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2015 DIGILAW 709 (GAU)

Basant Surana v. State of Assam

2015-06-09

N.CHAUDHURY

body2015
ORDER 1. The plaintiff of money Suit No. 107 of 2005 has preferred this first appeal challenging the decree of dismissal passed by the learned Civil Judge No. 2 Kamrup, Guwahati on 29.8.2008. 2. The pleaded case of the plaintiff is that being a registered 1st Class contractor under the PWD, he was provided with a preliminary work order on 13.11.1995 for repairing of roads. By making security deposit of Rs. 18,256/- he entered into formal contract with the defendants and got the work order on 8.1.1996. He completed the work on 1.9.1997 and submitted bill for Rs. 8,01,863/-.Defendants made payment of Rs. 1,10,000/- but did not make payment of the balance sum of Rs. 6,91,863/-. Aggrieved, plaintiff filed a writ petition before this High Court being WP (C) No. 7227 of 2001 and thereupon this court passed an order disposing of the writ petition with direction to said respondents to make payment of the undisputed amount within 31st July, 2002. Defendants though did not make payment within the stipulated period but ultimately made payment of this amount of Rs. 6,91,863/- on 15.12.2004. The plaintiff, thereafter, served a notice on the defendants under Section 80 CPC asking for payment of Rs. 18,07,494/- towards interest against the aforesaid principal amount already disbursed and further interest @ 15.5.% therein till realization. 3. On being summoned, defendants appeared and submitted written statement on 27.3.2006 contesting the suit of the plaintiff not only on merit but also on maintainability. According to the defendants, the suit was neither filed in time nor was the same maintainable. 4. The learned trial court framed the following four issues in the suit:- (i) Whether the suit is barred by limitation? (ii) Whether the plaintiff is entitled to get decree for interest @ 15.5% per annum? (iii) Whether the plaintiff is entitled to get decree for recovery of Rs. 18,07,494/- as prayed for? (iv) To what other relief/reliefs the parties are entitled? 5. In course of trial, plaintiff examined himself as PW-1 and exhibited 35 documents while the defendants examined Dilip Kumar Pathak as DW-1 but did not exhibit any documents from their side. (iii) Whether the plaintiff is entitled to get decree for recovery of Rs. 18,07,494/- as prayed for? (iv) To what other relief/reliefs the parties are entitled? 5. In course of trial, plaintiff examined himself as PW-1 and exhibited 35 documents while the defendants examined Dilip Kumar Pathak as DW-1 but did not exhibit any documents from their side. After consideration of the evidence led by parties and on perusal of the materials available on record, the learned trial court passed the impugned judgment and decree dated 29.8.2008 holding that the suit is barred by limitation and consequently the remaining issues No. 2, 3 and 4 were also decided against the plaintiff. The suit of the plaintiff was dismissed with cost. This judgment has been brought under challenge in the present appeal. 6. I have heard Mr. KR Surana, learned counsel for the appellant and Mr. G Sharma, learned Government Counsel for the respondents. I perused the evidence led by parties including Exhibit-9 the copy of the judgment and order passed by this court in WP (C) No. 7227 of 2001. 7. Mr. KR Surana, learned counsel for the appellant would argue that the defendants were directed to make payment within 31st July, 2002 but they did not make payment within the time and ultimately they made payment of the principal amount only on 15.12.2004 and so a fresh cause of action arose from that date. The suit having been instituted in the year 2005, therefore, should not have been barred by limitation and so the impugned judgment and decree is liable to be set aside and the suit of the plaintiff is liable to be decreed. 8. Per contra, Mr. G Sharma, learned counsel would argue that the plaintiff approached this court vide WP No. 7227 of 2001 ventilating grievance for non-payment of Rs. Rs. 6,91,863/- which was the unpaid bill of the plaintiff. The High Court considered claim of the plaintiff in the aforesaid writ petition and virtually allowed his prayer by disposing the writ petition with direction to the defendants herein to make payment within 31.7.2002. In the claim before the High Court on the first occasion, the plaintiff either did not claim for interest or if such a claim was made, the High Court did not allow the same and so the matter attained finality. In the claim before the High Court on the first occasion, the plaintiff either did not claim for interest or if such a claim was made, the High Court did not allow the same and so the matter attained finality. Plaintiff was not at liberty to take recourse to a fresh legal proceeding in the form of a suit after the writ petition against the same prayer had been decided on merit. 9. Having heard the submissions of the learned counsel for the parties, this court has gone through the order dated 29.1.2002 passed by this court in WP (C) No. 7227 of 2001. It appears that on earlier occasion, High Court observed that because of financial constraint, the State Government was not in a position to make payment of the balance sum due to the plaintiff in time and so High Court was of the view that some time should be allowed to the State Government to clear the undisputed amount. Accordingly, taking a lenient view High Court issued direction by extending the time for payment to 31.7.2002. In so doing, High Court did not feel it necessary to add any default clause saddling any responsibility on the respondents therein to make payment of interest in case the amount is not paid in time or even if the amount is paid in time. The learned trial court found that this order of the High Court was exhibited as Exhibit-9 but the plaintiff did not produce any other details to examine as to whether facts averred in the writ petition and in the plaint are the same. Considering the facts from the angle of limitation, the learned trial court held that suit not having been instituted within the statutory period of limitation of 3 years from the date of accrual of the cause of action, the suit has been barred by limitation. In course of argument it came to light that plaintiff opted for preferring writ petition for realization of his due from the Government and accordingly preferred W.P. (C) No. 7227 of 2001 before this court which eventually was disposed in his favour vide Exhbit-9. In course of argument it came to light that plaintiff opted for preferring writ petition for realization of his due from the Government and accordingly preferred W.P. (C) No. 7227 of 2001 before this court which eventually was disposed in his favour vide Exhbit-9. If the plaintiff had made any prayer for interest in the writ petition but no such direction was given by High Court while passing the order (Exhibit-9) in that event it is to be understood that prayer of the plaintiff for interest had been rejected by the High Court and so the matter attained finality. Conversely, if it is found that plaintiff did not make any prayer for interest in the writ petition in that event because of Order II Rule 2 of the Code of Civil Procedure, perhaps plaintiff may not be entitled to make this prayer by instituting a title suit. This is because a prayer which could have been made in the previous round of litigation but was not taken by plaintiff, it would not only be barred under Order II Rule 2 of the CPC but even explanation No. IV of Section-11 of the CPC may become applicable. Apart from that, the matter in regard to non-payment of dues of the plaintiff was the subject matter of the previous round of litigation in WP No. 7227 of 2001 which attained finality with the passing of Exhibit-9 order. That being the position, plaintiff cannot institute a fresh proceeding on the basis of the same fact and that too before the trial court when he had opted for extra-ordinary jurisdiction of the High Court for getting relief on the earlier occasion with respect to same work order and cause of action. 10. Considering the facts and circumstances in entirety, this court does not feel that this appeal has any merit. The finding of the learned trial court as to bar of limitation appears to be correct and accordingly the first appeal stands dismissed. 11. No order as to cost. Send down the records.