Karna Kumar Barman vs State Of Assam And Ors

This appeal under Section 96 CPC is directed against the judgment and decree dated 28.01.2011, passed by the learned Civil Judge (Senior

Division) No. 1, Kamrup, Guwahati in Money Suit No.43 of 2007, thereby dismissing the money suit filed by the appellant.

The appellant’s case in brief is that he is a registered A.P.W.D. contractor. He was awarded with two contracts, being (1) A/R to U/M

Barama Dhamdhama Tamulpur Road for 2002 to 2003 for collection and supply of sand gravel and river gravel at 2nd K.M to 6th K.M. including

spreading vide work order No.EE/1190 dated 22.10.2003 at an approximate cost of Rs.1,91,041/-, and (2) A/R to U/M KBS Road for 2001-2002

(E/W by T/C from Ch. 8720.00 M to 8880.00M and collection and supply of sand gravel and river gravel with spreading), vide order No. EE/1320

dated 21.01.2000. Both the work orders were issued by the Executive Engineer, P.W.D., Nalbari Rural Road Division, Nalbari (respondent No.3).

The appellant executed two separate agreements in F-2 form in respect of the said two contract works. As per the condition of agreement, both the

works were completed within the allowed time and the concerned Sectional Officer, APWD had recorded the measurement of the executed work

done in the “measurement book†of the department. In course of time the appellant submitted two final bills for payment for the said two works,

being (1) Final Bill No. FF/59B dated 10.05.2004 for Rs.1,90,662/-, and (2) Final Bill No. FF/22B dated 10.01.2003 for Rs.1,55,504/-. As the appellant

did not receive his payment even after long lapse of time, as such, the appellant issued an advocate’s notice dated 08.12.2006 under Section 80

CPC, demanding payment of the aforesaid two bills along with the interest, as follows â€" (1) Rs.2,45,953.98 (being the principal sum of

Rs.1,90,662.00 with interest at the rate of 12% p.a. amounting to Rs.55,291.98); and (2) Rs.2,45,696.32 (being the principal amount of Rs.1,55,504.00

with interest at the rate of 12% p.a. amounting to Rs.90,192.32). In reply to the said advocate’s notice, the respondent No.3, by his letter No.5019

dated 06.01.2007, admitted the department’s liability to pay the bill amounts to the appellant subject to availability of fund, and it was also stated

that the interest along with cost of notice is not admissible as per clauses of the tender agreement. However, as the payment was not forthcoming, the

appellant had instituted his suit on 19.06.2007 for recovery of the above referred amount, as well as for Rs.2,000/- towards the cost of notice under

Section 80 CPC and for the cost of suit.

The respondents contested the suit by filing a written statement, inter-alia, on the ground that the suit is barred under Section 41(h) of the Specific

Relief Act as an efficacious remedy is available to the appellant; that there is no cause of action for the suit as the appellant has clubbed together

different causes of action which is not permissible under Order 7 Rule 11(d) CPC; that in view of this Court’s order passed in W.P.(C) No.

3354/04, a list for payment of the contractors’ bill has been prepared for payment and the name of the appellant appears at serial No. 1544 and

1874. Hence, his outstanding bills would be paid without any interest thereon, subject to availability of fund from the Government, and, as such, the

respondent prayed for dismissing the suit.

Upon considering the pleadings, the learned trial Court framed the following issues for trial:-

Whether there is any cause of action for the suit?

Whether the plaintiff is entitled to Rs.1,57,472.46Â as interest for Rs.3,46,166/@ 12%Â from the defendant?

Whether the plaintiff is entitled for a decree as claimed?

In order to establish the claim, the appellant had examined three following witnesses, viz., himself (PW-1), Pradip Sarma, Sectional Officer,

Chamata Sub-Divisional P.W.D.(R) (PW-2), and Sri Debojit Bhuyan, J.E., Barama Rural Road Sub- Division, PWD (PW3) and exhibited ten

documents. The respondents did not examine any witness in support of their defence.

The learned trial court, in respect of issues No. 2 and 3, held that the reply by the respondents (Ext.4) was made beyond the period of limitation and

was not covered under Article 18/19 of the Limitation Act. It was held that the said reply did not contain any definite promise or fresh contract to pay

the bills and the liability to pay interest was also denied and therefore, by not relying on the cases cited by the learned counsel for the appellants, it was

held that the claim of the appellants was barred by limitation and issues No, 2 and 3 were decided in the negative. Therefore, in view of the decisions

on issues No. 2 and 3, in respect of issue No. 1, it was held that there was no cause of action for the suit.

Accordingly, the suit was dismissed.

The learned counsel for the appellant has submitted that the learned trial Court while deciding the issues No. 2 and 3, had wrongly held that the bill

amount of the two bills submitted by him were time barred. In this connection, it is stated that by letter dated 06.01.2007 (Ext.4), the respondent No. 3

had acknowledged and admitted the liability. It is submitted that the learned trial Court did not take notice of the promise contained therein to pay the

amount as and when the fund was provided by the government, which, according to the learned Counsel for the appellant not only amounts to

admission within the meaning of Section 18 of the Limitation Act, but constitutes promise under Section 25(3) of the Contract Act, 1872 to pay a time

barred debt. In support of his contentions, the learned Advocate for the appellant has relied on the judgment of this Court in his similar appeal, being

RFA 12/2012 (Karna Kumar Barman Vs. State of Assam & Ors.), decreed on 25.08.2017, wherein under similar circumstances, this Court had

allowed the appeal of the appellant herein.

Per contra, the learned Addl. Senior Govt. Advocate has submitted that appellant has clubbed together different causes of action, viz., 22.02.2002,

10.01.2003, 10.05.2004 and 18.12.2006, apparently to save limitation. Thus, it is submitted that the suit did not disclose any cause of action and, as

such, the suit was liable to be rejected under the provision of Order 7 Rule 11 CPC. It is further submitted that based on the orders passed in this

Court in W.P.(C) No.3354/04- Jatin Pathak Vs. State of Assam & Ors., a list of contractors, awaiting payment from the APWD had been prepared

and the name of the appellant appears at Sl. No. 1544 and 1874, as such, though the suit is not maintainable, the appellant would be paid his due

amount as and when funds are available, but without any interest thereon.

On a perusal of the records, it is seen that in their written statement as well as in reply dated 06.01.2007 to notice under Section 80 CPC (Ext.4),

the respondents had unequivocally acknowledged their liability payable to the appellant, acknowledging and admitting that payment could not be made

due to non-availability of funds and thereby also assured payment of the outstanding bill amounts without interest on receipt of fund from the

government. It is seen that despite such admission by the respondents, the appellant had proved their entitlement to the claimed amount by exhibiting

documents like F-2 form of contract, measurement books, final bills, etc. being Ext. Nos. 5, 6, 7, 8, 9 & 10. As mentioned hereinbefore, the PW-2 and

PW-3 are officers of Assam PWD, who had proved the official documents from Ext.5 to Ext.10. Therefore, there is no dispute that the appellant had

completed the awarded work to the satisfaction of APWD and is awaiting his legitimate bill amounts due in respect of the said works done.

Thus, from the evidence of the PWs, and on the basis of the reply dated 06.01.2007, following the judgment dated 25.08.2017, passed by this Court

in RFA No. 12/2012 (Karna Kumar Barman Vs. State of Assam & Ors.), this Court is of the considered opinion that the suit was not barred by

limitation. There had arisen a fresh cause of action on 06.01.2007, when the reply (Ext. 4) was sent to him by the respondent No.3, thereby

acknowledging and admitting the liability to pay the outstanding bill amounts of the appellant, accompanied by promise to pay the same as and when

fund was received from the government. In a similar circumstances, this Court in the previous case of the appellant, being RFA 12/2012 had held that

the said reply dated 06.01.2007 (Ext.4) was an admission in writing that a debt was due and that the liability against the appellant was still in existence,

which is an acknowledgment of debt or liability, giving a fresh starting period of limitation under Section 18 of the Limitation Act and that such writing

was a new contract within the meaning of Section 25(3) of the Contract Act, giving rise to a fresh cause of action in favour of the appellant. Hence, in

the opinion of this Court, the suit is not barred by Limitation.

The appellant is found to have submitted his bills on 10.01.2003 and 10.05.2004 and, as such, the bills are now 14-15 years old. Therefore, by

invoking section 34 CPC read with Section 3(1) of the Interest Act, 1978, this Court is inclined to allow interest at the rate of 6% p.a. on the

respective principal amount of Rs.1,90,622/- on and from 10.05.2004 as well as on principal amount of Rs.1,55,504/- on and from 10.01.2003 till

realization.

ORDER

In view of the discussions above, this appeal stands allowed by setting aside the judgment and decree dated 28.01.2011 passed by the learned Civil

Judge (Senior Division) No. 1, Kamrup, Guwahati in Money Suit No.43 of 2007. Resultantly, the said suit stands decreed for (1) principal amount of

Rs.1,90,622/- with 6% interest p.a. on and from 10.05.2004; and for (2) principal amount of Rs.1,55,504/- with 6% interest p.a. on and from

10.01.2003 till realization.

The parties are left to bear their own cost all throughout.

Let a decree be drawn up accordingly.

Send back the LCR.