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State Vs. Velayudhan Pillai Narayana Pillai - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberA.S. No. 1 of 1955 (T)
Judge
Reported inAIR1958Ker366
ActsLimitation Act, 1908 - Articles 113 and 115
AppellantState; Velayudhan Pillai Narayana Pillai
RespondentVelayudhan Pillai Narayana Pillai;state
Appellant Advocate N. Krishnaswami Iyengar, Govt. Pleader
Respondent Advocate M.N. Parameswaran Pillai, Adv.
Cases ReferredKasturchand Okaji v. Mari Govind Wagla
Excerpt:
limitation - breach of contract - articles 113 and 115 of limitation act, 1908 - appellant entered into contract for executing certain works with x - x committed breach of contract by stopping appellant work - appellant claimed compensation on value of unexecuted part of work and repayment of security deposits - contract broken by respondents on 13 .07.1934 - suit filed on 14.06.1940 - whether suit barred by limitation - period of limitation begins from date on which contract was broken - held, suit barred by limitation on ground that it was instituted after more than 3 years. - - the defendant, the state denied the claim and contended that the plaintiff had stopped the work even before the order was passed on 18-7-1934 asking him to stop the work, that the order cancelling the..........v. chairman, district board, sitapur, air 1928 oudh 297 (d), that even such a suit for a consolidated claim would be governed by article 56, learned counsel for the respondent also stated that the suit would be governed by article 115 so that the point in controversy is only about the date from which limitation begins to run.according to article 115 limitation begins to run when the contract is broken. the plaintiff's case is that the contract was broken by the defendant on 13-7-1954. the appellant has a contention that the plaintiff himself stopped work on 2-7-1954 as seen from his letter ext. c. the question whether the contract was broken on 2-7-1934 or 3-7-1934 is not material as the suit filed on 14-6-1940 would be barred in either case. if article 115 should govern this case,.....
Judgment:

T.K. Joseph, J.

1. This appeal arises out of a suit for compensation for breach of a contract. On 30-4-1934 the plaintiff entered into contract with the Chief Engineer, Water Works and Drainage Department of the State of Travancore for executing part of the work in the construction of the high level service reservoir of the Willingdon Water Works Trivandrum. The plaintiff's case is that on 13-7-1934, the Executive Engineer acting on the orders of the Chief Engineer stopped the work which he was doing and thereby committed breach of the contract.

As required by the Executive Engineer the plaintiff submitted bills on 17-7-1934, 18-7-1934 and 7-3-1935 claiming a sum of Rs. 8,475--Chs. 7 Cash 3 on account of work done till 13-7-1934, and the cost of materials taken over by the department. He further contended that the Department was hound to pay him the amount within 10 days of receipt of the bills. Besides the above sum, the plaintiff also claimed compensation at the rate of 15 per cent. on the value of the unexecuted portion of the work and also repayment of the sum of Rs. 575 paid as security deposit.

Interest on these amount at 12 per cent. per annum from 7-6-1935 was also claimed. The defendant, the State denied the claim and contended that the plaintiff had stopped the work even before the order was passed on 18-7-1934 asking him to stop the work, that the order cancelling the contract was not wrongful, that such a step had to be taken as the plaintiff failed to show proportionate progress, in Work according to the timeallowed, by the contract, that the damages payableby the plaintiff exceeded the sum of Rs. 575 de-posited by him, that a sum of Rs. 970-2-8 alonewas found; due to him and that the same was deposited in the Munsiffs Count of Trivandrum pursuant to an order of attachment received fromthat Court.

Another contention was that the suit was barred by limitation.-- The Court below fount that the plaintiff had defaulted to perform his part of the contract and that the order cancelling the contract was proper. The plea of limitation-was overruled. The plaintiff was given a decree for recovery of Rs. 6,166-6-4 as the price of work-done and materials supplied by the plaintiff. The defendant has preferred this appeal from the decree. The plaintiff has filed a memorandum of cross-objections claiming the disallowed portion of his claim.

2. The main point pressed by Shri. Krishna-swamy Iyengar, learned counsel for the appellant is that of limitation. The learned Judge dealt with the question of limitation and hold that the suit was not barred as it was filed within 3 years of the date on which the Government intimated refusal of the plaintiff's claim. He has not stated under which Article the suit would fall. In dealing with the question he observed as follows :

'I don't see any limitation for the suit. After the termination of the contract the plaintiff was in correspondence with the Government and a settlement was in contemplation. The final 'no' from the Government was intimated to the plaintiff on 23-11-1112 only. The final letter of the Government is Exhibit U in the case. Ext. U has therefore to be treated as the starling point for limitation, time is to run only from that date. The suit filed on 2-11-1115 is therefore within time. Issue found for the plaintiff.'

From the way in which the question of limitation has been dealt with it is not possible to say that the Judge had any clear or well defined view regarding the Article of the Limitation Act applicable to the facts of the case. It appears to us that the learned Judge was treating the suit as though it were one for settlement of accounts --a course which was not warranted by the frame of the suit. It is difficult to see how in a suit of this kind the starting point of limitation can ba said to be the date of refusal of the plaintiffs -demand.

3. It was urged on behalf of the appellant that the suit was governed by Article 40, 44 or 103, of the Travancore Limitation Act corresponding to Articles 52, 56 or 115 of the Indian Limitation Act. Article 52 which deals with suits for the price of goods sold and delivered where no fixed period of credit is agreed upon, provides a period of three years from the date of delivery of the goods. Article 56 governs suits for the price of work done by the plaintiff for the defendant at his request where no time has been fixed for payment. The period of limitation is three years and it begins to run when the work is done.

According to the appellant, the claim decreed by the lower Court falls under either of these Articles or Article 115 which governs suits for compensation for the breach of any contract, express or implied, not in writing registered, which is not specially provided for by the Act, The period of limitation for such a suit is 3 years and limitation begins to run when the contract is broken or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or (where the breach is continuing) when it ceases. The amount decreed is in respect of the work done by the plaintiff as well as the cost of materials.

There is only a joint claim for these two items in the plaint and it is not possible to gather from the pleadings the respective amounts claimed under each head. It was therefore urged that the view taken by a Full Bench of the High Court of Lahore in Mohamed Ghastia v. Siraj-ud-Din, AIR 1922 Lah 198 (FB) (A), should be followed. That was a suit for recovery of a sum of money on account of work done and cost of materials used by the plaintiff in connection with the construction of a building for the defendant. The Full Bench held that it was open for the plaintiff to claim the price of work and materials separately, in which case the two claims would be governed by Articles 52 and 56 respectively.

As however there was only an indivisible claim in the suit, it was held that the suit could not be treated as falling within either of these Articles but only under Article 115 of the Limitation Act. This decision was followed in Saudagar Mal Lach-man Das v. Bahadur Chand Harichand, AIR 1928 Lah 442 (B) and Sita Ram v. Mt. Mahamudi Begum, AIR 1934 Lah 475 (G). It was held in Mathura Prasad v. Chairman, District Board, Sitapur, AIR 1928 Oudh 297 (D), that even such a suit for a consolidated claim would be governed by Article 56, Learned counsel for the Respondent also stated that the suit would be governed by Article 115 so that the point in controversy is only about the date from which limitation begins to run.

According to Article 115 limitation begins to run when the contract is broken. The plaintiff's case is that the contract was broken by the defendant on 13-7-1954. The appellant has a contention that the plaintiff himself stopped work on 2-7-1954 as seen from his letter Ext. C. The question whether the contract was broken on 2-7-1934 or 3-7-1934 is not material as the suit filed on 14-6-1940 would be barred in either case. If Article 115 should govern this case, there is no basis for taking the date of refusal to pay the amount claimed, as the starting point of limitation. In our opinion Article 115 applies to this case and limitation began to run, at any rate, from 13-7-1934. The suit having been instituted more than 3 years after this date must therefore be held to be barred by limitation.

4. Learned counsel for the Respondent sought to support the decree under Article 113 of the Indian Limitation Act also. This article refers to suits for specific performance of a contract. The present suit is one for recovery of damages for breach of a contract and it is not possible to treat it as a suit for specific performance of a contract. It was argued that the defendant was liable under the contract to pay for whatever work that was done by the plaintiff and that the claim inrespect of the same must therefore be treated as a suit for specific performance. If this argument is correct, every suit for the price of work done or goods supplied would be a suit for specific performance of a contract because in every such transaction there would be an, agreement to pay the price.

We are unable to accept this argument. Article 113 applies only to such suits as are contemplated by Section 12 of the Specific Relief Act. Even if this could be treated as a suit for specific performance, it would be barred by limitation as the plaintiff's case is that payment was to be made by the defendant within 10 days of the receipt of the bill. The last bill was submitted by the plaintiff on 7-3-1935 but the suit was filed more than 3 years after that date. Several decisions in suits for specific performance of contracts which do not fix a date for performance were cited by the learned counsel for the Respondent but these in our opinion have no application to this suit which is one for recovery of compensation for breach of a contract.

This suit cannot be treated as a, suit for specific performance of a contract, which does not fix a date for performance and Article 113 cannot have any application. Reference was also made to Kasturchand Okaji v. Mari Govind Wagla, AIR 1934 Bom 491 (E). This decision cannot be of any help to the Respondent as the point decided was that in a suit between parties for settlement of accounts, the starting point of limitation was the date on which the defendant refused the plaintiff's demand for settlement of accounts. We therefore hold that this suit falls under Article 115 of the Limitation Act and that it is barred by limitation.

5. In view of our finding on the question of limitation it is unnecessary to decide the other points raised in appeal.

6. In the result the appeal is allowed andthe decree of the Court below is reversed, dismissing the suit. The appellant has been able tosucceed on the (sic) of limitation on account ofthe delay of the DEPARTMENT in dealing with theplaintiff's claim and we do not therefore considerit proper to allow costs to the appellant, eitherhere or in the Court below. The memorandum ofcross-objections claiming additional amount is alsodismissed but without costs. As the suit was filedin forma pauperis, the State is allowed to recoverthe court-fees payable on the plaint from theplaintiff.


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