STATE OF U P Vs. THAKUR KUNDAN SINGH

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of a suit for recovery of Rs. 21.330/- together with pendente lite and future interest at the rate of six per cent per annum. The court below having decreed the suit for those reliefs, the defendant has filed this first appeal.

(2.) SHORTLY, the plaint case was that the plaintiff firm was given a contract by the Local Self Government Engineering Department, Saharanpur for laying down sewer lines at Dehradun. The contract was signed, by the parties thereto on 16-8-1980. In the course of the execution of the work which started on 16-9-1960 and completed on 31-12-1962, the concerned officers of the Department discovered that the proposed depth of the sewer lines in the drawings and maps given to plaintiff for execution of the work were shallow. Realising this mistake the Department gave to the plaintiff revised drawings and specifications according to which the plaintiff was required to dig much deeper than originally shown in the plan. The plaintiff protested against this on the ground that this would involve considerable extra work. At first the Department insisted that the plaintiff should carry out the work in accordance with the revised drawings at the same rate as was originally agreed to but subsequently the Department agreed and assured the plaintiff that it might complete the work in accordance with the revised specifications for which extra work it would be paid at extra rates. Upon this assurance the plaintiff completed the work and claimed Rs. 33,000/- on account of this extra work. However, the Department reduced the claim of the plaintiff first to Rs. 25,000/- and thereafter to Rs. 18,000/-. In order to avoid controversy and delay in payment the plaintiff agreed to accept Rs. 18,000/-. On 9th June, 1962 the representative of the plaintiff signed the final bill. The said final bill amounting to Rs. 22,652/was checked by the officials of the Department on 18th June, 1962. This bill was thereupon forwarded to the Chief Engineer by the officials of the Department for payment having approved the same. However, the plaintiff received a communication from the Superintending Engineer dated 23-1-1963 in the last week of January, 1963 in which it was stated that the Chief Engineer had rejected the claim of the plaintiff by his order dated 4-1-1963. The rejection of the plaintiffs claim was entirely untenable. Thereupon the plaintiff gave a notice demanding the aforesaid amount under Section 80 of the C. P. C. which was served on the defendant on 15-2-1963. In spite of the notice the plaintiff was not paid any amount. In May, 1964 some of the officials of the Department approached the plaintiff with a request to settle the matter through arbitration of the Chief Engineer. Without prejudice to the claim of the plaintiff in regard to which notice under Section 80 C. P. C. was given by the plaintiff, it agreed to the reference of the dispute to the Chief Engineer, Local Self Government Department, Lucknow. This reference was however, not valid or binding on the plaintiff. The plaintiff believed that the request for reference of the matter to the arbitrator was made by the Department simply to defeat the claim of the plaintiff on the ground of limitation and for marking time. On these assertions the plaintiff claimed the amount mentioned above.

(3.) ON the pleadings of the parties the following issues were framed by the court below. "1. Whether the notice under Section 80 C. P. C. is valid? If not, effect? 2. Whether the suit is within limitation? If not, effect? 3. Whether the suit is barred under Section 69 of the Partnership Act? 4. Whether the suit is barred under Section 11 C. P. C.? Whether the suit is barred by Section 32 of the Arbitration Act? Whether the plaintiff is entitled to Rs. 18,000/- towards the extra work? If not, effect? Whether the plaintiff is entitled to get interest? If so, amount? Whether the plaintiff accepted payment in full and final settlement of the claim? Whether the plaintiff is estopped from challenging the award? Whether the suit is barred by the agreement between the parties? To what relief, if any, is the plaintiff entitled? Whether the S. E. was competent to sanction the amount in question? If so, or not, effect?".