STATE Vs. VELAYUDHAN PILLAI NARAYANA PILLAI

JUDGEMENT

(1.) This appeal arises out of a suit for compensation for breach of a contract. On 30-4-1934 the plaintiff entered into contract with the Chief Engineer, Water Works and Drainage Department of the State of Travancore for executing part of the work in the construction of the high level service reservoir of the Willingdon Water Works, Trivandrum. The plaintiffs case is that on 13-7-1934, the Executive Engineer acting on the orders of the Chief Engineer stopped the work which he was doing and thereby committed breach of the contract. As required by the Executive Engineer the plaintiff submitted bills on 17-7-1934, 18-7-1934 and 7-3-1935 claiming a sum of Rs. 8,475-Chs. 7 Cash 3 on account of work done till 13-7-1934, and the cost of materials taken over by the department. He further contended that the Department was bound to pay him the amount within 10 days of receipt of the bills Besides the above sum, the plaintiff also claimed compensation at the rate of 15 per cent on the value of the unexecuted portion of the work and also repayment of the sum of Rs. 575 paid as security deposit. Interest on these amounts at 12 percent per annum from 7-6-1935 was also claimed. The defendant, the State denied the claim and contended that the plaintiff had stopped the work even before the order was passed on 18-7-1934 asking him to stop the work, that the order cancelling the contract was not wrongful, that such a step had to be taken as the plaintiff failed to show proportionate progress in work according to the time allowed by the contract, that the damages payable by the plaintiff exceeded the sum of Rs. 575 deposited by him, that a sum of Rs. 970-2-8 alone was found due to him and that the same was deposited in the Munsiffs Court of Trivandrum pursuant to an order of attachment received from that court. Another contention was that the suit was barred by limitation. The court below found that the plaintiff had defaulted to perform his part of the contract and that the order cancelling the contract was proper. The plea of limitation was overruled. The plaintiff was given a decree for recovery of Rs. 6,166-6-4 as the price of work done and materials supplied by the plaintiff. The defendant has preferred this appeal from the decree. The plaintiff has filed a memorandum of cross objections claiming the disallowed portion of his claim.

(2.) The main point pressed by Shri. Krishnaswamy Iyengar, learned counsel for the appellant is that of limitation. The learned Judge dealt with the question of limitation and held that the suit was not barred as it was filed within 3 years of the date on which the Government intimated refusal of the plaintiffs claim. He has not stated under which Article the suit would fall. In dealing with the question he observed as follows:

(3.) It was urged on behalf of the appellant that the suit was governed by Art.40, 44 or 103 of the Travancore Limitation Act corresponding to Art.52, 56 or 115 of the Indian Limitation Act. Art.52 which deals with suits for the price of goods sold and delivered where no fixed period of credit is agreed upon, provides a period of three years from the date of delivery of the goods. Art.56 governs suits for the price of work done by the plaintiff for the defendant at his request where no time has been fixed for payment. The period of limitation is three years and it begins to run when the work is done. According to the appellant, the claim decreed by the lower court falls under either of these Articles or Art.115 which governs suits for compensation for the breach of any contract, express or implied, not in writing registered, which is not specially provided for by the Act. The period of limitation for such a suit is 3 years and limitation begins to run when the contract is broken or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or (where the breach is continuing) when it ceases. The amount decreed is in respect of the work done by the plaintiff as well as the cost of materials. There is only a joint claim for these two items in the plaint and it is not possible to gather from the pleadings the respective amounts claimed under each head. It was therefore urged that the view taken by a Full Bench of the High Court of Lahore in Mohamed Ghastia v. Siraj-ud-Din ( AIR 1922 Lah. 198 F.B) should be followed. That was a suit for recovery of a sum of money on account of work done and cost of materials used by the plaintiff in connection with the construction of a building for the defendant. The Full Bench held that it was open for the plaintiff to claim the price of work and materials separately, in which case the two claims would be governed by Art.52 and 56 respectively. As however there was only an indivisible claim in the suit, it was held that the suit could not be treated as falling within either of these Articles but only under Art.115 of the Limitation Act. This decision was followed in Soudagar Mal v. Lachman Das ( AIR 1928 Lah. 442 ) and Sita Ram v. Mt. Mahamudi Begam and another ( AIR 1934 Lah. 474 ). It was held in Mathura Prasad v. Chairman, District Board, Sitapur (AIR 1928 Oudh 297) that even such a suit for a consolidated claim would be governed by Art.56. Learned counsel for the Respondent also stated that the suit would be governed by Art.115 so that the point in controversy is only about the date from which limitation begins to run. According to Art.115 limitation begins to run when the contract is broken. The plaintiffs case is that the contract was broken by the defendant on 13-7-1954. The appellant has a contention that the plaintiff himself stopped work on 2-7-1954 as seen from his letter Ext. C. The question whether the contract was broken on 2-7-1934 or 3-7-1934 is not material as the suit filed on 14-6-1940 would be barred in either case. If Art.115 should govern this case, there is no basis for taking the date of refusal to pay the amount claimed, as the starting point of limitation. In our opinion Art.115 applies to this case and limitation began to run, at any rate, from 13-7-1934. The suit having been instituted more than 3 years after this date must therefore be held to be barred by limitation.