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2003 DIGILAW 85 (CAL)

RAMESWAR SARKAR v. COLLECTOR, NADIA

2003-02-26

A.N.RAY, HRISHIKESH BANERJI

body2003
H. BANERJI, J. ( 1 ) THIS appeal is directed against the judgment and decree dated September 29, 1999 passed by the learned Assistant District Judge, 1st Court, Krishnanagar, Nadia in Money Suit No. 10 of 1984. ( 2 ) THE plaintiff, a Government Contractor in response to a tender by the State Government for completion of the unfinished work of Sugar-cane Research Station at Bamundanga and at the Sub-Divisional Health Centre at Fakirdanga, was entrusted with the said work and he completed the work within time and delivered possession thereof to the State Government. ( 3 ) DURING the progress of the above tendered work the State directed the plaintiff through the concerned Engineer to perform a non-tendered work relating to the completion of the ground-floor of Bamundanga Building. The plaintiff completed the said non-tendered work by February 3, 1976. He had to incur expenditure of Rs. 4,51,000/- for the said work but inspite of demands the defendants did not pay the said amount. ( 4 ) PRIOR to this suit the plaintiff filed Title Suit No. 358 of 1976 and Title Suit No. 115 of 1979 for realisation of money relating to the tendered items. Earlier the matter was referred to the Arbitrator who did not say anything about the non-tendered work. ( 5 ) SERVING a notice dated 27. 1. 1983 upon the respondents authorities of the State under section 80 of the Code of Civil Procedure the plaintiff filed Money Suit No. 10 of 1984 claiming Rs. 4,51,000/- as the principal amount Rs. 4,51,000/- as demurrage and Rs. 2,51,000/- by way of compensation from the State. The respondents, State of West Bengal and two other officers of the State admit that work orders were issued in favour of the plaintiff and that he was also asked to perform a non-tendered work on the ground-floor of the Sugar-cane Research Station. They, however, stated that the major portion of the work of the ground-floor had been completed by the previous Contractor and only a small portion of the work was to be done by the plaintiff. It is alleged that the plaintiff could not complete the non-tendered work within February 3, 1976 as agreed. They, however, stated that the major portion of the work of the ground-floor had been completed by the previous Contractor and only a small portion of the work was to be done by the plaintiff. It is alleged that the plaintiff could not complete the non-tendered work within February 3, 1976 as agreed. The respondents allege that the claim of the plaintiff is barred by the principles of res judicata because the earlier dispute relating to both the tendered and non-tendered work had been decided by the Court in Title Suit No. 115 of 1979. It is further alleged by the respondents/state that the plaintiff has been in the habit of making imaginary and illegal claim and in submitting inflated bills relating to the works. Earlier the suit filed by the plaintiff was dismissed by the trial Court and an appeal was preferred against the said judgment and during the pendency of the appeal the plaintiff filed an application before the trial Court for review of the judgment and his prayer was allowed on 5. 6. 1995. Thereafter an opportunity was given to both the parties for adducing further evidence and on consideration of the evidence-on-record the trial Court dismissed the suit on August 6, 1996. In the appeal against the said judgment this Court observed that as the order allowing the application for review attained finality the respondents could not dispute the correctness of the same although F. A. T. 1886 of 1993 was pending against the judgment dated 19. 9. 1992. ( 6 ) IT was also observed by this Court in the judgment dated August 6, 1996 that the suit was not dismissed on merits and setting aside the trial Court's judgment the High Court sent back the suit on remand for fresh disposal on merits in accordance with law. ( 7 ) ON behalf of the defendants it was urged before the trial Court that the suit was barred by the principles of res judicata. The plaintiff filed Title Suit No. 358 of 1976 before the learned Munsif, 2nd Court, Krishnanagar relating to both tendered and non-tendered works. The said suit was dismissed on the ground that before the expiry of the statutory period the suit was filed. The appeal preferred by the plaintiff against the said judgment was allowed and the judgment and decree passed by the learned Munsif was set aside. The said suit was dismissed on the ground that before the expiry of the statutory period the suit was filed. The appeal preferred by the plaintiff against the said judgment was allowed and the judgment and decree passed by the learned Munsif was set aside. The Lower Appellate Court, however, rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure on the ground that the notice under section 80 of the Code of Civil Procedure was not sufficient. Thereafter, a fresh suit being Title Suit No. 115 of 1979 was filed by the plaintiff for permanent injunction, declaration and recovery of a sum of Rs. 7,00,000/- against the defendants in the Court of Subordinate Judge, Krishnanagar in respect of the two tendered works. The defendants filed a petition in the suit for referring the dispute to the Arbitrator for his decision but the said petition was rejected on the ground that there was no averment in the petition that the defendants were ready and willing to have the disputes settled through intervention of the Arbitrator. The defendants filed another application for referring the dispute for the decision of the Arbitrator. The Chief Engineer, Construction Board, PWD, West Bengal was appointed as the Arbitrator. On the basis of the award of the Arbitrator, the learned Assistant District Judge, 1st Court, Krishnanagar, Nadia passed a decree for Rs. 1300/- and the defendants were directed to pay a sum of Rs. 1,101. 50 to the plaintiff. The State/defendant preferred an appeal in this Court only against costs and after hearing the said appeal the Division Bench of this Court modified the decree for costs to the extent that the defendants/appellants should pay proportionate costs to the plaintiff. ( 8 ) ON consideration of all aspects the trial Court in the subsequent suit i. e. Title Suit No. 115 of 1979 decreed the suit but the State preferred an appeal. ( 9 ) IT appears from the record that against the above judgment and decree the State/respondent filed an appeal before this Court and a Division Bench of this Court allowed the appeal in part with the modification that the plaintiff would get proportionate costs in the suit. ( 10 ) IN the said suit viz. , Title Suit No. 115 of 1979 the plaintiff claimed for realisation of money relating to both the tendered and non-tendered items. ( 10 ) IN the said suit viz. , Title Suit No. 115 of 1979 the plaintiff claimed for realisation of money relating to both the tendered and non-tendered items. The plaintiff did not prefer any cross-objection at that time against the judgment and decree passed in Title Suit No. 115 of 1979 by the trial Court. It appears that the plaintiff's claim relating to the work of the non-tendered item was directly and subsequently in issue in the former suit viz. , Title Suit No. 115 of 1979 and the matter was raised, heard and finally decided by this Court in the appeal preferred against the judgment and decree passed by the trial Court. ( 11 ) ACCORDINGLY, we hold that the learned Assistant District Judge was justified in holding that the present suit out of which the appeal arises, is barred by res judicata. ( 12 ) ON the question of limitation (Article 113 which corresponds to old Article 120) raised by the plaintiff the learned counsel for the plaintiff refers to the following decisions: 1. AIR 1930 Privy Council 270 (Mt. Bolo v. Mt. Koklan and Ors.), 2. AIR 1970 Supreme Court 1433 (Gannon Dunkerley and Co. Ltd. , Delhi v. Union of India) and 3. AIR 1983 Allahabad 381 (Delhi Cloth and General Mills Ltd. , Delhi v. Union of India and Anr. ). ( 13 ) IN AIR 1930 Privy Council 270 (supra) it has been held that there can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. ( 14 ) FOLLOWING this Privy Council decision the Supreme Court also held in AIR 1970 Supreme Court 1433 (supra) that there is no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal thereat to infringe that right by the defendant against whom the suit is instituted. ( 15 ) IN AIR 1983 Allahabad 381 (supra) it has been held that under Article 113 the right to sue cannot accrue on mere vague and general threat but the threat must be clear and unequivocal. ( 15 ) IN AIR 1983 Allahabad 381 (supra) it has been held that under Article 113 the right to sue cannot accrue on mere vague and general threat but the threat must be clear and unequivocal. ( 16 ) SINCE in the case at hand we do not find any material to indicate that there is a clear and unequivocal thereat to infringe the right to sue the defendant, it cannot be said that the suit is barred by limitation. But as we have found that the suit out of which the present appeal arises is barred by res judicata, the present appeal is dismissed. No order as to costs. A. N. Ray, J.- I agree. Appeal dismissed