R.S. Construction Company vs Calcutta Municipal Corporation

Nikhil Nath Bhattacharjee, J.—This is a suit for recovery of Rs 31,87.870/- being the amount due-on account of a contract for supply of sand to the defendant along with other reliefs The plaintiff has appeared in person and as it appears to me. he has drafted and finalised the plaint himself. Apparently, the plaintiff having no legal background or expertise in the matter, the plaint is based on emotions and wishful thinking. In fact, he has made a mess of hiss claim. However, from his legal notice dated 26th October, 1978 served upon the defendant, it appears that pursuant to a tender dated 29th September. 1987 plaintiff submitted his offer for supply of" 8.000 Cu.m. of sand at the rate and under terms and conditions specified in the tender document. The tender was accepted by the defendant in its letter dated 16th November. 1987 It is plaintiffs case that he supplied a total quantity of 6953.41 Cu.m. of sand and the said quantity was taken delivery by the defendant though, however, the defendant granted him Inward Receipts for a quantity of 1798.61 Cu.m. and failed and neglected to grant Inward Receipt for the -balance quantity, it is his case that in accordance with the Inward Receipts granted by the defendant he was paid the total sum of Rs. 77042.82 p. and for the cost of the balance quantity the sum of Rs. 120788.60 p. is till due and payable by the defendant. If has been stated that out of the total quantity supplied, the quantity of 1484 Cu.m. had to be supplied at night under orders of the defendant for which he was also entitled to an additional sum of Rs. 19032/--at the extra rate of. Rs. 15 per Cu.m. The security deposit amounting to Rs. 8.300/- has also not been refunded in spite of repeated demands. In the legal notice it was urged that the plaintiff was entitled to receive interests on the aforesaid sums at the rate of Rs. 15 per cent per annum. In the plaint, however. the plaintiff has claimed cost amounting to Rs. 8 lacs, Rs. 1,47870/- on account of unpaid interest Rs. 3,70.000/- on account of further interest. Rs. 3 lacs on account of arbitration cost for 49 sittings and damages amounting to Rs. 23.66.000/- making up his total claim to Rs. 31.87.870. It.appears that the plaintiff went up to the Supreme Court with a SLP which was dismissed with the observation that it was open to him. if he was so advised, to apply to the Court to exempt him from payment of Court fee on his total claim if he is really an indigent person. By an order dated January 16th. 1990, Prabir Kr. Majumdar. J. on the basis of the materials on record held that plaintiff could not be treated as an indigent person and accordingly his application for giving him exemption from paying Court ice on his total claim at the initial stage failed and was dismissed.

The defendant CMC Authority contests the suit by filing a written statement. All the allegations of the plaint has been denied by the defendant. It has been stated that the suit is hopelessly barred by limitation. Regarding delivery at night it has been stated that it was to plaintiffs convenience that night delivery was made in order that the same truck after delivery can go to the quarry site to fill in the truck during day time and that the defendant is not liable to pay any extra charge to the plaintiff It has also been stated that the defendant has already paid to the plaintiff whatever was due to him on the basis of receipts granted by the employees of the defendant alter getting the deliveries and that nothing is due and payable to the plaintiff by the defendant

Upon pleadings of the parties the following issues are framed

1) Is the suit barred by limitation ?

2) Is the plaintiff entitled to recover any sum from the defendant and if so, what is the amount the plaintiff is entitled to recover?

3) What reliel, if arty, is the plaintiff entitled to ?

Findings with reasons therefor.

Issue No. 1 is the suit has been filied on 17th November, 1988. Plaintiffs claim as per legal notice dated 26th October, 1978 arose soon after the said notice when the defendant may be said to have-failed and neglected to meet the demand of justice. Thus the suit was brought more than 10 years after the cause of action arose. Under the(sic) of the Limitation Act the claim is barred by limitation. A suit (sic) to recovery of any sum on account of a contract is to be tiled within 3 years from the date of the right to sue accrues. Also where no period of limitation is provided elsewhere in the.schedule under the Limitation Act. a suit is to be filed within 3 years from the date when the right to sue accrues. In arty view, the suit having been filed about 10 yens after the cause of action arose is barred by limitation. The issue is decided accordingly against the plaintiff.

Issue No. 2. There is not a scrap of paper worth the name regarding delivery of the balance, quantity of sand not supported by any Inward Receipt granted by the Corporation employees of the place or go-down where the delivery is alleged to have been made and accordingly plaintiffs claim relating to unpaid amount on account of delivery of the balance quantity is not substantiated and must fail. All other reliefs claimed by the plaintiff in the plaint are hypothetical, conjectural, remote and unsupported by any document and must also fail. The question of any sum paid to the Arbitrator who failed to arbitrate because the plaintiff came to this Court to stop further proceeding with the Arbitrator, becoming the cost of the suit cannot and does not arise as it is on his own volition that arbitration had to be stopped and even if the sums- paid to. the arbitrator are made cost of the suit then also the suit having failed, there cannot be any question of granting any cost of suit. In my view plaintiff has failed to substantiate his claims and is not entitled to any relief whatsoever. Issue. No. 3 : in the result the.suit fails. Court fees paid on the plaint are correct Hence, it is ordered that the suit fails and is dismissed, on contest but in the circumstances without cost.