S. A. No. 93 of 1982

22nd July, 1993

Petitioner Counsel: R. V. Desai
Respondent Counsel: Smt. S. P. Daruwala

JUDGMENT

JUDGMENT :- Appellant/Original Plaintiff is a contractor. He undertook to make special repairs of 'Taharabad Bandhara' constructed by the Respondents/Original Defendants - the Zilla Parishad, Nasik. After the work was completed, measurements were taken and final bill for Rs. 2,861/- was prepared on 25-3-1970 and was sanctioned on 31-3-1970. But the amount was not paid despite correspondence. Last demand notice was given on 15-5-1970. The Zilla Parishad did not dispute the liability to pay the said amount, but refused to pay saying that the amount was adjusted in the previous arrears due in respect of some other work carried out in the year 1963. Since there was no positive response, ultimately the suit was filed for recovery of a sum of Rs. 2,861/- and interest by way of damages.

2. The trial Court decreed the suit holding that there was no justification legal or factual for withholding the sanctioned amount. No other point about maintainability of the suit was raised by the Defendants either in the written statement or at the time of hearing.

3. The Zilla Parishad appealed against the said judgment and decree. In the Appeal, for the first time, a point was raised that the suit was not maintainable as no notice as contemplated under section 280 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 ("the Act") was given and the suit was not filed within three months from the date of act complained of. The Appellate Court allowed this question to be raised for the first time in Appeal, upheld the point and dismissed the suit only on that ground. Aggrieved thereby, this Appeal has been filed by the Original Plaintiff.

4. After hearing the parties, I am satisfied that the judgment and decree passed in Appeal cannot stand legal scrutiny. In the first place, there was no justification for raising this point for the first time in Appeal. Non-payment of undisputed claim for the actual work done on the basis of the contract could not be said to be "anything done or purporting to have been done in pursuance of this Act" as contemplated under section 280. Every action of the Zilla Parishad, though made and done for the purposes of Zilla Parishad, cannot be said to have been done or purporting to have been done in pursuance of the Act. Such expression in some form or the other finds place in several enactments. Section 87 of the Bombay Port Trust Act, 1879 is one such provision. In the case of Trustees of Port of Bombay vs. The Premier Automobiles Ltd., AIR 1974 SC 923, the Supreme Court has held that the suit for damages for breach of contract would not attract this section. Other provision is section 64 of the Bombay Housing Board Act, 1948. In the case of Bombay Housing Board vs. Karbhase Naik and Co., AIR 1975 SC 763, the Supreme Court has held that non-payment of money as damages for breach of contract is not an act done or purporting to have been done in pursuance of the Act and hence the said provision was not attracted.

5. The Appellant Court has not considered the case on merits but I am not inclined to remand the matter and subject the parties to another round of avoidable litigation after a lapse of 23 years for a small sum of about Rs. 3,000/-. The trial Court has given unassailable reasons for decreeing the suit and in the whole background I straightway restore the decree passed by the trial Court.

6. To conclude, the Appeal is allowed. The judgment and decree passed by the Appellate Court is set aside and that of the trial Court is restored. The Respondents to pay the costs of this Appeal.

Appeal allowed.