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IN THE HIGH COURT OF MADRAS
G. Jayachandran, J.
The Divisional Engineer, Highways, Ariyalur and Ors. – Appellants
Versus
K. Muthammal and Ors. – Respondents
A.S. No. 199 of 2010
Decided On : 26-02-2021
Constitution of India 1950- Article 226-Legal Representative suits Act 1855 –Section 2- Limitation Act- Article 81, Section 14-Interpretation-Exclusion of time of proceeding bonafide in court without jurisdiction-Powers od High Court to issue certain Writs-Writ-Mandamus- A Judicial writ issued as a command to an inferior cout or ordering a person to perform a public or statutory duty-Deceased Kandasamy was a registered Contractor for Highways Department. He entered into a contract with the 2nd respondent namely, Superintending Engineer, Highways Department, Villupuram Circle, for "Special Repairs to Kunnam-Veppur Road at the estimation cost of Rs. 3.80 lakhs. The work was completed during the month of June 1996. The measurements for the work done were recorded in the Measurement Books The last date of measurements and check measurement were done. The contractor Kandasamy was not paid the contractual amount, till his death. During his lifetime, vide his letter ,he requested the first defendant, the Divisional Engineer, Highways Department to pay the contractual amount. The first defendant vide, his reply letter, informed the contractor that they are not in a position to give the completion certificate, since the work done by him found sub-standard. This letter was signed by the first defendant and communicated the same to the contractor Kandasamy. On receipt of this letter, the contractor caused notice through his Advocate calling upon the defendants 1 and 2 to pay the money due. Till the death of Kandasamy, the department did not respond to the said notice. After the death of Kandasamy, his son K. Jagannathan, who is the 5th plaintiff in the suit, caused another notice to the defendants intimating the death of contractor Kandasamy and to pay the dues to him being the power agent. Since the defendants failed to consider his request, he approached the Hon'ble High Court invoking 226 of the Constitution of India and filed to issue Mandamus. The Hon'ble High Court vide order directed the department to pass appropriate orders on the legal notice within six weeks and that if the petitioners are still aggrieved, it was open to them to seek arbitration, if the terms of the contract provided for the same or otherwise, approach the competent civil Court for appropriate relief-Appeal against judgment and decree of the Principal District Court-Held, In the submission of the learned Senior Counsel, filing of civil writ petition claiming money relief cannot be said to be a proceeding instituted in good faith and secondly, dismissal of writ petition on the ground that it was not an appropriate remedy for seeking money relief cannot be said to be 'defect of jurisdiction or other cause of a like nature' within the meaning of Section 14 of the Limitation Act. It is true that the writ petition was not dismissed by the High Court on the ground of defect of jurisdiction. However, Section 14 of the Limitation Act is wide in its application, inasmuch as it is not confined in its applicability only to cases of defect of jurisdiction but it is applicable also to cases where the prior proceedings have failed on account of other causes of like nature-Contention of the appellants not only untenable but unjust and is calculated only to protract the litigation and to postpone the facing of inevitable-Appeal Dissimed
JUDGMENT :
G. Jayachandran, J.
1. This appeal suit has been filed by the defendants being aggrieved by the judgment and decree of the Principal District Court, Perambalur in O.S. No. 14 of 2006, dated 06.08.2009.
2. For clarity and brevity, the appellants/defendants are referred as Highways Departments and the plaintiffs/respondents are referred as legal representatives of the deceased Kandasamy Contractor or contractor in short.
3. The suit filed to declare that the two letters dated 04.02.1998 and 20.11.2001 issued by the Divisional Engineer (Highways) are illegal and that, there is no deficiency in the execution of work done by the contractor Kandasamy under Agreement Number C.R. No. 736/1995-1996, dated 06.03.1996; and to make full payment of the money due for the work done as per the agreement dated 06.03.1996 and 9% interest thereon, totalling Rs. 3,92,161/- + Rs. 3,54,316/- = Rs. 7,46,477/-. After full trial, the Court below allowed the suit and passed decree as prayed with costs.
4. The facts which are relevant and necessary to decide this appeal:-
The deceased Kandasamy was a registered Contractor for Highways Department. On 6th March 1996 he entered into a contract with the 2nd respondent namely, Superintending Engineer, Highways Department, Villupuram Circle, for "Special Repairs to Kunnam-Veppur Road Km 4/0-5/6" at the estimation cost of Rs. 3.80 lakhs. The work was completed during the month of June 1996. The measurements for the work done were recorded in the Measurement Books No. 7196 A and 6155 A. The last date of measurements and check measurement were done on 10.06.1996 and 12.06.1996 respectively. The contractor Kandasamy was not paid the contractual amount, till his death on 28.04.1999. During his lifetime, vide his letter dated 13.05.1997, he requested the first defendant, the Divisional Engineer, Highways Department to pay the contractual amount. The first defendant vide, his reply letter dated 04.02.1998, informed the contractor that they are not in a position to give the completion certificate, since the work done by him found sub-standard. This letter was signed by the first defendant on 25.02.1998 and communicated the same to the contractor Kandasamy. On receipt of this letter, the contractor caused notice dated 15.04.1998 through his Advocate calling upon the defendants 1 and 2 to pay the money due. Till the death of Kandasamy on 28.04.1999, the department did not respond to the said notice. After the death of Kandasamy, his son K. Jagannathan, who is the 5th plaintiff in the suit, caused another notice on 16.09.1999 to the defendants intimating the death of contractor Kandasamy and to pay the dues to him being the power agent. Since the defendants failed to consider his request, he approached the Hon'ble High Court invoking 226 of the Constitution of India and filed W.P. No. 16618 of 2001 to issue Mandamus. The Hon'ble High Court vide order dated 13.09.2001 directed the department to pass appropriate orders on the legal notice dated 16.09.1999 within six weeks and that if the petitioners are still aggrieved, it was open to them to seek arbitration, if the terms of the contract provided for the same or otherwise, approach the competent civil Court for appropriate relief.
5. The first defendant, after issuance of Mandamus by the High Court, gave a reply dated 20.11.2001. The details of substandard execution of work was set out in this reply. Referring the earlier letter dated 04.02.1998 the first defendant stated that there is no fresh grounds to reconsider the issue.
6. As observed by the Hon'ble High Court, vide, order dated 13.09.2001, the legal heirs of the deceased contractor Kandasamy filed arbitration petition on 10.03.2002 before the Sub Court, Ariyalur for appointment anyone as the Arbitrator from among four eminent retired Engineers of the Highways Department. In the sa
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