First Appeal No.998 of 1994

7th February, 2005

Petitioner Counsel: C. G. GAVNEKAR

JUDGMENT

JUDGMENT :- Heard advocate for the appellant. Respondent is served. Nobody is present for them. Appellant is the Alibag Nagar Parishad. Respondent, who was the contractor, was awarded certain contract by inviting tenders. He admittedly completed the work on 22-5-1990. According to him the municipal council was liable to pay him in all a sum of Rs, 8,20,000/-. He received from municipal council Rs.5,50,000/- and, therefore, for the balance amount with interest he filed a suit for recovery of amount of Rs.4,21,000/- before the Civil Judge, Senior Division, Raigad at Alibag vide Special Civil Suit No.39 of 1993.

The claim of the plaintiff was resisted by the appellant - Municipal Council on number of grounds; one of them was, the suit was barred by limitation. Specific issue was framed vide Issue No.5, Whether suit is barred by a period of limitation? The trial Court gave finding against the appellant regarding this issue and, awarded the claim of the respondent with interest at 15% per annum and also costs etc. Hence this appeal.

2. Counsel for the appellant made two submissions only. According to him if the work was completed on 22-5-1990, then cause of action arose for the plaintiff to file suit on the same day and under Article 18 of the Limitation Act, 1963, period prescribed is three years for filing suit. Article 18 is as under :-

For the price of work done by the plaintiff for the defendant at his request, where no time has been fixed for payment.	Three years	When the work is done.

Counsel for the appellant contended that in the agreement there was no specific period, prescribed for payment and, therefore, the plaintiff became entitled to receive payment on completion of work i.e. on 22-5-1990. He became entitled to get the payment from municipal council; the period of limitation of three years, as prescribed by Article 13, came to an end on 22-5-1993; and the suit should have been filed before 22-5-1993. The plaintiff filed his suit on 14-7-1993 and, therefore, the suit was,, admittedly, barred by limitation.

3. Further counsel for the appellant contended that even if under section 304 of the Maharashtra Municipal Council Act, 1965 the plaintiff was legally bound to give notice to the appellant i.e. one month's statutory notice, the period of limitation could not be extended beyond one month from 22-5-1990 i.e. in any case suit of the plaintiff should have been filed on or before 22-6-1993. In the instant case the plaintiff gave notice on 8-4-1993; it was received by the corporation, according to him, on 9-4-1993 or 10-4-1993 and, if one month's period is calculated, then the said period of one month came to an end on 8-5-1993. Therefore in any case the suit should have been filed on the opening day of the summer vacation in 1993. Therefore, the suit filed on 14-7-1993 is clearly barred by limitation.

4. Further he pointed out to me that the plaintiff is seeking extension of limitation on the basis of Exhibit 27 which is a letter written by the appellant on 20-4-1993 to the Collector, copy of which was sent to him. According to the plaintiff, this Exhibit 27 constitutes an acknowledgment of the appellant and, therefore, he gets fresh period of limitation from the date of acknowledgement.

According to me, this letter is not at all an acknowledgement, therefore, the plaintiff cannot get any extension of period of limitation on the basis of this letter. This letter is originally in Marathi and following is the translation :- Sub : Entrusting work without inviting tenders. Sir,             Alibag Nagar Parishad got the work of filling pot holes on the road completed through Shri. D. D. Hajare. But the question was raised in the legislative assembly in that regard. Similarly as per your letter balance amount was not paid to the contractor. The contractor is persuading and insisting upon payment of the balance amount and has sent a legal notice through his advocate S. W. Patwardhan of Kalyan. Copy of the said notice is annexed. Therefore, order should be passed as to whether the amount should be paid or not.”

5. Wording of aforesaid letter Exhibit 27 clearly shows that the appellant has not made any acknowledgement in writing about their liability to pay amount. They sought advice of the Collector whether amount should be paid or not. The appellant has not asserted in the said letter or stated that they are ready to pay the amount or they want to pay the amount or they are liable to pay the amount. Therefore, this letter, admittedly, does not constitute an acknowledgement.

6. However, the trial Court without considering plain simple fact has gone to discuss this aspect at length and ultimately came to wrong conclusion. The cause of action for filing suit arose on 22-5-1990. Once period of limitation starts, then it continues to run till the period is over. Issuing notice under section 304 of Maharashtra Municipal Council Act enables the plaintiff to file the suit, but it does not extend the period of limitation excepting for the period of statutory notice. It is not the cause of action in that sense of word that could enable the plaintiff to seek extension of three years limitation from the date of the notice or from the date of service of notice. Therefore, the suit should have been filed on or before 22-5-1993 and even if the plaintiff was entitled to one month period for the notice under section 304, one month's period expires on 8-5-1993 because the plaintiff had given notice under section 304 on 8-4-1993. The suit should have been filed on the opening day after the Summer Vacation of 1993. The suit was filed on 14-7-1993 and, admittedly, therefore, the suit was barred by limitation. In this view of the matter, the appeal is required to be allowed. Hence the order :-

ORDER

Appeal is allowed. The judgment and decree of the trial Court is set aside. Suit of the plaintiff is dismissed.

However, nobody is present for the respondent, there will be no order as to costs.

Amount deposited by the Municipal Council/appellant be refunded to them and, if withdrawn by the respondent, should be redeposited in the court by them or should be paid to the appellant within eight weeks from today.

Certified copy expedited.

Appeal allowed.