Point of Law: Maintainability of Suit - Record reveals that defendant’s contention that no notice under Section 80 CPC was given by plaintiffs was also decided in favour of plaintiffs while deciding an application under Order 7 Rule 11 CPC filed by defendant.

JUDGMENT :

BHASKAR RAJ PRADHAN, J.

1. This is a first appeal from the judgment and decree of the Learned District Judge, Special Division-1 (learned Trial Court) dated 28.02.2019. First appeal is a valuable right for the aggrieved. It is beyond doubt that all question of facts and law decided by the learned Trial Court are open for reconsideration. It is, however, necessary for this Court to carefully examine and deeply consider both the fact as well as the law arising herein and give cogent reasons while disposing the appeal. It is our duty to properly deal with all the issues and the evidence led by the parties. Learned Counsel Mr. Zangpo Sherpa for the appellant and Mr. K.T. Tamang for the respondent have been heard in detail on facts as well as in law. This judgment reflects their erudite submissions.

2. A money suit was filed by the plaintiffs (the appellants herein) against the defendant (the respondent herein) for recovery of money towards payment for work done under a contract. The suit went for trial after the defendant filed the written statement and eight issues were framed.

3. The learned Trial Court while dismissing the suit held that time was the essence of the agreement dated 22.02.2008 (Exhibit-2) (the agreement); that although the defendant had extended the time for completion, time did not cease to be of the essence merely because a party agreed to short extensions; that the contract awarded to the plaintiff no. 1 by the defendant was not completed within the stipulated/extended time limit; that the plaintiffs were in breach of the terms of the agreement and therefore, the defendant was not liable to pay any amount to the plaintiffs. The learned Trial Court held that the suit was not barred by limitation, but it was not maintainable as plaintiffs had not been able to substantiate their case and had not approached the court with clean hands. The learned Trial Court further held that the defendant cannot be held liable to pay the interest amount paid by the plaintiffs to Punjab National Bank towards the loan taken by them, as it was the plaintiff who had committed the breach of the terms of the agreement. Accordingly, the learned Trial Court dismissed the suit filed by the plaintiffs. The plaintiffs have therefore, filed the present appeal against the judgment and decree both dated 28.02.2019 passed by the learned Trial Court.

4. Out of the eight issues framed by the learned Trial Court issue no. 2 on the point of limitation and issue no. 4 as to whether valid extensions were given to plaintiff no. 1 from time to time to complete the concerned work was held against the defendant and in favour of the plaintiffs. There is no appeal by the defendant on both these issues. The rest of the issue which are agitated are taken up.

5. The first issue was whether the suit was maintainable. If the plaintiffs had failed to substantiate their case, the suit would fail. The question of maintainability of a suit is a question of law. Section 9 of the Code of Civil Procedure, 1908 (CPC) provides that the court shall have jurisdiction to try all suits of civil nature, accepting suits of which their cognizance is either expressly or impliedly barred. The point of limitation was separately decided in favour of the plaintiffs. The record reveals that the defendant’s contention that no notice under Section 80 CPC was given by the plaintiffs was also decided in favour of the plaintiffs while deciding an application under Order 7 Rule 11 CPC filed by the defendant.

6. It is also urged by the defendant that the plaintiff no. 2 has filed a letter dated 14.05.2010 bearing No. W-290/2007-08/23 to project that time had been extended till 21.02.2010. This document was exhibited by the plaintiff no. 2 as Exhibit-7. Exhibit-7 clearly mentions that it related to another work order. During the cross-examination he explained “Exhibit-7 though filed by me does not seem to be with regard to Namchi work. It seems it was inadvertently filed. Since I had pe