MUNICIPAL COMMISSIONERS OF HOWRAH Vs. HINDUSTAN MANUFACTURING CO.

JUDGEMENT

(1.) The plaintiff - company has alleged that it is a registered contractor of the defendant - Municipality. The work of renewing filter bed no. 10 at the Head Water Works of the defendant Municipality at Serampore for 1954-55 was entrusted to it. It duly completed that work and its total dues amounted to Rs. 20438-9 annas. It was paid Rs. 14508 - 6 annas and thus Rs. 5930 - 3 annas remained due. On 7-4-1955, plaintiff - company's proprietor, Anil Ghosh, went to the Municipality to recover the dues and he came to know that Municipality had deducted Rs. 3281.00 out of his dues and only Rs. 2649/- was offered in satisfaction of the total dues. It was stated that such amount had been deducted because of the cost of repairing the motor garage at Howrah xMunicipal market because such work had been entrusted to the plaintiff - company. That company carried out the work defectively and so it resulted in damages to the defendant - Municipality. The plaintiff - company has alleged that such work had been duly completed in Jan., 1950, and final bill had been paid on 9 - 2 - 1951. More than two years after the completion of work of that motor garage, the Municipal Engineer sent a letter making an unfounded allegation that the plaintiff - company failed to follow his directions to make the structure strong. The plaintiff's grievance is that the defendant cannot claim any 6uch deduction about two years after the completion of the work of that motor garage. The plaintiff - company made representation to the Municipality. Subsequently, an Administrator was appointed and before him representation was made without any success. The suit is for recovery of Rs. 5930 - 3 annas.

(2.) The defendant filed a written statement. The defence is that the suit is not maintainable for want of notice under section 80 of the Code of Civil Procedure and under section 535 of the Bengal Municipal Act and under section 538 of the Calcutta Municipal Act. The deduction was rightly made and hence, the plaintiff is not entitled to any relief.

(3.) The suit has a chequered career. Eventually at the trial, the learned Subordinate Judge found that no notice under the aforesaid sections was necessary. The suit was decreed in part for Rs. 2649/- with proportionate costs. The plaintiff preferred an appeal. The Municipality also filed a cross - objection. The cross - objection was dismissed and the appeal allowed. The suit was decreed in full. Hence this appeal by the defendant.