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2010 Supreme(Pat) 1902
PATNA HIGH COURT
Mungeshwar Sahoo, J.
Dinesh Narayan Jha And Anr.
Versus
State Of Bihar And Ors.
Decided On : AUGUST 19, 2010
The main legal point established in the judgment is the entitlement of the plaintiff to the arrear amount and the maintainability of the suit under Order 30 C.P.C.
Headnote:
Money Suit - Recovery of arrear amount - C.P.C. - Section 80 - [Order 30 C.P.C., A.I.R. 1983 S.C. 271, A.I.R. 1988 Pat 138, A.I.R. 1936 Cal 353, A.I.R. 1963 Cal 310] - The court discussed the plaintiff's entitlement to the arrear amount, the maintainability of the suit under Order 30 C.P.C., and the legal principles established in previous cases regarding the maintainability of suits by one partner. The court found the plaintiff entitled to the arrear amount and reversed the lower court's decision on the maintainability of the suit.
Fact of the Case:
The plaintiff filed a money suit for the recovery of arrear amount. The lower court found the plaintiff entitled to the arrear amount but dismissed the suit on the grounds of maintainability under Order 30 C.P.C.
Finding of the Court:
The court found the plaintiff entitled to the arrear amount and reversed the lower court's decision on the maintainability of the suit.
Issues: (i) Entitlement of the plaintiff to the arrear amount (ii) Maintainability of the suit under Order 30 C.P.C.
Ratio Decidendi: The court held that the plaintiff was entitled to the arrear amount and that the suit was maintainable under Order 30 C.P.C. based on the principles established in previous cases.
Final Decision: The court allowed the appeal, set aside the lower court's decision on the maintainability of the suit, and decreed the plaintiff's suit for the recovery of the arrear amount.
Mungeshwar Sahoo, J.
1. The plaintiff-appellants have filed this First Appeal against the Judgment and Decree dated 20.12.2004 passed by the learned Sub-Judge Ist, Darbhanga in Money Suit No. 9 of 1998 dismissing the plaintiff-appellant#25;s suit.
2. The plaintiff-appellants filed the aforesaid money suit for a decree of Rs. 2,39,966.07/-. The plaintiff prayed the aforesaid relief on the ground that in 1988 for the purpose of Bagmati Irrigation Scheme, the respondents entered into an agreement with M/s Kali Enterprises for filing of earth. According to the said agreement after finishing the work, the plaintiffs raised bills and the defendant No. 6 on 15.03.1990 issued a cheque for Rs. 1,25,264/-and on 16.03.1990, another cheque was issued for Rs. 82,114/- total Rs. 2,07,378/-. Both the cheques bounced so the plaintiff filed C.WJ.C. No. 5671 of 1992 before this Court. The said writ was disposed of on 23.02.1993 directing the defendant No. 4 to consider the grievance of the plaintiff. A Liability Committee was constituted and the matter was referred to the Liability Committee. The Liability Committee by letter No. 1611 dated 23.06.1993 recommended for allotment of amount but allotment was not made and thereafter the plaintiff filed M.J.C. No. 1624 of 1993.
3. The further case is that the State Government directed for up-to-date measurement according to the recommendations of Liability Committee and to pay the plaintiff. On the basis of the said direction on 07.11.1993, measurement was done and 35 per cent less work was found in comparison to the measurement dated 20.07.1988. The M.J.C. application was disposed of on 23.06.1994 and the Chief Engineer gave a report to Engineer-in-Chief to the effect that the less work was found because of natural effect and specifically stated that had there been no stay, the total amount would have been paid to the plaintiff. In spite of the said recommendation, nothing was paid and the matter was referred to second Liability Committee. The said Committee also recommended for payment in full but the defendant No. 2 paid only Rs. 1,47,536/-. Thereafter, the plaintiff filed C.WJ.C. No. 2921 of 1995 before the Hon#25;ble High Court which was dismissed and thereafter the plaintiff filed LP.A. No. 1584 of 1995 which was also dismissed on 04.07.1996. Thereafter serving notice under Section 80 C.P.C., the present suit was filed.
4. The defendants appeared and filed contesting written statement. Besides taking various legal please, mainly it was contended that according to the direction of this Court in C.W.J.C. No. 5671 of 1992_ and as recommended by the Liability Committee, final measurement was done and accordingly Rs. 1,47,536/- was paid in full and final settlement. The other allegations were denied.
5. On the basis of these pleadings, the following issues were framed by the learned trial Court:
(i) Is the suit as framed maintainable ?
(ii) Is the suit barred by limitation ?
(iii) Is the suit barred by the principles of estoppels, waiver and acquiescence?
(iv) Is the suit barred by resjudicata?
(v) Whether the works done by the plaintiff was complete or not?
(vi) Whether the valid notice has been served on the defendants as provided under Section 80 C.P.C.?
(vii) Whether the plaintiff is entitled to receive Rs. 2,39,966.07 paise as claimed by him?
(viii) Whether the report of first liability committee and the second liability committee was based on facts and figures or it erroneous?
(ix) Is the plaintiff entitled to the reliefs?
6. After trial, the learned court below by the impugned Judgment and Decree found that the plaintiffs are entitled to recover the arrear amount. The learned Court below also found that the plaintiff have claimed Rs. 2,39,966.07/- whereas in the notice under Section 80 C.P.C., they have stated the arrear amount to be Rs. 59,842 and the interest on it and, therefore, the learned Court below found that the plaintiffs are entitled to the amount of Rs. 59,842/- and inter
