RSA No. 4052 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4052 of 2009 DATE OF DECISION : 08.12.2010 Ajay Kumar Walia .... Appellant Versus Municipal Council, Patiala & Another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL Present: Mr. B. R. Mahajan, Advocate for the appellant. **** L. N. Mittal, J. (Oral) Plaintiff-Ajay Kumar Walia having failed in both the courts below has filed the instant second appeal. The plaintiff alleged that pursuant to tenders floated by defendants- respondents (Municipal Council, Patiala and its Executive Officer), the plaintiff and others submitted tenders. Plaintiff's tender being lowest was accepted and agreement was entered into between the parties. Accordingly, the plaintiff executed the work and supplied earth to the defendants. Some amounts of the plaintiff were paid. However, amounts pertaining to supply of earth for September 1993, October 1993 and November 1993 aggregating Rs.1,53,009.69 were not paid. The plaintiff in the suit claimed the said amount along with Rs.82,590/- as interest thereon @ 18% per annum till filing the suit. Accordingly, the plaintiff filed suit for recovery of Rs.2,35,000/-. Defendants controverted the claim of the plaintiff. It was pleaded that no contract was executed between the parties nor the plaintiff executed any work relating to the suit amount. Plaintiff's claim was also alleged to be time barred. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Patiala vide RSA No. 4052 of 2009 -2- judgment and decree dated 16.05.2005 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has also been dismissed by learned Additional District Judge, Patiala vide judgment and decree dated 28.01.2009. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that the plaintiff supplied earth relating to the suit amount to the defendants as per entries in Measurement Book (MB) and the said entries have been signed by Sectional Officer of the defendants but could not be singed by Municipal Engineer having been transferred, but since the plaintiff supplied earth to the defendants pursuant to contract, the plaintiff is entitled to its price i.e. suit amount. The contention cannot be accepted. Work order on which reliance has been heavily placed by the plaintiff and pursuant to which the plaintiff allegedly supplied the earth to the defendants, stipulates that before starting the work, the plaintiff had to enter into an agreement with Municipal Council. However, no such agreement entered into between the parties has been placed on record. Plaintiff pleaded in the plaint that such as agreement was entered into between the parties. However, the said agreement has not seen the light of the day. Consequently adverse inference goes against the plaintiff. Even otherwise, in the absence of any agreement, it could not be said that the plaintiff supplied earth to the defendants pursuant to any contract between the parties. The work order on which the plaintiff has relied heavily did not authorize the plaintiff to supply the material to the defendants without executing the agreement. Work order does not contain any terms and conditions of contract which were to be contained in the agreement to be RSA No. 4052 of 2009 -3- entered into between the parties. However, since there is no such agreement produced in evidence, the plaintiff is not entitled to the suit amount. In addition to it, the suit is also barred by limitation. Suit amount has been claimed for material supplied in September 1993, October 1993 and November 1993, whereas the suit was filed on 31.03.1997 i.e. after expiry of three years four months from the last transaction. However, limitation period for filing the suit was three years only. The suit is thus clearly barred by limitation. Learned counsel for the appellant contended that notice period has to be excluded while computing the limitation period. However, according to plaintiff, he served notice dated 31.12.1996 on the defendant, but even before issuance of said notice, limitation period had already expired. Counsel for the appellant also states that notice period was one month only. However, even if limitation period is taken to be three years and one month including the notice period, even then the suit is barred by limitation. There is, therefore, no infirmity in concurrent finding of the courts below that the suit is barred by limitation. For the reasons abovesaid, the concurrent finding recorded by the courts below cannot be said to be perverse or illegal so as to call for interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is bereft of any merit and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE December 8, 2010 'raj'