JUDGMENT - A.V. SAVANT, J.:---This Appeal by the original plaintiff seeks to challenge the judgment and decree dated 30th January, 1982 passed by the learned Civil Judge, Senior Division, Sangli, in Special Civil Suit No. 3 of 1979 whereby the learned trial Judge dismissed the appellant's suit for recovery of Rs. 1,03,325.45 from the respondents. The appellant is a contractor, doing construction business and the 1st respondent is the Maharashtra State Road Transport Corporation, a Statutory Corporation, whereas the 2nd respondent is the concerned Executive Engineer. The few facts leading to the present controversy may be summarised as under. 2. The respondents had invited tenders for erection of a temporary divisional workshop at Kaulapur in Sangli District at an estimated cost of Rs. 5,34,930/-. The last date for submission of the tenders was March 20, 1970. The appellant did submit his tender in time and his tender was the lowest, which was for an amount of Rs. 5,87,770/-. On 4th June 1970 the respondent Corporation accepted the tender of the appellant and on 8th June 1970 the appellant was informed of the same. Under Exh. 70, which is the contract between the parties, the appellant was called upon to complete the work within 12 months. Though this was communicated to the appellant on 8th June 1970 under the covering letter to the contract at Exh. 70, the time was to be reckoned from the date of the issuance of the work order. It is true that the letter dated 8th June 1970 purported to say that no extension in time-limit would be granted to the appellant on any ground and that the work has to be completed within the stipulated period. It is, however admitted that the work could not be completed with 12 months of the date of the issuance of the work order and that repeated extensions of time were applied for and were granted, resulting in the final bill being paid on 13th January 1976 immediately after the work was completed by the end of December 1975. On 10th June 1970 the appellant wrote to the respondents that he was agreeable to undertake the work as per his tender rates even at the proposed alternate site at Miraj. On 10th June 1970 the appellant wrote to the respondents that he was agreeable to undertake the work as per his tender rates even at the proposed alternate site at Miraj. It appears that by June 1970 the site of the workshop was changed from Kaulapur to Miraj and hence, the respondents thought that it was necessary to obtain the letter dated 10th June 1970, which is a part of Exhibit 70 itself, from the appellant. On 27th June 1970 the Agreement, Exh. 70, was entered into. We will refer to some of the relevant clauses of this Agreement at a later stage. 3. On 7th July 1970, the appellant was asked to go ahead with fabrication of structural steel required for the erection of the workshop and collection of the Asbestos Cement Sheets. By his letter dated 23rd June 1971, at Exh. 75, the appellant informed the respondents that he had arranged for the fabrication work, A.C. sheets, windows and doors etc. thereafter, it appears that the appellant did make some grievance about the delay in handing over the site. It appears that Bhoomi Poojan was performed on 1st September 1971, but the site was not actually handed over to the appellant. On 14th December 1971 the appellant wrote to the respondent that he was being put to loss on account of the delay on the part of the respondents in handing over the site to the appellant and hence, he was executing the work under protest. However, the respondents promptly wrote to the appellant on 22nd December 1971 vide Exh. 80 pointing out that the line-out of the work will be given to him immediately provided he withdrew all the claims for the alleged compensation due to the alleged delay in starting the work. There have been some letters exchanged between the parties thereafter. However, it is not necessary to refer to each of them. We will only refer to such of them as are relevant for deciding the issues raised in this appeal. 4. On 8th January 1972 the respondents wrote to the appellant pointing out that, it appeared to them that, he was not interested in carrying out the work and was only interested in making allegations against the Corporation and its officers, which allegations were wild and baseless. 4. On 8th January 1972 the respondents wrote to the appellant pointing out that, it appeared to them that, he was not interested in carrying out the work and was only interested in making allegations against the Corporation and its officers, which allegations were wild and baseless. The appellant was, therefore, called upon to co-operate with the respondents in taking the line-out of the work. It appears that the line out of the work was completed on 11th February 1972. By a letter dated 15th February 1982, at Exh. 86, the respondents called upon the appellant to start the work and complete it as early as possible. There is no controversy between the parties that the appellant was to complete the work within the period of 12 months from the date of the line-out being taken viz. 11th February 1972. 5. However, though the work was to be completed by 10th February 1973, the appellant was required to apply for extensions and the respondents did grant the said extensions resulting in the completion of the work by the end of 1975. The final bill was made on the 13th January 1976. It must, however, be stated at this stage that unfortunately for the appellant/plaintiff there is no clear-cut evidence on record to come to the conclusion as to what exactly is the date of the completion of the work, what is the date of submission of the final bill or even the details of the said final bill viz. what were the claims made in the said final bill by the appellant. What is worse, is that the appellant has not stepped in the witness-box. What is equally disturbing is the fact that even the respondents have not cared to produce the entire documents in their possession, which could throw a light on the controversy between the parties. The respondents have also led no oral evidence whatsoever and, thus we are left to decide the matter on the basis of very discrepant and very unsatisfactory documentary evidence on record. 6. The claim in the suit consists of three items which have been detailed in para 13 of the plaint as under :--- "Rs. 36,610.00 : Amount due to the plaintiff of then work done on running bills but wrongfully and illegally deducted on the alleged grounds of delay as penalty. Rs. 6. The claim in the suit consists of three items which have been detailed in para 13 of the plaint as under :--- "Rs. 36,610.00 : Amount due to the plaintiff of then work done on running bills but wrongfully and illegally deducted on the alleged grounds of delay as penalty. Rs. 16,755.45 : Interest by way of damages @ 12% per annum from the date of recovery till this date. Rs. 49,960.00 : Loss suffered by plaintiff for the reasons stated in para 8 mentioned above at the rate of 10% on the amounts of the bills made by the defendants of Rs. 299598.67 ps. ------------------ Rs. 103325.45 : Court Fees are paid on the amount and the said is the amount the for the value of the suit, jurisdic tion and pleaders fees." It will be evident from the above that the 1st item is apparently relating to the amount due to the appellant for the work done in running bills, but according to the appellant, wrongfully and illegally deducted on the alleged ground of delay, as penalty. Since some arguments have been advanced on the question of limitation, it is necessary to clarify at this stage that though Item No. 1 has been styled as a claim on account of the amount due to the appellant for the work done, a perusal of the averments in para 8 of the plaint alongwith the chart in the said para 8 would show that the said item of Rs. 36,610/- consists of 10 deductions made from the running bills of the appellant. Significantly, the first deduction is on 9th March 1973, that is to say after the expiry of the period of 12 months starting from 11th February 1972, the date on which the line-out was given. The last deduction of Rs. 12,000/- is from the final bill which was made on the 13th January 1976. It is, thus, clear that the claim of Rs. 36,610/- though styled as amount due for the work done, is in fact a claim for what the appellant called the wrongful imposition of penalty by the respondents on the appellant. We may point out at this stage that the respondents have resorted to their power under Clause (2) of the printed conditions of contract which are part of Exhibit 70. We may point out at this stage that the respondents have resorted to their power under Clause (2) of the printed conditions of contract which are part of Exhibit 70. Clause 2 reads as under :--- "The time allowed for carrying out the work as entered in the tender shall be strictly observed by the contractor and shall be reckoned from the date on which the order to commence work is given to the contractor. The work shall throughout the stipulated period of the contract be proceeded with, with all due deligence (time being deemed to be of essence of the contract on the part of the contractor) and the contractor shall pay as compensation an amount equal to one per cent or such smaller amount as the Chief Civil Engineer (whose decision in writing shall be final) may decide, of the amount of the estimated cost of the whole work as shown by the tender for every day that the work remains uncommenced, or unfinished, after the proper dates. And further to ensure good progress during the execution of the work, the contractor shall be bound in all cases in which the time allowed for any work exceeds one month to complete. 1/4 of the work in of the time 1/2 do. do. 3/4 do. do. Note : The quantity of work to be done within a particular time to be specified above shall be fixed by the officer competent to accept the contracts after taking into consideration the circumstances of each case and inserted in the blank space kept for the purpose. and abide by programme of detailed progress laid down by the Executive Engineer." It is, thus, clear from the pleadings of the parties that what the appellant is claiming as Item No. 1 is the amount of penalty imposed upon the appellant by the respondents in exercise of their power under the above quoted Clause 2 for the delay on the part of the appellant in completing the work beyond the prescribed period of 12 months. 7. The 2nd item in para 13 of the plaint of Rs. 16,755.45, which is the interest by way of damages at 12% p.a. on the said amount of Rs. 36,610/-. The 3rd item is an amount of Rs. 7. The 2nd item in para 13 of the plaint of Rs. 16,755.45, which is the interest by way of damages at 12% p.a. on the said amount of Rs. 36,610/-. The 3rd item is an amount of Rs. 49,960/- which has been described as loss suffered by the appellant for the reasons stated in para 8 of the plaint at the rate of 10% on the amount of the bills made by the respondents viz. the total amount of bills being Rs. 4,99,598.67 and 10% thereof being rounded upto Rs. 49,960/-. The appellant has based this estimate of 10% relying upon a passage in G.T. Gajria's book on 'Building and Engineering Contracts in India' where reliance has been placed on the decision of the Supreme Court reported in A.I.R. 1977 Supreme Court, page 1481, in the case of (Mohd. Salamatullah and others v. Government of Andhra Pradesh)1, to which we will make a reference at a later of part of this judgment. It will be, thus, clear that the entire claim of Rs. 1,03,325.45 principal consists of the item of penalty of Rs. 36,610/- plus interest thereon amounting to Rs. 6755.45 and the other item being the loss suffered at the rate of 10% on the aggregate of the bills made by the respondents. 8. By their written statement, Exh. 12, the respondents have denied the claim of the appellant. The respondents have relied upon some of the conditions in the contract, at Exh. 70, in support of their contention that the appellant cannot dispute the imposition of penalty under the terms of the contract nor can he claim any amount by way of damages estimated at 10%. As far as the imposition of penalty is concerned, we have already extracted above the relevant clause relying upon which the respondents have imposed the penalty and deducted the said amount from the running bills of the appellant. In exercise of their powers under Clause 2 of the printed conditions of the contract forming part of Exhibit 70, the respondents have calculated the penalty and it is this amount of Rs. 36,610/- which is the first item claimed in the plaint. 9. As far as the other item of loss estimated at 10% is concerned, the respondents, have relied upon Rule 19 of the General Rules and Directions for the guidance of the contractor, forming part of the "B-2" contract viz. 36,610/- which is the first item claimed in the plaint. 9. As far as the other item of loss estimated at 10% is concerned, the respondents, have relied upon Rule 19 of the General Rules and Directions for the guidance of the contractor, forming part of the "B-2" contract viz. Item Rate Tender and Contract for Works, which is a part of Exhibit 70. Rule 19 reads as under :--- "Claim for enhanced Rates :---Under no circumstances shall any contractor be entitled to claim enhanced rates for any items in this contract." The respondents have also placed reliance on the printed Rule 10, forming part of Exhibit 70. The said Rule 10 reads as under : "10. Under no circumstances shall any contractor be entitled to claim enhanced rates for any items in this contract." Both these rules are identical, Reliance has also been placed by the respondents on some of the letters exchanged between the parties such as the letter dated 10th June 1970 also forming part of Exh. 70, under which the appellant agreed to undertake the above work as per his tender rates even at the alternate site at Miraj. 10. The learned trial Judge framed the necessary issues and on the evidence on record. recorded his findings as under :--- " Issues Findings 1. Does the plaintiff prove that the defendant had Yes. caused the delay in allotting the site for about two years on the date of sanction of Tender? 2. Does he further prove that the rate of the steel was Yes. Rs. 2,200 per ton at the date of tender and it increased to Rs. 3,500 per ton and the mild steel was available for Rs. 1,300 per ton and it increased to Rs. 2,200 per ton ? 3. Does plaintiff prove that the defendant had deducted No. that amount of Rs. 36,610 wrongfully and illegally ? 4. Does he further prove that he had to suffer No. damages worth Rs. 49,960 ? 5. Whether the time was the essence of the contract ? Yes. 6. Whether the suit is barred by time ? Yes. 7. Whether the plaintiff is entitled to recover the No. amount of Rs. 1,03,325.45 ? 8. What order and decree ? As per order below. It is the correctness of this judgment which is challenged in this appeal. 11. Whether the time was the essence of the contract ? Yes. 6. Whether the suit is barred by time ? Yes. 7. Whether the plaintiff is entitled to recover the No. amount of Rs. 1,03,325.45 ? 8. What order and decree ? As per order below. It is the correctness of this judgment which is challenged in this appeal. 11. We have heard Shri Rammurthi and Miss Kaushik, the learned Counsel appearing for the appellant, and Shri Rane, on behalf of the respondents. Shri Rammurthi, fairly conceded that the appellant had not stepped into the witness-box and there is, therefore, no oral evidence to substantiate his case. However, the learned Counsel contended that in view of the voluminous correspondence on record, it is clear that the delay in completion of the work was attributable solely to the respondents. He contended that, in the first place, the site was changed from Kaulapur to Miraj. However, this grievance can be disposed of in view of the letter dated 10th June, 1970, which is part of Exhibit 70, under which the appellant specifically agreed to undertake the work as per the tender rates even at the alternate site at Miraj. Shri Rammurthi further contended that a perusal of the series of letters would show that the appellant had been making a grievance about the delay caused by the respondents resulting in the completion of the work being delayed. It is true that in some of the letters written by the appellant, the appellant has been complaining of some delay in finalising the design of the workshop or delay in getting some of the supplies from the respondents. Unfortunately for the appellant, however, he had bound himself unequivocally to complete the work as per his original tender rates even at the changed site at Miraj. What is more, when in the letter dated 14th December 1971 at Exh. 79, the appellant tried to raise a protest and indicate that he was prepared to execute the work under protest, the respondents were prompt enough to write to him on 22nd December 1971 at Exh. 80 that the line-out of the work would be given to the appellant only on his withdrawing his claim of the alleged compensation on account of delay in starting the work. Admittedly, the appellant responded to this, obtained the line-out and started the work. 80 that the line-out of the work would be given to the appellant only on his withdrawing his claim of the alleged compensation on account of delay in starting the work. Admittedly, the appellant responded to this, obtained the line-out and started the work. Even before the line-out was given on the 11th February 1982, the respondents under their letter dated 8th February 1982, at Exh. 85, pointed out to the appellant that he was not interested in carrying out the work inasmuch as he was indulging in making false, wild and baseless allegations. It was only when the appellant was told in very clear terms the he must take the line-out within 4 days of the receipt of the letter that the line-out of the work was given on 11th February 1982. This has been clearly recorded in the letter dated 15th February 1972 at Exh. 86 issued by the respondents. 12. Shri Rammurthi, however, contended that if one peruses the letters on record, then, even in the absence of the oral evidence of the appellant it is possible to hold that the respondents were responsible for the delay on the part of the appellant in completing the work and, therefore, the respondents are not justified in imposing the penalty in exercise of their powers under the terms of the contract. When asked as to on what terms and conditions the extension of period was applied for from February 1973 till the end of 1975, the learned Counsel was, however, not able to elaborate in the absence of any material on record. Indeed, the learned Counsel fairly expressed his handicap in the absence of the oral evidence as also the documentary evidence in respect of the applications for grant of extension of time and the orders passed thereon by the respondents. Agreeing with the view expressed by the learned trial Judge, therefore, it is not possible for us to hold that the imposition of penalty by the respondents in exercise of their contractual power was wrongful or illegal. Once it is held that the appellant was bound to complete the work within the stipulated period and at the stipulated rates, on the material as it stands on record in this case, it is not possible to hold that the respondents were not justified in imposing the penalty totalling to Rs. 36,610/-. Once it is held that the appellant was bound to complete the work within the stipulated period and at the stipulated rates, on the material as it stands on record in this case, it is not possible to hold that the respondents were not justified in imposing the penalty totalling to Rs. 36,610/-. As stated earlier in para 8 of the plaint, the appellant himself has given the break-up of the deductions made from 9-3-1973 onwards and ending on 13th January 1976. In each of the 10 running bills between the said two dates, the respondents have imposed a penalty on the appellant and deducted the said amount. On the evidence on record in this case, we find nothing illegal or impermissible on the part of the respondents in resorting to the contractual power of imposition of penalty. In fact, the authority concerned has been given a discretion in the matter of the quantum of penalty and on the facts of the case the discretion seems to have been fairly exercised. There is, thus, no merit in Item No. 1 of the claim viz. the claim of Rs. 36,610/-. Consequently, the claim for interest on the said amount viz. interest of Rs. 16,755.45, must also fail. 13. The next item of claim is for the alleged loss suffered by the appellant at calculated the rate of 10% on the total amount of the bills viz. 10% of Rs. 4,99,598/- Shri. Rammurthi, has very fairly stated that in the absence of the oral evidence of the appellant or in the absence of any other evidence in the nature of the account books of the appellant, the basis of the claim could be referable only to a passage appearing in the law relating to Building and Engineering Contracts in India by G.T. Gajria, Third Edition, at page 637 under the Head "Percentage of Loss of Profit", where the following observations appear : "(v-a) Percentage of Loss of Profit : There is no hard and fast rule laid down for allowing any particular percentage due to loss of profit caused to a party suffering from breach of contract. However a conservative estimate of profit as 10 per cent has been recommended in the "Rates and Costs, Committee's Report" published by the Government of India, in 1957, which is as under :--- "2.36.2 Profits - We believe that in normal circumstances an allowance of 10 per cent of the prime cost as contract's profit is reasonable." "In a recent judgment of the Supreme Court in the case of Mohd. Salamatullah v. Government of Andhra Pradesh, it has been held that the assessment of damages for breach of contract based on estimated profit of 15 per cent made by the trial Court was in order and the Supreme Court accordingly restored the judgment and decree of the trial Court which was reduced by the High Court." Shri Rammurthi, then invited our attention to the Supreme Court decision referred to in Gajria's Book. The said decision in A.I.R. 1977 Supreme Court, page 1481 in the case of Mohd. Salamatullah and others v. Government of Andhra Pradesh, was dealing with a case of breach of contract on the part of the Government of Andhra Pradesh which had entered into a contract with the plaintiff/appellant for supply of guns. On fact, it was found that the Government had committed a breach of contract and the contractor was entitled to claim damages. On the basis of the relevant material, the trial Court estimated the loss at 15% and worked out the figure of Rs. 1,87,500/-. The High Court in appeal brought down the loss to 10% which worked out to Rs. 1,25,000/-. The Supreme Court observed in para 4 of the judgment, at page 1482 of the Report as under :--- "However, the High Court, after setting out the facts bearing on the quantification of the damages, stated, without any convincing reasoning : "We think that it will be just and reasonable to put this profit at 10 per cent of the contract price which works out to Rs. 1,25,000/-". We are not able to discern any tangible material on the strength of which the High Court reduced the damages from 15% of the contract price to 10% of the Contract price. If the first was a guess, it was at least a better guess than the second one. 1,25,000/-". We are not able to discern any tangible material on the strength of which the High Court reduced the damages from 15% of the contract price to 10% of the Contract price. If the first was a guess, it was at least a better guess than the second one. We see no justification for the appellate Court to interfere with a finding of fact given by the trial Court unless some reason, based on some fact, is traceable on the record. There being none we are constrained to set aside the judgment of the High Court in regard to the assessment of damages for breach of contract." In the facts of the case before the Supreme Court, the Supreme Court felt that the estimate of 15% was a better estimate and that there was no warrant for the High Court to bring it down to 10%. With respect, it is not possible to apply the observations in the said Supreme Court decision to the facts of the present case. In the case before the Supreme Court, the Government was admittedly in breach and the trial Court had estimated the loss at 15% on the basis of the figures on record. We do not see anything in the Supreme Court decision which supports the contention of Shri Rammurthi. There is, thus, no basis whatsoever for the claim of Rs. 49,960/- made by the appellant. Beyond a bare averment in the pleadings, there is no evidence, particularly the oral evidence of the appellant, or the evidence in the shape of account book or assessment orders to indicate that the appellant had suffered any loss as a result of the alleged delay on the part of the respondents in this case, which itself is a disputed proposition. 14. We have pointed out earlier that under the clauses viz. Clause 10 of the printed terms of contract, Exh. 70, and Rule 19 of the cyclostyled rules forming part of Exh. 70, the appellant had agreed to complete the work at the rates at which he had accepted the contract and that under no circumstances was he entitled to claim the enhanced rates for any items in the said contract. Clause 10 of the printed terms of contract, Exh. 70, and Rule 19 of the cyclostyled rules forming part of Exh. 70, the appellant had agreed to complete the work at the rates at which he had accepted the contract and that under no circumstances was he entitled to claim the enhanced rates for any items in the said contract. Shri Rane, appearing for the respondents, also invited out attention to clause 39 of the printed terms which says that no compensation shall be allowed for any delay caused in the starting of the work on account of any acquisition of land in the cause of clearance works, for any delay in according sanction to estimates. Shri Rane, also invited our attention to the letters at Exh. 74 dated 22nd July 1970 and Exh. 76 dated 7th September, 1971, which do show that there was some delay in obtaining land for the work in dispute. There is some substance in the argument of Shri Rane, that the delay initially caused in giving line-out or as a result of shifting the workshop from Kaulapur to Miraj could be attributable to the delay in completion of the land acquisition proceedings. If this is so, Shri Rane, would be justified in contending that clause 39 of the printed terms in Exh. 70 would protect the respondents from the claim of the appellant. The appellant unfortunately has not given the break-up of his claim of Item No. 3 of Rs. 49,960/-. He has generally put it on the basis of the loss caused to him estimated at 10% of the total amounts of the bills viz 10% of Rs. 49,960/-. As stated earlier, this is based on the passage in Gajria's book, which in turn is based on the observations of the Supreme Court in Mohd. Salamatulah's (supra) case, which with respect, must be read in the peculiar facts of that case. It is, therefore, not possible to accept Shri Rammurthi's contention in respect of the item of Rs. 49,960/- also. 15. The learned trial Judge has held that the suit was barred by limitation. While so holding, the learned Judge has relied upon the provisions of Article 26 of the Limitation Act of 1963. Shri Rammurthi, however, contended that his suit will be governed by Article 55 of the 1963 Act. 49,960/- also. 15. The learned trial Judge has held that the suit was barred by limitation. While so holding, the learned Judge has relied upon the provisions of Article 26 of the Limitation Act of 1963. Shri Rammurthi, however, contended that his suit will be governed by Article 55 of the 1963 Act. Article 55 of the 1963 Act which corresponds to Article 115 of the 1908 Act reads as under:--- Art. 115 of the 1908 Act Description of suit Period of Time from which Limitation period begins to run 115. For compensation for Three When the contract is bro- the breach of any contract, years ken, or (where there are express or implied, not in successive breaches the writing registered and not breach in respect of which herein specially provided for the suit is instituted occurs or (where the breach is continuing) when it ceases. Art 55 of the 1963 Act 55. For compensation for the Three years When the contract is bro breach of any contract, ken or (where there are express or impled not successive breaches) when specially provided for. the breach in respect of which the suit is instituted occurs or (where the breache is continuing) when it ceases. As against this Shri Rane, appearing for the respondents, contended that having regard to the real nature of the claim of the appellant, his suit would be governed by the residuary article viz. Art. 113 of the 1963 Act corresponding to Article 120 of the 1908 Act. Article 113 of the new Act and Article 120 of the old Act read as under:--- Article 120 of the 1908 Act Description of suit Period of Time from which period begins to run. Limitation 120. Suit for which no period Six years. When the right to sue of limitation is provided accrues elsewhere in this schedule. Article 113 of the 1963 Act. 113. Any suit for which no period Three When the right of limitation is provided years. to sue accrues. elsewhere in this schedule. 16. Shri Rammurthi sought to place reliance on the decision of the Calcutta High Court in (M.L. Dalmiya and Co. v. Union of India)2, A.I.R. 1963 Calcutta, page 227. If we may say so, the Head-Note of the said Report does given an impression, prima facie, that the suit could be filed within a period of 3 years after the final bill was settled. v. Union of India)2, A.I.R. 1963 Calcutta, page 227. If we may say so, the Head-Note of the said Report does given an impression, prima facie, that the suit could be filed within a period of 3 years after the final bill was settled. However, on a closer scrutiny of the said judgment, it is clear that the claim in the said case consisted of deduction made in the running bills --- i) on account of price of goods not supplied at all viz. cement not at all supplied by the Government, but wrongly charged for, and ii) on the ground that the size of bamboos supplied by the Contractor was less than billed for. It is relevant to note that in paras 13 to 16 of the Judgment at pages 279 280 of the Report, the learned Single Judge of the Calcutta High Court has distinguished the starting point of limitation for the first item viz. deductions made from the running bills on account of the price of goods not supplied at all from the starting point for second item. As far as the first item was concerned, on the facts of the case before him, the learned Single Judge held that if the Government had not supplied cement to the contractor and had still wrongfully deducted the costs of cement from the amount payable to the contractor the cause of action did arise at the date when the deduction was made. However, it was only in respect of the second item viz. deductions made from running bills on the ground that the size of the bamboos supplied by the contractor was less than billed for, that the learned Single Judge held that since the contractor had also raised this claim in the final bill, which was rejected ultimately by the Government, the time would begin to run from the date of the final bill. It must immediately be pointed out that in the present case, the first claim of the appellant was not on account of deductions made as a result of some quantitative or qualitative defects in the works executed by him, but admittedly in view of the averments made in para 8 of the plaint, the claim of Rs. 36,610/- is a claim on the ground that the respondents have wrongfully imposed the penalty in exercise of their powers under the contract. 36,610/- is a claim on the ground that the respondents have wrongfully imposed the penalty in exercise of their powers under the contract. Unfortunately for the appellant, there is no evidence on record to show that this amount of Rs. 36,610/- was claimed by the appellant in the final bill which was settled on 13th January, 1976. 17. The suit was filed on 2nd January 1979. However, a perusal of para 8 would show that the deductions commenced from 9th March, 1973 and ended with 13th January, 1976. On a true construction of the ratio of the Calcutta decision in Dalmia's case, in our opinion, it would follow that excepting the last deduction of penalty of Rs. 12,000/- imposed while settling the final bill on 13th January, 1976, the suit filed on 2nd January, 1979 would be barred by the period of limitation of 3 years as stipulated under Article 113 of the new Limitation Act. On a true construction of the averments made in paras 8, 9 and 13 of the plaint, in our opinion the plaintiff's claim would be governed by the residuary Article viz., 113 of the 1963 Act corresponding to Article 120 of the 1908 Act. It is, therefore, not possible to accept Shri Rammurthi's contention that the observations in Dalmia's case, support his contention that irrespective of the nature of the claim (in the present case, claim for wrongful imposition of penalty), the suit could be filed within 3 years of the date of settling the final bill. Shri Rane, has invited out attention to a Full Bench decision of the Rajasthan High Court in the case of (State of Rajasthan v. Ram Kishan)3, A.I.R. 1977 Rajasthan, 165. The learned Judges have considered a series of decisions on the question as to which article of the Limitation Act would govern the suit of this nature viz. whether it would be the old Article 56 corresponding to the new Article 18 where the claim is for the price of work done or whether it would be the old Article 115 corresponding to new Article 55 where the claim is for compensation for breach of any contract or whether it would be the old Article 120 corresponding to new Article 113, which is the residuary article dealing the claim in respect of which no period of limitation is provide elsewhere in the schedule in the Limitation Act. The Full Bench was dealing with the case where the claim was made for the work done under the contract and after considering the Case Law the Full Bench observed thus :--- "Where a suit is based on a building contract containing Clause (6) and (7), as here, is governed by Article 56 of the First Schedule of the Indian Limitation Act, 1908 the starting point of limitation would be the date when the Engineer-in-charge issues the certificate of completion and when the final measurements are made. Where such a suit is for breach of contract, the suit falls under Article 115 and the period is to be reckoned from the date of breach of contract i.e. the date of drawing up of the final bill." In our opinion, the ratio of the Full Bench decision of the Rajasthan High Court can have no application in the facts of the present case where what the appellant is claiming is - (a) wrongful deduction which is in the nature of penalty imposed upon the appellant as a result of the delay on his part in completing the work; and (b) the estimated loss at 10%. In the facts of the present case, we are inclined to take the view that the appellant's suit would be governed by the provisions of Article 113 of the Limitation Act, 1963. If this is the true position, the right to sue had accrued to the plaintiff/appellant as and when the respondents imposed the penalty commencing from 9th March 1973 and ending with 28th January, 1975, excluding the last item of Rs. 12000/-, which was the penalty imposed while settling the final bill on 13th January, 1976. As stated earlier, since the suit has been filed on 2-1-1979, on the above reasoning, only the claim of Rs. 12,000/- would be within limitation. 18. We are, therefore, of the view that the other 9 items of penalty imposed between 9th March, 1973 and 28-1-1975 would be barred by limitation. However, we have already held above on merits, assuming that the claim was within time, that there is no merit in the claim of the appellant on any of the said amounts of penalty. We, therefore, find no merit in the contention of Shri Rammurthi, that the entire suit of the plaintiff in respect of this item of Rs. However, we have already held above on merits, assuming that the claim was within time, that there is no merit in the claim of the appellant on any of the said amounts of penalty. We, therefore, find no merit in the contention of Shri Rammurthi, that the entire suit of the plaintiff in respect of this item of Rs. 36,610/- is within time inasmuch as it is within 3 years from 13th January, 1976. On a true reading of the averments in the plaint, particularly the averments made in Paras 8, 9 and 13 of the point, it is clear to us that the amount of Rs. 36,610/- is not an amount claimed for the work done so as to attract the application of Article 18 of the 1963 Act nor is the said amount claimed for compensation for breach of any contract so as to attract the application of Article 55 of the 1963 Act. In our opinion, in the facts of the present case, the proper article which would govern the suit of the plaintiff in respect of this claim of Rs. 36,610/- is Article 113 of the 1963 Act viz. the residuary article. 19. The result would be that as far as the question of limitation is concerned, out of the claim of Rs. 36,610/-, only the claim of Rs. 12,000/- which was the amount of penalty imposed on 13th January, 1976 would be within time since the suit has been filed on 2-1-1979. The rest of the claim would be barred by limitation. 20. As far as the other claim of Rs. 49,960/- is concerned, which is the loss alleged to have been suffered by the appellant, calculated at the rate of 10%, prima facie on the averments made in the plaint if the provisions of Article 113 of the Limitation Act, 1963, are to govern this claim, in order to hold that the suit is within time, it will have to be held that the right to sue arose on 13th January, 1976 when the final bill was settled. There is no evidence, however, that the plaintiff had made any claim in the final bill in respect of Rs. 49,960/-. It is, therefore, not possible to hold that this claim arose on the 13th January, 1976. There is no evidence, however, that the plaintiff had made any claim in the final bill in respect of Rs. 49,960/-. It is, therefore, not possible to hold that this claim arose on the 13th January, 1976. The letters of the appellant, some of which are referred to earlier, show that on his own showing the loss has accrued to him earlier. The appellant has in fact been making grievance that he was put to some loss as a result of the delay in completion of the work. For instance, a perusal of the letter, Ex. 79, dated 14-12-1971 would show this. Even in the letter Exh. 82 dated 25-12-1971 the appellant has said that he has suffered heavy loss to the tune of Rupees Thirty Thousand to Rupees Forty Thousand for no fault of his, viz. on account of delay caused by the respondents. If, therefore, the loss had accrued to the appellant much prior to the date of the final bill, which was settled on 13th January, 1976, it is difficult to hold that this claim of the appellant is within time. If on his own showing, as per the letters at Exh. 79 and Exh. 82 the appellant was already aware that he has suffered the loss of Rs. 35 to Rs. 40 thousands, nothing prevented him from filing a suit within 3 years from the accrual of the said loss or at any rate within 3 years of Exh. 80 dated 22-12-1971 when the respondents refused to accept his claim that he has suffered the loss on account of delay caused by the respondents. The respondents made it clear by their letter, Exh. 80, that the appellant had to execute the work without any claim for compensation for delay, which the appellant did. 21. In this view of the matter, we are of the view that the loss claimed by the appellant under the last item of Rs. 49,960/- had accrued to him much prior to settling of the final bill on 13th January, 1976. Since Article 113 of the 1963 Act would govern this claim of the appellant, we hold that even this claim would be barred by the Law of Limitation. However, we have already held that the claim had no merit, apart from the question of limitation. 22. In view of the above, the appeal fails and the same is dismissed. Since Article 113 of the 1963 Act would govern this claim of the appellant, we hold that even this claim would be barred by the Law of Limitation. However, we have already held that the claim had no merit, apart from the question of limitation. 22. In view of the above, the appeal fails and the same is dismissed. In the circumstances of the case, however, there will be no order as to costs. Appeal dismissed. -----