A breach of contract claim must be filed within three years from the breach date, as specified under Article 55 of the Limitation Act, not from the date when damages can be calculated.

JUDGMENT :

HEMANT M. PRACHCHHAK, J.

1. Present appeal is filed by the appellant under Section 96 of the CIVIL PROCEDURE CODE against the judgment and order dated 02.05.1998 passed by the learned 6^th Joint Civil Judge (S.D.) Mehsana (hereinafter be referred to as “the trial Court”) in Special Civil Suit No. 11 of 1998 whereby the trial Court dismissed the suit.

2. Facts giving rise to the present appeal are that appellant – original plaintiff had tendered for metalling work of 2nd layer of the road for the Sami Dudhka Nani Chandur M.D.R. Road. The respondent had filled the tender and it was accepted by the appellant. The tender was accepted for Rs.3,85,407/- and it was 51.25% excess amount than the tender amount and, therefore, considering the said excess 51.25% amount of Rs.1,97,522/- the tender was accepted for the sum of Rs.5,92,929/- and the contract was executed between the plaintiff and defendant No.1. On assigning contract, respondent No.1 has commenced the work upon receipt of the work order issued by the appellant on 23.12.1976. The work was supposed to start from 24.12.1976 and was to be completed before 24.12.1977 i.e. within one year. It is the case of the appellant that the respondents have not completed the work within stipulated time agreed in terms and conditions of the contract. Therefore, appellant had issued notice on various dates mentioned in the memo of plaint, but the respondents did not pay any amount and not completed the work and only executed the work of Rs.3,63,447/- and, therefore, the Public Works Committee of the District Panchayat has passed a resolution dated 21.10.1980 and again issued the work in favour of one another agency to complete work and while doing so, it has incurred extra monetary loss. It is further the case of the appellant that even the respondents had not returned the empty drums and, therefore also, the appellant has incurred damage to the tune of Rs.6440/- in all the appellant has incurred loss of Rs.5,16,024/-. It is the case of the appellant that due to the loss, the appellant filed the suit before the trial Court for recovery of the damages along with 18% interest from the date of suit till its realization.

2.1 The respondent No.2 filed written statement at Exhibit 14 and respondent No.1 also accepted the contents of the written statement at Exhibit 14 vide pursis at Exhibit 12, except the facts which is accepted by the respondent. The agreement was in two parts i.e. Schedule – A and Schedule – B. Schedule – A relates to supply of all the materials by the appellant to the respondents and Schedule – B relates to the items and specification contract to be executed. It was also under dispute that since the respondents have not provided the materials in time, therefore, respondents unable to complete the work of contract. It is the contention on the part of the respondents that even the appellant who was not proper party since the work contract was allocated by the Public Works Committee by resolution dated 21.10.1980.

2.2 The trial Court has, after considering the averments made in the plaint and the written statement, has framed the issues at Exhibit 21 as under:-

[1] Whether the plaintiff proves that the defendant No.1 is partnership firm and the defendant No.2 is its partner?

[2] Whether the plaintiff proves that the defendant was issued the work of Sami – Dudhka – Nanichandur M.D.R. metalling road 2^nd layer by tender and the agreement was executed for the same?

[3] Whether the plaintiff proves that the defendants have not completed the disputed work within time?

[4] Whether the plaintiff proves that they are entitled for the amount of damages ? If yes, what amount ?

[5] Whether the defendant proves