State of Orissa and ors. Vs. Krushna Chandra Swain - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 3. the defendant in their written statement claimed that though the work had been entrusted, the plaintiff failed to complete the work within the stipulated period and the work done by the plaintiff was not satisfactory. 4 and 7 it was found that the plaintiff had failed to establish that there was delay in execution of the work due to the negligence of the defendants and as such, the plaintiff was not entitled to claim any compensation.p.k. misra, j. 1. defendants are the appellants against the decree of the subordinate judge, jagatsinghpur, directing payment of rs. 1,02,705/- to the plaintiff-respondent in money suit no. 6 of 1987. 2. the aforesaid suit was filed for realisation of rs. 9,30,638.88 oh the following allegations :-- the plaintiff is a registered 'a' class contractor. on the basis of a tender, he was engaged for construction of 'projection work to saline embankment on devi left from magura nala to bandara n.d. (8300-m to 9000-m)'. after the plaintiff had commenced the work and had completed from rd 8300-m to 8585-m, the work was temporarily stopped and subsequently after obtaining necessary instruction, the plaintiff completed the work as per the agreement. during the execution of the work, the plaintiff was also asked to execute additional work as per the rates and terms and conditions provided in the original f2 agreement. the plaintiff was also instructed to execute some further additional work. it was claimed that though the plaintiff had completed all such work, the measurements of the work were recorded in halfhazardly manner in the measurement book and the final measurement was not done properly nor the amount due to the plaintiff was paid. on the basis of the aforesaid allegations, the plaintiff claimed rs. 9,30,638.88 paise as per the details in schedule-a to the plaint. 3. the defendant in their written statement claimed that though the work had been entrusted, the plaintiff failed to complete the work within the stipulated period and the work done by the plaintiff was not satisfactory. the allegations of the plaintiff that initial work had been completed, additional work had been entrusted and measurement had not been properly done, were denied. the detailed claim made by the plaintiff in the plaint was denied and it was stated that the plaintiff was not entitled to receive any further amount from the defendants and as a matter of fact, excess payment had been made. 4. on the aforesaid pleadings, the following issues were framed by the trial court:-- 1. is the suit maintainable. 2. has the plaintiff any cause of action. 3. is the suit barred by law of limitation. 4. is the plaintiff entitled to get any compensation as per the agreement. 5. has the plaintiff received the excess amount from the defendant against the work executed by him. 6. has the plaintiff executed the work as per the tender. 7. is the delay in executing the work for negligence of the plaintiff. 8. is the work order issued to the plaintiff by the defendant to execute the work from r.d. 8585 m to 9000 m. 9. is the plaintiff entitled to get the amount. 10. has the plaintiff admitted the measurement recorded by asst. engineer, balikuda on 29-1-84 and 30-1-84. 11. is the plaintiff entitled to get any relief as claimed. 5. under issue nos. 6 and 8 it was found that the plaintiff had not completed the work. under issue nos. 4 and 7 it was found that the plaintiff had failed to establish that there was delay in execution of the work due to the negligence of the defendants and as such, the plaintiff was not entitled to claim any compensation. under issue no. 5 relating to the alleged excess payment to the plaintiff, it was held that no evidence had been adduced by the defendants to prove that any excess payment had been made to the plaintiff. under issue no. 10 it was held that though the measurement had been done in the absence of the plaintiff, he had not raised any objection. under issue no. 9 relating to the entitlement of the plaintiff, it was held that the amount indicated in the 5th running bill prepared by the engineer of the state had not been paid and as such, the plaintiff was entitled to such amount of rs. 1,02,705/- as indicated in the 5th running bill along with sum of rs. 13,200/' which had been paid as security deposit and earnest money. under issue nos. 1 and 3 relating to the maintainability and limitation, it was observed as follows :-- 'neither party pressed the issues. so, these issues need no elaborate discussion. so the suit is maintainable and not barred by limitation.' in view of the aforesaid finding the suit was decreed in part and the defendants were directed to pay rs. 1,02,705/- as indicated in the 5th running bill and rs. 13,200/- towards security deposit and earnest money with 6% interest. 6. the learned counsel appearing for the appellants contended that in fact, there had been excess payment to the plaintiff and no amount was due to be paid to the plaintiff. such a point was specifically raised before the trial court and discussed under issue no. 5. the trial court has recorded a finding that no evidence has been adduced by the defendants to indicate that any excess payment had been made. admittedly, the 5th running bill had been prepared by the officers of the state. the plaintiff was challenging the correctness of the measurement on the ground that the work had been measured in his absence and it had not correctly reflected the work done. the defendants have not adduced any evidence to establish that excess amount had been paid under the earlier running bills. the counsel for the appellants contended that as there was excess payment, the records had been seized by the vigilance department. merely because the vigilance department had seized the document, it cannot be assumed that excess payment had been paid, particularly when, none of the witnesses examined on behalf of the respondents stated about any such alleged excess payment. on the other hand, d.w. 1, who was working as a junior engineer has stated in his examination-in-chief:-- '. . . .plaintiff is entitled to get money as shown in the m. b. books. . .'it is not disputed that the amount as per the 5th running bill had not been paid. the trial court has merely accepted such evidence of d.w. 1 and directed for payment of amount as per the 5th running bill and the measurement book. the learned counsel appearing for the state has not been able to point out any material to show that as a matter of fact, any excess payment had been paid to the plaintiff. for the aforesaid reason, the contention raised by the appellants cannot be accepted and the finding of the trial court on this aspect is confirmed. 7. learned counsel for the appellants then contended that the suit was barred by limitation. he has brought to my notice the allegations made in paragraph-16 of the plaint to the effect that the plaintiff had completed the work in all respects by 30th march, 1983. he has further relied upon the assertion of the plaintiff in paragraph 19 of the plaint to the effect that the work had been completed by 1-10-1983 and yet payment had not been made. on the basis of such assertions, it is submitted that the suit should have been filed within a period of three years from the date of such completion of work. the aforesaid allegations made in the plaint cannot be dissociated from other assertions made in the plaint. it is the case of the plaintiff that in addition to the work initially entrusted, he was asked to undertake additional works. it is further asserted that measurement had not been made in the presence of the plaintiff and the details included in the measurement book did not correctly reflect the work done. clause-8 of the agreement (ext. a) envisages that the final bill shall be prepared by the office of the public works department within one month from the date fixed for completion of the work. in view of the terms of the contract, unless the work is measured by the competent authority, it cannot be taken that the work was complete. in the present case, it is stated by d.w. 2 :-- '... s.d.o. did the check measurement on 29-1-84. plaintiff signed on 30-1-84. . .' thus, the cause of action cannot be said to have arisen before 30-1-1984 when the plaintiff signed in the measurement book. since the suit has been filed on 5-1-1987 within a period of three years, it cannot be said that the suit was barred by limitation. 8. it is evident that in view of the aforesaid admitted dates, the defendants did not press the issue relating to limitation before the trial court. it is of course true that the question of limitation even though not pressed by a party is to be decided by the trial court or the appellate court in view of the provisions contained in section 3 of the limitation act. where, however, the question of limitation is intertwined with question of fact, such a question if not pressed before the trial court, cannot be permitted to be raised before the appellate court. in the present case, since the question of limitation is not a pure question of law but a mixed question of fact and law, the appellants are not entitled to raise such question before the appellate court as they did not press such issue before the trial court. moreover, as already indicated since the measurement book was signed by the plaintiff only on 30-1-1-984 and in any case the measurement was completed on 29-1-1984, it cannot be said that the suit filed on 5-2-1987 was barred by limitation, 9. for the aforesaid reasons, i do not find any merit in this appeal which is accordingly dismissed. there will be be no order as to costs.