STATE OF PUNJAB ETC. Vs. SHAM LAL GUPTA

JUDGEMENT

(1.) THIS is a Defendants' appeal against the decision of the learned Subordinate Judge, 1st Class, Patiala, decreeing the Plaintiff's suit.

(2.) SHAM Lal Gupta brought a suit against the State of Punjab and the Chief Engineer, Public Works Department, Incharge Buildings and Roads, Patiala, for rendition of accounts. His allegations were that he was an approved contractor in the Public Works Department at Patiala. On 26th July, 1952, the said department accepted the Plaintiffs tender for the work of canalisation of the approach to the bridge near Moti Bagh palace and gave the contract to him. He finished the work according to the terms and conditions of the contract and asked the department to prepare the final bill. Some officers of the department tampered with the measurement book No. 5,824 in order to harm the Plaintiff, who sent applications and telegrams to the Chief Engineer in that behalf. The Chief Engineer then directed that the said measurement book be kept in safe custody. Consequently, Mr. Rajinder Singh, Executive Engineer, made an enquiry regarding the measurement book and in his report dated 29th September, 1953, he stated that it was tampered with. Thereupon, the Superintending Engineer asked the Executive, Engineer to submit a detailed report regarding the measurement entry and the said report was made on 30th December, 1953. On 2nd March, 1954, the Superintending Engineer, Patiala, ordered that payment should be made to the Plaintiff on the basis of the report of Mr. Rajinder Singh, Executive Engineer. The department, however, neither prepared any bill nor made the payment. The Plaintiff then made applications to the Minister -in -charge, but in spite of the latter's order, the said payment was not made to him. On 9th August, 1955, the Superintending Engineer, Patiala, again passed an order that the payment should be made to the Plaintiff, but no heed was paid to it also. At last on 24th September, 1956, the Chief Engineer, Buildings and Roads, Patiala, entrusted the matter to the arbitrator by virtue of the arbitration clause in the agreement and Mr. Jawala Parshad Singh, Superintending Engineer, Buildings and Roads, Nabha Circle, was appointed as Chairman of the arbitration. The said Arbitrator fixed two dates to hear the cases, but the department did not take any part and, therefore, no proceedings were taken. Thereafter, Mr. Jagmal Singh was appointed as an Arbitrator on 14th December, 1957. This arbitration also met with the same fate, with the result that no award was given The Plaintiff repeatedly asked the department to pay the amount due to him -vide measurements as given in the measurement book No 5 824 after preparing the final bill, but the department did not pay any heed. Ultimately, a registered notice under Section 80; Code of Civil Procedure, was served on the Chief Secretary of the State of Punjab and the same was received by him on 25th September, 1958. In spite of the service of the notice, neither the State or the department rendered any accounts nor prepared any bill or made the payment. The Plaintiff was entitled to recover the amount found due from the Defendants according to the measurements as given in the measurement book No. 5,824. Thereafter, the Plaintiff filed the suit on 3rd June, 1959, praying that a preliminary decree regarding rendition of accounts be passed in favour of the Plaintiff against the Defendants. It was also prayed that interest at the rate of Re. 1 per month on the amount found due from the Defendants be awarded to him from the date of the completion of work till the payment thereof. The suit was contested by the State of Punjab. Their case was that the Plaintiff had failed to complete the Work according to the agreement. It was admitted that an enquiry was held by Mr. Rajinder Singh, Executive Engineer, who submitted his report, but the interpretation placed by the Plaintiff thereon was incorrect. It was further admitted that Mr. Rajinder Singh submitted another report dated 30th December, 1953, as required by the Superintending Engineer. It was stated that Mr. Rajinder Singh had passed the bill of the contractor for a minus amount of Rs. 1,305 -60 adjustable against the security deposited by the contractor. This bill was, however, not accepted by the contractor. It was also admitted that Mr. Jawala Parshad Singh, Superintending Engineer, Nabha Circle, was appointed an Arbitrator, but it was not correct that the department had not done its duty. It was further admitted that Mr. Jagmal Singh, Superintending Engineer, was also appointed as an Arbitrator, but he could not decide the case, as he had referred the matter to the Chief Engineer for transferring the arbitration case to the Superintending Engineer, Buildings and Roads. But as his suggestion was not approved by the Chief Engineer, the case remained on his file and while he was taking steps with regard to the same, the Plaintiff filed the suit. The sending of the registered notice under Section 80, Code of Civil Procedure, by the Plaintiff to the Defendants and its receipt by them was denied. Apart from the reply on the merits, the Government took some preliminary objections also. According to them (i) the suit of the Plaintiff was barred by limitation; (ii) a suit for accounts could not lie in the present circumstances, as the case was based on a definite agreement and the Plaintiff was alleged to have completed the work; (iii) in the absence of a notice under Section 80, Code of Civil Procedure, the suit was not competent; and (iv) proper court fees had not been paid on the plaint.

(3.) ON the pleadings of the parties, the following issues were framed: