Usharani Sanyal vs Sen Brothers

Salil Kumar Datta, J.—This is an appeal against the judgment and decree of affirmance obtained by a contractor, for building works.

The Plaintiff''s case, in short, is that the Defendant, who is the owner of premises No. 1/2 Nandy Street P.S. Ballygunj, engaged the Plaintiff, a firm of building contractor, for additions and alterations in her said premises. An estimate of Rs. 7,673 for the works was submitted on January 15, 1954, which was accepted by the Plaintiff. It was further agreed that payments would be made as advance of Rs. 2,000 on February 19, 1954, Rs. 2,000 on March 15, 1954, Rs. 2,000 on April 15, 1954, and the balance on the completion of the work by May 22, 1954. The work commenced and excepting advance of Rs. 2,000, other payments were not made on due dates-On the contrary, estimate for additional work for construction of an additional room was asked for and a further estimate was submitted on March 22, 1954, which was accepted. A payment of Rs. 2,000 was made against both the jobs. On May 19, 1954, the Plaintiff was further required to do additional work of construction of the front balcony verandah. The Plaintiff performed its part of the contract while the payments as stipulated were not forthcoming. As the works were nearing completion, the Defendant gave out that unless the wood-works were completed in course of the day, which was an impossibility, the Defendant would not allow the Plaintiff''s mistress to work further.- On the following day on July 25, 1954, the Defendant did not allow the Plaintiff''s men to do further work and attempts to persuade the Plaintiff failed. The Defendant further wrongfully detained the Plaintiff''s materials valued at Rs. 350. While the Plaintiff was always willing and ready to perform its part of the contract, the Defendant was guilty of breach of contract. The Plaintiff submitted its running bill No. 433 dated June 30, 1954, for Rs. 9,466-4-9 and bill No. 435 dated July 20, 1954, for Rs. 382-1-9 for works done by it (vide sch. A to the plaint). The Defendant made payments of Rs. 6,800 during the period from February 19, 1954 to June 20, 1954, leaving a balance of Rs. 3,048-6-0. The price of goods detained, vide sch. B to the plaint, was Rs. 350 and accordingly the claim was laid at Rs. 3,398-6-6 for which the decree was prayed for.

The Defendant contested the claim by riling a written statement and contended inter alia that she was not guilty of any breach of contract, the works done by the Plaintiff were defective and the Plaintiff stopped work from July 2, 1954, with a view to wriggle out of the contract. The allegation about detention of the goods was denied. It was also alleged that the Plaintiff failed to complete the works, it was under obligation to perform in spite of demands. Some works mentioned in the bills were defective, while other works referred to therein were not even done by it. The claim made in the suit was disputed and it was further contended that there was excess payment by the Defendant. It was lastly contended that the suit was time-barred.

The suit was tried on evidence before the learned Munsif and, on the materials on record, the learned Munsif came to the finding that the Plaintiff did not break the contract and was entitled to recover the amount mentioned in sch. A to the plaint as the price of work actually done by it. It was also held that the suit was not barred by limitation. The learned Munsif, however, disallowed the claim of the Plaintiff for Rs. 350 as the price of goods alleged to have been detained. Accordingly, the learned Munsif decreed the suit for Rs. 3,048-6-6. An appeal was taken from the said decision and the appellate Court confirmed the findings of the trial Court allowing the Plaintiff Rs. 3,048-6-6 on account of the price of work done by the Plaintiff. The learned appellate Court, further, found that the Appellant was compelled to stop work on July 25, 1954, and the limitation for the Plaintiff''s claim began to run under Article 56of the Limitation Act, 1908, from that date. Accordingly, as the suit was filed on July 24, 1957, the suit was not barred by limitation. Against the said decision the Defendant has preferred this appeal.

Mr. Hari Prasanna Mukherjee, the learned Advocate appearing for the Appellant, has not assailed, as he cannot in the second appeal, the findings on the value of the work done by the Plaintiff; he has very seriously contended that on the records, as also held by the Courts below, it was clear that the suit is governed by Article 56of the Limitation Act, 1908. Mr. Mukherjee further contended that the limitation would run not from the date when the Plaintiff was alleged to have been prevented from doing the work but from the date when the Plaintiff executed the respective works for the Defendant. As admittedly on the dates of the two bills, the works referred to therein were already executed, the suit was barred by limitation being instituted after three years from the dates of the execution of the respective works. He, accordingly, prayed for dismissal of the suit which was for recovery of charges for works done for the Defendant by the Plaintiff solely on the ground of limitation. Mr. Hrishikesh Samanta, the learned Advocate appearing for the Respondent, has contended that the suit is not barred by limitation as the limitation could only run from the date when the Plaintiff was not allowed to proceed with the work and only at that point of time the cause of action arose and that the lower appellate Court rightly held that the suit was not barred by limitation.

Article 56of the Limitation Act, 1908, provides as follows:

For the price of work Three years When the work is done by, the Plaintiff done, for the Defendant at his request where no time has been fixed -for payment.

There can be no doubt that if this Article applies, the suit will be barred by limitation and the finding of Courts below to the contrary cannot be sustained. Mr. Samanta''s contention is that limitation under the said Article would start to run from the date when the Plaintiff was refused permission to proceed with the work is not supported by the provisions of the Article which provides that the limitation would commence when the work is done. In the instant case, the two bills are for works already done and such works, at least of the first bill, must obviously have been done prior to the date of the said bill, viz. June 30, 1954, and there is no evidence as to what portions of the works of the other bill of July 26, 1954, were not done before July 24, 1954. If therefore Article 56applied, it cannot be disputed that the Plaintiff would be out of Court.

Article 56applies only where no time has been fixed for payment. In para. 3 of the plaint, the Plaintiff has stated that in respect of the first estimate the Defendant agreed to pay various sums on account and the balance was to be paid on completion of the work. Again in para. 4 of the plaint, the Plaintiff has stated that the second estimate was accepted by the Defendant who agreed to make similar payment on these additional works and subsequent ones, There is no specific denial of these allegations in the written statement filed by the Defendant. In evidence, in respect of the first estimate, Arun Sen, a partner of the Plaintiff, stated that the agreement was for intermediate payments and of the balance after completion of the work. For the second estimate also there was the agreement for payment to the effect that with the payments of money of the previous work, the Defendant would make payments for this work also. Sri Bimal Maitra, D.W. I, in his evidence stated that payments would be made on seeing the works. There is thus no dispute and it is no party''s case that no time was fixed for payment for the works done by the Plaintiff for the Defendant. The dispute was about the exact point of time when the payment was to be made ; according to the Plaintiff, the payment was to be made on the completion of the work while, according to the Defendant, payment would be made on seeing the works. In either case, in my opinion, the application of Article 56was excluded.

The point for determination now is the Article of the Limitation Act, 1908, which will be applicable to the facts of the case as also the time when the limitation would commence to run. On the case of the Plaintiff, the payment would be due only on completion of the work while, according to the Defendant, payment would be made on seeing the works. Such scrutiny obviously follows the completion of the works agreed upon. The Plaintiff''s case that the Defendant did not allow the Plaintiff to proceed with the work on July 25, 1954, was found to be true by the lower appellate Court and the said finding is binding on this Court in this appeal. The limitation for the claim could not, therefore, commence earlier than July 25, 1954. The evidence of Sri Bimal Maitra, D.W. I, that he considered the works on July 1 or''2 (obviously of 1954) and found nothing was due to the Plaintiff and informed the Plaintiff, accordingly, is not acceptable particularly in view of the subsequent correspondence made on behalf of the Defendant, Exs. A(2) and A(4). The cause of action of the suit, in the circumstance, did accrue on the said date, i.e. July 25, 1954, when there was no further scope for completion of the work and the Plaintiff became entitled to the costs of works done by it so far.

About the relevant Article of the Limitation Act, 1908, applicable to the case, there is, in my opinion, no other Article which is attracted, in terms, to the fact of the case. As we have seen Article 56is not applicable nor is the suit one for compensation for breach of contract. My attention was drawn to the case of V.R. Subramanyam Vs. B. Thayappa and Others, where it was held that the Court is competent to grant statutory compensation for works not done gratuitously though such works are not under the contract pleaded. This case does not assist the Plaintiff when all works in dispute were within the ambit of the three contracts admitted by the parties. As no other Article is applicable the Plaintiff, in my opinion, is entitled to take recourse to the residuary Article 120of the Limitation Act, 1908, which applies when for a suit no period of limitation is provided in the first schedule. This Article provides for limitation for six years from the time when the right to sue accrues. As we have seen, the cause of action accrued on July, 25, 1954, and the suit was filed on July 24, 1957. The suit, accordingly, in my opinion, is not barred by limitation..

As the only point urged in the appeal fails, the appeal is dismissed with costs.