Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment

Judgment:

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			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
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			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
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			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
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			'court' => 'Madhya Pradesh',
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			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
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			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
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		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
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		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/507003/dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
$content = array(
	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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ORDER

K.K. Lahoti, J.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
)
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1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
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		'circuit' => null
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$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent.

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			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
$content = array(
	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
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		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
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		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
$content = array(
	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
)
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(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
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		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
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		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
$content = array(
	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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This award is under challenge in this revision.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
	)
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
$content = array(
	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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6. Learned Counsel appearing for petitioner raised following contentions:

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
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			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
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			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
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		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
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		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
$content = array(
	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
$content = array(
	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
	)
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
$content = array(
	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
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			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
)
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(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(3) The reference shall be accompanied by such fee as may be prescribed.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
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		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
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		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
$content = array(
	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
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		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
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		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
$content = array(
	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
$content = array(
	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
	)
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$casename_url = 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
$args = array(
	(int) 0 => '507003',
	(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$url = 'https://sooperkanoon.com/case/amp/507003/dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
$content = array(
	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
)
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In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
$content = array(
	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
$content = array(
	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
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			'counselplain' => '',
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			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2007(4)MPHT134',
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			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
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		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
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		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
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		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
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		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$url = 'https://sooperkanoon.com/case/amp/507003/dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
$content = array(
	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
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	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with.

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
$content = array(
	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only).

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	'title_for_layout' => 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '507003',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
			'authreffered' => '',
			'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
			'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
			'caseanalysis' => null,
			'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2007-08-17',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">K.K. Lahoti, J.</p><p style="text-align: justify;">1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p style="text-align: justify;">2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p style="text-align: justify;">3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p style="text-align: justify;">4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p style="text-align: justify;">5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p style="text-align: justify;">(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p style="text-align: justify;">(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p style="text-align: justify;">(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p style="text-align: justify;">(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p style="text-align: justify;">(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p style="text-align: justify;">(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p style="text-align: justify;">(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p style="text-align: justify;">(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p style="text-align: justify;">This award is under challenge in this revision. </p><p style="text-align: justify;">6. Learned Counsel appearing for petitioner raised following contentions:</p><p style="text-align: justify;">(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p style="text-align: justify;">(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p style="text-align: justify;">(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p style="text-align: justify;">(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p style="text-align: justify;">(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p style="text-align: justify;">7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p style="text-align: justify;">8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p style="text-align: justify;">9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p style="text-align: justify;">7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p style="text-align: justify;">(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p style="text-align: justify;">(3) The reference shall be accompanied by such fee as may be prescribed. </p><p style="text-align: justify;">(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p style="text-align: justify;">(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p style="text-align: justify;">7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p style="text-align: justify;">(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p style="text-align: justify;">(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p style="text-align: justify;">(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p style="text-align: justify;">(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p style="text-align: justify;">From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p style="text-align: justify;">10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p style="text-align: justify;">In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p style="text-align: justify;">11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p style="text-align: justify;">12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p style="text-align: justify;">13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p style="text-align: justify;">14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p style="text-align: justify;">15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2007(4)MPHT134',
			'ratiodecidendi' => '',
			'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
			'sub' => 'Civil',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department',
	'args' => array(
		(int) 0 => '507003',
		(int) 1 => 'dharamdas-nechlani-s-o-shri-govind-ram-vs-resources-department'
	)
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$title_for_layout = 'Dharamdas Nechlani S O Shri Govind Ram Vs the State Govt of M P Through the Executive Engineer Bargi Left Bank Canal Division No 1 M P Water Resources Department - Citation 507003 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507003',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Dharamdas Nechlani S/O Shri Govind Ram',
		'authreffered' => '',
		'casename' => 'Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department',
		'casenote' => 'Limitation - Counter Claim - Section 7-B of M.P.Madhyastham Adhikaran Adhiniyam, 1983 - Respondent entered into contract with petitioner - Petitioner failed to complete work within stipulated time - Respondent terminated contract - Petitioner filed reference application before Tribunal - Respondent filed counter claim - Tribunal dismissed reference application - Hence, present revision - Whether counter claim filed by Respondent was within limitation provided under Section 7-B of Adhiniyam? - Held, counter claim filed before Tribunal was beyond period of limitation as provided under Section 7-B of Adhiniyam and Tribunal erred in allowing counter claim filed by Respondent - Hence, revision petition allowed  -  -  The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. (5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so.',
		'caseanalysis' => null,
		'casesref' => 'Seth Mohanlal Hiralal v. State of M.P. and Anr.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2007-08-17',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'K.K. Lahoti and ;S.R. Waghmare, JJ.',
		'judgement' => 'ORDER<p>K.K. Lahoti, J.</p><p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. </p><p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. </p><p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. </p><p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. </p><p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:</p><p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. </p><p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. </p><p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. </p><p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. </p><p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. </p><p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. </p><p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. </p><p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. </p><p>This award is under challenge in this revision. </p><p>6. Learned Counsel appearing for petitioner raised following contentions:</p><p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. </p><p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. </p><p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. </p><p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. </p><p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. </p><p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. </p><p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. </p><p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:</p><p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. </p><p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. </p><p>(3) The reference shall be accompanied by such fee as may be prescribed. </p><p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. </p><p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. </p><p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. </p><p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless </p><p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and </p><p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. </p><p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. </p><p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. </p><p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. </p><p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. </p><p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. </p><p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. </p><p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. </p><p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. </p><p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2007(4)MPHT134',
		'ratiodecidendi' => '',
		'respondent' => 'The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.',
		'sub' => 'Civil',
		'link' => null,
		'circuit' => null
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$ctype = ' High Court'
$caseref = 'Seth Mohanlal Hiralal v. State of M.P. and Anr.<br>'
$content = array(
	(int) 0 => 'ORDER<p>K.K. Lahoti, J.',
	(int) 1 => '<p>1. This revision has been preferred under Section 19 of the M.P.Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'Adhiniyam' for short), challenging award dated 1.1.1997 passed by M.P.Arbitration Tribunal, Bhopal in reference case No. 54/1991. ',
	(int) 2 => '<p>2. The facts of the case are that petitioner Dharamdas Nechlani was awarded a percentage rate contract for construction of drainage syphon at R.D.12,800 at Bargi left bank main canal group No. 3. The amount of work put to the contract was Rs. 2.92 lakhs and the stipulated period for completion of work was 10 months excluding four months of rainy season. The petitioner quoted 104% above C.S.R. for steel work and 40% above C.S.R. for other items of the schedule in the agreement. An agreement No. 11/80-81 was executed between the parties and work order was issued to the petitioner on 29.1.1981. The due date of completion of work was 2.4.1982. The syphon was initially proposed to be constructed at R.D.12,800, but the layout for syphon was given at R.D.12,770. The petitioner got the layout for the work on 19.2.1981 and final layout for foundation was given on 3.3.1981. As per Clause 3.5 of the agreement, the petitioner was to commence the work within 30 days from the date of issuance of work order. The petitioner commenced the work and was paid running bills during the period of work and gross amount of the 4th running bill presented was Rs. 38,868.70p. The petitioner applied for extension of time on the ground of untimely rains in January, February 1982 and heavy dewatering in foundation. The petitioner was granted extension of time for six months i.e., upto 2.2.1983, but by reserving the right of imposing penalty by the respondent. The petitioner could not complete the work and a notice was issued to him on 17.2.1983, 2nd notice on 16.3.1983 and the contract was terminated on 20th April 1983 under Clause 4.3.3.3. Thereafter the respondent got completed balance work by employing another contractor M/s R.C. Rathore @ 185% above C.S.R., in this regard an agreement No. 5 DL of 83-84 was entered between the respondent and M/s R.C. Rathore. The work order was issued to M/s R.C. Rathore on 21.2.1984 and balance work was completed on 20th May 1985. His final bill was also finalised. ',
	(int) 3 => '<p>3. The petitioner aggrieved by the termination of contract filed a reference application on 1.4.1991 before the Tribunal that his work though remained incomplete, but was delayed due to defaults, lapses and breaches committed by the respondent, so the respondent was at fault and the petitioner was entitled to payment of final bill amounting to Rs. 34,000/-, extra expenditure on dewatering amounting to Rs. 1,00,000/-, idling charges for men and machinery for two months amounting to Rs. 45,000/-. Apart from this the petitioner had alleged that he was wrongly deprived of work by employment of debitable agency, so he was entitled to loss of profit on the balance work not allowed to be carried out. For this he claimed Rs. 45,000/-. The petitioner also claimed refund of security amount Rs. 6,016/-. By this way the petitioner claimed a total sum of Rs. 2,30,907.75p. against the respondent. ',
	(int) 4 => '<p>4. The respondent denied the claim on the ground that the respondent was not guilty of any default, lapse or breach. The petitioner's work itself was slow and he could not complete the work inspite of repeated notices and even within the extended period. The contract of petitioner was rightly rescinded and the respondent had rightly got completed work through debitable agency. The respondent had also claimed Rs. 2,33,800/-against the petitioner and lodged a counter claim in the written statement. ',
	(int) 5 => '<p>5. The matter was contested before the Tribunal. The Tribunal after appreciating evidence, recorded following findings:',
	(int) 6 => '<p>(a) That there was no material change in the site condition when the location of drainage syphon was shifted by a distance of mere 30 mtrs., and the respondent had not committed any breach when petitioner commenced and continued work at the slightly changed site without any protest. ',
	(int) 7 => '<p>(b) That the petitioner was not able to complete proportionate work before the rainy season. He was issued various reminders and inspite of extension of time beyond the initial period of completion, petitioner could not complete the work and his contract was terminated on 28.4.1983 under Clause 4.3.3.3. The aforesaid termination or rescission of the contract by the respondent was lawful. ',
	(int) 8 => '<p>(c) That no excessive dewatering had occurred due to change in site of the drainage syphon. The petitioner's work itself was slow and he had completed the excavation work before the onset of monsoon in the year 1981, the change of site condition had not resulted in excessive dewatering. The petitioner failed to prove that the changed site was disadvantageous to him and the amount of dewatering could have been less if the site as contemplated in agreement could not have been changed. Recording aforesaid the Tribunal found that the petitioner was not entitled for any claim towards dewatering and his claim for expenditure on dewatering was rejected. ',
	(int) 9 => '<p>(d) So far as the claim of petitioner for idling charge for men and machinery is concerned, the Tribunal found that no evidence in support of claim was produced, so the Tribunal rejected the claim of petitioner in this regard. ',
	(int) 10 => '<p>(e) The petitioner's claim on account of loss of profit, for the work not allowed to be done, of Rs. 45,000/-was also turned down by the Tribunal on the ground, that no such loss was caused to the petitioner and he was not entitled to any loss of profit. ',
	(int) 11 => '<p>(f) The claim of petitioner for refund of security deposit of Rs. 6,016/-was linked with the counter claim filed by the respondent. The Tribunal found that an amount of Rs. 2,920/-was available in the shape of deposit at call with the respondents. An amount of Rs. 3,096/ was deducted as security deposit from four running bills paid to the petitioner. In para 11 of the award the Tribunal found that the petitioner was entitled to refund of security deposit Rs. 6,016/-and Rs. 2,920/-as deposited at call. But his claim was rejected because of allowing the counter claim lodged by the respondent. The Tribunal in para 12 considered that respondent raised counter claim for Rs. 2,30,907.75p., Rs. 2,045/-levied as penalty by the Superintending Engineer under Clause 4.3.2, Rs. 988/-towards non return of empty gunny bags and Rs. 0.75p., being minus amount of the final bill. The respondent in arriving at the figure of total counter claim had adjusted amounts of earnest money and security deposit. ',
	(int) 12 => '<p>(g) The Tribunal found that the petitioner inspite of repeated reminders to expedite progress was not able to achieve proportionate progress of the work. He could have completed the work of the foundation before onset of monsoon in the year 1981 itself as the work order was issued to him on 21.1.1981. He could complete only part of the work even when he was granted extension of time of six months excluding subsequent rainy season also. The amount of work done by him till June 1982 including 4th running bill of Rs. 38,868.70p., was less than 20% of the total value of the contract. The Executive Engineer, Jabalpur issued a registered letter on 17.3.1983 under Clause 4.3.3.3 of the agreement intimating the petitioner for getting the work executed through debitable agency and also directed petitioner to apply for further extension of period of time beyond 2.2.1983. Another letter was sent by the Executive Engineer on 16.3.1983 to the petitioner to commence the work by 25.3.1983 with a warning to the petitioner that if the work is not commenced on the due date, his contract would be terminated under Clause 4.3.3. The petitioner neither applied for extension of time, nor started the work which subsequently resulted in termination of contract on 28.4.1983 through a registered letter under Clause 4.3.3. The Tribunal found that adequate opportunities were given to the petitioner to complete the work. The petitioner insisted that the department should prevent the water seeping in the foundation from the canal water under Group Nos. 3, 4 and 5 and to arrange for dewatering of poured water. The petitioner had not started the work in time and he was informed about his responsibility for dewatering in the foundation as per terms of the contract agreement, and his contract was terminated. The respondent invited tender for the remaining work amounting to Rs. 2,56,000/-and the tender of M/s R.C. Rathore @ 185% above C.S.R., was accepted. The debitable agency completed the work on 25.5.1985 and his final bill was also finalised. The Tribunal in para 12 of the award found that Annexure A is unintelligible at places and does not appear to be confined to extra costs limited to balance work left by the petitioner. The petitioner cannot be saddled with liability to pay extra cost on extra quantities of work or extra items executed by the debitable agency. ',
	(int) 13 => '<p>(h) The Tribunal after considering the entire work done by debitable agency prepared a chart which is a part of award and found that the respondent had incurred extra cost of Rs. 1,71,708.64p., on the balance work left by the petitioner, which was recoverable from him and the counter claim for an amount of Rs. 1,71,708.64p., was allowed against the petitioner. From this amount the petitioner was given adjustment of an amount of Rs. 0.75p. from the final bill, Rs. 6,016/-towards earnest money and security deposit. The Tribunal passed an award of Rs. 1,65,693.39p. alongwith interest @ 12% p.a., from the date of reference dated 1.4.1991 till realisation against the petitioner. ',
	(int) 14 => '<p>This award is under challenge in this revision. ',
	(int) 15 => '<p>6. Learned Counsel appearing for petitioner raised following contentions:',
	(int) 16 => '<p>(i) That the petitioner's contract was terminated on 28.4.1983 as per Annexure P-22. The reference was filed by the petitioner on 1.4.1991. The Tribunal issued notice to respondent and it was served on 28.3.1992. On 4.8.1992 the written statement was filed. Thereafter the respondent filed an application seeking amendment and filing counter claim in the written statement on 30.4.1993. The aforesaid counter claim was allowed by the Tribunal on 30.4.1993. The debitable agency completed the work on 25.5.1985 and his final bill was finalised immediately by the respondent. Hence the counter claim which was filed on 30.4.1993 was barred by limitation and the aforesaid counter claim ought not to have been allowed by the Tribunal. ',
	(int) 17 => '<p>(ii) That in the counter claim there is no pleading that the respondent referred the claim to the final authority and until and unless such claims is referred to the final authority, the counter claim was not maintainable. ',
	(int) 18 => '<p>(iii) That for filing counter claim provision of filing reference shall apply. The counter claim ought to have been filed supported by an affidavit as provided under Section 7(2) of the Adhiniyam, but no affidavit was filed alongwith the counter claim, which was liable to be dismissed by the Tribunal. ',
	(int) 19 => '<p>(iv) That the period of filing counter claim was one year from the date of decision of final authority, but in this case no dispute was referred for the decision of final authority. Hence, the counter claim itself was not maintainable. In the alternative it is submitted that even if Sub-section (2) of Section 7-B of the Adhiniyam is applied in the case, then the counter claim could have been entertained upto 24.4.1991 because Section 7-B was inserted by the M.P.Act No. 9/1990 w.e.f. 24.4.1990, and because of this amnesty clause one year period if allowed to the respondent, the counter claim ought to have been filed before 24.4.1991, but in this case the written statement was filed on 4.8.1992 and counter claim was filed on 30.4.1993, which was beyond the period of limitation and was liable to be rejected outrightly and the Tribunal erred in allowing the aforesaid counter claim. ',
	(int) 20 => '<p>(v) That the Tribunal while allowing the counter claim lodged by the respondent has allowed the claim in respect of extra work executed by debitable agency, while the counter claim could have been entertained only in respect of unexecuted work by the petitioner and only difference of amount in this regard could have been claimed from the petitioner, but allowing entire counter claim has caused injustice to the petitioner. ',
	(int) 21 => '<p>7. In reply Shri P.N.Dubey, learned Deputy Advocte General, submitted that for respondent it was not necessary to refer the matter to the final authority. Under Clause 2.32 and 4.3.39.1 the respondent was entitled to recover the amount by issuance of R.R.C. In this case R.R.C., was issued to the Collector on 1.4.1991 and a legal notice was issued on 5.3.1991 may be treated as a notice of reference. It is submitted by Shri Dubey that the counter claim was duly verified and sufficient compliance of Section 7(2) of the Adhiniyam was made. It was not objected by the petitioner before the Tribunal and in the revision the aforesaid contention cannot be raised. Apart from this the reference petition filed by the petitioner itself was barred by limitation. ',
	(int) 22 => '<p>8. Shri Kishore Shrivastava, learned Senior Advocate appearing on behalf of petitioner submitted that so far as his claim for refund of security and earnest money is concerned, he is not pressing his claim and he is pressing this revision petition so far as it relates to allowing the counter claim by the Tribunal. ',
	(int) 23 => '<p>9. To appreciate the rival contention of the parties, firstly legal position may be examined. So far as filing of counter claim is concerned, the question has been considered by the Division Bench of this Court in D.C.Lunia v. State of M.P. 1993 A.T.L.R. 1, P.K. Pande v. State of M.P. and Ors. 2001 MPLJ 367 and it is held that the a counter claim is a counter reference and can be entertained by the Tribunal. The Full Bench of this Court in Ravi Kant Bansal v. M.P.Audyogik Kendra Vikas Nigam (Gwalior) Ltd. 2006(2) MPLJ 299 considering the question in respect of entertainability of counter claim, where the counter claim filed by the opposite part was not referred to the final authority in terms of works contract or where it was referred to the final authority but the counter claim was not filed before the Tribunal within the period of limitation as provided in Clause (b) or proviso to Clause (b) of Sub-section (1) of Section 7-B of the Adhiniyam, held that a counter claim is a cross reference by the opposite party and all the provisions of Adhiniyam and Regulations as are applicable to a reference will apply to the counter claim and other party will be entitled to file a reply to such a counter claim. Now Section 7, 7-A and 7-B of Adhiniyam may be seen which are relevant for the decision of this revision:',
	(int) 24 => '<p>7. Reference to Tribunal (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal. ',
	(int) 25 => '<p>(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. ',
	(int) 26 => '<p>(3) The reference shall be accompanied by such fee as may be prescribed. ',
	(int) 27 => '<p>(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed. ',
	(int) 28 => '<p>(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. ',
	(int) 29 => '<p>7-A. Reference petition (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works-contract till the filing of the reference petition but no claims arising out of any other works-contract shall be joined in such a reference petition. ',
	(int) 30 => '<p>(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in respect of such claim or portion of claim so omitted or relinquished. (3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2) disputes relating to works-contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7-B. Limitation (1) The Tribunal shall not admit a reference petition unless ',
	(int) 31 => '<p>(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and ',
	(int) 32 => '<p>(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. ',
	(int) 33 => '<p>(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 34 => '<p>(2A) Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, fore-closed abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract. ',
	(int) 35 => '<p>From the perusal of Section 7, it is apparent that a reference application is to be filed in writing before the Tribunal and such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments. The reference shall also accompany requisite fee and all such documents or evidence as may be prescribed. Section 7-A of the Adhiniyam provides that reference application shall include whole of the claim which the party is entitled to make in respect of works contract till the filing of the reference petition and any claim omitted intentionally or unintentionally the petitioner shall not afterwards be entitled to refer in respect of such claim or portion of claim, so omitted or relinquished. Though a dispute relating to works contract arising after filing the reference petition may be entertained as and when they arise. Section 7-B of the Adhiniyam provides limitation. It provides that the Tribunal shall not admit a reference petition unless the dispute is first referred for the decision of final authority under the terms of works contract and the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority. Proviso of Sub-section (1) provides that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months. As in this case the reference application was filed on 1.4.1981, Sub-section (2) of Section 7-B of the Adhiniyam is attracted, which provides that where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement, but before coming into force of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 w.e.f., 24.4.1990 a reference petition shall be entertained within one year of the date of commencement of M.P.Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. ',
	(int) 36 => '<p>10. The aforesaid all the provisions are applicable in respect of counter claim as held in Ravi Kant Bansal (supra) by the Full Bench. Now in the light of aforesaid provision and settled law by Full Bench in Ravi Kant Bansal (supra), the factual position in the present case may be seen. ',
	(int) 37 => '<p>In this case we are not considering the question whether the respondent was entitled to issue RRC or not as it has already been decided by Division Bench in Seth Mohanlal Hiralal v. State of M.P. and Anr. 2001(5) MPHT 539 that if adjudication by authority under agreement is in favour of Government, it need not prefer claim before Tribunal and the State has independent right to recover the amount found due from the contractor under the terms of contract agreement. The aforesaid legal position is not disputed in the present case and we are not considering the question as to the authority of respondent to issue RRC. As the respondent has lodged counter claim in the reference petition, thus the question of limitation as envisaged under Section 7-B of the Adhiniyam and provisions of Section 7 shall apply and the case of respondent is examined in that perspective. ',
	(int) 38 => '<p>11. In this case the reference petition was filed on 1.4.1991 before the Tribunal. The reference application was supported by an affidavit of Ramchandra S/o Dharamdas Nechlani, the Power of Attorney Holder of petitioner. The respondent filed written statement which was supported by an affidavit of Shri K.K.Saraf, the Executive Engineer, but the amendment application which was filed by respondent by which the respondent sought counter claim, it was neither verified nor any affidavit was filed in support of counter claim. The previous affidavit was only in respect of para 1 to 32 of the written statement filed by the defendant and the counter claim which was included in para 30(a) to (i) was not supported by any affidavit. Apparently there was no compliance of Sub-section (2) of Section 7 of the Adhiniyam and the Tribunal before entertaining the aforesaid counter claim ought to have insisted respondent to file affidavit verifying the averments made in the counter claim. But on this count the aforesaid counter claim could not have been rejected and the Tribunal ought to have extended an opportunity to the respondent to file an affidavit, as it is a settled law that for filing affidavit one opportunity should be extended to the party who failed to do so. But in this case the fact remains that no affidavit was filed by the respondent. It will also be pertinent to mention here that such objection was not raised by the petitioner before the Tribunal and for the first time this objection has been raised by the petitioner in this revision, and we do not find it appropriate at this juncture to reject the counter claim on this ground without extending an opportunity to the respondent. ',
	(int) 39 => '<p>12. Now another question, whether the counter claim filed by the respondent was within limitation, may be examined. The reference application was filed on 1.4.1991. Under Sub-section (2) of Section 7-B such a counter claim was entertainable upto 24.4.1991 as a special limitation was provided under Sub-section (2) of Section 7-B. The written statement filed on 4.8.1992 was much beyond the period of aforesaid limitation, and the counter claim was filed subsequently on 30.4.1993. Apparently both were beyond the period of limitation of 24.4.1991. The agreement of petitioner was terminated on 20.4.1983 and thereafter the debitable agency was engaged, which completed the work and its final bill was also finalised on 25.5.1985. Meaning thereby the loss was known on 25.5.1985 and under the agreement the respondent was entitled to recover the aforesaid loss which was caused because of engagement of debitable agency immediately after 25.5.1985. The petitioner's contract was terminated on 20.4.1983 and after completion of work by the debitable agency the respondent ought to have claimed the extra cost incurred because of engagement of debitable agency. The respondent has not produced any document on record showing that petitioner was asked to make the payment of extra charges paid to the debitable agency. Though the RRC was issued to the Collector as per Annexure D-41 filed by the respondent, but dispute was not referred to the final authority under the terms of works contract and in absence of such, even if Sub-section (2) of Section 7-B of Adhiniyam is made applicable in case of filing of counter claim, the limitation to respondent was available upto 24.4.1991, but no counter claim was lodged till date. Even if the principle of Order 8 Rule 6-A of the Code of Civil Procedure, 1908, are applied the respondent was entitled to lodge his counter claim in the Court alongwith the written statement or before the expiry of limitation. As stated hereinabove the limitation expired on 24.4.1991 and the counter claim which was not lodged within the time period or alongwith the written statement on 4.8.1982, was apparently barred by limitation and such counter claim ought to have been rejected by the Tribunal. The Tribunal without considering this question of limitation adverted itself to consider the merits of counter claim and allowed it and committed an error of jurisdiction in allowing such counter claim, which was barred by limitation. ',
	(int) 40 => '<p>13. In the result, it is held that the counter claim filed before the Tribunal was beyond the period of limitation as provided under Section 7-B of the Adhiniyam and the Tribunal erred in allowing the counter claim filed by the respondent. Therefore this petition is allowed and the counter claim filed by the respondent is dismissed. ',
	(int) 41 => '<p>14. At this stage, it will be pertinent to mention here that the petitioner at the time of hearing has conceded that the petitioner is neither pressing this revision so far as it relates to rejection of the reference application by the Tribunal, nor he is claiming refund of earnest money or security from the respondent, but is confining his argument only in respect of allowing the counter claim of respondent. Hence only this aspect of the matter has been dealt with. ',
	(int) 42 => '<p>15. In the result, this revision is allowed with costs and the award passed by the Tribunal is hereby set aside. The petitioner shall be entitled for costs of this revision. Counsel fee Rs. 2,000/-(Rupees two thousand only). <p>',
	(int) 43 => '<p>'
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Subject	Civil
Court	Madhya Pradesh High Court
Decided On	Aug-17-2007
Judge	K.K. Lahoti and ;S.R. Waghmare, JJ.
Reported in	2007(4)MPHT134
Appellant	Dharamdas Nechlani S/O Shri Govind Ram
Respondent	The State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P.
Disposition	Petition allowed
Cases Referred	Seth Mohanlal Hiralal v. State of M.P. and Anr.

Dharamdas Nechlani S/O Shri Govind Ram Vs. the State Govt. of M.P. Through the Executive Engineer, Bargi Left Bank, Canal Division No. 1, M.P. Water Resources Department - Court Judgment