CANTONMENT BOARD, MHOW Vs. CHHAJUMAL AND SONS MHOW

JUDGEMENT

(1.) THIS is an appeal by the Cantonment Board Mhow against the decree passed by the Additional District Judge, Indore for Rs. 10,344 -8 -0 in favour of the plaintiff M/s Chhajumul and Sons a joint Hindu Family firm of which the Manager and Karla is one Vedprakash S/o Mangatrai.

(2.) THE claim of the plaintiff, consisting of the aforesaid amount of Rs. 10,344 -8 -0 and interest thereon by way of damages 2347 -4 -0, was based on the allegations that pursuant to a contract in writing Ex. P -27 entered into between the plaintiff and the Cantonment Board Mhow on 17th January 1946 the plaintiff was allotted the repair work of the Bombay -Agra Road within the limits of the Cantonment for the year 1945 -46. The writing Ex. P -27 was signed by the then President of the Board Mr. Mountain and was also countersigned by the Executive Officer of the Board Mr. Anand. The plaintiff carried out the repairs work by 11.5.1946 and sent a bill for Rs. 42, 332 -10 -giving the necessary details. The plaintiff had taken aspha it weighing 44 tons worth Rs. 9649/ - the rate whereof was Rs. 219 -4 -6 per ton, from the Board. Deducting this amount from the amount of the bill the plaintiff was entitled to receive from the defendant Rs. 32, 684 -10 -0. Towards this, the plaintiff was paid by the defendant Rs. 12,500 on 13.4.1946 and Rs. 9840 -2 -0 on 28.3.1947 leaving a balance of Rs. 10,344 -8 -0. The defendant withheld the payment of this amount under its resolution No. 128/262 dated 13.8.1947. The defendant while withholding this amount, it is said, had represented that it was entitled to do so because that much amount was due from the plaintiff to the Board in respect of a contract of the earlier year namely 1944 -45. The plaintiff thereupon saved the defendant with a notice dated 24.2.1949 that the aforesaid amount in respect of the contract in question had remained unsatisfied and that its act in withholding the amount was improper. The plaintiff also called upon the Board by the same notice to pay his dues. The defendant did not comply and hence the suit was filed.

(3.) ON 17.1.1946 or thereabout a contract in writing had been entered into between the parties whereby it was provided that the plaintiff should carry out the original as well as repairs work allotted to him upto the limit of Rs. 5000 each. The work which the plaintiff is said to have carried out, namely that of repairing Bombay -Agra Road was far beyond that limit. It was undertaken by the plaintiff as a result of agreement reached between the plaintiff and the Executive Officer of the Board Mr. Anand on 29.1.1946 as indicated in the writing Ex. D. 21 which provided no limit as to the value of the work to be carried out. The Executive Officer had no authority to authorise carrying out the work of such magnitude. Then was no sanction from the Board for this. The Board was therefore Dot bound to pay for this work which had not been duly unthorised. The Board itself moreover had no power to ratify such construction or repairs work in the absence of any budgetary provision, estimate, plan etc. Moreover any such contract between the Board and the plaintiff had to be drawn up as provided by section 114 of the Cantonment Act and if not done would not be binding upon the Board as provided in section 115 of the said Act. It was admitted that the plaintiff had carried out the work to the extent of Rs. 42,333 -10 -0 and that the plaintiff had submitted his final bill dated 25.4.1946. But it was denied that the Board had accepted the completion of the work on 11.5.1946 or any other date. As to the supply of asphalt it was admitted that 44 tons of asphalt bad been supplied to the plaintiff for the purpose of the work but this was done without the Board's permission price whereof was Rs 9649. Payment of Rs. 12,500 was admitted. The Board's demo and for the price of 57 -7 tons of asphalt was, it was said, in accordance with the rules. Passing of resolution No. 24 dated 26.2.1947 and No.25 dated 13.8.1947 was admitted but it was contended that the said resolutions were ultra vires the power of the Board since it was not competent for the Board to ratify unauthorised work, though such ratification might have been done in the following year. It was admitted that the plaintiff was paid Rs. 9840 -2 -0 on 28.3.1947. This payment was made on the understanding that the plaintiff should allow adjustment of the amount of Rs. 10,344.8.0 for the price of asphalt (57 -7 tons). The plaintiff, it was pointed out, marked time by seeking arbitration and when the claim for the price of asphalt had become barred by limitation filed the present suit. The claim of the plaintiff was barred by limitation both because of the general law of limitation and also because of the special provision under section 273 of the Cantonment Act which provides six months period for such a claim. It was also contended that the present suit was incompetent as no notice as required under section 273 of the Cantonment Act had been given. On these and other such grounds it was contended that his suit should be dismissed.