JUDGMENT
Swatanter Kumar, J.
1. The plaintiff filed a suit for recovery of Rs. 3,54,110.90/- against the defendants. This suit was filed on the premise that the work allotted by the DDA for construction of site office Phase-II in terms of letter dated 10.1.1994 and agreement dated 17.1.94 had not been executed and completed by the defendants. According to the plaintiff, the defendants were required to complete the work by 19.8.94. The actual cost of work completed by the defendants till December, 1996 was Rs. 8,15,078/- and that was about 47% of the tender cost. The defendants in the suit slowed down the process of work on the ground that the final bill was not paid. The plaintiff issued a show cause notice to them but the defendants did not reply and having taken the measurement and rescinded the contract on 22.1.99, the present suit was filed for recovery of the damages suffered by the plaintiff on 10.4.02.
2. This suit was contested by the defendants on merits who also took up the objection of limitation. In fact, the defendants filed an application under Order 7 Rule 11 of the CPC stating that the suit was barred by time and as such, the plaint was liable to be rejected and the suit dismissed being barred by law. This application in turn was contested by the plaintiff. According to the plaintiff, the suit had been filed within time as it had rescinded the contract on 22.1.99 and the measurements were taken subsequently, therefore, the suit was within time.
3. The learned trial court while allowing the application of the defendants dismissed the suit upon recording the following findings:-
6. Item 55 of the Schedule appended to the Limitation Act, 1963, provides periods of limitation for compensation for the breach of any contract, express or implied as three years when the contract was broken or where there were successive breaches when the breach in respect of which the suit was instituted occurs or where the breach is continuing when it ceases.
7. It is not in dispute that period of limitation for the breach of contract as claimed in the present suit is three years. It is also not in dispute that contract was rescinded on 22.1.1999.
8. In a case Saleem Bhai Ors. v. State of Maharashtra Ors. , it was held by the Supreme Court that :
A perusal of O.VII R.11. C.P.C. makes it clear that the relevant facts which need to be looked into for deciding an application there under are the averments in the plaint. The trial Court can exercise the power under O.VII R.11.C.P.C. at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Cls. (a) and (d) of R..11 of O.VII. C.P.C., the averments in the plaint are germane; the pleas taken by defendants in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under O.7 R.11 C.P.C. cannot but be procedural irregularity touching the exercise of jurisdiction by the trial Court.
9. It was argued on behalf of the counsel for the plaintiff that suit was filed within the period of limitation. He argued that period of limitation commenced from the date when the bill of the defendants was finalised on 31.8.2001. I am not convinced with this argument of the ld. Counsel for the plaintiff. Section 75 of the Indian Contract Act provides a right to claim compensation to that party who rightfully rescinded the contract. But item 5 of the schedule appended to the Limitation Act provides the period of limitation as only three years from the date of breach of contract. Admittedly, the date of rescinding of the contract is 22.1.1999. As the suit was filed on 10.4.2002 so it stands established on record that it was filed after a period of three years and it is hit by the provisions of Order VII Rule 11(d) of the Code of Civil Procedure.
ORDER
10. Consequent upon the above reasons and discussions, application of defendants is allowed and suit of the plaintiff is rejected as it is barred by the provisions of Order VII Rule 11(d) of the Code of Civil Procedure. Parties are left to bear their own cost. File be consigned to Record Room.
4. The above findings have been questioned on behalf of the DDA/appellant in the present appeal primarily on the ground that the suit in the present case was controlled by Article 55 of the Limitation Act, 1963 and not Article 113 or any other Article.
5. The provisions of Limitation Act are to be construed strictly and are to be complied with their rigours and consequences to the cases where substantive remedy invoked by the applicant or appellant is barred by time. A right or a legitimate benefit accrues to the side in whose favor the decree is passed. The provisions of Section 5 are not applicable to the suits. This further shows that framers of law intended that provisions of the Limitation Act should not be complied with so liberally as to defeat the very purpose of the Act. Various articles of the Limitation Act discernly and distinctly provide for the limitation within which suit claiming a particular relief has to be filed. This period has to be adhered to by the party concerned. The principles of condensation of delay, thus, per se may not have application to the suits in view of provisions of Section 5 of the Act.
6. In the present case while allowing the application of the applicant under Order 7 Rule 11 CPC, the learned trial Court has rightly noticed that contract was terminated by letter dated 22nd January, 1999 after issuing of show cause notices dated 3.2.1996, 23.3.1996 and 18.12.1997. Thereafter, the DDA had asked the respondent to be present at the site for taking joint measurements. For this alleged joint measurements, the matter remained pending for years and the DDA took no steps. Final bill was prepared by the appellant on 23rd August, 2001 after carrying out the measurements. Based on this assumption that the cause of action arose in favor of the DDA only after taking the joint measurements, the submission is that suit is within time in terms of Article 55 of the Limitation Act.
7. The provisions of Article 55 of the Limitation Act requires that a suit where compensation is claimed for breach of any contract, expressly or impliedly, the suit should be filed within 3 years when the contract is broken or where the breach is successive or continuing then when the breach complained of is committed or when it ceases.
8. In the present case, the breach of the contract is alleged to have been committed for which show causes notices were issued. Last show cause notice was issued on 18th December, 1997. The respondents refused to resume the work despite show cause notice, which persuaded the DDA to finally terminate the contract vide its letter dated 22nd January, 1999. The breach complained of was non-completion of work and inability to continue with the work. Both these infirmities were established by issuance of show cause notices and they ceased to exist the moment the contract was terminated. Thus, suit sought to have been filed within three years from 22nd January, 1999. Learned counsel appearing for the appellant has not brought to our notice during his course of lengthy submission as to on what term of the contract, the DDA was to keep on waiting for joint measurements. They permitted the entire period of limitation primarily to lapse on this excuse. The DDA could have taken the measurements itself and pursued its legal remedy in accordance with law. The argument raised on behalf of the DDA in fact run contrary to their interest. The normal conduct of the DDA would have been to institute a suit at the earliest and in any case within the prescribed period of limitation and pray before the Court for appointment of the Commissioner to take the measurement of the work allegedly done by the respondents and particularly when their case is that the respondents were not cooperating in taking the joint measurements but to take no steps for years together is nothing but an act of negligence on the part of the DDA/appellant and would not call for any indulgence.
9. Whether the present suit is controlled by Article 55 or Article 113, this would hardly make any difference in the fact of the present case because the right to sue accrued in favor of the DDA on termination of contract as well as when the breach of the contract was committed prior thereto, which ended with the termination of the contract on 22nd January, 1999 for which the DDA is claiming compensation. The suit was, thus, required to be instituted within 3 years from that date.
10. In these circumstances, we do not find any error of law or otherwise in the judgment impugned in the present appeal. The appeal being RFA No. 379/2004 is thus, dismissed while leaving the parties to bear their own costs. All pending applications being 8727/2004 and 741/2006 also stand disposed of.