Regular Second Appeal No. 2011 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2011 of 2011 (O&M) Date of decision : May 06, 2011 Municipal Committee, Safidon ....Appellant versus The Bahadurgarh Co-operative L/C Society Ltd. ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Sanjay S. Chauhan, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 5632.C of 2011 Allowed as prayed for. CM No. 5633.C of 2011 For the reasons mentioned in the application which is accompanied by affidavit, delay of 16 days in refiling the appeal is condoned. CM No. 5634.C of 2011 Allowed as prayed for. RSA No. 2011 of 2011 Defendant-Municipal Committee, Safindon having been Regular Second Appeal No. 2011 of 2011 (O&M) -2- successful in the trial court but having lost in the lower appellate court has come up by way of second appeal. Respondent-plaintiff, the Bahadurgarh Co-operative L/C Society Ltd. Bahadurgarh filed suit against defendant-appellant alleging that the plaintiff executed the work of the defendant worth Rs 3,70,800/- but the defendant has not made payment for the said work. Accordingly, the plaintiff claimed the said amount and also Rs 2,29,096/- as interest thereon @ 18% per annum thereby seeking recovery of total amount of Rs 5,99,896/-. The defendant, inter alia, pleaded that amount claimed by the plaintiff for the work done and also towards interest is excessive. Various other pleas including bar of limitation were also raised. Learned Additional Civil Judge (Senior Division), Safidon vide judgment and decree dated 26.9.2009 dismissed the suit being time barred although it was found that amount for the work done by the plaintiff was due from the defendant. The trial court also ordered prosecution of defendant's Secretary Dharam Chand Arya for perjury. First appeal preferred by plaintiff has been allowed by learned Additional District Judge, Jind vide judgment and decree dated 17.11.2010 and thereby suit filed by the plaintiff has been decreed for recovery of Rs 3,70,800/- with interest thereon @ 6% per annum from due date till recovery. Appeal preferred by Dharam Chand Arya against his prosecution for perjury has also been allowed by the same judgment. Feeling aggrieved, the defendant has preferred the instant second appeal. Regular Second Appeal No. 2011 of 2011 (O&M) -3- I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that plaintiff's suit is time barred and was rightly held so by the trial court because the work was executed upto May, 2004 whereas the suit was instituted on 14.11.2007 i.e. more than three years after the completion of the work. The contention on first blush appears to be forceful but is in fact devoid of merit. After completion of work, the plaintiff demanded due amount from the defendant but the defendant put off the payment on the pretext of lack of funds. However, defendant started making payments to other contractors/agencies forcing the plaintiff to file suit for injunction against the defendant to restrain it from making payment to other agencies without making payment of due amount to the plaintiff. In that suit, defendant admitted that it had got the work executed from the plaintiff. The said written statement was filed in the year 2005 which amounts to acknowledgment. Learned counsel for the appellant states that the written statement had been filed on 21.11.2005. Consequently, the instant suit instituted on 14.11.2007 is within limitation. In addition to it, admittedly during the pendency of the instant suit amount of Rs 48,553/- was also paid to the plaintiff by the defendant. Lower appellate court rightly held the suit to be within limitation in view of acknowledgment made by the defendant in the written statement on 21.11.2005 filed in the previous suit. Consequently, the contention raised by counsel for the appellant cannot be accepted. Regular Second Appeal No. 2011 of 2011 (O&M) -4- For he reasons aforesaid, I find no merit in the instant second appeal. It is surprising that the defendant got the work executed from the plaintiff but did not make payment for the same. Suit has been rightly decreed by the lower appellate court for the due amount. There is no illegality or perversity in the finding of the lower appellate court so as to require any interference in second appeal. No question of law much less substantial question of law arises for adjudication in the instant second appeal. Before parting with the order, disturbing scenario of functioning of the defendant-appellant as manifested by this litigation, has to be noticed and brought to the pointed notice of the concerned authority for appropriate remedial action. It is undisputed that defendant Municipal Committee got the work executed from the plaintiff and did not make payment for the same on the pretext that funds were not available. In the first instance, work should not have been got executed if funds were not available. Secondly, even if the work was got executed and the funds were not available, plaintiff should not have been forced to resort to litigation and assurance of making payment on availability of funds should have been extended. Thirdly, the work was completed in May, 2004 and payment was not made till November, 2007 i.e. for 3½ years after completion of work. If funds were not available even for 3½ years after completion of work, it is beyond comprehension as to why the work or project was taken in hand at all by the defendant. Unnecessary litigation has been generated by the conduct of the defendant. Earlier plaintiff had to file suit for injunction and Regular Second Appeal No. 2011 of 2011 (O&M) -5- then the plaintiff had to file the instant suit for recovery giving rise to first and second appeals. In these circumstances, it is ordered that copy of this order be sent to Principal Secretary and also to Director, Department of Urban Local Bodies, Haryana, Chandigarh for taking appropriate action including remedial action to avoid such conduct of the Municipalities and to avoid such unnecessary litigation. As noticed hereinabove, the appeal has no merit. No question of law much less substantial question of law arises for adjudication in the instant second appeal. Accordingly, the appeal is dismissed in limine. ( L.N. Mittal ) May 06, 2011 Judge 'dalbir'