MUNICIPAL BOARD Vs. RAM KISHAN

JUDGEMENT

(1.) This is a first appeal from a decree of the learned Subordinate Judge of Agra awarding a sum of money to the plaintiff. Two points have been urged in appeal: Firstly, that the claim was barred by limitation and secondly, that the order striking out the defence of the defendant-appellant was unjust and irregular and the suit should have been tried on its merits. We shall deal with the point of limitation first. The plaint sets forth that the plaintiff is a contractor and that he carried out certain works detailed in the Appendix to the plaint on behalf of the defendant, the Municipal Board of Agra; that the plaintiff found that the Board was making delay in payments and that the plaintiff served statutory notice on 19th! June 1928 informing the Board that unless the amount claimed was paid within two months, interest at 2 per cent per mensem would be charged from the defendant; that the defendant has only paid a portion of the amount due to the plaintiff and that a sum now remains due which the defendant is liable to pay to the plaintiff for wrongfully withholding payment; that in spite of repeated letters, notices and reminders, the defendant is simply putting off the plaintiff, though the defendant has acknowledged its liability to the plaintiff; that the cause of action has been accruing to the plaintiff every month, and, finally, the cause of action accrued on 31 March 1929. As regards this date it may be noted that the Appendix shows that this was the date of the last payment made to the plaintiff. The plaint was tendered on 25 May 1929 and there was some deficiency in court-fee and it was finally registered on 1 June 1929.

(2.) The argument of the learned Counsel for the appellant is that this suit comes under Section 326, U.P. Municipalities Act of 1916, and that under Sub-section (3) the period of limitation is six months after the accrual of the cause of action. He points out that the Appendix shows that the various works were completed by dates the latest of which is December 1928 and that this would be more than the period of six months before the date of filing of the suit on 25 May 1929. Some of the works were completed in 1927. The main question before us is whether Section 326, Municipalities Act, applies or not. The point was urged before the lower Court and the Court held that that, section did not apply, because the Board went on admitting their liability to the plaintiff and the cause of action was therefore a recurring one. In this Court this ground has not been urged and a broad ground is urged by learned Counsel for the respondent that Section 326, Municipalities Act, is not intended to apply to suits on contract. That section states: No suit shall be instituted against a Board, or against a member, officer or servant of a Board, in respect of an act done, or purporting to have been done in its or his official capacity.

(3.) The first point taken by counsel for respondent is that the suit must be in respect of an act done by the defendant. In the present case, the act is not something done by the defendant which has given rise to a cause of action, but the act is something which has been done by the plaintiff, that is, a contract under which the plaintiff has performed work. No doubt in one sense the plaintiff and the defendant both agreed to the contract but the contract alone is not the cause of action. It is the carrying out of the contract by the plaintiff that is a principal part of the cause of action. There is not in this case a definite refusal by the defendant. Even if there had been, it is contended by the learned Counsel that because the case is one of contract the acts which may be subsequently done by the defendant will not bring the case under Section 326. For this proposition learned Counsel referred to a ruling reported in A.I.R. 1933 Bom. 164, District Local Board of Poona V/s. Vishnu Ragho Wadherkar, in which it was held under a similar section of the Bombay Local Boards Act that the section on limitation had no application to a suit on contract. It has also been held in a Full Bench ruling of the Bombay High Court, Manohar Ganesh V/s. Dakor Municipality (1898) 22 Bom 289 (FB) in regard to the Bombay Minicipal Act 2 of 1884 that such suits on contract would not come under the similar section for limitation. On. p. 301 it stated: Claims based on contract can never be included under this section for the simple reason that they are not claims for anything done or purporting to have been done in pursuance of the Act.