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2003 DIGILAW 193 (JHR)

Union Construction Co. v. State Of Bihar

2003-02-10

TAPEN SEN

body2003
JUDGMENT M.Y. Eqbal, J. 1. This appeal is directed against the judgment dated 23.5.96 passed by Sub- judge, II, Bermo at Tenughat in Title Suit No. 5/88 whereby he has decided the issue of limitation and res judicata as preliminary issue and dismissed the suit. 2. The plaintiff-appellant is a partnership firm carrying on the business of construction work. In 1966 it entered into an agreement with the defendant- respondent No. 2 for earth work in Tenughat Dam Project. In course of construction work the contract was terminated and the respondents detained the tractor Doser, wielding set and other vehicles. Consequently a dispute arose and the plaintiff-appellant filed Title Suit No. 89/73 in the Court of Sub-judge, Giridih seeking appointment of an arbitrator under Section 20 of the Arbitration Act in terms of the arbitration clause contained in the agreement. The said application was allowed and the Superintending Engineer, Dam Project Tenughat was appointed as an arbitrator. The arbitrator gave his award directing the respondents to pay a sum of Rs. 97,953 to the plaintiff. The said award was made Rule of the Court and a decree dated 18.1.78 was passed. 3. The plaintiffs case in the instant suit is that although the defendant paid the award amount but did not return the vehicles and the wielding set in running condition and due to their negligence the machines have been badly damaged. However, the defendants agreed to return the said machines after getting them repaired and for this purpose the defendants sent a letter to the Tractors India Limited, Calcutta for estimated cost of the tractor and the latter demanded Rs. 15,09,983-32 towards the cost of the vehicles. It is alleged that due to the negligence of the defendants the machines have been damaged and they are liable to pay the estimated cost to the plaintiff. The plaintiff, therefore, again sought reference of the dispute to the arbitrator. 4. The defendants contested the suit by filing written statement contending, inter alia, that the application under Section 20 of the Arbitration Act is barred by law of limitation, Waiver and the principles of res jadicata. It is alleged that the earlier application under Section 20 of the Act was filed and the award was published on 10.8.1977 with a direction to hand over the vehicles. It is alleged that the earlier application under Section 20 of the Act was filed and the award was published on 10.8.1977 with a direction to hand over the vehicles. The defendants paid the awarded amount to the plaintiff and the Court passed a decree on 18.1.1978. The Court further vide order dated 20.9.1978 passed a decree to return the machines but the defendants (failed) to do so. It is further stated that the plaintiff filed a execution case being No. 27/81 with regard to the cost of repair of the said machines which was rejected. 5. The Court below after hearing the parties recorded a finding that in the previous suit being title suit No. 89/73 instituted by the plaintiff a sum of Rs. 3 lacs was claimed for illegally detaining the vehicles and wielding set by the defendants. The plaintiff had not claimed the repair cost of the dozer as claimed in the instant suit and the arbitrator passed an award directing the defendants to release the vehicles and wielding set to the plaintiff and also directed to make payment of Rs. 97,953/-. The Court below further came to the conclusion that the suit of the plaintiff Is barred by constructive res judicata and also barred by limitation. 6. Admittedly the contract was entered into in 1966 and the earlier suit was filed in 1973- The matter was referred to the arbitrator who gave his award which was made rule of the Court by the sub-Judge on 18.1.1978. It has not been disputed that the awarded amount was paid to the plaintiff and in terms of the direction the defendants issued a letter asking the plaintiff to take delivery of the vehicle. The plaintiff levied execution case being execution case No. 47/81 for the recovery of the cost of repair of the machines. The same was rejected. The plaintiff has pleaded in the plaint that the cause of action for the suit arose on 21.2.1966 and 18.1.1978 when the award was made Rule of the Court. The plaintiff, rightly for the first time raised further claim for payment of damages from the defendants. The arbitration clause was invoked second time by filing a suit on 8.2.1988 i.e. after lapse of 10 years. The plaintiff, rightly for the first time raised further claim for payment of damages from the defendants. The arbitration clause was invoked second time by filing a suit on 8.2.1988 i.e. after lapse of 10 years. In my opinion, therefore, the Court below rightly came to the conclusion that the subsequent application filed by the plaintiff is barred by limitation and res judicata. I do not find any strong reason to differ with the finding recorded by the Court below. 7. For the reasons, aforesaid there is no merit in this appeal which is accordingly dismissed.