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PUNJAB & HARYANA HIGH COURT
J.V.Gupta, J.
Jullundur Improvement Trust, Jullundur
Versus
Kuldip Singh
Regular First Appeal No. 185 of 1974,
Decided On : SEPTEMBER 13, 1983
LIMITATION - SUIT FOR PRICE OF WORK DONE - CAUSE OF ACTION - COMPLETION CERTIFICATE - FURNISHING OF - NECESSITY - PUNJAB LIMITATION ACT (1 OF 1900), ART. 18.
Fact of the Case:
The plaintiff entered into an agreement with the defendant to construct a 90 feet wide road in the development scheme of 84 acres behind Civil Hospital, Jullundur, connecting Vijay Nagar Road to Nakodar Road. The plaintiff claimed that he was entitled to a higher rate for the earth filling involved for the work at item (a) above, as per the rates provided in the common schedule of rates, at the rate of Rs. 15,200.00 per thousand cubic feet and in this way, he claimed its. 1,15,477.23 as the balance amount payable to him. He also alleged that payments were made to him after deduction of earth work at the rate of ten per cent. On account of shrinkage and that this deduction, could not be made under the P. W. D. specifications because he had executed the work of earth filling to the extent of 18,19.972 cubic feet by layers duly compacted with watering and ramming. According to him, this deduction could be made only in cases of uncompacted fills. Thus, he claimed a further amount of Rs. 23,023.00 on this account. The plaintiff also alleged that since he laid the earth in nine inches thick layer, he was entitled to Rs. 3,640.00 at the extra rate of Rs. 2/- per thousand cubic feet, as per Serial No. 6.2 (G) (I) of C. S. R. Vol. X read with clause 12 of the conditions of contract. He further alleged that he suffered a loss of Rs. 6,200.00 on account of the washing away of 2 lacs cubic feet earth in the storm water in the year 1966. He thus made a total claim of Rs. 1,48,340.23 on account of the above accounts with interest at the rate of 6 per cent per annum thereon from Jan. 15, 1968, which amounted to Rs. 26,700.00 as the money was unlawfully detained and retained by the defendant. He, therefore, prayed for a decree in the sum of Rs. 1,75,000.00.
Finding of the Court:
The suit of the plaintiff was barred by time. The cause of action for filing the present suit had arisen to the plaintiff on 14-12-1967, when the payment of the final bill, Exhibit D.19, was received by the plaintiff under protest. The completion certificate given on the final bill, Ext. D.19, was required to be recorded for making the payment. The amount which is being claimed in the present suit was never the subject-matter of the bills submitted by the plaintiff at any stage. Therefore, for the purposes of filing the present suit, under Art. 18 of the Act, the work will be deemed to have been done when it was duly entered in the measurement book and on the basis of which the final bill was prepared. The plaintiff never claimed the suit amount in the final bill submitted by him. i. e., Exhibit D.19, and, therefore, any final certificate given thereon was immaterial for the purposes of filing the present suit. The plaintiff was not entitled to the exclusion of time under Section 14 of the Act. The plaintiff was estopped by his acts and conduct from filing the present suit. The plaintiff by his own acts and conduct disentitled himself to file the present suit. In view of these findings, no other issues survive.
Issues: 1. Whether the suit is within time? 2. Whether the plaintiff is barred by rules of estoppel and waiver? 3. Whether the plaintiff is barred by his acts and conduct to file the present suit? 4. Whether the plaintiff brought earth from a lead beyond two miles as alleged in para 5 of the plaint ? If so from what distance and to what effect? 5. Whether the deduction regarding shrinkage had been rightly made according to P. W. D. specifications to which the plaintiff has agreed in his bond, as per contract of work dated 2-5-1966 ? 6. Whether the plaintiff is entitled to loss of Rs. 6,200.00 on account of washing of two lacs of cubic feet earth in storm waters the year 1966 ? 7. Whether the plaintiff is entitled to interest ? If so at what rate and how much? 8. Whether the plaintiff is entitled to the amount ? If so to what amount and how much ? 8-A. Whether the plaintiff is entitled to Rs. 3,640.00 at the extra rate of Rs. 2.00 per thousand cubic feet according to Serial No. 6.2 (G) (1) of C. S. R. Vol. I read with column 12 of the conditions of contract as alleged in para 8 of the plaint? 9. Relief.
Ratio Decidendi: The cause of action for filing the present suit had arisen to the plaintiff on 14-12-1967, when the payment of the final bill, Exhibit D.19, was received by the plaintiff under protest. The completion certificate given on the final bill, Ext. D.19, was required to be recorded for making the payment. The amount which is being claimed in the present suit was never the subject-matter of the bills submitted by the plaintiff at any stage. Therefore, for the purposes of filing the present suit, under Art. 18 of the Act, the work will be deemed to have been done when it was duly entered in the measurement book and on the basis of which the final bill was prepared. The plaintiff never claimed the suit amount in the final bill submitted by him. i. e., Exhibit D.19, and, therefore, any final certificate given thereon was immaterial for the purposes of filing the present suit. The plaintiff was not entitled to the exclusion of time under Section 14 of the Act. The plaintiff was estopped by his acts and conduct from filing the present suit. The plaintiff by his own acts and conduct disentitled himself to file the present suit. In view of these findings, no other issues survive.
Final Decision: The appeal succeeds and is allowed. The judgment and decree of the trial Court are set aside and the plaintiff s suit is dismissed with costs.
1. This appeal has been filed on behalf of the Jullundur Improvement Trust. Jullundur, the defendant-appellant, against whom the decree for Rupees 1,75,000.00 has been passed by the trial Court.
2. The case of the plaintiff-respondent that he entered into the agreement dated May 2, 1966, Exhibit P. 7, with the defendant to construct 90 feet wide road in the development scheme of 84 acres behind Civil Hospital, Jullundur, connecting Vijay Nagar Road to Nakodar Road and to finish the work on 14-12-1967. In connection with that work, the payment of the last bill was received by him on 14-12-1967, under protest as his full dues were not paid. According to him, there was a material stipulation in the contract that the work will be done and executed strictly in accordance with the Punjab P. W. D. specifications and that clause 12 of the conditions of contract, Exhibit P. 6, further provided that if during the progress of the work any additional work was involved for which no rate was fixed in the contract, then such class of work shall be carried out at the rates entered in the schedule of rates of the district. According to him, regarding the earth filling item of the work, he quoted the rate of Rs. 56.00 per thousand cubic feet against the scheduled rate of Rs. 81.50, this quotation was accepted by the defendant and that the regular agreement, Exhibit P. 7, was executed. Since no earth was available within a radius of two miles from the site of the work except 27,589 cubic feet earth taken from the borrow-pits along side the road, he did the earth work to the following extent-
(a) 16,37,975 cubic feet with a lead of seven miles and two furlongs; and
(b) 27,589 cubic feet with a lead of 75 feet.
The defendant paid the bills for part (a) at the rate of Rs. 56.00 per thousand cubic feet and for part (b) at the rate of Rs. 15.10 per thousand cubic feet. None of the above two items, (a) and (b), related to the earth filling actually involved in execution of the work corresponding to the item of earth filling two miles as stipulated in the contract and, therefore, a clause 12 of the conditions of contract was to be resorted to for the purposes of arriving at the rates payable to him. The defendant applied the above condition only with regard to the work involved in item (b) by applying the rates provided in the common schedule of rates, but failed to apply this condition for arriving at the rate for the earth filling involved for the work at item (a) above. It was thus contended by him that he was entitled to 16,37,975 cubic feet earth filling with a lead of seven miles and two furlongs as per the rates provided in the common schedule of rates, at the rate of Rs. 15,200.00 per thousand cubic feet and in this way, he claimed its. 1,15,477.23 as the balance amount payable to him. He also alleged that payments were made to him after deduction of earth work at the rate of ten per cent. On account of shrinkage and that this deduction, could not be made under the P. W. D. specifications because he had executed the work of earth filling to the extent of 18,19.972 cubic feet by layers duly compacted with watering and ramming. According to him, this deduction could be made only in cases of uncompacted fills. Thus, he claimed a further amount of Rs. 23,023.00 on this account. The plaintiff also alleged that since he laid the earth in nine inches thick layer, he was entitled to Rs. 3,640.00 at the extra rate of Rs. 2/- per thousand cubic feet, as per Serial No. 6.2 (G) (I) of C. S. R. Vol. X read with clause 12 of the conditions of contract. He further alleged that he suffered a loss of Rs. 6,200.00 on account of the washing away of 2 lacs cubic feet earth in the storm water in the year 1966. He thus made a total claim of Rs. 1,48,340.23 on account of the above accounts with interest at the rate of 6 per cent per annum thereon from Jan. 15, 1968, which amounted to Rs. 26,700.00 as the money was unlawfully detained and retained by the defen
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