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24 Paraganas Zilla Parishad Vs. Mercantile Engineering Co. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata High Court
Decided On
Case NumberC.R. No. 146 of 1965
Judge
Reported inAIR1969Cal564
ActsBengal Local Self-Government Act, 1885 - Section 146; ;Limitation Act, 1908 - Schedule - Articles 56 and 120
Appellant24 Paraganas Zilla Parishad
RespondentMercantile Engineering Co. and anr.
Appellant AdvocateR.N. Mitra and ;Ranen Mitra, Advs.
Respondent AdvocateMahendra Nath Mitra, Adv. for Oposite Parties Nos. 1 and 2
Excerpt:
- .....it was served. but ultimately asthe road roller includes the boiler it hadto be tested by the boiler inspector. hencethe work could not have been deemed tohave been done until the repair is acceptedby the district engineer and the fitness ofthe boiler tested by the inspector of theboilers. 6. the result, therefore, is article 56, of the indian limitation act 1908 would not apply.7. the next point urged is that in that case the suit is premature. the answer is it is the district board which has not allowed the boiler inspector to inspect. in every letter they have said it is not ready for inspection. if it was really repaired i do not find any reason why it should not have been considered to be ready for inspection. but whatever it may be, because of the fault of the district board,.....
Judgment:
ORDER

P. Chatterjee, J.

1. This is a petition under Section 115 of the Code of Civil Procedure against the judgment and decree passed by the court of appeal below in a suit for money where no appeal lies.

2. The defendant is the appellant. The plaintiff repaired certain boilers and tendered a bill on 5th July 1957. On 7th August 1958 notice under Section 80 of the Code of Civil Procedure was served. On 10th June 1961 the suit was filed.

3. The first point is that no notice under Section 146 of the Bengal Local Self-Government Act was served and so the suit is not maintainable. But Section 146 refers to a suit which relates to 'any act done by a person under the authority of the Bengal Local Self-Government Act.' But if a District Engineer sends his road roller for repair that is not something which is done under this Act. In the ordinary course of his duty he sends it for repairs and not because the authority under the Local Self-Government Act directs him to send the same for repair, There is no provision in the Act itself as far as I am aware which authorises the district engineer to send it for repair. We cannot say that this act of sending the road roller for repair was an act contemplated under the provisions of this statute. Hence, the first objection is overruled.

4. The second objection is that a notice should have been served and a suit instituted as under the third part of Section 146 of the Act. If Section 146 does not apply third part also does not apply.

5. In the third point there is somesubstance. The boiler was sent for repairs. The work was done and a bill wassent. It was served. But ultimately asthe road roller includes the boiler it hadto be tested by the boiler inspector. Hencethe work could not have been deemed tohave been done until the repair is acceptedby the district engineer and the fitness ofthe boiler tested by the inspector of theboilers.

6. The result, therefore, is Article 56, of the Indian Limitation Act 1908 would not apply.

7. The next point urged is that in that case the suit is premature. The answer is it is the District Board which has not allowed the boiler inspector to inspect. In every letter they have said it is not ready for inspection. If it was really repaired I do not find any reason why it should not have been considered to be ready for inspection. But whatever it may be, because of the fault of the District Board, the defendant, the boiler inspector could not inspect it. I cannot, therefore, say that the work was done. Because doing of the work means completion of the work to the satisfaction of the person to whom the work is done. But that satisfaction could not have been there, except when a fitness is granted by the boiler inspector. Therefore, I cannot say Article 56 would apply. But still the plaintiff has done the work as the court below found and as the letter of the district engineer shows. Therefore, he is entitled to payment. As there is no specific article to such mailers it should be governed by the general Article 120 and the suit is maintainable within six years and, therefore, I cannot say that the suit is barred by limitation.

8. The order of cost passed by the court below is set aside. Each party will bear its own cost.

9. The Rule is discharged.


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