IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.02.2011
CORAM:
THE HONOURABLE MS.JUSTICE R.MALA
Appeal Suit (First Appeal) No.391 of 2008
Thirugnanasambandam .. Appellant
Vs.
1. The Executive Engineer,
Public Works Department,
Vellar Basin Circle Office,
at Vridhachalam.
2. The Executive Engineer,
Coleroon Basin Division,
Chidambaram, Office at Chidambaram.
3. Superintending Engineer,
Public Works Department,
Vellar Basin Circle,
Cuddalore, Office at Nellikuppam Road, Cuddalore.
4. State of Tamil Nadu,
rep. by the District Collector,
Cuddalore District, Office at Collectorate Cuddalore. .. Respondents
Appeal Suit (First Appeal) against the judgment dated 12.7.2007 in O.S.No.42 of 2006 on the file of the District Court, Cuddalore District at Cuddalore.
For appellant : Mr.V.Selvaraj
For respondents: Mr.V.Ravi, Spl.G.P.
JUDGMENT
The First Appeal is preferred against the judgment dated 12.7.2007 in O.S.No.42 of 2006 on the file of the District Court, Cuddalore District at Cuddalore.
2. The averments in the plaint are as follows:
(1) The plaintiff is a registered contractor. He was entrusted with the following works by Sethiyathoppu Sub-Project Division of the Public Works Department, Mayiladuthurai, given under the National Water Management Project, by the Government of Tamil Nadu:
(a) Construction of retaining wall for protecting the eroded portion L.S.11600M to 11640M Agreement No.139, L.S/94-95 valued at Rs.1.980 lakhs.
(b) Construction of measuring device and AWLR Room at ‘0’ metre of B5 branch of High Level Channel Ag.No.102 L.S/94-95 valued at Rs.1.99 lakhs.
(c) Selective lining to No.3 Distributor of H.L.C. from LC ‘0’ metre to 50 metre Ag.No.65K2/94-95 valued at Rs.0.67 lakhs.
(d) Pinnalur Ambalpuram Channeal LS ‘0’ metre to 90 metres Ag.No.175LS/94-95 valued at Rs.1.32 lakhs, 19.4.95.
(e) The above work at 90 metre to 180 metre Ag.No.176LS/94-95 valued at Rs.1.32 lakhs.
(f) The above work at 180 metre to 270 metres – Ag.No.177LS/94-95 valued at Rs.1.45 lakhs.
(2) The work entrusted to the plaintiff had been duly executed and completed and it was check-measured and entered in the M-Books maintained by the officials of the defendants, as detailed below:
M Book No.
Bill and Page No.
Amount due to plaintiff in Rs.
i) For work (a) in para (1) above
1548
1629
1725
P-20
1725
93,312.00
ii) For work (b) in para (1) above
1631
P-69
1631
35,845.00
iii) For work (c) in para (1) above
1637
P-92
1725
6,611.00
iv) For work (d) in para (1) above
1776
15.4.95
52,873.00
v) For work (e) in para (1) above
1612
19.4.95
52,533.00
vi) For work (f) in para (1) above
1614
20.4.95
61,477.00
(3) The above said Project was closed due to policy decision of the Government and the work detailed in (a) to (c) in para (1) above was transferred and vested with the first defendant. The first defendant was directed to pay the pending bills due to the contractors for the above work. The work mentioned in (d) to (f) in para (1) above, was transferred and the second defendant was directed to pay and clear the pending bills of the contractor.
(4) The first defendant was liable to pay Rs.1,35,768/- for the work detailed as (i) to (iii) in para 2 and the second defendant was liable to pay a sum of Rs.1,66,883/- for the works detailed in (d) to (f) in para 2 above. The value of the works are given in (iv) to (vi) in para 2 above.
(5) The third defendant is the controlling and supervising authority for defendants 1 and 2. The fourth defendant is the State, which implemented the work and liable to pay the amount due to the plaintiff.
(6) The plaintiff demanded repeatedly for payment of Rs.3,02,651/- (Rs.1,35,768 + Rs.1,66,883). Since the amount was not forthcoming, the plaintiff earlier filed a Writ Petition in W.P.No.13878 of 1996, as against the third defendant and PWD seeking a direction to the defendants to make payment due to the plaintiff. The defendants accepted the amount due to the plaintiff, but gave an explanation that certain files have been transferred from Salem and on that account, there is a delay in making the payment to the plaintiff. They assured and orally undertook to make the payment soon after the receipt of the files. The said Writ Petition was dismissed on 25.9.1996, accepting the abovesaid oral undertaking.
(7) The defendants did not care to honour and pay the amount due to the plaintiff as undertaken by them orally while disposing of the Writ Petition in W.P.No.13878 of 1996. Hence, the plaintiff demanded again the defendants for payment of the due to him. The second defendant, by letter No.4170/96/Ka.5/Thoguppu-5, dated 22.4.2003, informed the plaintiff that the Government has not allotted funds for payment and hence, there is delay and promised to pay the amount due to the plaintiff soon after the allocation of the funds by the Government and after paying the amount, they wanted to close their file.
(8) Similarly, the first defendant, by letter No.250/2005/Tha.1, dated 9.6.2005 informed the plaintiff that the Government has not allotted funds despite their making the demands for payment to the plaintiff, and on receipt of the funds from the Government, the first defendant undertook to pay the amount and settle his accounts. Being a Government, the plaintiff as a contractor doing work under them, bona-fidely believed the oral undertaking given by the defendants while the said Writ Petition in W.P.No.13878 of 1996 was disposed of on 25.9.1996 and the plaintiff was expecting payment.
(9) The plaintiff borrowed huge amount at a higher rate of interest at 36% per annum for executing the work detailed in para 1 and 2 above. The plaintiff issued notice under Section 80 CPC calling upon them to make the payment due to him, with interest at 24% per annum.
(10) The defendants received the notice. The second defendant sent a reply dated 31.8.2005 in which, he acknowledged the amount due and payable to the plaintiff, but repeated the same lame excuse, viz., that the Government has not allotted funds for making payment claimed by the plaintiff and the defendants undertook to pay and clear the amount due to the plaintiff soon after the allocation of funds and requested the plaintiff to wait.
(11) Hence, the plaintiff was constrained to file the suit for recovery of Rs.4,66,083/- with subsequent interest at 18% per annum from the date of plaint till recovery and for costs.
3. The gist and essence of the written statement filed by the defendants 1 and 2, adopted by defendants 3 and 4, are as follows:
(a) Sethiyathoppu Sub-Project Division under the PWD was closed and wound up. Whenever a Division or Sub-Division was closed and wound up, only the documents and files are transferred to the existing territorial diversions. The succeeding Division is to upkeep the documents and file and the succeeding Division of closed Division is only the custodian of the documents of the closed Sub-Division. The defendants are only the custodians of the records. If any bill amount is due to any person by the defunct Sethiyathoppu Sub-Project Division at Mayiladuthurai, the claim can be settled by the Secretary of PWD Department. Further, the claim can be settled by the Secretary, PWD, if the claim is made in time. In this case, no claim was made to the Government (Secretary, PWD) by the plaintiff.
(b) Sethiyathoppu Sub-Division was wound up on 31.3.1996 and the records of that Division was handed over to the Division for maintenance under the safe custody only. If any bill amount is due to any person, the claim can be made only to the PWD represented by the Secretary and the claim can be settled by PWD represented by Secretary and the defendants are not competent to forward any claim of the plaintiff, nor they are empowered to give reply to the plaintiff and the claim made by the plaintiff.
(c) The alleged letter dated 9.6.2005 to the plaintiff said to have been returned by D1 as no legal implication and is not binding them. The alleged letter dated 9.6.2005 does not amount to any acknowledgement of the plaintiff’s claim. The alleged letter dated 22.4.2003 said to have represented by the then D2, has no legal implication. The letter is not binding on D2. Further, the alleged letter dated 22.4.2003 does not amount to any acknowledgement of the plaintiff’s claim. The Secretary PWD, Government of Tamil Nadu is only the competent person to release funds for the claim of the closed Division, that too, if the claim is made in time. The plaintiff has not taken any steps even though there is arbitration to get the suit claim. The suit claim is clearly barred by time. Hence, the plaintiff is not entitled to get any amount.
(d) The Secretary, PWD, Government of Tamil Nadu, is necessary and proper party to the suit. The suit is liable to be dismissed for non-joinder of necessary party. The Government is not liable to pay interest. The work was completed on 31.3.1995 and the first written request was made by the plaintiff to make the payment was only on 6.6.2005 and hence, the claim of the plaintiff is time barred.
(e) The issuance of notice under Section 80 CPC does not derive any cause of action to file the suit. There is no cause of action for the suit. Hence, the defendants prayed for dismissal of the suit.
4. The trial Court, after considering the arguments of both sides’ counsel, framed three issues and after considering the oral evidence of P.W.1 and D.Ws.1 and 2 and the documentary evidence of Exs.A-1 to A-9, dismissed the suit, stating that the suit is bad for non-joinder of necessary party, namely the Secretary, PWD, and the suit is also barred by limitation. Challenging the judgment and decree of the trial Court, the plaintiff has preferred this First Appeal.
5. After hearing the learned counsel appearing on both sides, the following points are framed for consideration in this First Appeal:-
(i) Whether the trial Court is correct in holding that the Secretary, PWD, is a necessary party, since the State of Tamil Nadu is represented by the District Collector, Cuddalore ?
(ii) Whether Exs.A-1 and A-2 are acknowledging the liability of the Government, and the same is binding on the Government ?
(iii) Whether the trial Court is correct in dismissing the suit on the ground that it was barred by limitation ?
(iv) Whether the judgment and decree of the trial Court are sustainable? and
(v) To what relief the appellant/plaintiff is entitled to ?
6. Learned counsel appearing for the appellant/plaintiff submitted that the plaintiff is the registered contractor for PWD and he did the work as per the plaint paragraph 2. The Government owes Rs.3,02,651/- to be paid to the plaintiff. Admittedly, the work assigned for the Sethiyathoppu Sub-Project Division, under the PWD, Mayiladuthurai, was completed and entered in M-books. Since the work was carried out by the appellant/plaintiff and since the amount has not been paid, earlier, he filed the Writ Petition in W.P.No.13878 of 1996 and since the respondents/defendants have given an oral undertaking for payment, the said Writ Petition was dismissed on 25.9.1996, and therefore, the plaintiff made a request to the respondents/defendants and the same was received by letters in Exs.A-1 and A-2, in which, the respondents/defendants have categorically admitted that they have addressed to the Government for allotment of funds and as soon as they received the funds, they are ready to pay the amount. Since the respondents/defendants have not paid the same, the appellant/plaintiff issued notice under Section 80 CPC under Ex.A-3 and acknowledgement card has also been marked as Exs.A-4 to A-6, and then he received the reply under Ex.A-7 from the Executive Engineer, Kollidam Division, acknowledging the claim also, and in Ex.A-7, the candid admission is that as soon as they receive allotment from the Government, they were ready to pay the amount. Since they have not paid the amount, the present suit has been filed and so, the suit is not barred by time. To substantiate these contentions, he relied on the decisions of this Court.
7. The second limb of argument advanced by the learned counsel for the appellant/plaintiff is that the Government has been impleaded as a party, and the District Collector is representing the State, and therefore, the Secretary, PWD, is not a necessary party; he further submitted that even though the appellant/plaintiff has made several demands, in the reply, they have never raised the plea that only the Secretary, PWD is the competent person to disburse the amount to the contractor for the closed/wound up Project and for the first time, the defendants are raising such a plea only in the written statement, and so, to avoid the payment, they have come forward with such a defence and hence, learned counsel for the appellant/plaintiff prayed for setting aside the judgment and decree of the trial Court.
8. Learned counsel for the appellant/plaintiff further submitted that the trial Court has not considered the fact that after receipt of notice under Section 80 CPC, except the Executive Engineer, no one has sent a reply, even though the notice has been issued to the D4–District Collector, who represents on behalf of the State of Tamil Nadu. In such circumstances, the trial Court ought to have accepted the claim of the appellant/plaintiff and decreed the suit, and hence, he prayed for allowing the First Appeal.
9. Repudiating the said contentions, learned counsel appearing for the respondents/defendants submitted that the suit is bad for non-joinder of necessary party, i.e. the Secretary, PWD, and since the Project in question, had been closed/wound up, only the PWD Secretary is the competent person to disburse the amount and since he has not been impleaded, the suit is bad for non-joinder of necessary party, and said factum has been properly considered by the trial Court. He further submitted that the Project has been closed in 1995 and the suit was filed in 2006 and it is not filed within three years as per the provisions of the Limitation Act, and so, the suit is barred by limitation. The trial Court considered the said aspects in detail and dismissed the suit, and hence, the judgment and decree of the trial Court do not warrant interference by this Court, and hence, learned counsel for the respondents/defendants prayed for dismissal of the First Appeal.
10. The admitted facts are that the appellant/plaintiff is a registered contractor and he has been allotted the works mentioned in paragraph 2 of the plaint, as quoted earlier, and the appellant/plaintiff completed the entrusted work which has been measured and entered in the measurement book and so, the amount due to the appellant/plaintiff from D1/Executive Engineer, PWD, Vridhachalam is Rs.1,35,768/- and the amount due to D2/Executive Engineer, Chidambarm, is Rs.1,66,883/-.
11. Admittedly, the work has been entrusted by the Sethiyathoppu Sub-Division Project, under the PWD, Mayiladuthurai, and it was closed and wound up on 31.3.1996; the appellant/plaintiff is entitled to amount of Rs.3,02,651/- for the work done by him.
12. The first defence raised by the respondents/defendants is that since the said Sethiathoppu Project Sub-Division has been wound up/closed, only the PWD Secretary is the competent person to disburse the amount. That defence has been raised only at the time of filing written statement. Even though there are correspondences between both parties, i.e. in Exs.A-1 and A-2 and also the reply for the notice under Section 80 CPC in Ex.A-7, in which, there was specific mention that they are ready to settle the amount due as soon as the allotment of funds is made by the Government. In paragraph 2 of Ex.A-2, the authority specifically acknowledged the amount due to the appellant/plaintiff.
In Ex.A-1, which is the letter addressed by Executive Engineer to the appellant/plaintiff/contractor, dated 22.4.2003, it is stated as follows:
@////nkw;fz;l jpl;lj;jpy; ntiybra;j xg;ge;jf;fhuh;fSf;F jPh;t[bra;ag;lntz;oa m’;fPfhpf;fg;gl;l epYitg;gl;oay; bjhif bkhj;jk; U:/16/90 yl;rk; MFk;/ ,jpy; j’;fSf;F tH’;fg;gl ntz;oa epYitg;gl;oay; bjhiffSk; ml’;Fk;/
,e;j bjhifapid nkw;fz;l jpl;lf;nfhl;lk; K:lg;gl;l ehspypUe;J xt;bthU Mz;Lk; tut[ bryt[ jpl;lk; (budget) kw;Wk; jpUj;jpa tut[ bryt[ jpl;lj;jpy; murplk; epjp xJf;fPL nfl;L mwpf;iffs; jtwhky; rkh;g;gpf;fg;gl;L tUfpwJ/ Mdhy; ,Jehs;tiu murplkpUe;J epjp xJf;fPL bgwg;gltpy;iy/ epjp xJf;fPL bgwg;gl;l cld; j’;fs; gl;oay;fs; jPh;t[bra;ag;gLk; vd bjhptpj;Jf;bfhs;sg;gLfpwJ/@
In Ex.A-2, which is the official letter dated 9.6.2005, addressed by Executive Engineer, to the appellant/plaintiff/contractor, it is stated as follows:
@j’;fsJ fojj;jpy; bjhptpf;fg;gl;Ls;s. N.W.M.P. gl;oay;fSf;fhd epjpaid xJf;fPL bgw;Wj;jUkhW (F.M.A) fz;fhdpg;g[g; bghwpahsh; mth;fis nfl;Lf;bfhs;sg;gl;Ls;sJ/ mjw;f;fhd epjp kw;Wk; fld; rhd;W fpilf;fg;bgw;wJk;. j’;fsJ gl;oay;fis jPh;t[ bra;ag;gLbkd;gij bjhptpj;Jf;bfhs;sg;gLfpwJ/@
13. While perusing the above quoted documents Exs.A-1 and A-2, it is seen that the respondents/defendants never whispered that they are only the custodian of the documents and files relating to the closed Project Sub-Division at Sethiyathoppu, but the payment will be made and the account will be settled only by the Secretary, PWD.
14. At this juncture, it is appropriate to consider the contention that the D4/District Collector is representing the State of Tamil Nadu and the Secretary of PWD, is forming part of the officials under the State of Tamil Nadu and in such circumstances, the trial Court committed error in deciding that the PWD Secretary is necessary party. Furthermore, the respondents/defendants have not filed any document to show that for closing the said Project, any amount due to the contractor shall be settled only by the PWD, Secretary.
15. Without any document, for the first time, after the filing of the suit, this defence has been raised in the written statement. Furthermore, earlier, the appellant/plaintiff has filed a Writ Petition in W.P.No.13878 of 1996, in time and the said W.P. has been dismissed on 25.9.1996 and immediately, the appellant/plaintiff issued notice under Section 80 CPC, and claimed the amount. In such circumstances, I am of the view that the fourth respondent/D4/District Collector, is representing the State of Tamil Nadu, and so, there is no need to implead the PWD Secretary, and so, the trial Court found that the PWD Secretary is a necessary party, which is an erroneous finding of the trial Court and the same is liable to be set aside. Hence, I am of the view that the finding of the trial Court that the suit is bad for non-joinder of necessary party, is set aside. Point (i) is answered accordingly.
16. Point (ii) and (iii): The trial Court dismissed the suit on the ground of limitation also. Learned counsel appearing for the appellant/plaintiff submitted that the plaintiff completed his work entrusted to him and measurement has been made and noted in measurement book and the respondents 1 to 3/D1 to D3 are owing the plaintiff to pay Rs.3,02,651/- for the work done by him, and the amount was not paid, and in the meanwhile, the Project has been closed/wound up on 31.3.1996 and so, the appellant/plaintiff has earlier filed W.P.No.13878 of 1996, and by order dated 25.9.1996, this Court while disposing of W.P.No.13878 of 1996 along with W.P.No.13879 of 1996, observed as follows in the common order:
“The writ petitions are for the issue of a writ of mandamus to direct the respondents to release the amount payable to the petitioners in respect of the execution of certain works given to them on contract, by the respondents. According to the petitioners, they have completed the execution of the work in accordance with the contract. Being aware of the limitations in filing these writ petitions, Mr.Selvaraj, learned counsel for the petitioners says that the amount due to the petitioners is not disputed and has also been quantified. According to him, certain files had been transferred to Salem and on that account, the respondents are delaying the payment.
2. Even so, I do not think that this Court will get jurisdiction to entertain these writ petitions which is purely in the nature of a suit for money in respect of a contract. In this view of the matter, these writ petitions are dismissed.”
17. Subsequent to the disposal of the said Writ Petition, the appellant/plaintiff has submitted a representation to the respondents 1 to 3 for settlement of the amount due on the work done by the appellant/plaintiff, and the respondents/defendants have given reply under Exs.A-1 and A-2 and they have specifically undertook that already the authorities have addressed the same to the Government for allotment of funds and as soon as they received the allotment of funds from the Government, they would pay the same and settle the account with the plaintiff .
18. In this aspect, it is appropriate to incorporate the reply given by the respondents/defendants in Ex.A-7, dated 31.8.2005, which is the letter addressed by the Executive Engineer to the Advocate of the appellant/plaintiff, and in the said Ex.A-7, the respondents/defendants took the following stand:
@////K:lg;gl;l njrPa ePh; nkyhz;ik jpl;lf;nfhl;lk;. kapyhLJiw K:yk; nrj;jpahj;njhg;g[ Jizj;jpl;lk; bray;gLj;jg;gl;lJ/ ,j;jpl;lk; 1996 khh;r; 31y; gzpfs;aht[k; Kof;fg;gl;L ,f;nfhl;lj;jplk; Mtz’;fs; kl;Lk; xg;gilf;fg;gl;lJ/ nkw;fz;l jpl;lg;gzpapy; xg;ge;jf;fhuh;fs; gzpfs; nkw;bfhz;ljw;F jPh;t[ bra;aglntz;oa epYit gl;oay;fs; bkhj;j bjhif U:/16.90.000-? MFk;/ ,jpy; jpU/nf/jpU”hdrk;ke;jk;. xg;ge;jf;fhuh; mth;fspd; K:d;W epYit gl;oay;fs; bkhj;j bjhif U:/1.56.596-? MFk;/ nkw;fz;l bkhj;j bjhif U:/16.90.000-?y; ,e;j bjhifa[k; ml’;Fk;/ xl;L bkhj;j bjhiffisa[k; jPh;t[ bra;a Mz;LnjhWk; jpl;l kw;Wk; jpUj;jpa kjpg;gPl;oy; murplk; epjp xJf;fPL nfl;L fUj;JU rkh;g;gpf;fg;gl;Ls;sJ/ ,e;j 2005?06 Mz;oYk; epjp xJf;fPL nfhhp murplk; fUj;JU rkh;g;gpf;fg;gl;Ls;sJ? epjp xJf;fPL fpilf;fg;gl;l cld; j’;fs; kDjhuhpd; K:d;W epYit gl;oay;fSk; jPh;t[ bra;ag;gLk; vd;gij bjhptpj;Jf; bfhs;sg;gLfpwJ/@
19. Thus, Exs.A-1, A-2 and A-7 show that the respondents/defendants never denied that they are not liable to pay the amount and that the suit is barred by limitation. Further, the respondents/defendants never stated that they are not competent person to disburse the amount, since the Project has been closed/wound up. However, they acknowledged that they have addressed to the Government for allotment of funds for the work done by the appellant/plaintiff and after receiving the allotment of funds from the Government, they are ready to settle the amount.
20. In such circumstances, it is the duty cast upon the Court to decide as to whether the statement given by respondents 1 to 3/D1 to D3 amounts to acknowledgement of their debt. Admittedly, it is not a debt, but the amount due to be paid to the appellant/plaintiff for the work done by him. The appellant/plaintiff being a registered Contractor, applied for the work and work has also been entrusted to him and he did his work entrusted and measurement book has also been noted for the work done, and since the Project has been closed/wound up, the amount is yet to be settled and hence, the plaintiff has come forward with the suit for recovery of money due to him. Learned counsel appearing for the appellant/plaintiff submitted that the suit is not barred by limitation, since the respondents/defendants have given letters in Ex.A-1, Ex.A-2 and Ex.A-7, which have acknowledged the amount due to the appellant/plaintiff. To substantiate the case of the appellant/plaintiff, learned counsel relied upon the following decisions of this Court:
(i) ILR (Vol.XXXIII) Madras Series, page 159 (Madras High Court): (Ganapathy Moodelly Vs. Munisawmi Moodely):
“Section 25 of the Contract Act provides that an agreement made without consideration is void unless it is a promise to pay a debt of which the creditor might have enforced payment but for the law of limitation.
The section indicates what must be deemed to take the place of “consideration” in an ordinary contract. Full effect is given to the words of the section by taking it to mean that when a man promises to pay what in fact is proved to be a debt which is barred, that agreement will be enforced. This is consistent with the decisions that hold that consideration may be proved when not recited in the document or a different consideration may be proved from that recited therein. To hold otherwise would be to confine the parties to the recitals in the instrument in cases that are governed by section 25. We see no warrant in that section for doing so.
We hold accordingly that the agreement is a contract under section 25, clause (3), and dismiss the appeal with costs.”
(ii) AIR 1951 Madras 903 : (Madras High Court) (Muthayee Achi Vs. Sabbiah):
“A promise to pay under S.25(3) will be enforced if the real consideration is shown to be a barred debt, though no reference is made in the document to such debt, & no knowledge of the debtor that the debt is barred proved before the promise is made. The fact, therefore, that the promisor was not conscious when she executed a promissory note for Rs.13,000 that Rs.4,000 out of the consideration represented a debt which was time barred, & did not promise to pay that debt knowing it to be a time-barred debt, will not make any difference to her liability.”
(iii) 1997 (III) CTC 445 (Madras High Court): (A.C.A.Ganapathi Mudaliar Vs. Arumugathammal):
“21. …. Under Section 25(3) of the Contract Act, even a barred debt is a good consideration. Merely because the right to enforce through a Court of law is barred, that does not follow that the debt itself has been extinguished. Again, it is the right of the manager or father of the family to execute such contracts, and the same will be binding on the members of the family.”
(iv) Vol.88 LW 378 (Division Bench of Madras High Court)
(Union of India, owning the Southern Railway Vs. N.R.Venkatrama Naidu):
“Section 25(2) protects such contracts, as there is a promise, express or implied, therein, made by the debtor whereunder he has acknowledged to pay the same notwithstanding the law of limitation.”
21. Relying on the decisions of this Court as quoted above, learned counsel for the appellant/plaintiff submitted that the recitals in Exs.A-1, A-2 and A-7 have clearly acknowledged the liability of the defendants, and hence, the suit is not barred by limitation.
22. So, while applying the said decisions of this Court, it is now appropriate to incorporate Section 25 of the Indian Contract Act:
“Section 25: Agreement without consideration, void, unless it is in writing and registered, or is a promise to compensate for something done, or is a promise to pay a debt barred by limitation law.–An agreement made without consideration is void, unless–
(1) it is expressed in writing and registered under the law for the time being in force for the registration of documents, and is made on account of natural love and affection between parties standing in a near relation to each other; or unless
(2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do; or unless
(3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits.
In any of these cases, such an agreement is a contract.
Explanation 1:- Nothing in this section shall affect the validity, as between the donor and donee, of any gift actually made.
Explanation 2:- An agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given.”
23. As already stated, it is the amount due on the work done by the appellant/plaintiff and that, as per Exs.A-1, A-2 and A-7, the respondents/defendants-authorities have undertaken to pay the amount due as soon as they received allotment of funds from the Government. In such circumstances, as per the decision of the Division Bench of this Court, reported in Vol.88 LW 378 (cited supra), Section 25(2) of the Indian Contract Act protects such “express promise” contracts as given in this case in the form of undertaking given by the defendants in their correspondences between the plaintiff and defendants.
24. The respondents/defendants acknowledged to pay the amount due on the Project work done by the appellant/plaintiff, in their correspondences, Exs.A-1, A-2 and A-7 and since there is acknowledgement to pay the amount due, notwithstanding the law of limitation, and the suit having been filed in the year 2006, as per Ex.A-7, I am of the view that the trial Court has not considered this aspect in proper circumspection, and dismissed the suit on the ground that the suit was barred by limitation, and the said finding of the trial Court is unsustainable. So, the finding of the trial Court that the suit was barred by limitation, is erroneous. Point No.(ii) and (iii) is answered in the above terms.
25. Points (iv) and (v):
In view of the answers given to Point Nos.(i), (ii) and (iii), the findings of the trial Court are erroneous and the same are liable to be set aside and the same are hereby accordingly set aside. The appellant/plaintiff is entitled to decree as prayed for in the plaint, as the quantum of amount due on the work done for the Project, as mentioned in the plaint, is not disputed by the respondents/defendants. Furthermore, in Exs.A-1, A-2 and A-7, there is a candid admission that the defendants-authorities are liable to pay the amount. Hence, the appellant/plaintiff is entitled to decree as prayed for in the plaint.
26. For the foregoing reasonings:
(a) The First Appeal is allowed, with costs throughout.
(b) The judgment and decree of the trial Court are set aside.
(c) The suit is decreed as prayed for in the plaint.
10.02.2011
Index: Yes
Internet: Yes
cs
To
1. The Principal District Judge, Cuddalore.
2. The Executive Engineer,
Public Works Department,
Vellar Basin Circle Office,
at Vridhachalam.
3. The Executive Engineer,
Coleroon Basin Division,
Chidambaram, Office at Chidambaram.
4. Superintending Engineer,
Public Works Department,
Vellar Basin Circle,
Cuddalore,
Office at Nellikuppam Road, Cuddalore.
5. State of Tamil Nadu,
rep. by the District Collector,
Cuddalore District,
Office at Collectorate Cuddalore.
6. The Record Keeper, V.R. Section, High Court, Madras.
R.MALA, J
cs
Judgment in
Appeal Suit (First Appeal) No.391 of 2008
10.02.2011