Heera Constructions Company vs State Of Goa Rep By Chief Secretary Government And Another

Nutan D. Sardessai, J

The original plaintiffs are in appeal challenging the judgment dated 17/01/2012 passed by the learned District Judge-2, South Goa, Margao pursuant to which the learned District Judge partly decreed the suit directing the defendants to refund the security deposit of Rs. 5,00,000/- to the plaintiffs and dismissed the counter claim raised by the defendants. The plaintiffs who are the appellants and the defendants who are the respondents would hereinafter be referred to as the appellants and the respondents for the sake of brevity.

Heard Shri J.J. Mulgaonkar, learned Advocate for the appellants for sometime and besides also heard Shri Sagar Dhargalkar, learned Additional Government Advocate for the respondents. In the course of the hearing of the matter, it was realised that in a matter involving a civil contract between the parties in which the appellants had raised various claims, the learned District Judge-2 had not at all framed the issues on each of the heads of claims raised by the appellants and rather an omnibus issue was framed casting the burden on the appellants to prove whether the defendants were liable to pay a definite sum with interest till payment which was rather akin to formulating the issue based on the relief in the suit and without framing individual issues on whether the appellants had proved each head of claim as raised by them in the suit.

Besides, we also observed and as rightly pointed out by Shri Sagar Dhargalkar, learned Additional Government Advocate for the respondents that although an issue of limitation was raised as a preliminary issue and which was also sought to be buttressed in this appeal, no such issue of limitation too was framed by the learned District Judge-2. Besides, Shri Sagar Dhargalkar, learned Additional Government Advocate for the respondents placed reliance in State of Gujarat v. Kothari and Associates [(2016) 14 SCC 761] to canvas and support his proposition that there was a duty cast on the Court even if an issue of limitation was not raised by the parties to frame such an issue and that a failure of the Trial Court to deal with such an issue entitled the aggrieved party to raise an issue in appeal. We have considered the judgment in Kothari and Associates (supra) and which clearly delineates the principle that it is incumbent on the Trial Court to consider the issue of limitation on its own initiative even if that issue is not raised by the parties concerned.

Shri Mulgaonkar, learned Advocate for the appellants also contented that extensive written arguments were placed on record despite which the learned District Judge-2 had not considered the same. Having thus considered the judgment assailed in this appeal before us and on an appreciation of the contentions raised by the learned Advocate for the appellant and the respondents, we are of the view that this is a fit case to remand the matter to the learned District Judge-2 to dispose off the same in accordance with law and with the following observations:

The learned District Judge-2 shall recast the issues considering the claims raised by the appellants, formulate an issue on the point of limitation as raised by the respondents and besides also an issue dealing with Sections 55 and 73 of the Indian Contract Act, 1872. It is however made clear to the learned District Judge-2 that the respondents not having raised any challenge to the judgment dismissing their counter claim, they will not be entitled to raise that issue afresh nor will the District Judge reopen the said issue on the counter claim raised by the respondents.

In the circumstances, therefore, we pass the following:

ORDER

i) The appeal is allowed.

ii) The impugned judgment and order is quashed and set aside and the matter remanded to the learned District Judge-2 to adhere to the directions in the matter on the recast of issues and to decide the same within three months from the date of the receipt of the judgment of this Court. The parties are directed to appear before the learned District Judge-2 on 01/08/2019 at 10.00 hours. It is once again made clear that the learned District Judge-2 shall not reopen the issue of counter claim which has attained a quietus, there being no challenge to the judgment dismissing the counter claim of the respondents. There shall be no order as to costs.