D.V.SAVE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant (original plaintiff) impugns judgment and decree dtd. 24/4/1995 passed by Additional District Judge, Parbhani in Regular Civil Appeal No.10/1985, thereby dismissing plaintiff's suit by reversing judgment and decree dtd. 12/1/1984 passed by Civil Judge Senior Division, Parbhani, in Regular Civil Suit No.27/1975, by which plaintiff's suit for recovery of amount of Rs.33,650.00 was decreed against State of Maharashtra.

(2.) In nutshell plaintiff contends that he was allotted tender for Earth-Work and Lining in Mile Nos.26 and 27 by Executive Engineer, I & P Department, Purna Project, Camp Basmath. The work of Lining in Mile No.26 was to be completed within 12 months from the date of work order dtd. 16/12/1964. During execution of work, defendant imposed penalty under various communications during period from 1966 to 1967 and finally took action under Clause 3(a) of Contract, thereby forfeiting security deposit and withdrawal of work. On 12/4/1967, plaintiff was called for final measurement, which was closed on 26/4/1967. On 27/4/1967 security deposit is forfeited. On 28/7/1967, Executive Engineer informed plaintiff that final bill for Mile Nos.26 and 27 is received in his office and asked plaintiff to attend office on or before 31/7/1967. Again by communication dtd. 9/9/1967, plaintiff was called upon to attend office of defendant within period of ten days. However, plaintiff could not attend office, since he was suffering from Typhoid. On 18/6/1975 plaintiff served legal notice to defendant for recovery of forfeited security deposit, penalty and cost of work done as shown in final bill, which was not complied. Hence, he instituted suit for declaration and recovery of amount on 29/8/1975.

(3.) The defendant refuted plaintiff's claim contending that as general progress of work was unsatisfactory and plaintiff failed to comply his obligation within stipulated period, hence action under Clause 3(a) and (b) of Contract was taken and work was withdrawn from plaintiff under Clause No.15 of agreement with a view to get work done by other agency. It is stated that time provided for completion of work was two years from 16/12/1964 till 15/12/1966. The penalty was imposed from 16/12/1965 in view of terms of agreement. The plaintiff expressed his inability to execute work vide his communication dtd. 11/3/1967. The defendant was constrained to levy penalty to the tune of Rs.500.00 per day and also forfeit security deposit of Rs.18,868.00 and fine of Rs.7210.25. It is further stated that suit instituted on 29/8/1975 is clearly barred by limitation as cause of action to file suit arose in the year 1967.