JUDGMENT : (Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree dated 13.09.2012 made in A.S.No.30 of 2012 on the file of the First Additional Sub Court, Erode reversal of the judgment and decree dated 21.10.2011 made in O.S.No.135 of 2010 on the file of the Second Additional District Munsif Court, Erode.) In this Second Appeal, challenge is made to the judgment and decree dated 13.09.2012 passed in A.S.No.30 of 2012 on the file of the First Additional Subordinate Court, Erode reversing the judgment and decree dated 21.10.2011 passed in O.S.No.135 of 2010 on the file of the Second Additional District Munsif Court, Erode. 2. The Second Appeal has been admitted on the following substantial questions of law: (a) Whether the first appellate court is right in law in dismissing the suit on the ground of maintainability as per clause 24 of the Contract under Ex.B1 particularly when the jurisdiction of the civil court has not been specifically ousted under Sec. 9 of CPC? (b) Whether the Civil Court is debarred from adjudicating the unilateral demand made by the fourth defendant under Ex.A25 dated 29.12.2009 especially when the impugned demand is per se illegal and non-est for want of prior opportunity of hearing in compliance with the principles of Natural Justice? (c) Whether the first appellate court has committed an error in dismissing the suit on the ground of non joinder of necessary parties in the absence of any pleading and issues, more particularly, no suit shall be dismissed on that ground as per Order 1 Rules 9 and 13 CPC? (d) Whether the suit filed by the plaintiff before the civil court to declare the impugned demand notice dated 29.12.2009 (Ex.A25) is maintainable in law in the absence of any statutory bar? 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. For the sake of convenience, the parties are referred to as per their rankings in the trial court. 5. Suit for declaration, permanent injunction and mandatory injunction. 6. 4. For the sake of convenience, the parties are referred to as per their rankings in the trial court. 5. Suit for declaration, permanent injunction and mandatory injunction. 6. The plaintiff has laid the suit against the defendants seeking for the relief of declaration that the letter/notice sent by the 4th defendant dated 29.12.2009 in Na.Ka.No.3732/2005/A2/ is null and void, arbitrary and unenforceable and not binding upon the plaintiff and for the relief of permanent injunction restraining the defendants, their men, their agents etc., from in any way and any manner collecting the amounts due under the notice dated 29.12.2009 and for the relief of mandatory injunction directing the defendants to refund the sum of Rs.23,80,489/- deducted from the deposits made by the plaintiff and for the costs. 7. It is found that the plaintiff was entrusted with certain road improvement works by the defendants and according to the defendants the plaintiff has failed to fulfill the terms of the contract and carry out the work entrusted to it successfully and also unable to complete the work within the stipulated period and also within the extended period, hence according to the defendants they had terminated the contract issued to the plaintiff and entrusted the unfinished work left by the plaintiff to another contractor and accordingly it is put-forth that on account of the above said factors, as the defendants had sustained loss to the extent of Rs.41,90,404/-, according to the defendants deducting the deposit amounts made by the plaintiff and accordingly thereafter determining that the plaintiff has to pay a sum of Rs.18,12,975/- , it is put-forth by the defendants that the letter dated 29.12.2009 has been issued by the 4th defendant calling upon the plaintiff to pay the above said sum to the defendants. Impugning the above said notice, the plaintiff has come forward with the suit seeking for appropriate reliefs as above stated. 8. As to on what grounds the plaintiff has impugned the above said letter dated 29.12.2009 marked as Ex.A25, it would be useful to refer to the relevant paragraphs of the plaint and the same are extracted below: 11. The plaintiff submits that finally on 29.12.2009 the defendants sent a letter stating that on termination, the defendants have entrusted the work with another contractor to carry out the balance work and the work done by him comes to Rs.1,18,58,247/-. The plaintiff submits that finally on 29.12.2009 the defendants sent a letter stating that on termination, the defendants have entrusted the work with another contractor to carry out the balance work and the work done by him comes to Rs.1,18,58,247/-. According to the defendants, to complete the work, they spent more money to the tune of Rs.41,90,404/- and they have deducted the deposit amounts and the plaintiff has to pay a sum of Rs.18,12,975/- to the defendants. 12. The plaintiff submits that according to the terms of the contract, the total value of the work comes to Rs.1,32,96,188/- and the work executed by the plaintiff is Rs.35,53,471/- and in turn the defendants have after executing the work through another contractor, they spent additional sum of Rs.41,90,404/- and the plaintiff has to pay a sum of Rs.18,58,247/-. The figure arrived is totally wrong and while entrusting the work with another contractor, the defendants have to give the particulars of the work to be carried by the another contractor and the figure arrived by them. But not notice was given to the plaintiff and therefore the defendants 2 to 5 and the contractor colluded together and created records among them which will not bind the plaintiff. Therefore, the demand made by the defendants with the plaintiff to pay a sum of Rs.18,12,975/- is unjust and against the law. In fact, there was no notice to the plaintiff while arriving the figure. There was no enquiry conducted by the defendants Highways Department. There was no explanation in the notice itself as to how the defendants have come to such conclusion and for such huge amount. Without the consent of the plaintiff, they have arrived a conclusion and deducting the deposits made by the plaintiff towards Earnest Money Deposit and Performance security deposit which are unjust and against the law. 13. Now, the defendants are seriously making arrangements to collect the amount from the plaintiff for which they are not entitled. Therefore, the plaintiff is filing the present suit for declaration declaring that the notice issued by the 4th defendant dated 29.12.2009 to the plaintiff demanding payment of Rs.18,12,975/- is null and void, arbitrary not in accordance with law, void, ab-initio and will not bind the plaintiff. 14. Therefore, the plaintiff is filing the present suit for declaration declaring that the notice issued by the 4th defendant dated 29.12.2009 to the plaintiff demanding payment of Rs.18,12,975/- is null and void, arbitrary not in accordance with law, void, ab-initio and will not bind the plaintiff. 14. Further, the defendants are attempting to collect the amounts from the plaintiff illegally spoiling the name of the plaintiff and that therefore, the plaintiff is seeking the relief of permanent injunction restraining the defendants from collecting the amount from the plaintiff. 15. Apart from that, the defendants have deducted the amount without the consent of the plaintiff and that therefore, the plaintiff is seeking the relief of mandatory injunction directing the defendants to return the amounts so deducted from the deposits made by the plaintiff. Unless that reliefs are granted, the plaintiff will be put to irreparable loss and the same may be compensated by any means. 9. Considering the above said pleas setout by the plaintiff in the plaint qua the challenge put forth to the impugned letter dated 29.12.2009, it is found that the grievance of the plaintiff is that the figures had been arrived at by the defendants wrongly without giving the particulars of the work to be carried out by another contractor and further it is put-forth that no notice has been given to the plaintiff and it is further alleged that the new contractor and the defendants had colluded together and created records amongst themselves and made the unjust demand which is against law and in-fact contended that no notice had been sent to the plaintiff before arriving at the figure and no enquiry was also conducted by the defendants before fixing the figure and furthermore no explanation has been given as to how the defendants had arrived at the value of the unfinished work left by the plaintiff and the loss said to have been sustained by them and therefore according to the plaintiff without providing an opportunity to him, the defendants have arrived at the conclusion and unilaterally deducted the deposits made by the plaintiff which is unjust and against law and hence it is put-forth that the demand made by the defendants by way of the impugned letter is arbitrary and not in accordance with law, hence it has to be declared as null and void, unenforceable and not binding upon the plaintiff. 10. 10. On a perusal of the impugned letter marked as Ex.A25, it is found that the letter merely reads as if the plaintiff had not finished the work entrusted to him within the stipulated period and even within the extended period and accordingly the letter further reads that the contract given to the plaintiff had been terminated and the unfinished part of the work left by the plaintiff had been entrusted to another contractor and accordingly the loss said to have been sustained by the defendants thereby had been quantified at Rs.41,90,404/- and deducting the amount/deposits which had already been made by the plaintiff, the impugned letter reads that the plaintiff is liable to pay the sum of Rs.18,12,975/- and called upon the plaintiff to pay the said amount. Other than the above said details, as rightly put forth by the plaintiff-s counsel, Ex.A25 letter does not point out or explain as to on what basis the value of the work left unfinished by the plaintiff had been determined, what are the materials collected with reference to the same and on what calculation, the said figure had been arrived at and furthermore the impugned letter does not spell out as to what is the nature of the contract entered into between the defendants and the new contractor and on what basis the said contract had been brought about and how the difference value had been arrived at and furthermore the impugned letter does not furnish as to whether any notice at all has been given to the plaintiff before arriving at the figure or the value of the unfinished work said to be left out undone by the plaintiff and the impugned letter does not spell out as to whether any opportunity had been given to the plaintiff to offer his explanation with reference to the termination of the contract and with reference to the same as to how the value of the unfinished work had been determined etc., and as rightly contended by the plaintiff-s counsel, it is found that the impugned letter had been issued without providing an opportunity of hearing to the plaintiff and without following the rudimentary principles of natural justice and therefore when there is no material placed on the part of the defendants as to how the assessment had been made by them and with reference to the same, the defendants having also failed to place any materials to buttress their case in the present lis other than marking Ex.B1 letter said to have been sent by the plaintiff, it is found that the impugned letter is found to be based on without any foundation or materials and accordingly it is seen that the defendants are unable to substantiate their case that the impugned letter Ex.A25 had been issued only on a proper appreciation of the materials on record and particularly when the defendants have admitted that the work completed by the plaintiff and left unfinished would be reflected in the measurement book, still not endeavored to produce the said measurement book also and in such view of the matter, it is found that the impugned letter has come to be issued on the part of the defendants unilaterally without providing an opportunity to the plaintiff to explain his stand and on the above said factors, it has to be held that the impugned letter having been issued without hearing the plaintiff and not following the principles of natural justice and on that score alone, the impugned letter should be declared per-se illegal and non-est in the eyes of law. 11. It is mainly put-forth by the Special Government Pleader (CS) that the Civil Court has no jurisdiction to entertain the suit and according to him as per clause 24 of the general conditions of contract entered into between the parties marked as Ex.B2, when the same provides for a Dispute Redressal System and therefore the plaintiff cannot be allowed to invoke the jurisdiction of the Civil Court without resorting to the above said Dispute Redressal System and hence according to him on that score alone, the suit laid by the plaintiff is not maintainable. Clause 24 of the general conditions of the contract reads as follows: 24.1 If any dispute or difference of any kind what-so-ever shall arises in connection with or arising out of this Contract or the execution of Works or maintenance of the Works there under, whether before its commencement or during the progress of Works or after the termination, abandonment or breach of the contract, it shall, in the first instance, be referred for settlement to the competent authority, described along with their powers in the Contract Data, above the rank of the Engineer. The competent authority shall, within a period of forty-five days after being requested in writing by the Contractor to do so, convey his decision, to the Contractor. Such decision in respect of every matter so referred shall, subject to review as hereinafter provided, be final and binding upon the contractor. In case the Work is already in progress, the Contractor shall proceed with the execution of the Works, including maintenance thereof, pending receipt of the decision of the competent authority as aforesaid, with all due diligence. 24.2. Either party will have the right of appeal, against the decision of the competent authority, to the Standing Empowered Committee if the amount appealed against exceeds rupees one lakh. 24.3. The Composition of the Empowered Standing Committee will be: One official member, Chairman of the Standing Empowered Committee, not below the rank of Additional Secretary to the State Government: One official member not below the rank of chief engineer; and One non-official member who will be technical expert of Chief Engineer-s level selected by the Contractor from a panel of three persons given to him by the Employer. 24.4 The Contractor and the Employer will be entitled to present their case in writing duly supported by documents. 24.4 The Contractor and the Employer will be entitled to present their case in writing duly supported by documents. If so requested, the Standing Empowered Committee may allow one opportunity to the Contractor and the Employer for oral arguments for a specified period. The Empowered Committee shall give its decision within a period of ninety days from the date of appeal, failing which the contractor can approach the appropriate court for the resolution of the dispute. 24.5. The decision of the Standing Empowered Committee will be binding on the Employer for payment of claims up to five percent of the Initial Contract Price. The contractor can accept and receive payment after signing as “in full and final settlement of all claims”. If he does not accept the decision, he is not barred from approaching the courts. Similarly, if the Employer does not accept the decision of the Standing Empowered Committee above the limit of five percent of the Initial Contract Price, he will be free to approach the courts applicable under the law. Further clause 25 of the General Conditions of the Contract reads as follows: 25. Arbitration 25.1 In view of the provision of the clause 24 on Dispute Redressal System, it is the condition of the Contract that there will be no arbitration for the settlement of any dispute between the parties. Relying upon the above said Dispute Redressal System, according to the Special Government Pleader (CS), the plaintiff cannot maintain the suit in the Civil Court and his remedy lies elsewhere ie., before the competent authority as described in clause 24 of the General Conditions of the Contract and also put forth that further appeal remedy is provided to the Standing Empowered Committee and therefore the plaintiff without exhausting the above said remedies, it is not open to the plaintiff to invoke the jurisdiction of the Civil Court and therefore according to him on that score alone the plaintiff-s suit should be rejected and therefore further according to him the first appellate court is justified in holding that the plaintiff-s suit is not maintainable in the Civil Forum. 12. 12. On a combined reading of the clauses 24 and 25 of the General Conditions of the Contract as above pointed out, it is found that the Dispute Redressal System provides for either of the parties to workout any dispute or difference of opinion whatsoever which may arise between them in connection with arising out of the contract or the execution of the work or maintenance of the works there under, whether the same had occurred before its commencement or during the progress of works or after the termination, abandonment or breach of the contract. Therefore, if any of the conditions exist, it is open to either of the parties to approach the competent authority for appropriate redressal. Therefore, as rightly contended by the plaintiff-s counsel, the above said Dispute Redressal System provided under clause 24 of the General Conditions of the Contract is not only applicable to the plaintiff but also equally applicable to the defendants. Now, according to the defendants, the plaintiff has failed to complete his part of the contract within the stipulated period and even within the extended period and therefore the grievance of the defendants is that they had been necessitated to entrust the work to a new contractor and thereby they had sustained loss. Therefore even as per the case of the defendants, the dispute having arisen between the parties concerned with reference to the contract that had been entered between them particularly as regards the execution of the works agreed to be done under the contract and the same had occurred during the progress of the works and accordingly if it is the version of the defendants, the plaintiff was unable to complete the contract and the same should be entrusted to a new contractor, with reference to all the said matters, the dispute or difference having erupted between the parties one way or the other, in the light of the clause 24 of the General Conditions of the Contract, it is found that before issuing the impugned letter Ex.A25, the defendants should have, as contended by the plaintiff-s counsel, approached the competent authority for settling the issues involved between the parties with reference to the incompletion of the works on the part of the plaintiff as contemplated under the contract. On the other hand, the defendants are found to have unilaterally terminated the contract and also unilaterally fixed the loss said to have been sustained by them on account of the entrustment of the unfinished work to the new contractor and as to how they had arrived at the loss as above discussed, when there is no material forthcoming on the part of the defendants and the defendants having also not substantiated their case with acceptable and reliable materials in the present lis also and in such view of the matter, it is found that if really the defendants are serious about the invocation of the Dispute Redressal System as provided under the contract as above seen, the defendants before issuing the letter, should have approached the competent authority. Per contra, the defendants having endeavored to issue the impugned letter without any basis or foundation and particularly without providing an opportunity to the plaintiff to explain his stand and also without following the principles of natural justice had chosen to issue the letter and in such view of the matter, to say that thereafter the plaintiff should approach the competent authority and not the defendants, as such, cannot be accepted in any manner. 13. Furthermore, on a reading of the clause 24 of the General Conditions of Contract, it is found that as rightly put forth by the plaintiff-s counsel, the jurisdiction of the Civil court has not been specifically ousted and accordingly when the plaintiff is found to have laid the suit challenging the impugned letter Ex.A25 as illegal and non- est in the eyes of law as having been issued without giving an opportunity of hearing to the plaintiff and without following the principles of natural justice, in such view of the matter, in my considered opinion, the plaintiff would be entitled to maintain the Civil suit and accordingly it is found that the relief of declaration sought for by the plaintiff could be adjudicated in the Civil forum and accordingly it is found that even clause 24 of the General Conditions of Contract as above stated has not excluded the jurisdiction of the Civil Court. A reading of the clause 24 in entirety goes to show that the parties are empowered to approach the appropriate court for the resolution of the dispute which had arisen between them and accordingly it is found that the suit laid by the plaintiff is well maintainable in the Civil Forum and therefore the first appellate court is found to have totally fallen into error in holding that the plaintiff-s suit is not maintainable in the Civil Forum. 14. In this connection, a useful reference can be made to the decision of the Apex Court relied upon by the plaintiff-s counsel reported in 2009 (4) SCC 299 [ Rajasthan State Board Transport Corporation and Another Vs. Bal Mukund Bairwa] wherein, it has been held that the Civil Court being the Court of Plenary jurisdiction has the jurisdiction for enforcing the principles of law laid in the maxin, Ubi jus ibi remedium and the position of law with reference to the same has been outlined in the above said decision as follows: A. Civil Procedure Code, 1908 –S.9 –Jurisdiction of civil court vis-a-vis Labour Court in employer-employee dispute of corporations like appellant Corporation which are both “State” under Art.12 as well as “industry” under the ID Act Relief that may be granted by civil court where having jurisdiction - Apparent conflict between Krishna Kant case, (1995) 5 SCC 75 and Khadarmal case, (2006) 1 SCC 59 , as noticed in Bal Mukund Bairwa (1) case, (2007) 14 SC 41 –Conflict resolved by holding that jurisdiction of civil court is not completely ousted. 12. Section 9 of the Code is in enforcement of the fundamental principles of law laid down in the maxim ubi jus ibi remedium. A litigant, thus having a grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute. Ex-facie, in terms of Section 9 of the Code, civil courts can try all suits, unless bared by the statute, either expressly or by necessary implication. 13. Ex-facie, in terms of Section 9 of the Code, civil courts can try all suits, unless bared by the statute, either expressly or by necessary implication. 13. The Civil Court, furthermore, being a court of plenary jurisdiction has the jurisdiction to determine its jurisdiction upon considering the averments made in the plaint but that would not mean that the plaintiff can circumvent the provisions of law in order to invest jurisdiction on the civil court although it otherwise may not possess. For the said purpose, the court in given cases would be entitled to decide the question of its own jurisdiction upon arriving at a finding in regard to the existence of the jurisdictional fact. 14. It is also well settled that there is a presumption that a civil court will have jurisdiction and the ouster of civil court-s jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where the jurisdiction of a civil court is sought to be barred under a statue, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or tribunal acts without jurisdiction. 15. Similarly, in the decision reported in 2007 (4) SCC 241 [Bhagubhai Dhanabhai Khalasi and another Vs. State of Gujarat and others], it has been held that a party having a grievance must have a remedy and access to justice is a human right and when there exists such a right, a disputant must have a remedy in terms of the doctrine ubi jus ibi remedium and the position of law has been outlined in the above said decision as follows: 10. A party having a grievance must have a remedy. Access to justice is a human right. When there exists such a right, a disputant must have a remedy in terms of the doctrine ubi jus ibi remedium. 11. In Dwarka Prasad Agarwal Vs. Ramesh Chander Agarwal this Court held:( SCC p.228, para22) 22. the dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. the dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of a civil court requires strict interpretation. The court, it is well settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the civil court. The burden of proof in this behalf shall be on the party who asserts that the civil court-s jurisdiction is ousted. (See Sahebgouda Vs. Ogeppa.) Even otherwise, the civil court-s jurisdiction is not completely ousted under the Companies Act, 1956.” 16. When the general conditions of contract provides for Dispute Redressal System under clause 24 and accordingly further postulates that in view of the same, as per clause 25, it is the condition of the contract that there will be no arbitration for the settlement of any dispute between the parties, in such view of the matter, it is found that the arguments put-forth by the Special Government Pleader (CS) that the plaintiff should subject himself to the arbitration and not institute a civil suit as such cannot be countenanced. When as per clause 25 of the general conditions of contract no arbitration has been contemplated and in such view of the matter, it is found that the decisions relied upon by him reported in 2018 167 DRJ 637 [Parasramka Holdings Pvt. Ltd & Others Vs. Ambience Private Ltd & Another] and 1998 SCC online Culcutta 266 [Indian Bank Vs. Euro International Pte.Ltd ], as contended by the plaintiff-s counsel, are found to be not applicable to the facts and circumstances of the case at hand. 17. The First Appellate Court seems to have also held that the plaintiff-s suit is bad of non-joinder of necessary parties. Euro International Pte.Ltd ], as contended by the plaintiff-s counsel, are found to be not applicable to the facts and circumstances of the case at hand. 17. The First Appellate Court seems to have also held that the plaintiff-s suit is bad of non-joinder of necessary parties. In this connection, according to the First appellate Court, since the work contemplated under the contract falls within the jurisdiction of Kangeyam Taluk and fallen within the Tirupur District, according to the First Appellate court, the District Collector, Tirupur and the Office of Highway Division, Tirupur District should have been impleaded as parties and therefore according to the First Appellate Court, the non impleadment of the above said officials as parties to the lis is bad and on that ground also held that the plaintiff-s suit is bad for non-joinder of necessary parties. However, it is found that the impugned letter has come to be issued by the 4th defendant. At the time when the contract was entrusted to the plaintiff, the lis falls within the jurisdictional Court at Erode and accordingly, merely because Kangeyam Taluk had subsequently fallen within the jurisdiction of Triupur District, that alone would not be a factor to contend that the suit laid by the plaintiff at Erode Court is not maintainable. Similarly when the impugned letter had been issued by the 4th defendant working at Erode and accordingly the plaintiff has impleaded all the necessary parties and merely because, Kangeyam Taluk had subsequently fallen within the jurisdiction of Tirupur District, in such view of the matter, when the proper and necessary parties are already made parties to the lis by the plaintiff, in such view of the matter, the First Appellate Court is found to have erred in holding that the District Collector, Tirupur and Highway Officials concerning District Court, Tirupur are also to be made as parties to the lis and as such the same cannot be accepted and as rightly contended by the plaintiff-s counsel, on that score the plaintiff cannot be non-suited. 18. In the light of the above said discussions, the First Appellate Court has erred in holding that the plaintiff-s suit is not maintainable as per clause 24 of the general conditions of the contract. 18. In the light of the above said discussions, the First Appellate Court has erred in holding that the plaintiff-s suit is not maintainable as per clause 24 of the general conditions of the contract. When it is found that by way of the above said clause, the jurisdiction of the Civil Court has not been ousted and more particularly when the plaintiff has challenged the impugned letter on the ground that the same had come to be issued without hearing him and without providing an opportunity to present his case and in compliance with the principles of natural justice and in such view of the matter, it is found that the suit laid before the Civil Court is legally sustainable and there is no bar in instituting the suit and clause 24 of the general conditions of the contract does not bar the jurisdiction of the Civil Court and furthermore, the plaintiff having impleaded all the proper and necessary parties to the lis, in such view of the matter, the first appellate court has committed an error in holding that the suit is bad for the non-impleadment of the District Collector, Tirupur and the Officials of Highways Department of Tirupur and accordingly, the substantial questions of law formulated in the Second Appeal are accordingly answered in favour of the plaintiff and against the defendants. 19. For the reasons afore stated, the judgment and decree dated 13.09.2012 passed in A.S.No.30 of 2012 on the file of the First Additional Subordinate Court, Erode are set aside and the judgment and decree dated 21.10.2011 passed in O.S.No.135 of 2010 on the file of the Second Additional District Munsif Court, Erode are confirmed. Accordingly, the Second Appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.