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Judgment
K. Sreedhar Rao, J.—The Revision is filed against the order of Civil Judge (Jr. Dn.) Jewargi in O. S. No. 6/2000. The petitioners are the
defendants and the respondent-plaintiff filed the suit for declaration that the letter issued by the Technical Assistant Sub-Committee dated 19-5-
1998 is null and void and not binding on the plaintiff and also seek perpetual injunction against the defendants not to act upon the letter.
It is necessary to ruminate the material facts of the case to understand the crux of the dispute involved and the grievance of the parties. The
plaintiff was assigned a contract work of construction of main UKP Jewargi Branch Canal. The total value of the contract is Rs. 64,79,000/- The
contract was assigned after the acceptance of tender. The tender rates were quoted for excavation of the earth on the assumption that there was
only a hard rock and as per the assessment of the Department, certain rate was quoted for excavation of the hard rock but during the execution of
the works, it appears that the plaintiff found the earth harder than the hard rock and it was a fissured hard rock and therefore, sought for difference
in rate. It appears that some negotiations took place and a supplementary agreement was also entered into between the parties and an additional
rate of Rs. 30/- per unit was agreed to be payable in respect of excavation of fissured rock in addition to the rates agreed for the hard rock.
According to the plaintiff, he has completed the work. But, the final measurements have not been taken by the Department. As things stood as
narrated above, the Technical Assistant Sub-Committee issued a direction to the Chief Engineer by the impugned letter to pay the rates of hard
rock for the work done and also referred to the observation of 23rd meeting of Technical Sub-Committee in that regard. Plaintiff apprehends that
by the impugned letter the Department is likely to recover the amount of Rs. 30/- per unit paid in excess towards the excavation work of fissured
hard rock and the recoveries are likely to be effected from the bills relating to the other contract works. Therefore, sought for relief of declaration
that the impugned letter is illegal and not binding on the plaintiff and for consequential relief.
Petitioners-defendants had filed a written statement before the trial Court denying the case of the plaintiff and submitted that the subject matter
involves lakhs of rupees, denied the allegations of supplementary agreement for payment of excavation of fissured hard rock. It is also contended
that as per Clause 29 of the contract, the plaintiff has to approach the Chief Engineer and if there is any grievance in respect of final order passed
by the Chief Engineer, the plaintiff can approach the Civil Court. Hence, pray for dismissal of the suit.
Subsequently, an application is filed under Order VIII Rule IX of C. P. C. for filing additional written statement to take up the contentions that
the suit is not maintainable for want of cause of action and pecuniary jurisdiction and also that the relief of declaration cannot be granted, as the
subject matter in issue involves lakhs of rupees. The trial Court after hearing both the parties dismissed IA No. VI. Being aggrieved, the present
revision is filed.
The Learned Counsel for the respondent has produced the certified copy of the impugned letter in respect of which the declaration is sought for
and further submitted that in respect of the impugned letter some other parties, who are aggrieved by the direction in the said letter had filed writ
petition before this Court seeking quashing of the said impugned letter. This Court dismissed the writ petition, however, given the liberty to the
parties to approach the Civil Court. Based on such directions it is said that different parties filed about three suits and have been decreed by the
trial Court and the appeals are pending. In that view, contended that the plaintiff is entitled to seek the relief of declaration in respect of the
impugned letter.
The Learned Counsel for the respondent submitted that in the impugned letter, a direction is issued by the Technical Sub Committee which is
administratively superior to the Chief Engineer and the directions issued are binding on the Chief Engineer leaving no discretion to the Chief
Engineer. The Learned Counsel further contends that the amounts payable under the other bills would be deducted and as such contends that the
impugned letter gives a cause of action for the plaintiff to maintain the suit.
The learned Counsel for the plaintiff relied on the ruling of this Court in Basalingappa Ningappa Ariwalad v. Deputy Commissioner. Dharwar
reported in 1982(1) K. L. C. 139. In the said case, the notification relating to acquisition of land was challenged. The suit was valued for the
purpose of Court Fee and jurisdiction under Clause 24 (b) & (d) in the context of the said facts held that the valuation of the suit challenging the
notification relating to acquisition of notification under Clause 24 (d) is fully valid. Since the subject matter involved in the notification would not be
a question that would be decisive for adjudication, but only the legality of the notification was in question accordingly held that valuation u/s 24(d) is
valid.
For convenient reference, the contents of the impugned letter is hereunder extracted:
Krishna Bhagya Jala Nigam Limited
(A Government of Karnataka undertaking)
Corporate Office, Almatti. Tel (O) OB426-89421. 89460 RES 89422,
Fax 08426-89421
TELEGRAM-""M D KRISHNA
No. MD/KSJNL.Q AA--1/JEC/TC-RE/98-99/234
Dated 19 May 1998
To.
The Chief Engineer, I. D.,
UKP Canal Zone No. 1,
Bheemarayanagudi.
Sir,
Sub : Construction of JBC from Km No. 48 to 60 According technical sanction to the revised estimate-Reg.
Ref : (1) Your Letter No. UKP/CEC-1/TA/3/AE-10/JBC/97-981874 dated 21-3-1998.
(2) Your Letter No. UKP/CEC-1/TA-8/AE-10/JBC/98-99/115
Dated 24-4-1998.
With reference to above, I am directed to request you to take action as per the observation of 23rd meeting of Technical Sub Committee while
clearing the estimates of J. B. C. and to pay the rate of hard rock for the fissured hard rock and there is no valid reason to reopen the case.
As regards the Rate Analysis adopted for bank work with extra land, the final decision is yet to be taken.
O. N. Yours faithfully,
Approved For Krishna Bhagya Jala
by Nigam Limited,
MD S/d- 19-6
Technical Assistant,
Almatti 586201,
The trial Court held that in view of the contents of the disputed letter there is no possibility of fair consideration of the case by the Chief
Engineer. Therefore, the contention that the party has to exhaust his remedy before the Chief Engineer was held to be untenable.
The learned Counsel for the respondent also submitted that the Court regarding the maintainability of the suit already framed an issue and it is
sufficient to cover the pleas raised by the defendant-petitioner. The learned Counsel for the respondent further submitted that the petitioners are
trying to effect recovery of Rs. 64,79,000/-whereas, the disputed liability of excess payment made would not exceed 4 to 5 lakhs. The suit has
been designed disingenuously wording the reliefs in the misleading manner. Unfortunately, the trial Court has failed to notice the underlying
deceptive intentions. The plaintiffs have made an attempt to circumvent the provisions of Court Fees Act to avoid the payment of a normal court
fee by showing proper valuation. In the proposed amendment specific pleas regarding pecuniary jurisdiction and improper valuation are raised, the
subject matter involved runs into few lakhs. In order to overcome the payment of heavy court fee, the disputed letter in question is set up as a ruse
to seek the relief of declaration impinging the validity of the same.
After carefully going through the contents of the disputed letter. I find that the letter does not make any reference to the claims of the plaintiff
nor any of the transaction of the plaintiff in any manner and no direction for recovery of any amounts are made. In administrative process certain
instructions are issued to the Chief Engineer as guidelines. The disputed letter does not curtail or encroach upon the jurisdiction of the Chief
Engineer endowed in the Clause 29 of the Contract, which is reproduced hereunder :--
Clause 29-(1) If any dispute of difference of any kind what-so-ever were to arise between the Executive Engineer/Superintending Engineer and
the contractor regarding the following matters namely,
(i) The meaning of the specifications designs, drawings and instructions hereinbefore mentioned;
(ii) The quality of workmanship or materials used on the work and
(iii) Any other question, claim, right, matter, thing what-so-ever, in any way arising out of or relating to the contract, designs, drawings,
specifications estimates, instructions, or orders, or those conditions or failure to execute the same whether arising during the progress of the work,
or after the completion, termination or abandonment thereof, the dispute shall, in the first place, be referred to the Chief Engineer, who has
jurisdiction over the work specified in the contract. The Chief Engineer shall, within a period of ninety days from the date of being requested by the
Contractor to do so, give written notice of his decision to the contractor.
The purpose and object of Clause 29 is to see that just and proper claims of the contractors have to be fairly decided without giving room for
long drawn civil litigations. The Chief Engineer has to apply himself to the disputed contentions with reference to the material and has given a just
decision. However, a contractor, who is not satisfied with a decision of the Chief Engineer can approach the Civil Court. Therefore, as per the
lawful contract between the parties, the aggrieved contractor has to exhaust his remedy on administrative side by approaching the Chief Engineer
and without recourse to the said procedure, it would be impermissible for the aggrieved contractor to approach the Court directly. Although, the
stipulation in Clause 29 does not amount to an arbitration agreement, but, it has certain incidences of the arbitration agreement which could prove
useful to the contractor in getting his claim settled before the Chief Engineer. The decision of the Chief Engineer although does not bind the
contractor, but it binds the Department.
In that view, the stipulation in Clause 29 is lawful stipulation and intended to provide inexpensive and expeditious remedy to the aggrieved
contractors. The plaintiff being the aggrieved contractor has to exhaust his remedy under Clause 29 of the contract before approaching the Civil
Court.
On the question of pecuniary jurisdiction and valuation although an issue is framed by the proposed amendment to the written statement, the
petitioners wanted to set out the plea specifically and in detail. Even according to plaintiffs, the disputed excess payments do not exceed more than
Rs. 4 lakhs at least to that extent the plaintiff should have valued the suit and paid the court fee accordingly but by clever camouflage techniques.
The disputed letter has been used as a ruse to file the suit although the disputed letter has no bearing on the facts of the case and does not refer to
the plaintiff or any of his claims in any manner.
In view of the admission of the value of the disputed claims being around 4 lakhs and the court fee should be paid thereon. Therefore, the
rejection of the request for amendment is bad in law. In view of the material available on record, the suit is not maintainable for improper valuation
and non-payment of proper court fee. That apart, in view of the provisions contained in Clause 29 of the Contract, the suit filed by the plaintiff is
premature. Accordingly, I find the suit filed by the plaintiff in the present form is not maintainable. Accordingly, the plaint is rejected.