Section 5 of the Limitation Act does not apply to original suits, and time spent in a proceeding withdrawn because it was time-barred, rather than for lack of jurisdiction, cannot be excluded under Section 14 of the Limitation Act.

Prathiba M. Singh, J.

(Oral)

1. This hearing has been done through hybrid mode.

2. The present appeal arises out of CS(Comm) No. 227/2019 being a suit for recovery of a sum of Rs.1,47,92,860/- filed by the Appellant/Plaintiff before the ld. District Judge (Commercial Court)-01, Central, Tis Hazari Courts.

3. Vide the impugned judgement dated 16th July, 2022 the application under Order VII Rule 11 of Code of Civil Procedure, 1908 [hereinafter ‘CPC’]filed by the Respondent/Defendant was allowed and the suit of the Appellant was dismissed.

4. The brief facts of the case is that the Appellant was awarded the work for ‘Restoration and Renovation of Botany Department (New & Old Block, University of Delhi)’on 8th December, 2009 by the Respondent. The subject work was awarded for an amount of Rs. 6,12,95,726.25/-.

5. The case of the Appellant was that the said work was completed and the Appellant was paid a sum of Rs.7,03,26,014/-. The said sum was accepted by the Appellant allegedly on the assurance from the Respondent that additional expenditure could be claimed at a later stage. The Appellant, thereafter, raised further claims under various heads amounting to Rs. 1,47,92,860/- for which several representations were sent by the Appellant. However, the said sum was not paid by the Respondent and being aggrieved by the same the Appellant had instituted the subject suit.

6. The said suit was filed with a delay as the Appellant had initially filed a petition under Section 11 of the Arbitration and Conciliation Act, 1996 before this Court. The said petition being ARB.P. 802/2018 was dismissed as withdrawn and subsequently the suit was filed.

7. The Respondent filed an application under Order VII Rule 11 CPC, raising, inter alia, the following two grounds:

(i) that the suit was barred by limitation as the same had been filed after withdrawing the arbitration petition before this Court on the ground of being time barred;

(ii) that the full and final payment was already made to the Appellant.

8. At this stage, it is relevant to note that the suit from which the present appeal arises is one of two suits which was filed by the Appellant. Another suit being CS(Comm.) No. 226/2019 was filed by the Appellant in respect of a contract for construction of ‘Vertical Extension of Two Storeys of Dr. B.R. Ambedkar Centre for Biomedical Research, North Campus, University of Delhi’, wherein similar claims were raised by the Appellant.

9. The Commercial Court in the said case had vide order dated 12th July, 2022 also rejected the suit and had allowed the application filed under Order VII Rule 11 CPC.

10. Against the said judgement in the second suit, the Co-ordinate Bench of this Court vide judgment dated 5th January, 2024 in RFA(Comm) 43/2023 has upheld the impugned order dismissing the second suit, upholding the submission that the suit was barred by limitation. The relevant portion of the said judgment is set out below:

“29. Thus, the period for limitation for making a claim for any amount due in respect of the work done would be reckoned from the date when the work was completed, that is, on 30.11.2010 or from the date when the respondent was obliged to pay the amount for executing the works. It is also the appellant’s case that the final bill was raised at the material time. The learned Commercial Court had noted that the final bill was raised by the appellant in the year 2010. The appellant does not dispute the same, however, he contends that the appellant had reserved his right to raise further amounts after payment of the final bill.

30. It is relevant to note that the claims raised by the appellant in the suit includes Labour Escalation under Clause 10C of the GCC amounting to ₹11,81,330.49/-; Hiring Charges for shuttering material from 14.04.2009 to 30.10.2009 quantified at ₹14,92,000.00/-; Supervisory Charges for a period of six months and fifteen days quantified at ₹97,500/-; Watch and Ward expenses for the said period quantified at ₹1,56,0