Jitendra Prasad Singh vs The State of Bihar & Ors.

The plaintiff has filed this first appeal against the judgment

and decree dated 31.10.2005 passed by learned Subordinate Judge-VI,

Gaya in Money Suit No.05 of 2002/34 of 2002 dismissing the

plaintiff''s money suit.

The plaintiff filed the aforesaid money suit for realisation

of Rs.10, 51, 430/- with interest at the rate of 9% per annum pendente

lite.

Plaintiff''s case, in short, is that he is a registered

government contractor in R.C.D. Pursuant to the tender notice, the

plaintiff filed tender which was accepted by defendant no.6 and

agreement dated 16.04.1995 and 22.04.1995 was signed by the

Executive Engineer. Thereafter defendant issued work order on

16.04.1995 and 22.04.1995 for repairing Gaya-Khizersarai-Islampur

Road and for repairing of Khizersarai Road. The plaintiff completed

the work within the time fixed in the agreement. The defendants from

time to time inspected the work and measurements were done. The

Measurements Books were checked and verified by superior

authority. The bill for the work done by the plaintiff was

Rs.6, 39, 169/-. The dependants always assured to make payment as

soon as the amount would be available. The defendants also wrote

letters to the authority. Several notices were also sent ranging from

1996-1998. 9% interest comes to Rs.4, 11, 880/- which the plaintiff is

entitled to. Thereafter when no payment was made, the plaintiff filed

C.W.J.C. No.2927 of 1998 and C.W.J.C. No.2919 of 1998 before the

High Court. The High Court directed the defendant to dispose of the

claim of the plaintiff within fixed time. When the defendant did not

dispose of his claim within time, the plaintiff filed contempt

application in 2001 and during the pendency of the contempt

application the Liability Committee rejected the claim of the plaintiff.

The State-defendant did not appear to contest the suit and

the suit was taken up for hearing under Order 8 Rule 10 CPC. The

learned trial court formulated the issue to the effect that whether the

plaintiff is entitled to a decree as claimed with pendente lite interest.

On the basis of materials available on record the learned

trial court recorded finding that although the plaintiff orally supported

his case but the documents do not support his claim. Ext.2 i.e. tender

notice was never published in newspaper and, therefore, the other

registered contractors were denied their right to file tender and,

accordingly, dismissed the plaintiff''s suit.

The learned Senior Counsel Mr. Ganpati Trivedi for the

appellant submitted that there is no contrary case pleaded by the

defendants. All the allegations and evidences produced by the

plaintiff-appellant are unrebutted but the learned trial court dismissed

the suit on flimsy ground. In fact the tender notice was published in

the newspaper. Since there was no contrary case pleaded by

defendants, the plaintiff did not produce the publication of tender

notice. Moreover on this ground alone the plaintiff''s case could not

have been rejected. The evidences oral as well as documentary clearly

prove that the plaintiff completed the work within the time fixed. The

defendants did not pay the bill of the plaintiff and were giving only

assurance. Lastly the plaintiff seeing no option was compelled to file

writ applications before the High Court. Liability Committee was

constituted according to the direction of the High Court but without

giving notice to the plaintiff, the Liability Committee rejected the

claim of the plaintiff on the ground that there is no proof of the work

done by the plaintiff. The report of the Liability Committee is

unfounded.

The learned Senior Counsel further submitted that

although the work was completed in the year 1995 itself but because

assurances were given by the defendants and the plaintiff was

bonafidely prosecuting the civil proceeding i.e. writ applications

before the High Court, the money suit has been filed in the year 2002.

As such, the suit is within limitation period.

Although on the first day of argument the learned State

Counsel was present but when the argument of appellant was

concluded, nobody appeared to argue the case on behalf of the State-

respondent.

In view of the above contentions of the learned Senior

Counsel for the appellant, the point arises for consideration is as to

whether the plaintiff''s suit is barred by law of limitation and whether

the plaintiff is entitled for the relief claimed in the suit.

Article 18 of the Limitation Act provides that the suit

for the price of the work done by the plaintiff for the defendant at his

request where no time has been fixed for payment should be filed

within three years from the work is done. Admittedly in the present

case, the agreement is dated 16.04.1995 and 22.04.1995. The time

fixed for completion of the work is one month only. Admittedly

according to the plaintiff''s case itself as pleaded in the plaint, the

work order was given on 16.04.1995 and 22.04.1995. According to

the plaintiff himself, he completed the work within the time fixed i.e

within one month which comes to 15.05.1995 and 21.05.1995. Since

there is no time fixed for payment of the price, the period of limitation

started running from 16.05.1995 and 22.05.1995. Three years will be

completed on 15.05.1998 and 21.05.1998 respectively with respect to

both the work order and agreement. The suit has been filed on

29.06.2002.

The argument of the learned Senior Counsel that the

plaintiff was prosecuting writ application bonafidely before the High

Court is a civil proceeding, therefore, the period for which the

plaintiff was prosecuting bonfidely before the High Court should be

excluded under Section 14 of the Limitation Act. It may be mentioned

here that the writ applications were filed on 01.04.1998 i.e. just before

fifty days of expiry of limitation. Therefore, the period of limitation

which was running from the date of the work done as stated above

will stop running from 01.04.1998 till the writ applications were

disposed of and/or Liability Committee rejected the claim of the

plaintiff. In other words, the period of limitation from 01.04.1998 till

the rejection of claim of the plaintiff by Liability Committee will not

be counted.

It is the case of the plaintiff himself that both the writ

applications were disposed of on 17.01.2000 and 20.01.2000. On the

date of disposal of the writ applications the period which has stopped

running will again start running. Therefore, the plaintiff had only fifty

days for presenting the plaint as the writ applications were filed prior

to fifty days of expiry of limitation. From the date of disposal of the

writ applications fifty days comes to 12.03.2000 which was the last

date of filing the suit but the suit has been filed on 29.06.2002.

Therefore, it is barred by law of limitation.

The learned Senior Counsel submitted that the rejection

of the plaintiff''s claim by the Liability Committee was communicated

to the plaintiff on 21.02.2002. Therefore, according to the learned

Senior Counsel, the limitation will start from this date. So far this

submission is concerned, in my opinion, it is not acceptable because

the plaintiff was prosecuting a civil proceeding bonafidely before the

High Court i.e. from 01.04.1998 to 20.01.2000 during which the writ

applications were pending. The proceeding before the Liability

Committee cannot be termed as a civil proceeding before a competent

court within the meaning of Section 14 of the Limitation Act.

Moreover, even if fifty days are calculated from 21.02.2002 then also

fifty days will expire on 13.04.2002 which was the last date for

presenting the plaint but admittedly the suit has been filed on

29.06.2002, which is beyond period prescribed.

Section 3 of the Limitation Act provides that even if no

defence is taken by the defendant regarding limitation, the court shall

dismiss the suit if it is barred by law of limitation.

In view of the above discussion, it appears that although

no defence has been taken by the defendants. The suit filed by the

plaintiff is barred by law of limitation, as such, on this ground alone

the plaintiff''s suit is liable to be dismissed.

The learned Senior counsel for the appellant submitted

that this point was never raised before the trial court or before the

High Court also. In my opinion, there cannot be estopple against

statute. The law will take its own course irrespective of the fact that it

is raised by the defendant or not. Application of law is not dependent

upon the argument advanced or defence taken by the parties.

In view of my above discussion, I find that the

plaintiff''s suit is itself barred by law of limitation. Therefore, court

cannot grant any relief to the plaintiff whose claim is barred by law of

limitation.

In the result, this first appeal is dismissed. In the facts

and circumstances of the case, there shall be no order as to cost.