given due care, and attention the. Plaint could have discover the omission without having to wait for about ten years or more. In view of the fact that in both the suits the plaintiff himself drew up the, plaint and, presented them in Court and inasmuch as he had given the value of the property in the other suit it was for him to adduce the reasons as to why he failed to give the value of the property in the suit in question or waited for such a long time. In the absence of such reasons it could not be valid that he had acted with care and caution.
The burden of bringing his case within the section lay on the plaintiff. When he did not satisfy the initial burden which lay upon him the burden did not shift to me defendant to show the contrary.'
In the present case, the plaintiff filed the application under S. 20, Arbitration Act, for ordering the arbitrates agreement to be filed and for making an order of reference to the arbitrator which, according to the learned counsel, was provided in the condition of contract, Exhibit P. 6. In the written statement filed on behalf of the defendant in those proceeding it was totally denied and it was asserted that there was no arbitration clause as alleged because the feinted clause 24 of the condition of contract stood detected on the authority of Resolution No. 40 dated 16-2-1965, a copy of which was also produced therein. The main issue a the said case was whether clause 24 of the condition of contract stood deleted at the time of the filing of the tender. In the said case the trial Court come to the conclusion:--'I, thus hardly find any substance in the allegation that clause 24 had been after the signing of the agreement'. Consequently the said issue was decided against the applicant and the application was dismissed. The applicant was not still satisfied and he filed an appeal. F. A. O. No. 97 of 1969 which was dismissed by this Court on 18-11-1970. It was observed by the learned Judge in the said appeal:
'I, therefore, find that the arbitration clause had been cancelled in the present case in accordance with the general policy decision taken more than a year earlier. The appellant's witnesses were carrying on contract business, but they had not been able to produce or prove any indent form issued by the respondent-Trust after the general policy decision in with the word cancelled.
In view of these clear findings given by both the Courts in those proceedings, it could not be successfully argued that the plaintiff was prosecuting those proceeding with due case and attention. Moreover, the Advocate who had advised to take recourse to those proceedings was not produced to prove that he had bona fide advised the plaintiff that the application under Section 20, Arbitration Act, was competent. Thus, in the present case, the trial Court wrongly observed that the plaintiff availed of the services of a Senior Advocate, like Shri G. B, Kapoor, who had the proud privilege of being elected as the provident of the local Bar, in prosecuting the earlier proceedings. On the facts and circumstance of the present case, the plaintiff under no circumstances was entitled to invoke the provisions of section 14 of the Act for the exclusion of the time spent in prosecuting the earlier proceeding. The net result is that the present suit of the plaintiff filed on 9-2-1971, was clearly barred by time and the finding of the trial Court recorded on this issue was wrong.
8. The next contention raised on behalf of the appellant is that the plaintiff was estopped by his act and conduct from filing the present suit. According to the learned counsel under clause 12 of the terms of contract, Ext. P. 6, if the additional work includes any class of work which is not entered in the schedule of rates of the Trust, then the contractor shall within seven days of the reaccept of the order to carry out the work in from the Engineer in charge in writing, of the rate which it is his intention to charge for such class of work and if the Engineer in charge does not agree to that rate he shall by notice, in writing, be at liberty to caned his order to carry out such class of work and to arrange to carry it out in such same as he may consider advisable. Thus, argued the learned conceal that in case the plaintiff was of the view that he was not to supply earth at the rate of R. 56.00 per thousand cubic feet beyond the lead of two miles then he should have obtained the permission of the Engineer in charge under the said cause. Having failed to take any such permission, the plaintiff could not be allowed to claim a sum of Rs. 1,15,477.23 on account of the extra lead of seven miles and two furlongs minus two miles, i. e., for five miles and two furlongs. According to the learned counsel, the total earth except 27,589 cubic feet according to the plaintiff was carried from beyond the lead of two miles whereas Rs. 56.00 per thousand cubic feet was the fiat rate irrespective of any lead. If this was so as alleged by the plaintiff, then he was under an obligation to get the rate settled under clause 12 of the condition of contract, Exhibit P. 6. However it was submitted on behalf of the plaintiff that it was not necessary to get the rate approved beyond the lead of 2 miles because the plaintiff was entitled to the rates as specified in the schedule of rate of the district and, therefore, there was no question of getting the rate settled at that stage. Moreover, according to the learned counsel for the plaintiff he was satisfied when the entries in the Measurement Book were made to the effect that the earth was carried from a distance exceeding the lead of two miles. After giving my thoughtful consideration to this matter, I find force in the contention raised on behalf of the appellant. As a matter of fact, the notice inviting tenders, Exhibit P.4, read with the abstract of estimate, Exhibit P.5, stews that the whole project was to the tune of Rs. 2,67,200.00. The plaintiff was paid a sum of Rs. 2,73,324.95 vide bills, Exhibits D.2 to D.18, at the rate of Rs. 56.00 per thousand cubic feet. Under the circumstances, if the plaintiff wanted to get higher rate for the lead exceeding two miles, then it was obligatory on him under clause 12 of the conditions of contract that he should have got the rate settled. The plaintiff at no stage submitted any bill claiming higher rate because according to him, he felt satisfied when in the Measurement Book entry was made 'earth lead exceeding two miles'. This, in my opinion, was not sufficient. In case the plaintiff was of the opinion that he was entitled to a higher rate because of the lead exceeding two miles then he should have settled the rate at the earliest or at least should have filed some bill claiming that amount. This the plaintiff failed to, do at any stage. The trial Court in this respect referred to Exhibits P.8 and P.9, the two letters written by the plaintiff to the Chairman of the defendant-Trust. In Exhibit P.8, it was mentioned that the earth was not available as per the scheduled distance and that he (the plaintiff) had to bring the earth from eight or nine miles to the spot whereas the scheduled rate of the earth filling was much less than they were paying for the transportation as the scheduled distance was much less. In Ext. P.9, it was stated that his claim as to the lead of approximately eight miles was still pending with out any justification. It appears from those two letters, Exhibits P.8 and P.9, that the plaintiff raised some dispute, but at no stage the submitted the bill claiming the amount on the basis of a particular rate. As a matter of fact the case of the appellant was that the plaintiff was to supply the earth at the rate of Rs. 56.00 per thousand cubic feet irrespective of any lead, i. e. it was a flat rate to which the plaintiff had agreed and, therefore, he was not entitled to any extra rate. In these circumstances it was all the more necessary that the plaintiff should have obtained the orders in writing from the Engineer in charge and got the extra rate settled under clause 12 of the contract, which reads-
'The Engineer in charge shall have power to make any alternations in, or additions to the original specification, drawing, designs and instruction that may appear to him to he necessary or advisable during the progress of the women, and the contractor shall be bound to carry out the work in accordance with any instructions which may be given to him in writing signed by the Engineer in charge, and such alterations shall not invalidate the contract; and any additional work for which the contractor may be directed to do in the manner above specified as part of the work shall be, carried out by the contractor on the same conditions in all respects as those on which he agreed to do the main work, and at the same rates as are, specified in the tender for the main work. The time for the completion of the work shall be extended in the proportion that the additional work bears to the original contract work and the certificate of the Engineer in charge shall be conclusive as to such proportion, and if the additional work includes any class of work for which for rate is specified in this contract then such class of work shall be carried out at the rate entered in the schedule of rate of the district, and if such last mentioned class of work is not entered in the schedule of rates of the Trust then the contractor shall within seven days of the date of his receipt of the order to carry out the work, inform the Engineer in charge in writing of the rate which it is his intention to charge for such class of work and if the Engineer in charge does not agree to this rate he shall by notice in writing be at liberty to cancel his order to carry out such class of work, and arrange to carry it out in such manners he may consider advisable provided always that if the contractor shall commoner work or in our any expenditure in regard these before the rates shall have been determined as lastly therein before mentioned then in such case be shall only been titled to be paid in respect of the work carried out or expenditure by him prior to the date of the determination of the rate as aforesaid according to. such rate or rates as shall he fixed by the Engineer in charge. In the event of a dispute, the decision of the Deputy Commissioner shall be final.'
Thus. I find that the plaintiff by his own acts and conduct disentitled himself to file the present suit. In this view of the matter the findings of the trial Court on issues 2 and 3 are also liable to be set a side. In view of these findings, no other issues survive. Of course, it was vehemently contended on behalf of the appellant that contracted rate was the flat rate of Rs. 56.00 per thousand cubic feet irrespective of any lead whereas, according to the plaintiff, this rate was meant only if the lead was within two miles. From the evidence it appears that except certain entries in the Measurement Book wherein it was written, 'lead exceeding two miles or lead not exceeding two miles' there is, no cogent evidence an the record to prove that the plaintiff had to carry the earth from a distance of seven miles and two furlongs as claimed. Even if in the, Measurement Book certain entries were made showing the lead exceeding two miles even then it was for the plaintiff to prove that it was seven miles and two furlongs, as alleged, which he failed to prove. He produced Ganga Singh, P.W. 1, who stated that about 51/2 years ago some persons were seen by him removing earth from his land. He stopped them from doing so telling them that this was his land and that they could not remove earth therefrom. Those persons told him that the land partly belonged to the P.W. D. and partly to him and, therefore, they should be allowed to remove the earth and that they would not destroy his land. in cross-examination, he admitted that he did not receive any payment for the earth. Sardara Singh P.W. 2 stated that a truck and a jeep were standing near the land of Ganga Singh. Similarly, Joginder Singh, P.W. 3, who was the driver on Truck No. PNQ-1247, belonging to the plaintiff stated that he had been taking earth from in between village Singhan and Lambra. According to him, the distance between the place from where he used to bring earth and the site was 71/2 miles. Similar was the statement Arjan. Singh, P.W. 5, the driver of Truck No. PNT-5208, which belonged to the plaintiff. The plaintiff himself appeared in the witness-box as P.W. 12 to support his claim. In the rebuttal, produced on behalf of the defendant, Roshan Singh, D.W. 1, stated that the plaintiff used to bring earth from Basti Baba Khel and Basti Khel which was at a distance of 11/2 miles or 2 miles from the construction site. Kala Singh, D.W. 2 testified that the earth put on the road was brought by, the plaintiff from Basti Baba. Khel. Saroop Singh, D.W. 3, Overseer, Jullundur Improvement Trust, stated that the agreement with the contractor to bring earth was on flat rate and not on the basis of lead. The complete rate included spreading the, earth, watering, ramming, loading, unloading and dressing. It also included compacting and lead. Jagan Nath D.W. 4, Accountant, stated that the plaintiff had never submitted any bill for payment at. the higher rate than Rs. 56.00 per thousand cubic feet if the lead exceeded two miles. Mohinder Singh, D.W. 7, the Trust Engineer stated that the rate for doing the earth work for the work, in question, was flat rate, which included carriage lead, compacting, laying, pressing and ramming etc. Shri D. P. Sharma Executive Officer, D.W. 9, stated that he was the bill passing authority of the Improvement Trust and that the full payment was made to the plaintiff of whatever was due to him. Thus, from the evidence on the record produced by the parties, it could not be concluded that the plaintiff had to bring the earth from a distance exceeding two miles even if it be assumed that be, was entitled to a higher rate in. that behalf. In view of these findings, the claim of the plaintiff for a sum of Rs. 1,15,477.23 on account of the extra lead could not be sustained.
9. As regards the claim for Rs. 23,023.00 on account of the invalid deductions at the rate of ten per cent for the shrinkage, the counsel for the defendant relied upon condition 2 of the notice inviting tenders, Exhibit, P.4, and the Punjab P.W. D. Specifications 1963 clause 27(a). The trial Court also relic upon the provisions of para 27 of the above said P.W. D. Specifications and came to the conclusion that in case of compacted fills, no deductions on account of shrinkage was to be, made. However, in view of the finding that the suit was barred by time, it is not necessary to go into the details of this matter. The plaintiffs suit is liable to fail mainly on the question of limitation and the findings on issue 2 and 3.
10. For the reasons recorded above, then appeal succeeds and is allowed. The judgment and decree of the, trial Court are set aside and the Plaintiff suit is dismissed with costs.
11. Appeal allowed.