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Judgment
L.N. Mittal, J.—This is second appeal by Plaintiff having remained successful in the trial court but having been non-suited by the lower appellate court.
Appellant - Plaintiff was granted contract for execution of some work by Defendant No. 1 - Respondent/Union of India. Defendant No. 2 -Deputy Chief Electrical Engineer (not party in first appeal and in instant second appeal) ordered forfeiture of Plaintiff''s security amount of `2,12,740/-i.e. `1,87,490/-amount of bank guarantee encashed and `25,250/-security amount deposited in cash vide order dated 3.5.1990 on account of delay in execution of the contract. Said action of Defendant No. 2 has been challenged in the suit claiming it to be illegal and null and void.
Defendants contested suit and justified forfeiture of Plaintiff''s security. Various other pleas were also raised.
Learned Civil Judge (Junior Division), Patiala vide judgment and decree dated 10.2.2007 decreed Plaintiff''s suit for declaration that action of Defendant No. 2 regarding forfeiture of Plaintiff''s security is illegal, null and void. However, first appeal preferred by Defendant No. 1 - Union of India has been allowed by learned Additional District Judge, Patiala vide judgment and decree dated 28.7.2009 and thereby suit filed by the Plaintiff stands dismissed. Feeling aggrieved, the Plaintiff has preferred the instant second appeal.
I have heard learned Counsel for the parties and perused the case file.
Learned Counsel for the Appellant vehemently contended that the Plaintiff has been non-suited by the lower appellate court on the ground that the Plaintiff has not sought the relief of recovery of the security amount and suit for mere declaration is not maintainable but the Plaintiff could not have sought relief of release of security amount from the civil court being within the purview of the Arbitrator whereas validity of forfeiture of the security amount was not within the purview of the Arbitrator.
On the other hand, learned Counsel for the Respondent contended that suit for mere declaration without seeking further relief of recovery of the security amount is not maintainable in view of Section 34 of the Specific Relief Act, 1963. It was also contended that the suit is hopelessly barred by limitation as order dated 3.5.1990 regarding forfeiture of security was challenged in the suit filed on 9.12.2004.
I have carefully considered the rival contentions.
If order of forfeiture of security amount is declared to be null and void as sought for by the Plaintiff in the suit, nothing else would survive for adjudication by the Arbitrator for release of the security. On the contrary, release of recovery of security amount would be automatic consequence of the order of forfeiture of security amount being declared null and void. Consequently, in the instant suit filed by the Plaintiff, relief of recovery of security amount should also have been sought in addition to the relief of declaration that the order of forfeiture of security amount is null and void. Consequently, in view of proviso to Section 34 of the Specific Relief Act, 1963, the instant suit for mere declaration is not maintainable.
Judgment of this Court in Surinderpal Singh and Anr. v. Dhruvinderpal Singh and Ors. 2008 (4) RCR 18 cited by learned Counsel for the Appellant is not applicable to the facts of the instant case.
In addition to the aforesaid, suit filed by the Plaintiff is hopelessly barred by limitation. Order dated 3.5.1990 passed by Defendant No. 2 has been challenged in the suit filed on 9.12.2004 i.e. more than fourteen and half years after the passing of the impugned order by Defendant No. 2. Limitation period for challenging the same was three years. The suit is, thus, held to be barred by limitation also.
For the reasons aforesaid, there is no merit in the second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed.