Oral Judgment:
1. Heard.
Admit.
Mr.Akshay Sudame, learned Counsel waives service on behalf of the respondent.
2. This appeal is preferred against the order dt.4.8.2014 passed by the learned Civil Judge (Sr.Dn.), Chandrapur whereby plaint was returned. According to the learned Counsel for the appellant, in the impugned order, the learned trial Judge made reference to a clause in the contract between the parties, which is mentioned as below :
Condition no.24. Dispute Redressal System 24.1 : If any dispute or difference of any kind whatsoever shall arise in connection with or arising out of this contract or the execution of works or maintenance of the works thereunder, whether before its commencement or during the progress of works or after the termination, abandonment or breach of the contract, it shall, in the first instance, be referred for settlement to the competent Authority, described along with their power, in the Contract Data, above the rank of the Engineer. The competent authority shall, within a period of forty-five days after being requested in writing by the Contractor to do so, convey his decision to the Contractor. Such decision in respect of every matter so referred shall, subject to review as hereinafter provided, be final and binding upon the Contractor. In case the works is already in progress, the Contractor shall proceed with the execution of the works, including maintenance thereof, pending receipt of the decision of the competent Authority as aforesaid, with all due diligence.
24.2 Either party will have the right of appeal, against the decision of the competent Authority, to the Standing Empowered Committee if the amount appealed against exceeds rupees one lakh.
In clause 24.5 therein, it is mentioned that the decision of the Standing Empowered Committee will be binding on the Employer for payment of claim upto five percent of the Initial Contract Price. The Contractor can accept and receive payment after signing as âin full and final settlement of all claimsâ?. If he does not accept the decision, he is not barred from approaching the courts. Similarly, if the Employer does not accept the decision of the Standing Empowered Committee above the limit of five percent of the Initial Contract Price, he will be free to approach the courts applicable under the law.â?
3. The contract, therefore, as is submitted by the learned Counsel for the appellant, does not bar the Civil Court to entertain the Civil Suit. According to him, in the present case, the learned trial Judge could have referred the parties to preliminary remedy available under the Contract as âDispute Redressal Systemâ?. The competent Authority could have, as consented by parties, mediated or acted as Conciliator or Arbitrator between the parties to ensure that both the parties are satisfied so as to end their dispute instead of adjudication by the Civil Court.
4. Primarily speaking, the Civil Courts are competent and have plenary jurisdiction to try all suits of Civil nature; unless the cognizance of the Civil Suit is barred either by express provision of law or impliedly. Here, in the present case, neither the plaintiff nor the defendant raised preliminary issue as to jurisdiction of the Civil Court to entertain and try the suit. But, the learned trial Judge curiously and suo motu framed issue as to maintainability of suit upon pleadings as no.3A as to whether the suit is tenable in view of Condition No.24 as mentioned in Exh.42 on page no.31 and went on to answer it in the negative on the pretext of existence of clause 24 in the contract. This is the suit wherein the trial Court had already framed the issues. Under Order 14, Rule 2 of the Code of Civil Procedure, the provision reads thus :
2. Court to pronounce judgment on all issues.
(1) Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to â”
(a) the jurisdiction of the court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.
5. Thus, it is obligatory upon the learned trial Judge, notwithstanding the fact that the case may be disposed of on a preliminary issue, to pronounce Judgment on all the issues both on law as well as fact arising in the suit. If, according to the trial Court, suit can be disposed of on an issue of law only relating to jurisdiction of the Court or bar to the suit created by any law for the time being in force, the Court may postpone settlement of other issues until preliminary issue is determined as the trial Court may deal with the suit in accordance with the decision on the preliminary issue. But, in the fact and circumstances of the present case, on the basis of pleadings, the trial Court had framed the following issues at Exh.16 :
1. Does the plaintiff prove that due to deletion of one work from the tender his rates were affected and he has suffered loss of Rs.5,55,000/-?
2. Does he further prove defendant wrongfully withheld his payment of Rs.7,45,973/-?
3. Does he further prove that Rs.4,84,973/- were not received from defendant?
3A. Whether suit is tenable in view of the condition No.24 as mentioned in Exh.42 on Page no.31?
4. Is he entitled to claim interest @ 18% per annum?
5. Is he entitled to recover Rs.19,26,555/- from defendant?
6. What order and decree?â?
6. Thus, the Court could not have answered the issues as redundant. It could have insisted upon the parties to approach the competent Authority concerned to invite its decision and could have waited until such decision while keeping the suit pending. The Forum of competent Authority as per clause no.24 of the Contract cannot be equated with the Civil Court so as to entertain and try the Civil suit and adjudicate as to bind the parties unless both the parties are consenting to approach the competent Authority as alternative forum to adjudicate upon controversy between them and to invite it's decision as binding. There was no alternate Civil Court or statutory Forum where the plaint in the suit could have been presented in the present case. That being so, the impugned Judgment and Order is unsustainable and it is liable to be quashed and set aside.
7. Since, according to the learned Counsel for the respective parties, none of the parties had approached the trial Court by raising preliminary issue as to maintainability of the Civil suit, the Court could not have insisted upon the parties to go before the competent Authority as contemplated under Clause 24 of the Contract. The trial Court, after framing issues in the suit was not powerless to deal with the merits of the Civil suit and to decide the same according to law.
8. That being so, the impugned Order is set aside. The matter is remanded back to the trial Court. The trial Court shall consider the evidence already adduced and also the evidence which may be adduced by the parties in the suit and then to examine the same and decide the suit according to law in the light of the issues framed and sought by the parties. The parties to approach the Court on 27.7.2015.
9. In view of the above observations and directions, the appeal is disposed of as allowed accordingly.