1 fa1145-46-92j rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL NO. 1145 OF 1992 ALONGWITH FIRST APPEAL NO. 1146 OF 1992 Maharashtra State Electricity .. Appellant in Board, Kalwa both Appeals V/s. M/s. Gurukrupa Builders, .. Respondent Ulhasangar – 2, Dist.- Thane both Appeals ..... Ms. A.R. S. Baxi for the Appellant in both Appellant. None for the Respondent. ..... CORAM : A.S.OKA, J. DATE : SEPTEMBER 12, 2011. ORAL JUDGMENT : Heard the learned Counsel appearing for the Appellant in support of the Appeal. There were two suits filed by the Respondent being Special Civil Suit No.46 of 1985 and Special Civil Suit No.226 of 1986. The Appellant MSEB had invited tenders for work of construction of permanent rail track in 400/200 KV-Sub-Station at Kalwa, District Thane. The tender was filled in by the Respondent-plaintiff. The tender of the Respondent was accepted. Work order was issued to the Respondent on 14th May, 1979. The cost of work was Rs.7,25,257.65 and 2 fa1145-46-92j the work was to be completed within a period of two months from the date of handing over the site. Further work of pile foundation was given to another contractor. In Special Civil Suit No. 46 of 1985, it was contended that there was delay on the part of the Appellant in handing over the site and, therefore, the Respondent could not commence the work. It was alleged that day to day work drawings were not provided to the Respondent. It was alleged that the Appellant did not hand over the mild steel, cement, and other material to the Respondent in time. Reliance is placed on the correspondence made by the parties. It is alleged that by the letters dated 8th April, 1990 and 22nd April, 1990, the contract was terminated by the Appellant. It is alleged that without offering a reasonable opportunity to explain, the contract was terminated. Under the terms of the contract, the Respondent has furnished a bank guarantee in the sum of Rs.52,266/-. It is alleged that the Appellant tried to invoke the Bank guarantee of Rs.52,266/-. A reference is made to the letter dated 11th February, 1985 issued by the Appellant for invoking the Bank Guarantee. The prayer in the first suit i.e. Special Civil Suit No.46 of 1985 is that the letter dated 11th February, 1985 issued by the Executive Engineer 3 fa1145-46-92j of the Appellant be declared as ineffective, illegal and contrary to the terms of contract. The second prayer is of perpetual injunction restraining the Appellant from recovering the amount covered by the Bank Guarantee of Rs.56,266/-. The suit was contested by filing written statement. It was contended that there was no default on the part of the Appellant. It was contended that by letter dated 4th August, 1980, the Appellant called upon the Respondent to remit a sum of Rs.74,500/- towards risk and costs. It was contended that as the Respondent has committed breach of contract, the Appellant was entitled to invoke the Bank Guarantee. 2. During the pendency of the said earlier suit, the Respondent filed a suit for recovery of a sum of Rs.2,55,783.30 against the Appellant. The said claim was made on account of balance amount of third running bill, the work done after the third running bill, extra work done, increase in costs of materials, costs of overheads and establishment expenses. Interest was prayed for at the rate of 18% per annum from the date of the notice till the filing of the suit. The said amounts were claimed on the ground of alleged illegal termination of the contract by the Appellant. The prayer in the second suit is for declaration 4 fa1145-46-92j that letter dated 22nd April, 1980 issued by the Appellant of termination of the contract was illegal, unlawful and unwarranted. The second prayer was that it be declared that the balance work got done through another agency departmentally may not be considered as very urgent and at the risk and cost of the Respondent. The third prayer was for recovery of a sum of Rs.2,55,783.30 with interest thereon at the rate of 18% per annum from the date of filing suit till realisation. 3. In the said suit, a Counter Claim was filed by the Appellant. It was contended that the balance work amounting to Rs.74,500/- was required to be got done through another agency. The additional claim made in the Counter Claim was of a sum of Rs.8031.65 towards the risk and cost amount. A claim was also made for overhead charges at 15% on the said amount equivalent to Rs.12,645.25. Thus, the total amount claimed was Rs.96,986.80. 4. The operative part of the common impugned Judgment reads thus: :: OR D E R :: (1) Both Civil Suits No.226 of 1986 and 46 of 1985 are partly decreed. 5 fa1145-46-92j (2) Counter -claim is dismissed. (3) The Defendant - Maharashtra State Electricity Board do pay the amount of Rs. 1,00,375.68 to the Plaintiff with interest at the rate of 11 percent per annum on that amount from 3rd October, 1985 i.e. from the date of issuance of demand notice by Plaintiff to Defendant until its realisation. (4) No order as to costs in both the suits and Counter -claim. (5) The Bank guarantee given by the Plaintiff of Rs.52,266 from the Bank of India, Ulhasnagar Branch is discharged. (6) Decree be drawn accordingly. (7) Copy of this Judgment be kept in Special Civil Suit No.46 of 1985.” 5. The learned Counsel appearing for the Appellant submitted that even in the first suit, the claim made by the Respondent in the subsequent suit could have been incorporated as the said claim was made in the subsequent suit on the basis of the cause of action for filing the first suit. Her submission is that in view of Sub Rule 2 of Rule 2 of Order II of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Code”), the Respondent ought to have obtained a leave under Sub Rule 3 of Rule 2 of Order II of the said Code. The learned Counter submitted that the second suit was thus barred 6 fa1145-46-92j and as far as the first suit is concerned, the finding on merits are in favour of the Appellant and, therefore, the decree could not have been passed in the said suit against the appellant. The learned Counsel submitted that the fact that the remaining work was got carried out by the Appellant has been admitted by the Respondent. Her submission is that the Respondent accepted that the remaining work was got carried out by the Appellant by engaging another contractor. Her submission is that as the entire claim made in the Counter claim had gone unchallenged, the Counter claim ought to have been decreed. 6. None appeared for the Respondent. I have perused the record and proceedings, notes of evidence and other documents on record. Perusal of the first suit filed on 20th February, 1985 shows that cause of action for filing of suit arose on 11th February, 1985 when the Appellant invoked Bank Guarantee. The Bank Guarantee was invoked by the Appellant on the ground that breaches were committed by the Respondent and the contract was terminated. The contention in the suit is that the Appellant had no right to invoke the Bank guarantee. The submission is that the second suit was barred by the 7 fa1145-46-92j provision of Sub Rule 2 of Rule 2 of Order II of the said Code. 7. A cause of action is bundle of facts which gives rise to a right to sue. Perusal of the plaint in the first suit shows that the same is based on the cause of action of termination of the contract by the Appellant. The Bank guarantee was sought to be invoked on the basis of the termination of the contract. Therefore, the first relief claimed in the first suit is for declaration that the letter invoking the Bank guarantee was illegal. The second prayer was for perpetual injunction restraining the Respondent from recovering the amount payable under the Bank guarantee. The second suit was filed by the Respondent for recovery of various amounts from the Appellant. The first prayer in the suit is for declaration that the letter dated 22nd April, 1980 issued by the appellant of termination of contract was illegal. The claim for recovery is in respect of balance amount of third running bill, increase in the costs of materials, loss or profit etc. Thus, the entire claim is founded on the allegation that the letter of termination dated 22nd April, 1980 was illegal, unwarranted, malafide and arbitrary. Prayers (a) to (c) in paragraph No.34 of the second suit read thus: 8 fa1145-46-92j “(a) That it be declared that the letter dated 22.4.1980 issued by the Defendant to the Plaintiffs for termination of contract of the Plaintiffs is illegal wrongful, un-warranted and malafide and arbitrarily. (b) It be further declared that the balance work got done through another Agencies departmentally, by the Defendant may not be considered as the very urgent and at the risk and costs of the Plaintiffs. (c) The Hon'ble Court be pleased to award a Judgment and Decree for the sum of Rs. 2,55,783.30p. together with 18% interest per annum from the date of filing of th suit till realization of the amount.” 8. If the plaint in both the suits are read as a whole, it appears that the cause of action for filling both the suits is the same. The cause of action is illegal termination of the contract by the Appellant. Thus, it was incumbent on the Respondent to make all claims in the first suit which were available on the basis of the cause of action termination of contract. However, the Respondent-plaintiff has omitted to claim the reliefs claimed in the second suit which could have been and ought to have been claimed in the first suit. Sub Rule 1 of Rule 2 of Order II of the said Code mandates that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Sub Rule (3) of Rule 2 of Order II reads thus: 9 fa1145-46-92j “(3) Omission to sue for one of several reliefs.- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation.- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.” 9. Admittedly, there was no leave obtained by the Respondent under Sub Rule 3 of Rule 2 of Order II of the said Code during the pendency of the first suit. This aspect has been completely glossed over by the learned trial Judge and he has proceeded to brush aside the defence of the bar without considering it on merits. Therefore, the second suit will have to be dismissed as not maintainable being barred under Rule 2 of Order II of the said Code. As far as the first suit is concerned, issue No.6 framed is “whether the plaintiff proves that letter issued by the Executive Engineer, Maharashtra State Electricity Board, dated 11th February, 1985 is ineffective, illegal and unlawful ?”. The trial Court has recorded the finding on the said issue in the negative. In the second suit, on issue No.4, a finding has been recorded that the Respondent has failed to prove that the termination of the contract was illegal and unlawful. A 10 fa1145-46-92j finding was also recorded that the Respondent has failed to prove that the Bank Guarantee was illegally and unauthorizedly encahsed. After having recorded the said findings, there was no occasion for the trial Court to direct that the Bank Guarantee be discharged. Therefore, even the first suit must fail on the basis of the findings recorded by the trial Court. I have already held that the second suit was not maintainable and was barred by Sub Rules (2) and (3) of Rule 2 of Order II of the said Code. 10. Now, turning to the Counter Claim, though, the Appellant examined one of its officers as a witness, no documentary evidence has been produced and proved to show that expenditure of a particular amount was incurred for getting the balance work done through some other contractor. In the absence of any documentary evidence regarding the amount allegedly spent in getting the remaining work carried out, the Counter Claim could not have been decreed. There is no documentary evidence to substantiate the claim made by way of a Counter claim. Hence, there is no error in the dismissal of the Counter Claim filed by the Appellant. 11. Hence, I pass the following order: 11 fa1145-46-92j :: O R D E R :: i. The impugned Judgment and decree dated 11th March, 1992 is quashed and set aside and the Special Civil Suit No.266 of 1986 and 46 of 1985 stand dismissed with no order as to costs. ii. That part of the impugned decree dismissing the Counter Claim is hereby confirmed. iii. There will be no order as to costs. iv. Appeals are partly allowed on the above terms. (A.S.OKA, J.)