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Bhawani Shanker and ors. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectContract;Limitation
CourtRajasthan High Court
Decided On
Case NumberCivil Regular First Appeal No. 142 of 1960
Judge
Reported inAIR1970Raj268; 1970(3)WLN143
ActsLimitation Act, 1908 - Schedule - Articles 56 and 115; Code of Civil Procedure (CPC) - Sections 80
AppellantBhawani Shanker and ors.
RespondentState of Rajasthan
Appellant Advocate R.C. Maheshwari, Adv.
Respondent Advocate R.A. Gupta, Adv.
Cases Referred and M. L. Dalmiya and Co. v. Union of India
Excerpt:
.....admitted that no letter of protest was delivered to the evecutive engineer prior to receiving final payment. the executive engineer came forward and stated that no letter of protest was delivered to him having contents like that of ex. 1 either at the time of receiving the final payment by the plaintiff or after it. we are accordingly satisfied that copy ex. 1 is not the secondary evidence of any letter which was ever handed over to the executive engineer. further we hold that although the contractor had earlier made a protest that the final bill which was being prepared was not correct.;(b) limitation act, 1908 - articles 56 & 115--contract for construction of building--whether article 115 applies.;the contention on behalf of the appellant is that article 115 of the old..........receipt on running bill.this may kindly be done early so that i may not waste my time here.'3. the final bill (ex. a-2) was prepared and payment was made on it on 10-2-1956. the receipt given by the contractor on this final bill runs as follows:--'received rs. 42261/15/6 and deposited rs. 279/8/6 of stones dues and rs. 3169/-as security deposit and balance of rupees 38813/7/- received by cheque.sd/- inder sahay11-2-1956contractor.'4. it appears that some correspondence took place between the contractor and the p. w. d. authorities after the contractor had accepted final payment. only two letters have been filed by the plaintiff in this connection. one is from the chief engineer dated 14-5-1957. it refers to two applications dated 20-3-1956 and 23-4-1957 sent by the contractor to the.....
Judgment:

Jagat Narayan, C.J.

1. This is an appeal by the plaintiff against a decree of the Senior Civil Judge, Udaipur, dismissing his suit for recovery of money.

2. The plaintiff was a contractor whose tender for the construction of buildings for the Collectorate and other offices at Bhilwara was accepted on behalf of the State. The work was completed on 28-4-1955. It appears that there was some dispute between the contractor and the Executive Engineer incharge of the work as to the payment to which the former was entitled. On 27-12-1955 the plaintiff wrote a letter (Ex. 3) to the Executive Engineer which runs as follows:--

'I regret I cannot sign the bill in full and final settlement of all my dues, for which I have already claimed.

I request you to please pay me the dues as billed by you as an advance in Hand Receipt on running bill.

This may kindly be done early so that I may not waste my time here.'

3. The final bill (Ex. A-2) was prepared and payment was made on it on 10-2-1956. The receipt given by the contractor on this final bill runs as follows:--

'Received Rs. 42261/15/6 and deposited Rs. 279/8/6 of stones dues and Rs. 3169/-as security deposit and balance of Rupees 38813/7/- received by cheque.

Sd/- Inder Sahay

11-2-1956

Contractor.'

4. It appears that some correspondence took place between the contractor and the P. W. D. authorities after the contractor had accepted final payment. Only two letters have been filed by the plaintiff in this connection. One is from the Chief Engineer dated 14-5-1957. It refers to two applications dated 20-3-1956 and 23-4-1957 sent by the contractor to the Chief Engineer. The Chief Engineer asked the contractor to contact the Superintending Engineer, Udaipur, directly in the matter. This letter is at page 63 of the Paper Book. The other letter is (Ex. 7) dated 31-10-1958 from the Superintending Engineer to the contractor. It was sent in reply to his letter dated 1-10-1958 and runs as follows:--

'Since you have accepted the final bill without any objection, no claims can be entertained at this stage.'

5. The present suit was filed on 13-4-1959 after serving a notice under Section 80 of the Code of Civil Procedure. The trial Court held that Article 56 of the Old Limitation Act was applicable and the suit was barred by limitation by three days. It is contended on behalf of the plaintiff-appellant that this finding is erroneous.

6. The plaintiff relies on the copy of a letter (Ex. 1) bearing the date 10-2-1956 to show that he accepted the final payment under protest. The State denied having received this letter. Two witnesses were examined by the plaintiff to prove secondary evidence of this letter. One was the plaintiff himself. He admitted that the final payment was received by him on 10-2-56 (the date given under the plaintiff's signature on final bill Ex. A-2 is 11-2-56 which is obviously erroneous), and alleged that at the time of receiving the final payment, he handed over the original of letter Ex. 1 to the Executive Engineer after getting it written by Kartaram. Kartaram however stated that he was not present when the final payment was received by the plaintiff. He alleged that he wrote the original of letter Ex. 1 and gave it to the plaintiff who signed it and handed it over to the Executive Engineer in his presence. There is thus material contradiction between the statement of the plaintiff and Kartaram on the point as to when this letter was handed over to the Executive Engineer. The plaintiff admitted that no letter of protest was delivered to the Executive Engineer prior to receiving final payment. The Executive Engineer came forward and stated that no letter of protest was delivered to him having contents like that of Ex. 1 either at the time of receiving the final payment by the plaintiff or after it. We are accordingly satisfied that copy Ex. 1 is not the secondary evidence of any letter which was ever handed over to the Executive Engineer. Further we hold that although the contractor had earlier made a protest that the final bill which was being prepared was not correct, he accepted payment on the final bill without any protest.

7. The trial Court applied Article 56 of the old Limitation Act to the suit which runs as follows:--

'56.For the price of work done by theplaintiff for the defendant at his request, where no time has been fixed forpayment.

Threeyears.

Whenthe work is done.'

The contention on behalf of the appellant is that Article 115 of the old Limitation Act is applicable because the contractor not only did the work for the defendant but also supplied the material. He relied on the following decisions:--

Mohd. Ghasita v. Siraj-ud-din, AIR 1922 Lah 198 (FB), Sita Ram v. Mt. Mahmudi Begum, AIR 1934 Lah 475 and M. L. Dalmiya and Co. v. Union of India, AIR 1963 Cal 277.

8. Article 115 runs as follows:--

'115.For compensation for the breach of any contract, express or implied, not inwriting registered and not herein Specially provided for.

Threeyears.

Whenthe contract is broken or (where there are successive breaches) when thebreachin respect of which the suit is instituted occurs, or (where the breach iscontinuing) when it ceases.'

We are of opinion that this Article has no application to the present case. The contract was for completed work. The facts of AIR 1922 Lah 198 (FB), AIR 1934 Lah 475 are distinguishable. In AIR 1963 Cal 277 no doubt Article 115 was applied to such a case. But at the same time it was held that the time under Article 115 ran from the date of intimation by Government of the amount which would be allowed on the final bill. Even if Article 115 is applicable, time under it began to run from 10-2-1956 when the payment was made on the final bill to the plaintiff. The plaintiff had earlier protested that the final bill prepared was not correct but despite this the Department did not alter it. When the plaintiff signed this final bill, he came to know of the decision of the Department and time began to run under Article 115, assuming that Article to be applicable from 10-2-1956. The suit was barred by limitation on 13-4-1959 when it was filed after allowing for two months' time for notice under Section 80, C. P. C.

9. We, therefore, dismiss the appeal. Having regard to the circumstances of the case, we leave the parties to bear their own costs of the appeal.


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