THIRUGNANASAMBANDAM Vs. EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT VRIDHACHALAM

JUDGEMENT

(1.) THE First Appeal is preferred against the judgment dated 12.7.2007 in O.S.No.42 of 2006 on the file of the District Court, Cuddalore District at Cuddalore.

(2.) THE averments in the plaint are as follows: (1) THE plaintiff is a registered contractor. He was entrusted with the following works by Sethiyathoppu Sub-Project Division of the Public Works Department, Mayiladuthurai, given under the National Water Management Project, by the Government of Tamil Nadu: (a) Construction of retaining wall for protecting the eroded portion L.S.11600M to 11640M - Agreement No.139, L.S/94-95 valued at Rs.1.980 lakhs. (b) Construction of measuring device and AWLR Room at '0' metre of B5 branch of High Level Channel - Ag.No.102 L.S/94-95 valued at Rs.1.99 lakhs. (c) Selective lining to No.3 Distributor of H.L.C. from LC '0' metre to 50 metre - Ag.No.65K2/94-95 valued at Rs.0.67 lakhs. (d) Pinnalur - Ambalpuram Channeal LS '0' metre to 90 metres - Ag.No.175LS/94-95 valued at Rs.1.32 lakhs, 19.4.95. (e) THE above work at 90 metre to 180 metre - Ag.No.176LS/94-95 valued at Rs.1.32 lakhs. (f) THE above work at 180 metre to 270 metres - Ag.No.177LS/94-95 valued at Rs.1.45 lakhs. (2) THE work entrusted to the plaintiff had been duly executed and completed and it was check-measured and entered in the M-Books maintained by the officials of the defendants, as detailed below: M Book No. Bill and Page No. Amount due to plaintiff in Rs. i) For work (a) in para (1) above 1548 1629 1725 P-20 1725 93,312.00 ii) For work (b) in para (1) above 1631 P-69 1631 35,845.00 iii) For work (c) in para (1) above 1637 P-92 1725 6,611.00 iv) For work (d) in para (1) above 1776 15.4.95 52,873.00 v) For work (e) in para (1) above 1612 19.4.95 52,533.00 vi) For work (f) in para (1) above 1614 20.4.95 61,477.00 (3) THE above said Project was closed due to policy decision of the Government and the work detailed in (a) to (c) in para (1) above was transferred and vested with the first defendant. THE first defendant was directed to pay the pending bills due to the contractors for the above work. THE work mentioned in (d) to (f) in para (1) above, was transferred and the second defendant was directed to pay and clear the pending bills of the contractor. (4) THE first defendant was liable to pay Rs.1,35,768/- for the work detailed as (i) to (iii) in para 2 and the second defendant was liable to pay a sum of Rs.1,66,883/- for the works detailed in (d) to (f) in para 2 above. THE value of the works are given in (iv) to (vi) in para 2 above. (5) THE third defendant is the controlling and supervising authority for defendants 1 and 2. THE fourth defendant is the State, which implemented the work and liable to pay the amount due to the plaintiff. (6) THE plaintiff demanded repeatedly for payment of Rs.3,02,651/- (Rs.1,35,768 + Rs.1,66,883). Since the amount was not forthcoming, the plaintiff earlier filed a Writ Petition in W.P.No.13878 of 1996, as against the third defendant and PWD seeking a direction to the defendants to make payment due to the plaintiff. THE defendants accepted the amount due to the plaintiff, but gave an explanation that certain files have been transferred from Salem and on that account, there is a delay in making the payment to the plaintiff. THEy assured and orally undertook to make the payment soon after the receipt of the files. THE said Writ Petition was dismissed on 25.9.1996, accepting the abovesaid oral undertaking. (7) THE defendants did not care to honour and pay the amount due to the plaintiff as undertaken by them orally while disposing of the Writ Petition in W.P.No.13878 of 1996. Hence, the plaintiff demanded again the defendants for payment of the due to him. THE second defendant, by letter No.4170/96/Ka.5/Thoguppu-5, dated 22.4.2003, informed the plaintiff that the Government has not allotted funds for payment and hence, there is delay and promised to pay the amount due to the plaintiff soon after the allocation of the funds by the Government and after paying the amount, they wanted to close their file. (8) Similarly, the first defendant, by letter No.250/2005/Tha.1, dated 9.6.2005 informed the plaintiff that the Government has not allotted funds despite their making the demands for payment to the plaintiff, and on receipt of the funds from the Government, the first defendant undertook to pay the amount and settle his accounts. Being a Government, the plaintiff as a contractor doing work under them, bona-fidely believed the oral undertaking given by the defendants while the said Writ Petition in W.P.No.13878 of 1996 was disposed of on 25.9.1996 and the plaintiff was expecting payment. (9) THE plaintiff borrowed huge amount at a higher rate of interest at 36% per annum for executing the work detailed in para 1 and 2 above. THE plaintiff issued notice under Section 80 CPC calling upon them to make the payment due to him, with interest at 24% per annum. (10) THE defendants received the notice. THE second defendant sent a reply dated 31.8.2005 in which, he acknowledged the amount due and payable to the plaintiff, but repeated the same lame excuse, viz., that the Government has not allotted funds for making payment claimed by the plaintiff and the defendants undertook to pay and clear the amount due to the plaintiff soon after the allocation of funds and requested the plaintiff to wait. (11) Hence, the plaintiff was constrained to file the suit for recovery of Rs.4,66,083/- with subsequent interest at 18% per annum from the date of plaint till recovery and for costs.

(3.) AFTER hearing the learned counsel appearing on both sides, the following points are framed for consideration in this First Appeal:- (i) Whether the trial Court is correct in holding that the Secretary, PWD, is a necessary party, since the State of Tamil Nadu is represented by the District Collector, Cuddalore" (ii) Whether Exs.A-1 and A-2 are acknowledging the liability of the Government, and the same is binding on the Government" (iii) Whether the trial Court is correct in dismissing the suit on the ground that it was barred by limitation" (iv) Whether the judgment and decree of the trial Court are sustainable" and (v) To what relief the appellant/plaintiff is entitled to"