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Tripura High Court · body

2014 DIGILAW 205 (TRI)

Tapan Kumar Acharjee v. Union of Inida

2014-06-04

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:- This appeal under Section 96 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 08.04.2005 passed by learned Civil Judge, Senior Division, Court No. 2, Agartala, in Title Suit No. 60 of 2003. 2. Heard learned counsel, Mr. D. Bhattacharji for the appellant and learned counsel, Mr. A. Lodh for respondent Nos. 2 to 6. No representation on behalf of respondent No. 1. 3. Let us first take a brief note of pleadings of the parties: 3.1. The appellant, as plaintiff (hereinafter mentioned as plaintiff) instituted the title suit seeking a decree for specific performance of contract with consequential relief of perpetual injunction, and in the alternative for a decree of compensation against the Defendant-Respondents (hereinafter mentioned as defendants). 3.2. The case of the plaintiff is that he was an employee of M/S. G.C. Roy & Co., Assam Oil Division, Agartala Depot. from the year 1976 till it was taken over by the Indian Oil Corporation Limited (IOCL for short) on 01.08.1988. The plaintiff was denied employment by the IOCL, after the Depot. was taken over and so he filed a writ petition (Civil Rule No. 377 of 1993) before the Gauhati High Court, Agartala Bench and during pendency of the writ petition, the plaintiff and the IOCL entered into a Memorandum of Settlement and in pursuance thereof executed an agreement on 26.02.1994. As per the terms of said Memorandum of Settlement the plaintiff had withdrawn the writ petition but the defendants did not perform their part as per the agreement dated 26.02.1994. The defendants floated a tender for miscellaneous operational/handling job of their Kunjaban Depot., Agartala and the plaintiff participated in the tender process and got the job pursuant to work order dated 04.03.1994. The plaintiff performed the job during the period from 01.04.1994 to 31.03.2001 and thereafter the defendants refused to further extend the job and hence the plaintiff filed writ petition No. WP(C) 152 of 2001 in the Gauhati High Court, Agartala Bench and that writ petition was disposed of by judgment dated 10.08.2001. The defendants started managing the Depot. on temporary basis w.e.f. 01.04.2001 and on 06.04.2001 they disclosed that they will induct someone else for the said work and therefore the plaintiff instituted Title Suit No. 48 of 2001 in the Court of Civil Judge, Junior Division, Agartala. The defendants started managing the Depot. on temporary basis w.e.f. 01.04.2001 and on 06.04.2001 they disclosed that they will induct someone else for the said work and therefore the plaintiff instituted Title Suit No. 48 of 2001 in the Court of Civil Judge, Junior Division, Agartala. In that suit the defendants filed an application that Government of India, Ministry of Petroleum & Natural Gas by a letter dated 03.05.2002 informed the Director (Marketing), IOCL, Mumbai that operation of Agartala Depot., IOCL had been closed and therefore the defendants claimed that the suit became infructuous and in view of that stand taken by the defendants the plaintiff amended the plaint and prayed for an alternative remedy of decree of compensation of ` 6.00 lakh with interest. Since pecuniary jurisdiction of Munsiff was exceeded, the plaint was returned and accordingly the suit was filed in the Court of Civil Judge, Senior Division, Agartala and it was registered as T.S. 60 of 2003. 3.3. The defendants contested the suit by filing a joint written statement inter alia contending that the suit is barred by limitation since the plaintiff did not approach within the prescribed period of limitation and that it is barred by res judicata since the issue has already been decided in WP(C) No. 152 of 2001 by judgment dated 10.08.2001 which was affirmed in writ appeal No. 112 of 2001 by judgment dated 27.09.2001. It is also contended by the defendants that agreement dated 26.02.1994 was not signed by an authorized person on behalf of the Union of India and so the defendants were not bound by that agreement. From the year 1994 till 22.08.2001, the date of filing the title suit, the plaintiff at no point of time sought for any relief pursuant to the alleged Memorandum of Settlement dated 26.02.1994 and so the claim of the plaintiff is barred by estoppels, waiver and acquiescence. The plaintiff actually in the name of M/s. Tapan Enterprise got the job of operating Agartala Depot. w.e.f. 01.04.1994 pursuant to the work order dated 04.03.1994 which was issued for a period of two years initially subject to terms and conditions of the work order and it was extended time to time till 31.03.2001. The plaintiff actually in the name of M/s. Tapan Enterprise got the job of operating Agartala Depot. w.e.f. 01.04.1994 pursuant to the work order dated 04.03.1994 which was issued for a period of two years initially subject to terms and conditions of the work order and it was extended time to time till 31.03.2001. The plaintiff did not insist for the performance of the settlement dated 26.02.1994 rather he was happy with the work order dated 04.03.1994 and so the plaintiff practically waived his right, if any, and therefore not entitled to get any relief. It is also contended that by a letter dated 03.05.2002, the Government of India, Ministry of Petroleum & Natural Gas closed Agartala Depot. and therefore the suit instituted by the plaintiff became infructuous. It is also pleaded by the defendants that the suit has become barred from the year 1994 itself when the plaintiff got the work order of the job pursuant to tender dated 20.09.1993. 3.4. Considering the pleadings of the parties the learned Civil Judge, Senior Division framed following five issues: 1. Is the suit maintainable? 2. Are the defendants liable to fulfill the term of the Memorandum of settlement dated 16.2.94 and whether in the event of its non-fulfilment, they are liable to pay Rs. 6,00,000/- to the plaintiff with interest @9% per annum from 1.4.01 till realization? 3. Is the plaintiff entitled to get the decree of specific performance to the defendants as prayed for? 4. Is the plaintiff entitled to get a decree of perpetual injunction as prayed for? 5. Is the plaintiff entitled to any other relief? 3.5. In course of trial the plaintiff examined himself as PW 1 and proved the writ petition No. WP(C) 152 of 2001, copy of the judgment of the writ petition dated 10.08.2001 and original Memorandum of Settlement dated 26.02.1994 and those were marked as Exbts. 1, 2 and 3 respectively. On behalf of the respondents, one witness, namely Sanjib Chakraborty was examined. No documentary evidence adduced. 3.6. While deciding issue No. 1 learned trial Judge held that the suit filed by the plaintiff was barred by limitation and accordingly dismissed the suit. 3.7. Aggrieved, the plaintiff filed the present appeal. 4. Mr. Bhattacharji, learned counsel of the appellant assailed the decision of the trial Court on the point of limitation and concentrated his argument only on that point. 3.7. Aggrieved, the plaintiff filed the present appeal. 4. Mr. Bhattacharji, learned counsel of the appellant assailed the decision of the trial Court on the point of limitation and concentrated his argument only on that point. He has contended that in the Memorandum of Settlement dated 26.02.1994 there was no fixed date for the performance of the agreement. The plaintiff got the job of operation and handling of Agartala Depot. pursuant to a tender dated 20.09.1993 vide work order dated 04.03.1994 and the High Court while deciding writ petition No. WP(C) 152 of 2001 by judgment dated 10.08.2001 held that the Memorandum of Settlement has never been given effect to and the remedy for the plaintiff to seek for implementation of Memorandum of Settlement within the permissibility of law lies elsewhere in the civil forum, and hence the plaintiff filed the suit when the defendants, after the job contract was over on 31.03.2001, started managing the Depot. on temporary basis and on 06.04.2001 when they intended to induct some other person to the job. Therefore, the limitation shall run as per Articles 54 and 55 of the limitation Act on and from 06.04.2001. It is submitted that the finding of the trial Court on the point of limitation, since was wrong, the issue may be remanded back to the trial Court. 5. Per contra, learned counsel, Mr. Lodh has submitted that the limitation point has been rightly decided by the trial Court. The plaintiff got the job w.e.f. 04.03.1994 and that was extended from time to time. He was silent at that point of time and never raised anything why the Memorandum of Settlement dated 26.02.1994 was not executed. The limitation shall start running from the date the job contract was given to the plaintiff and the trial Court rightly decided the issue. There is no point that the Memorandum of settlement shall come into operation in perpetuity and the plaintiff will be at liberty to raise it at any point of time at his will. Learned counsel, therefore, prayed for dismissal of the appeal. 6. The trial Court while deciding issue No. 1 arrived at a finding that the suit was maintainable and also held that it was not barred by res judicata. The Court also arrived at a finding that Exbt. Learned counsel, therefore, prayed for dismissal of the appeal. 6. The trial Court while deciding issue No. 1 arrived at a finding that the suit was maintainable and also held that it was not barred by res judicata. The Court also arrived at a finding that Exbt. 3, the Memorandum of settlement dated 26.02.1994 was executed between the parties and pursuant to that Memorandum of Settlement the plaintiff has withdrawn his writ petition being WP(C) No. 377 of 1993. The learned trial Judge on the point of limitation arrived at a finding that the suit is barred by limitation since the plaintiff did not approach the Court within the prescribed period. While deciding the point of limitation the trial Court in para 17 of the judgment held: 17. According to the plaint, the tender notice was published on 20.9.93. Admittedly, memo of settlement was arrived at on 26.2.1994. The said document marked Exbt. 3 does not reveal any specific state by which or within which it is to be given effect to. The obvious interpretation would be that it would come into effect immediately or within the reasonable time, according to the circumstances prevailing at that time. Thereafter, the work order was issued relating to the job to the M/S. Tapan Enterprise i.e. the plaintiff on 4-3-1994. In my considered opinion and as argued by the learned Sr. counsel of the defendants, the cause of action for the specific performance of the agreement arose on that date. Obviously, the plaintiff did not file the suit at that time because it was actually he who had submitted the tender in the name of Tapan Enterprise. So, he subsequently got the job being the lowest tenderer. The work thus awarded, the defendants denied the agreement and that gave rise to the cause of action. It is a different matter that plaintiff got the job and he continued the work for the next 7 (seven) years. This by no means can extend the limitation to file/seek specific performance of the contract. I have gone through the ruling cited in this case by the learned Senior Advocate which is AIR-1997 SC-2630. The ratio laid down in that case applies to the case in hand. As already stated, the limitation started to run the moment the work order was given to M/S. Tapan Enterprise on 4-4-1994. I have gone through the ruling cited in this case by the learned Senior Advocate which is AIR-1997 SC-2630. The ratio laid down in that case applies to the case in hand. As already stated, the limitation started to run the moment the work order was given to M/S. Tapan Enterprise on 4-4-1994. The fact that the plaintiff got the job actually can not prevent the limitation from running. So, the suit of the plaintiff is barred by the law of limitation. Maintainability of the suit is decided in the aforesaid terms. 7. The plaintiff has prayed for the following relief in the suit: (i) a decree of specific performance directing the Defendants No. 2-6 to award/give the work order for misc. operational/handling jobs and depot upkeep jobs for smooth operation of Agartala Depot, Tripura (West) initially for three years subject to its renewal and rewarding as per the Memorandum of Settlement dated 26.02.1994. (ii) a decree of perpetual injunction restraining the Defendants No. 2-6 from awarding the work order for misc. operational/handling job and depot upkeep jobs for smooth operation of Agartala Depot, Tripura (West) to any other person save and except the plaintiff till the memorandum of settlement dated 26.02.1994 be completely performed. Or alternatively a decree directing the Defendants No. 1-6 to make payment to the Plaintiff a sum of Rs. 6,00,000.00 (Rupees six lakh) with interest @9 percent w.e.f. 01.04.2001 till realization for non-performance of the agreement annexed to the plaint and part of the plaint. (iii) cost. (iv) any other relief or reliefs as entitled to the Plaintiff. 8. It is, therefore evident that the suit of the plaintiff is based on the Memorandum of Settlement dated 26.02.1994. Admittedly, the plaintiff instituted the suit on 22.08.2001, i.e. about after seven years. It is an admitted position that the plaintiff filed WP(C) No. 377 of 1993 claiming job under the respondents when the IOCL taken over M/S. G.C. Roy & Co. in the year 1988 and he was refused a job. It is also an admitted position that the plaintiff has withdrawn the writ petition after memorandum of settlement dated 26.02.1994 was signed. The said Memorandum of Settlement (Exbt. 3) consists of the following terms and conditions: Terms & Conditions 1. in the year 1988 and he was refused a job. It is also an admitted position that the plaintiff has withdrawn the writ petition after memorandum of settlement dated 26.02.1994 was signed. The said Memorandum of Settlement (Exbt. 3) consists of the following terms and conditions: Terms & Conditions 1. That the Second Party will give a job contract for 3 years to the First Party at its Kunjaban Depot and the contract may be renewed/rewarded from time to time with reasonable escalation in favour of the First Party provided his performance is found satisfactory by the user department and the First party accepts the usual terms and conditions of the contract. 2. That the First Party will withdraw the Civil Rule No. 377/93 pending in the Agartala Bench of Gauhati High Court and will not claim regularization of his service with the Second Party. 3. The First Party shall engage the other two persons namely Shri Bishnupada Debnath and Shri Netai Banik in his roll if they agree to work. 4. That the parties hereto do hereby declare that all disputes between them have been amicably settled and resolved and now there is no dispute outstanding between them. 8.1. It is also an admitted position that pursuant to a Notice Inviting Tender dated 20.09.1993 the plaintiff got the job of operation and handling of Agartala Depot, IOCL vide work order dated 04.03.1994 and accordingly he enjoyed the job w.e.f. 01.04.1994 to 31.03.2001. The job was initially for two years and thereafter it was renewed time to time. After 31.03.2001 when the job was not further renewed the plaintiff filed WP(C) No. 152 of 2001 in the Agartala Bench of the then Gauhati High Court and the High Court by judgment dated 10.08.2001 (Exbt. 1 series) dismissed the writ petition with the following observations: 8. From the work order, Annexure-2 available with the writ petition, it is evident that the tender notice was floated by the respondents on 20.9.1993 asking the interested persons to quote the rate and the petitioner participated thereunder and having accepted the rate quoted by the petitioner, the job contract was awarded to him vide order dated 4.3.1994 and as such it can be safely inferred that the said work order dated 4.3.1994 had no nexus with the Memorandum of Settlement dated 26.2.1994. The Memorandum of Settlement was entered into/signed on 26.2.1994 while the work order dated 4.3.1994 was issued pursuant to the Notice Inviting Tender/Quotation dated 20.9.1993 and as such it cannot be held that the respondents pursuant to the Memorandum of Settlement issued the said work order. 9. This being the position, it can be unhesitantly held that the Memorandum of Settlement has never been given effect to and the remedy if any, for the petitioner to seek for implementation of the Memorandum of Settlement within the permissibility of law lies elsewhere in civil forum. 10. In the work order there was no stipulation giving any commitment or assurance that the said work would be renewed once again though admittedly the respondents renewed the same for some occasions, last of which expired on 31.3.2001. 11. Neither from the memorandum of settlement nor from the work orders issued time to time awarding the job contract, it is evident that any statutory contract has ever been entered into between the parties, memorandum of settlement appears to be civil agreement to be governed by the common private civil laws. Work order issued by the respondents time to time had been given effect to and there was no dispute arising out of the work order itself. Had there been any stipulation in any work order issued time to time by the respondents containing any commitment and/or assurance of renewal or extension of such work order the matter would have been dealt with otherwise. In absence of any such stipulation or commitment or assurance the relief as sought for by the petitioner compelling the respondents to renew or extend the work order cannot be granted under any valid law. 12. This being the position, I am constrained to hold that the petitioner is not entitled to get any relief in the present petition, and, as such, the writ petition stands dismissed. 8.2. It is also an admitted position that a writ appeal was also filed by the plaintiff and it was dismissed. 9. The plaintiff instituted the suit after about seven years of the Memorandum of Settlement dated 26.02.1994. Limitation prescribed for specific performance of contract as well as for compensation for the breach of any contract as prescribed in Articles 54 and 55 of the Schedule to the Limitation Act, 1963 are three years. 9. The plaintiff instituted the suit after about seven years of the Memorandum of Settlement dated 26.02.1994. Limitation prescribed for specific performance of contract as well as for compensation for the breach of any contract as prescribed in Articles 54 and 55 of the Schedule to the Limitation Act, 1963 are three years. Article 54 and 55 of the Schedule to the Limitation reads as follows: 10. Law of Limitation is an adjective law. It is a lex fori. The rules of limitation are, prima facie rules of procedure and do not create any right in favour of any person nor do they define or create cause of action but simply prescribe that the remedy can be exercised only up to a certain period and not subsequently. Withholding of a statute of limitation has never been a matter of doubt or dispute. It has been said that the statute of limitation is a statute of repose, piece and justice. It is one of repose because it extinguishes stale demands, and quiets title. It secures peace as it ensures security of rights; and it secures justice, as by lapse of time the evidence in support of rights may be destroyed. There can thus be no doubt that the law of limitation rests on sound policy. 11. The plaintiff seeking a job under the defendants instituted WP(C) No. 377 of 1993 in the High Court and withdrawn it after signing of Memorandum of Settlement dated 26.02.1994. Naturally, the plaintiff was expecting a job as contemplated in the Memorandum of Settlement immediately after the Memorandum was signed and not at a time to come in uncertain future as and when the plaintiff will claim. Admittedly, Exbt. 3, the agreement dated 26.02.1994 does not stipulate any specific date or time within which it is to be given effect. It is, therefore to be interpreted that it should come into effect immediately or within a reasonable time according to the facts and circumstances of the case. The plaintiff with that document in hand cannot claim to have acquired a perpetual right of claiming benefit of that document at any future time to come. It is evident that after taking over of the Depot from G.C. Roy & Co. the respondents floated NIT dated 20.09.1993 and the plaintiff participated in the tender process. The plaintiff with that document in hand cannot claim to have acquired a perpetual right of claiming benefit of that document at any future time to come. It is evident that after taking over of the Depot from G.C. Roy & Co. the respondents floated NIT dated 20.09.1993 and the plaintiff participated in the tender process. He got the work order for miscellaneous operation and handling of the Depot by virtue of the work order issued on 04.03.1994 which is after the signing of the Memorandum of Settlement. The High Court has held that there was no nexus between the work order and the Memorandum of Settlement. The plaintiff while got the work order would have raised his claim as per the Memorandum of Settlement but he did not raise since he got the work order by virtue of the tender and thereby he waived his right to claim pursuant to the Memorandum of Settlement whereas he entered into the span of limitation when he got the work order form the defendants. It is plain from the wordings of Article 54 and 55 that if there is a specific date of performance of contract the limitation will start from the date, but in the absence of a definite date for performing the contract, the starting point of limitation is the date when the plaintiff has got notice of refusal of performance by the defendants. 12. According to Article 54, the limitation of specific performance of contract starts when the plaintiff has noticed that the performance is refused. The word, ’notice’ means intimation, information, cognizance or observance. ’Notice’ implies knowledge and this knowledge comes from direct participation or from inference reasonably arising out of several facts and circumstances. The plaintiff with an expectation of having an assignment as contemplated in the Memorandum of Settlement dated 26.02.1994 has withdrawn his writ petition and therefore he was definitely expecting a job as per that settlement immediately thereafter and obviously not after seven years of signing the Memorandum of Settlement. He got the job pursuant to a tender vide work order dated 04.03.1994. He would have claimed his benefit under that agreement at that point of time itself and therefore in the given facts and circumstances of the case the limitation since not specifically stated in Exbt. He got the job pursuant to a tender vide work order dated 04.03.1994. He would have claimed his benefit under that agreement at that point of time itself and therefore in the given facts and circumstances of the case the limitation since not specifically stated in Exbt. 3, shall run with effect from the date of issuance of work order in favour of the plaintiff. The plaintiff performed the job from 01.04.1994 to 31.03.2001. He could not prove his claim for further renew in the writ case filed in the High Court. The trial Court, in my considered opinion, rightly arrived at a finding that the suit instituted by the plaintiff is barred by limitation. 13. As I find the trial Court also recorded its finding on other issues and hence the appeal is dismissed with costs. 14. Send back the LCRs along with a copy of the judgment.