STATE OF GUJARAT Vs. RAMILABEN RAJNIKAQNT A PATEL

JUDGEMENT

(1.) The present First Appeal has been filed being aggrieved by the judgment and order passed by the learned Civil Judge (SD), Ahmedabad Rural at Mirzapur in Special Civil Suit No.76 of 1988 dated 6.5.1993 on the grounds mentioned in the memo of Appeal inter alia that the learned Judge has failed to consider the relevant material and has failed to appreciate the evidence on record. It has been contended that the learned Judge has erred in law while appreciating the contention about the jurisdiction. It is contended that the work contract of the canal is at Himatnagar, District Sabarkantha for which the work order has been issued by the office of Executive Engineer at Himatnagar and the work has also been carried out at Himatnagar, and therefore, the Court had no jurisdiction to entertain and try the Suit. It is also contended that the learned Judge has failed to appreciate that the Suit was barred by law of limitation. It is also contended that the learned Judge has failed to appreciate that the Appellant was not negligent or responsible for any delay as the work plan was provided late which is an integral part of the term. It is therefore contended that the learned Judge has failed to appreciate the terms of the contract and the contractual liability, and therefore, the present First Appeal may be allowed. It is also contended that under the law of contract, for breach of contract one could be held liable for liquidated the damages which has not been appreciated, and what is to be considered is, the liquidated damages, and in the absence of any liquidated damages, the Court cannot pass any order awarding such damages. It is therefore contended that the impugned judgment and order is erroneous and the present First Appeal may be allowed.

(2.) Heard learned AGP Mr. P.P.Banaji for the Appellant State and Mr. K.G.Sukhwani for the Respondent - Original Plaintiff.

(3.) Learned AGP Mr. P.P.Banaji submitted that the suit has been filed by the Plaintiff for recovering the amount in respect of the work done by the Respondent - Original Plaintiff. The issues were framed and the Court below has, on appreciation of evidence, and considering the rival submissions, decreed the suit partly, without considering the specific contentions raised by the Appellant State. Learned AGP Mr. Banaji submitted that the Court below has failed to consider whether the suit was barred by limitation and whether the Court has the jurisdiction. Learned AGP Mr. Banaji submitted that the two issues on the aspect of limitation as well as jurisdiction have not been properly considered resulting into the present First Appeal. It is submitted that the work for canal division Himatnagar was awarded to the Plaintiff as the tender of the Plaintiff was accepted. Thereafter, the work order was given on 16.10.1980 and work was required to be completed on or before 15.4.1982. However, the Plaintiff was required to perform his contractual obligation, which he failed to perform, and thereby committed breach of the contract. It is contended that though the work was required to be completed on or before 15.4.1982 it was extended till 15.1.1983 and thereafter the work was not completed even after the extension the compensation was levied as per terms of the contract. Learned AGP Mr. Banaji submitted that there was another Suit being Special Civil Suit No.165 of 1986 filed for having recourse to the arbitration as per the arbitration clause in the agreement/contract. Thereafter, the Arbitrator Mr. J.C.Patel made an award which is challenged in the present Suit on the ground that the Arbitrator has not considered all the claims for that purpose. The reliance has been placed to appeal memo and other papers. However, learned AGP Mr. Banaji submitted that the date of the contract was 16.10.1983, the work was to be completed on or before 15.4.1982 and actually it was completed on 15.3.1983 and the suit has been filed on 28.3.1986 beyond the period of limitation. It was therefore strenuously submitted that the suit itself is barred by limitation.