GANNON DUNKERLEY & CO. LTD. versus UNION OF INDIA

GANNON DUNKERLEY & CO. LTD.

UNION OF INDIA

October 28, 1969

[J. C. SHAH AND K. S. HEGDE, JJ.)

Limitation Act, 1908-Suit for payment at an additional rate

over

contract rate in view of altered circumstances and co1nplex nature_ of work-Claim ;., not one for price of work done nor /or comtunsuiion for breach of contract-Therefore Art. 56 and Art. 115 of First Schedule noti applicable-Suit governed by Art. 120----Commencement of period of /imitation under Article.

The appellant-comp'!lly filed suit agafust the Union of India demand-ing payment at an .~nhanced rate over the basic rate stipulated in cons-truction contract with the-Union of India. The clailn related to revision of rates due to the complex nature and increase in the quantity of work and in respect of work not covered by the contract. The addi-tional work was done at the request of the Engineer-in-charge who m1der the terms of the contract was competent to give instructions for work not covered by the ten:.-.s of the contract and fix the rate at which-remunera-tion was to be P"'<l in respect of such work. The Union of India con-tended that the claim was barred by the law of limitation. The trial court decreed the suit fur the amount certified by the Superintending Engineer. On. appeal the High Court held that the claim was governed eithe·r by Art. 56 or by Art. 115 of the First Schedule to the Limitation Act, 1908, and suit, more than three years of the date on which the work was done and in any event of the date on which the claim was rejected, was barred. Allowing the apeal to this Court and restoring the decree for the trial court,

HELD : (i) Article 56 of the First Schedule to the Indian Limitation Act, 1908, prescribes period of three years for suit for the price of the work done by the plaintiff for the defendant at his request. where no time has been fixed for payment, and the period of limitation commences to run from the date when the work is done. suit is governed by Art. 5 6 if it arises out of contract to pay the pric.e of work done at the request of the defendant. The claim in the present case is for pavment lllOt an additiolllll rate over the stipulated rate in view of change in circumstances and not for the price of work done by the appellant. even though the additional work was done at the. request of the Engineer-in-charge. [51 Fl

(ii) Article 115 of the First Schedule to the Limitation Act is resi-duary article dealing with the claim for compensation for the breach of any oontract, express or implied, not in writing registered and not spe-cially provided for in the 'first schedule. The period of limitation in 'uch cases . is three years and it commences to run when the contract is broken,. or where there are &uccessive breaches whe.n the breach in respect of which the suit is instituted occurs or where the breach is continuing when it ceases. The suit filed by the appellant company is not suit for ccm-pensation for breach of contract express or implied; it is suit for en-hanced rate because of change of circumstances, and in respect of work not CQ\>ered by the contract. The additional work directed bv the. Engineer-in-charge whe.n carried out may be deemed to be done under the

terms of the IX)nb:act; but the claim for enhanced rates does not arise out of the contract : it is in any case not .claim for compensation for breach of contract. [51 HJ

(iii) The claim is, therefore, not covered by any specific article under the First Schedule and must fall within the terms of Art. 120. Under this Article the period of six years commences to run when the right to sue accrues. There is no right .to sue until there is an accrual of the right asserted in the suit and its infringement or at least clear and 'un-equivocal threat to infringe the right by the defendant against whom the suit is instituted. [52 CJ

Bolo v .. Kokao 9nd Others, L.R. 87 I.A. 325, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2584 and 2585 of 1966.

Appeals from the judgment and decrees dated January 19, 1965 of the Patna High Court in First Appeals Nos. 190 and 213. of 1960.

H. R. Gokhale, G. L. Sanghi, J. B. Dadachanji and Ravinder .Narain, for the appellant (in both the appeals).

Jagdish Swarup, Solicitor-General, V. A. Seyid Muhammad, B. D. Sharma and S. P. Nayar, for the respondent (in both the appeals).

The Judgment of the Court was delivered by

Shah, J. The Government of India invited tenders for "rein-forced concrete work relating to the foundation and super-structure of the Fertilizer Factory building at Sindri" in the State of Bihar. The tender submitted by the appellant Company was accepted on November 22, 1947 and formal contract in that behalf was executed on November 26, 1948. By cl .. 12 of the ~ontract. insofar as it is relevant, it was provided :

"The Engineer-in-charge shall have power to make any alterations in, omissions from, additions to, or subs-titutions for, the original specifications, drawings,. designs artd insiructlons, ...... , and the :::<>ntractor shall be bound to carry out the work in accordance with any i,nstructions which may be given to him ....... . and any altered, additional or substituted work which the contractor may be directed' to . do in the manner above specified as part of the work shall be carried out by the contractor on the same conditions in all respects on which he agreed to do the main work, and at the same rates as are specified in that tender for the main work. . . . . . . And if the altered, additional or substi· tuted work includes any class of work, for which ncnate is specified in this contract, then such class of work shall

be carried out at the rates entered in the current sche-dule of rates of the Hazaribagh P.W.D. district which was in force at the time of the acceptance of the con-tract minus/plus the percentage which the total tendered amount bears to the estimated cost of the entire work put to tender, and if the altered, additional or substituted work is not entered in the said schedule of rates, then the contractor shall within seven days of the date of his receipt of the order to carry out tht; work inform the Engineer-in-charge of the rate which it is his intention to charge for such class of work, and if the Engineer-in-charge does not agree to this rate he shall, by notice in writing, be at liberty to cancel his order to carry out such class of work, ...... provided ...... that if the contractor shall commence work or incur any expendi-ture in regard thereto before the rates shall have been determined . . . . . . then . . . . he shall only be entitled to be paid in respect of the work carried out or expendi-ture incurred . . . . . . according to such rates as shall be fixed by the Engineer-in-charge. In the event of dispute, the decision of tlfe Superintending Engineer of the Circle shall be final."

Clause 25 of the agreement provided, insofar as it is relevant :

"Except where otherwise provided in the contract all questions and disputes relating to the meaning of the ·specifications, designs, drawings, and instructions, here-inbefore mentioned and as to the quality of workman-ship,. or mat~rial~ used on the work, or as to any other quest10'.1•. claim, n~ht, matte~ or thing whatsoever, in any way ansmg out of, or relatmg to the contract, designs, drawmgs, specifications, estimates, instructions, orders or these conditions, or otherwise concerning the works, or tlie execution, or failure to execute the same, whether arising during the progress of the work or after the com' pletion or abandonment thereof shall be referred to Superintending Engineer ...... to be nominated by the Chief Engineer for arbitration in thQ manner provided by law relating to arbitration ....... , "

The Sindri Factory Buildings were to be constructed under the advice and guidance of M/s. Chemical Construction Corporation of New York. That Firm made delay in supplying the drawings and specifications which involved work of complicated nature not included m the original contract. Time for completion of the work was on that account eii:tended till February 26, 1950.

On September 20, 1950 the appellant Company made demand for payment at an enhanced rate of 421% over the basic

rates s1ipulated under the original contract. This claim was made on five grounds : ·

1. That there was "substantial deviation" in the nature of work of which the detailed work draw-ings were supplied to the appellant Company after the date of the contract. The work involved was of complex nature requiring highly skilled Jabour, and that additional labour and materials not covered by the contract rates were required;

2. That there was "great increase in the price of materials 'and labour on account of undue pro-longation of the period of work;"

3. That there was increase in the cost of transporta-tion on account of rise in the price of petrol and mcrease in railway freight;

4. That the Government of India entered into other contracts incidental to the construction of the Sindri Factory at substantially higher rates which directly affected the cost of labour and materials of the appellant Company who had to compete with the other contractors;

5. That additional work ordered to be done involved in many instances quantity of work several times the work set out in the contract.

By his letter dated September 13, 1950, the Additional Chief Engineer rejected the claim. In September 1954 the disputes relating to the claim for rise in cost of material and labour due to delay in supplying detailed work drawings, the claim .·arising from rise in price of petrol and for increase in the cost of material and labour due to other contractors working on the site, were referred to arbitration, but northe claims for revision of rates due to complex nature of the work ·and increase in the quantity of work. The arbitrator rejected the claims of the Company m respect of the matters which were referred.

Thereafter the appellant Company filed suit on August 9, 1956, against the Union of India, for decree for Rs. 3,62,674/9/6 being the amount cfaimed at the rate of 42!% above the contract ra~ in the alternative, , decree for Rs. 2,44,000/, being the amount ch1imed at the rate of 28.l % above the contract rate as recommended by the Executive Engi-meer, and in the further aiternative, decree for Rs. 1,36,222/-at the rate of 18 .17 % above the contract rate as certified by the Superintending Engineer. The Union of India contended, inter alia, that the claim was barred by the law of limitation.

The Trial Court held that the claim was not. barred by the law of limitation and decreed the claim for Rs. 1,36,222/- as certified by the Superintending Engineer. Agins! the decree passed by the Trial Court the appellant Company as well as the Union of India appealed to the High Court. Before the High Court, in support of the appeal only the plea of limitation was pressed on behalf of the Union of India. In the view of the High Court the claim was governed either by Art. 5 6 or by Art. 115 of the First Schedule to the Limitation Act, 1908, and the suit not having been filed within three years of the Jate on which the work was done and in any event of the date on which the claim was rejected was barred. The appellant Company has appealed to this Court with certificate.The appellant Company had undertaken under the terms of the contract to do specific construction work at "basic rates". The Engineer-in-charge was by the terms of cl. 12 of the agreement competent to give instructions for work not covered by the tenns of the contract, and it was provided that remuneration shall be paid at the rate fixed by the Engineer-in-charge for such additional work, and in case of dispute the decision of the Superintending Engineer shall be final. It is common ground that the claim made by the appellant Company was not covered by the arbitra-tion agreement, and on that account it was not referred to the arbitrator. The claim in suit related to the revision of rates due to the complex nature of the work and due to increase in the quantity of work and also grant of contracts to other competing parties at substantially higher rates and other related matters.

Article 56 of the First Schedule to the Indian Limitation Act. 1908, prescribes period of three years for suit for the price of, work done b)' the plaintiff for the defendant at his request, where no time has been fixed for payment, and the period of limitation commences to run from the date when the work is done. suit is governed by Art. 56 if it arises out of contract to pay the price of work done at the request of the defendant. The claim in the present case is for payment at an additional rate over the stipulated rate in view of change in circumstances, and not for price of work done by the appellant Company. It is true that additional work was done at the request of the Engineer-in-charge, but the claim in suit was not for the price of work done but for enhanced rates in view of altered circumstances.

Article 115 of the First Schedule to the Limitation Act is ff residuary article dealing with the claim for compensation for the breach of any contract, express or implied, not in writing register-ed and not specially provided for, in the First Schedule. The period of limitation in such cases is three years and it commences

SUPREME,COURT REPORTS

to run when the contract is broken, or where there are successive breaches when the breach in respect of which the suit is instituted occurs, or where the breach is continuing when it ceases. The suit filed by the appellant Comp11.ny is not suit for compensation for breach of contract express or implied : it is suit for enhanced rate because of change of circumstances, and in respect of work not covered by the contract. The additiQnal work directed by the Engineer-in-charge when carried out may be deemed to be done under the terms of the contract : bat the claim for enhanced rates ·does not arise out of the contract : it is in any case not claim for compensation for breach of contract.

The claim is therefore not covered by any specific article under the First Schedule, and must fall within the terms of Art. 120. The Solicitor-General appearing on behalf of the Union of India contended that even if the claim falls within the terms of Art. 120 of the Limitation Act, it was barred, for, the appellant Company had in the suit made claim for work done more than six years before the institution of the suit. Counsel submitted that under Art. 120 the period of limitation commences to run from the date on which the defendant obtains the benefit of the work done by the plaintiff. But under Art. 120 of the Limitation Act the period of six years for suits for which no period of limitation is provided elsewhere in the Schedule commences to run when the right to sue accrues. In our judgment, tliere is no right to sue until there is an accrual of the right asserted in the suit, and .its infringement, or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted : Bolo v. Kokan and· Others('). ·