Judgment:
IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction Original Side Before: The Hon’ble Justice Debangsu Basak C.S.No.708 of 1988 The Board of Trustees for the Port of Calcutta versus Panchu Gopal Bose For the Plaintiff : Mr.Suhid Ray Chowdhury, Advocate Mr.Dipak Ranjan Mukherjee, Advocate Heard on : January 20, 2014 & February 21, 2014 Judgment on : February 25, 2014 DEBANGSU BASAK, J.
The suit was for recovery of damages.
The plaintiff invited tender for construction of a Diesel Loco Shed at Haldia.
The defendant participated in such tender.
The plaintiff accepted the tender of the defendant and placed a work order.
The total value of the work order was Rs.6,83,998.39p.
The work was to be carried out in accordance with the plaintiff’s General Conditions of Contract.
According to the plaintiff the defendant delayed commencement of the work.
In spite of repeated requests and demands, the defendant failed and neglected to resume work.
In fact, the defendant abandoned the work.
The plaintiff terminated the contract by a Notice dated March 4, 1981.
The plaintiff, thereafter, floated a fresh tender.
A fresh work order was issued to a third party for construction of the remaining portion of the Diesel Loco Shed for the sum of Rs.8,64,627/-.
The plaintiff contended that, it was made to incur extra cost for getting the work completed by another agency.
The defendant was obliged to compensate the plaintiff in respect of thereafter.
The plaintiff assessed such compensation at Rs.3,60,785.05p The plaintiff sought recovery of such sum along with interest therein by way of the instant suit.
The defendant filed written statement in person.
The defendant, thereafter, obtained assistance of the State Legal Aid Services.
The learned Counsel appointed by the State Legal Aid Services to conduct the case on behalf of the defendant reported to this Hon’ble Court that, he was unable to get in touch with the defendant.
Such fact was recorded by an Order dated August 26, 2013.
The department was directed to serve an appropriate notice upon the defendant at the address mentioned in the cause title with regard to the suit.
The hearing of the suit was consequently adjourned.
By a report dated September 21, 2013 the Registrar, Original Side submitted the note of the Superintendent (Writ and Execution Department) dated September 21, 2013 for perusal of the Court.
By such note the Superintendent (Writ and Execution Department) stated that, a notice dated was issued to the defendant and was received by the defendant on September 13, 2013.
The defendant, therefore, was given notice of the pendency of the instant suit.
The defendant did not to appear when the suit was taken up for hearing.
No accommodation was sought for on his behalf.
The plaintiff was entitled to and proceeded ex parte against the defendant.
The suit was taken up for ex parte hearing on January 20, 2014.
The plaintiff produced its sole witness Mr.Pabitra Mukhopadhyay who was examined in chief.
Various documents were tendered in the evidence and marked exhibits on behalf of the plaintiff.
On the conclusion of the evidence on the part of the plaintiff the only submission made on behalf of the plaintiff was that, the plaintiff was entitled to the amount as claimed in the plaint.
On conclusion of submission on behalf of the plaintiff, delivery of judgment was reserved.
In the process of delivery of judgment it was found that, the claim of the plaintiff was barred by the law of limitation on the documents on record.
At the instance of the Court, the suit was placed in the peremptory cause list.
The fact that the claim stood barred by the laws of limitation on the documents on record was brought to the notice of the plaintiffs.
The plaintiffs, thereafter, applied for recalling of its witness and in adducing further evidence.
Such application was allowed.
Pursuant thereto the plaintiffs produced its witness on February 21, 2014.
The witness proved two documents which were marked as Exhibit ‘H’ collectively.
The plaintiff’s case was that it required a Loco Shed to be constructed at the Haldia dock in 1974.
The plaintiff floated a tender for such purpose in which the defendant participated.
The defendant obtained a work order from the plaintiff.
During the period 1974 to 1977 the construction work did not progress well.
The person in charge of the project on behalf of the plaintiff wrote diveRs.letters to the defendant asking the defendant to resume work or face termination of the contract.
In spite of receipt of such notices, the defendant did not resume the work.
In July 1977 the defendant stopped work.
A large portion of the work remained unfinished.
The plaintiff as such, was constrained to terminate the contract by its Notice dated March 4, 1981.
The plaintiff floated a new tender.
Since a period of about six years passed between the fiRs.tender and its termination a new rate for contract came into effect.
The new tender and the consequent contract were made at a new rate.
The plaintiff was made to spend extra amount for completing the unfinished work left by the defendant.
Under the terms and conditions of the General Conditions of Contract the plaintiff was entitled to realize the extra cost incurred in this regard from the defendant.
The defendant was the defaulting contractor.
The General Conditions of contract were tendered in evidence and were marked as Exhibit ‘A’.
Clause 23 of the General Conditions of work allowed the plaintiff to terminate the contract.
Clause 48 of the General Conditions of Contract dealt with compensation for delay.
It provided that, in the event of the defendant failing to complete the work within the stipulated date or the extended date the defendant was liable to pay compensation not exceeding 10 per cent of the tender value of the work.
The plaintiff established through its witness that, it issued letters from February 25, 1976 till December 11, 1980 on diveRs.aspects with regard to the contract then subsisting between the parties requesting the defendant to complete the work.
The defendant did not complete the work in spite of receipt of these letteRs.By the letter dated March 4, 1981 being Exhibit ‘D’ the contract was terminated.
The plaintiff produced the two measurement books of the two contracts.
The plaintiff also produced a chart prepared from out of the two measurement books which was marked as Exhibit ‘G’.
By Exhibit ‘G’ the plaintiff established that, it was entitled to recover a sum of Rs.3,60,785.05p from the defendant.
Exhibit ‘G’ compared the relevant entries of the two measurement books.
Exhibit ‘G’ took into account the rates of the two contracts the quantum of work under the two contracts and arrived at such figure.
In terms of Clause 48 of the General Conditions of Contract the plaintiff was entitled to compensation of half per cent of the total value of the contract for every week that the work remained unfinished provided that the entire amount of compensation to be paid should not exceed 10 per cent of the tender value.
However, the same clause retained the right of the plaintiff to have the unfinished work completed by some other agency at the risk and expense of the contractor in this case the defendant.
This right was to be exercised by giving three days’ notice in writing.
Exhibit ‘D’ was a letter dated March 4, 1981 terminating the contract.
By this letter the defendant was put on notice that, the remaining unfinished work would be carried out by a third agency at the cost and risk of the defendant.
The plaintiff proceeded to issue a fresh tender and have the work completed by a third agency.
The difference between the rates of the two contracts was established by Exhibit ‘G’ and the same amounted to Rs.3,60,785.05p The plaintiff was, therefore, entitled to recover the entire sum of Rs.3,60,785.05p from the defendant together with interest.
The contract between the defendant and plaintiff was terminated on March 4, 1981.
The plaintiff subsequently entered into a new contract.
From Exhibit ‘H’ it would appear that, the final bill for the new contract was settled on August 26, 1985 and that payment thereof was made on August 30, 1985.
The instant suit was verified on August 30, 1988.
Therefore, the instant suit was not filed prior to that date.
August 30, 1988 was a working day.
Section 3 of the Limitation Act, 1963 mandated dismissal of a suit instituted after the prescribed period of limitation, irrespective of whether limitation was set up as a defence or not.
The instant suit was for compensation for breach of contract and was governed by Article 55.
The contract was broken on March 4, 1981 when by the plaintiff terminated the contract by a notice.
It could be contended in favour of the plaintiff that, the quantum of damages suffered by the plaintiff stood crystallized on August 30, 1985 when the second contractor received his payment.
Even then a period of more than 3 years elapsed from such date to the date of verification of the plaint.
The suit was filed on August 30, 1988.
The claim of the plaintiff stood barred by the laws of limitation on August 29, 1988 taking the last date in Exhibit ‘H’ as August 30, 1985 in terms of Article 55 of the Limitation Act, 1963.
The suit is, therefore, dismissed.
There will be no order as to costs.
[DEBANGSU BASAK, J.].