KAMAL CH. NATH Vs. STATE OF ASSAM

JUDGEMENT

(1.) The instant second appeal has been preferred by the plaintiff as appellant assailing the concurrent judgment and decree dated 14.12.2005 passed by the learned Civil Judge (Sr. Div.), Nagaon in Title Appeal No. 34/2004 affirming the judgment and decree dated 23.06.2004 passed by the learned Civil Judge (Jr. Div.) No. 1., Nagaon in Title Suit No. 09/2001 dismissing the suit filed by the plaintiff. The brief facts of the case, as projected in the plaint, is that the plaintiff is a contractor registered under the department of PWD (Building), Assam. He was awarded the contractual work for constructing the office building of the Superintendent of Taxes and the Doctors quarters at Mahadeosal, Nagaon vide work order dated 11.08.2008 pursuant whereto, a contract agreement dated 11.08.1988 was also signed by and between the parties paving the way for execution of the work. The plaintiff had duly commenced the work and the construction of the doctors quarter had also been completed. However, due to non -cooperation of the defendant No. 2, the construction work of the office of the Superintendent of Taxes remained incomplete. Thereafter, the defendant No. 3 had issued a requisition for recovery of a sum of Rs. 3,34,119/ - from the plaintiff claiming the said amount to be due and recoverable from him on account of the fact that stock materials worm Rs. 2,51,143/ - allotted to the plaintiff had not been returned by him to the department. On receipt of the requisition, the defendant No. 4 had signed a certificate under the provision of Sec. 6 of the Bengal Public Demands Recovery Act, 1913 (hereinafter referred to as Act of 1913) and issued a notice upon the plaintiff. On receipt of the notice issued by the defendant No. 4 Bakijai Officer, the plaintiff had entered appearance and requested for furnishing him the full particulars of the alleged due so as to enable him to defend his interest in the matter. The defendant had also filed a petition dated 24.02.2000 denying the liability to pay the certificate amount. However, notwithstanding the aforesaid request made by the plain -tiff, neither the materials were furnished to him nor was the liability of the plaintiff determined by the respondent No. 4 as per the requirement of Sec. 10 of Act of 1913. On the contrary, the plaintiff was asked to pay an amount of Rs. 1,11,373/ - as first instalment on 16.10.2000.

(2.) Being aggrieved by the said order passed by the respondent No. 4, the plaintiff had preferred an appeal under Sec. 51 of the Act of 1913 before the learned Addl. Deputy Commissioner, Nagaon. Said appeal was also rejected by the Addl. Deputy Commissioner by order dated 05 -01 -2001 without any proper determination. As such, the plaintiff was compelled to institute Title Suit No. 09/2001 in the court of Civil Judge (Jr. Div) No. 1, Nagaon under Sec. 34 of the Act of 1913 inter -alia praying for cancellation of the certificate of recovery issued by the respondent No. 4.

(3.) On receipt of summons, the defendant No. 1 to 4 had entered appearance and filed their joint written statement, inter alia, questioning the maintainability of the suit on the ground of want of cause of action; the suit being barred by limitation as well as the same being not maintainable due to non -joinder and mis -joinder of necessary parties. In their written statement, the contesting defendants have also questioned the maintainability of the suit on the ground of non -service of the mandatory notice under Sec. 80 of the Civil Procedure Code before instituting the suit.