The Honourable Mr v. The General Manager

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 16.7.2007Coram:The Honourable Mr.Justice M.JAICHANDRENS.A.No.674 of 1996D.Rajagopal .. Appellant (Plaintiff)vs.1. The General Manager, Cellular Concrete Plant, Tamil Nadu Housing Board, Ennore, Madras 600 057. 2. A.Thambusamy .. Respondents (Defendants 1 and 2) The Second Appeal has been filed against the judgment and decree ofthe Ist Additional District Judge, Tiruchirapalli, dated 29.7.1994, madein A.S.No.111 of 1992, and the cross objection in A.S.No.111 of 1992,arising out of the decree and judgment of the Principal District Munsif,Ariyalur, dated 20.4.1990, made in O.S.No.387 of 1986. For Appellant : Mr.J.Ramakrishnan for M/s. Sarvabhauman Associates For Respondents : M/s. Adhi Narayana Rao for R1 No appearance for R2 J U D G E M E N TThe second appeal has been filed against the judgment and decree ofthe 1st Additional District Court, Tiruchirapalli, dated 29.7.1994, madein A.S.No.111 of 1992, and the Cross Objection in A.S.No.111 of 1992,arising out of the judgment and decree of the Principal District Munsif,Ariyalur, dated 20.4.1990, made in O.S.No.387 of 1986. 2. The plaintiff in the suit O.S.No.387 of 1986, on the file of theDistrict Munsif Court, Ariyalur, is the appellant in the present secondappeal. The plaintiff had filed the suit for a decree of recovery ofmoney. https://hcservices.ecourts.gov.in/hcservices/

3. The short facts of the case, as stated by the plaintiff, are asfollows:Based on the tender, dated 31.7.1982, the plaintiff had enteredinto an agreement with the first defendant for mining, sizing andtransporting 4,500/- tonnes of limestone from Melarasoor lime stonequarry. The said lime stone quarry had been handed over to theplaintiff, on 21.6.1983. When the plaintiff had commenced the work, on21.6.1983, he was obstructed from further mining and carrying out hiswork by the labourers, who were working in the mines, since they werenot given their due labour charges of Rs.6,150/- for the stock of 250metric tonnes mined and left by the second defendant. 4. In the letter, dated 4.7.1983, sent by the second defendant tothe first defendant, it had been stated that he was not interested inthe above said stock of 250 metric tonnes stocked by him and that he hadrequested the Management to effect payment of wages and lift thematerial from the quarry. 5. Since the plaintiff has to continue his mining operations and tohave a smooth running with the labourers, as per the oral intimationsfrom the first defendant, the plaintiff had been obliged to pay out ofhis pocket and paid, accordingly, a total amount of Rs.6,150/-, on15.7.1983, to discharge the arrears of wages, as per the accountsmaintained by the first defendant. The plaintiff is entitled toreimbursement of the amount, under Section 70 of The Indian ContractAct. However, the said amount had not been paid by the defendants.Therefore, the plaintiff had filed the suit praying for a judgment anddecree in favour of the plaintiff against the defendants for a sum ofRs.6,150/- and for Rs.5,000/- against the first defendant for theretention of the amount. 6. In the written statement filed on behalf of the first defendant,it has been stated that the claim of the plaintiff that when he hadstarted his work, on 21.6.1983, he was prevented by the labourers, dueto non-payment of labour charges of Rs.6,150/- for the stock of 250Metric tonnes left by the second defendant, is false and untrue. Infact, there was no balance of mining charges to be paid by the firstdefendant to the second defendant and the same cannot be treated asarrears of labourers' charges and as such, the second defendant did notrequest the Management to effect the payment of labour charges and liftthe material from the quarry. The suit is not sustainable in law. 7. It is also not true to state that as per the oral intimationfrom the first defendant, the plaintiff had paid a total amount ofRs.6,150/-, on 15.7.1983, to discharge the arrears of the labourcharges, as per the accounts maintained by the first defendant.According to the provisions of the Contract Labour and Abolition Act, https://hcservices.ecourts.gov.in/hcservices/ 1971, (Central), the principal employer has to settle the account of thearrears of labour charges to the labourers directly and the same may bededucted from the Contractor's Bill. As the plaintiff is a third person,he cannot settle the account to the labourers. If a third personinterfered in the previous contract by settling the arrears of labourcharges, it is purely at his own risk and cost and the principalemployer is not liable to pay anything to the third person. 8. Since the plaintiff has not furnished the correct fact withregard to his illegal acts of removing the 250 metric tonnes stocked bythe second defendant, the amount of Rs.5,000/- has been withheld as fineamount. Therefore, the plaintiff is not entitled to get the withheldamount of Rs.5,000/-. The alleged cause of action for the suit is notcorrect and true and the same is not maintainable. 9. In the written statement filed by the second defendant, it hasbeen stated that the claim of the plaintiff that the amount ofRs.6,150/- has been paid to the labourers as labour charges due to themon the oral intimation of the first defendant cannot be accepted astrue. After the contract between the first defendant and the seconddefendant had come to an end, the amount of Rs.5,600/- had been paid tothe second defendant towards the mining cost for the quantity oflimestone taken away by the first defendant from the quarry. The claimthat the plaintiff had paid the amount due to the labourers directly isnot true. The cause of action alleged in the plaint is false. The suitfiled by the plaintiff is time barred. Hence, the suit is liable to bedismissed. 10. Based on the averments made in the plaint filed on behalf ofthe plaintiff and the written statements filed on behalf of thedefendants, the trial Court had framed the following issues forconsideration:-"1. Whether the plaintiff had paid an amount of Rs.6,150/-to the labourers as per the oral intimation of the firstdefendant? Whether any cause of action arises on behalf of theplaintiff based on the said payment? 2. Whether the duty of reimbursement, as stated in theplaint by the plaintiff, is true? Is it sustainable? 3. Whether an amount of Rs.5,600/- has been paid to thesecond defendant, for the stock of quarried limestone, afterthe conclusion of the agreement between the first and seconddefendants? 4. Whether the second defendant is liable to pay theamount as claimed by the plaintiff? https://hcservices.ecourts.gov.in/hcservices/

5. Whether there is any cause of action in the suit? 6. Whether the suit is barred by limitation?"11. The trial Court had noted that the plaintiff had examinedhimself as P.W.1 and he has stated that the first defendant had handedover the limestone quarry to him, on 21.6.1983. At that time it wasfound that there was a stock of 250 metric tonnes of limestone left bythe second defendant and the labour charges due to the labourers, formining the said limestone, had not been paid to the labourers. It wasalso stated by the plaintiff, in his evidence, that the second defendanthad instructed the plaintiff to pay the labour charges due to them andto take away the 250 metric tonnes of limestone left over at the quarry.The first defendant had also requested the plaintiff to start quarryingactivity after payment of labour charges due to the labourers. Since theplaintiff had discharged the liability, paying the amount of Rs.6,150/-as labour charges due to the labourers of the quarry, the said amountwas due to him. 12. The trial Court had found that in Exhibit B.1, which is aletter written by the second defendant to the first defendant, on4.7.1983, it was stated that the second defendant had no connection withthe balance stock of the limestone, because he had not made any paymentto the workers for the balance quantity of lime stone. It was alsostated therein that the workers may agree to transport the materialprovided they were paid by the Department for the mined quantity oflimestone. 13. From Exhibit B.1, the trial Court had found that the seconddefendant had admitted that the left over stock of limestone had beencut and removed by the second defendant through the labourers employedby him and that the labourers had not been paid the labour charges forthe same. From the statement made by D.W.1, the trial Court had foundthat the plaintiff had entered into the contract. On 21.6.1983 and on21.7.1983, the plaintiff had sent two loads of limestone havingcommenced his operations only a week before that. From the two receipts,dated 15.7.1983 and 6.9.1983, annexed to Exhibit B.22, it was found thatthe receipts were relating to the payment of amounts to the labourers,with regard to the 250 metric tonnes of limestone at the quarry. Eventhough the second defendant had stated that the receipts were notrelating to the said contract, there is nothing to show that there wasany other agreement between the plaintiff and the second defendant.Further, Exhibits B.5 to B.18, marked on behalf of the second defendant,were found to be the certificates and not vouchers relating to thepayment of labour charges claimed to have been made by the seconddefendant in the year,1983. Based on the evidence available, the trialCourt had found that the plaintiff was entitled to his claim forRs.6,150/- paid as labour charges. https://hcservices.ecourts.gov.in/hcservices/

14. With regard to the second issue arising for consideration, thetrial Court had found that no proof had been shown on behalf of thefirst defendant that the plaintiff had removed the 250 metric tonnes oflimestone quarried by the second defendant and kept at the quarrywithout the permission of the first defendant. Even though the stockregister was said to have been maintained by the first defendant, thesaid register had not been filed before the Court. In spite of severalprocedural formalities required to remove and take away the quarriedlimestone from the quarry, including obtaining of Gate pass and entriesbeing made in the necessary register, nothing has been shown on behalfof the first defendant to substantiate the allegation that the plaintiffhad removed the limestone stock without the permission of the firstdefendant. Therefore, the plaintiff was entitled for the amount ofRs.5,000/- deducted as fine amount. Based on such findings, the trialCourt had decreed the suit of the plaintiff with costs. 15. Aggrieved by the judgment and decree of the Principal DistrictMunsif Court, Ariyalur, dated 20.4.1990, made in O.S.No.387 of 1986, thefirst defendant had filed an appeal before the Ist Additional DistrictCourt, Tiruchirapalli. In the said appeal A.S.No.111 of 1992, the seconddefendant had filed a cross-objection praying for setting aside thejudgment and decree of the trial Court. 16. Based on the averments made on behalf of the parties concernedand on the evidence available on record, the lower appellate Court hadframed the necessary four points for consideration.17. While deciding the first issue, the lower appellate Court hadfound that since there was no assurance given by the second respondentto the first respondent to repay the amount of Rs.6,150/-, said to havebeen paid as labour charges, the second respondent is not liable to paythe first respondent the said amount. 18. With regard to the second issue, the lower appellate Court hadfound that the first respondent is not entitled for the reimbursement ofRs.5,000/-, levied as penalty amount, since the firstrespondent/plaintiff had not made any appeal to the higher authorities. 19. With regard to the issue of limitation, the lower appellateCourt had held that the plaintiff ought to have instituted the suitwithin 3 years from 15.7.1983, which is said to be the date of paymentof the labour charges to the labourers of the limestone quarry. Sincethe plaintiff had instituted the suit only, on 19.8.1986, the lowerappellate Court had come to the conclusion that the suit is barred bylimitation, as provided under Article 23 of the Indian Limitation Act,1963. Since the lower appellate Court had found that the appellant/firstdefendant was not liable to pay any amount to the plaintiff, the appealwas allowed with costs. Having allowed the appeal made in A.S.No.111 of https://hcservices.ecourts.gov.in/hcservices/ 1992, the lower appellate Court had also allowed the cross-objectionfiled by the second defendant. 20. Aggrieved by the judgment and decree of the Ist AdditionalDistrict Judge, Tiruchirapalli, dated 29.7.1994, made in A.S.No.111 of1992 and the cross objection in A.S.No.111 of 1992, the plaintiff in thesuit O.S.No.387 of 1986, had filed the present second appeal. 21. The second appeal had been admitted on the followingsubstantial question of law:"1. Whether the lower appellate Court iscorrect in law in coming to the conclusion that thesuit is barred by limitation?"22. The plaintiff/appellant had raised various grounds in thesecond appeal stating, inter alia, that the lower appellate Court hadfailed to consider the material evidence available on record. It hasalso been stated that the lower appellate Court ought to have decreedthe suit with regard to the claim of the plaintiff for a sum ofRs.6,150/-, since the first defendant had removed the limestone stockand thereby derived a benefit only because the plaintiff had dischargedhis liability of the labour charges due to the labourers. 23. It has also been stated that since the second respondent waspaid a sum of Rs.5,600/- towards labour charges in the month ofDecember, 1985, and since the penalty amount had been withheld, on15.6.1984, the lower appellate Court ought to have held that the suitfiled by the plaintiff in the month of August, 1986, to be within time.Further, there was no evidence to show that the plaintiff had illegallytransported 250 metric tonnes of limestone stock, without the priorpermission of the first defendant. By withholding the amount ofRs.5,000/- due to the plaintiff, the first defendant had gained byunjust enrichment. The conclusion of the lower appellate Court statingthat the plaintiff ought to have availed the appellate remedy before thehigher authorities cannot be sustained. Further, the conclusion of thelower appellate Court that the plaintiff had paid the sum of Rs.6,150/-on his own accord, without having been instructed by the seconddefendant to do so, is baseless and unsustainable. 24. The learned counsel appearing on behalf of the respondents hadstated that the judgment and decree of the lower appellate Court iscorrect, as it is based on the evidence available on record. It was alsostated that the claims made by the plaintiff are unsustainable, as it isbarred by law of limitation. The plaintiff did not have sufficient proofto show that the first defendant is liable to pay the amounts claimed bythe plaintiff, as no proof has been shown that he had paid the labourersa sum of Rs.6,150/- due to them, as labour charges, on the intimation ofthe second defendant and the plaintiff has not shown that he had removed https://hcservices.ecourts.gov.in/hcservices/ 250 metric tonnes of limestone stock from the quarry after havingobtained the permission of the authorities concerned. 25. On analysing the rival contentions and the evidence availableon record, this Court is of the considered view that the findings of thelower appellate Court, with regard to the claim of the plaintiff forRs.6,150/- said to have been paid to the labourers as labour charges canbe sustained. Further, the plaintiff ought to have shown that thedefendants had assured that the amount would be reimbursed to him at alater stage. Further, as held by the lower appellate Court, theplaintiff ought to have claimed the amount of Rs.6,150/- within a periodof three years from 15.7.1983, which is the date of alleged payment.Since the suit had been filed only, on 19.8.1986, the lower appellateCourt had held that the said claim is barred by limitation providedunder Article 23 of the Indian Limitation Act, 1963. 26. With regard to the claim of the plaintiff against the firstdefendant for the payment of Rs.5,000/-, withheld as penalty, it is seenthat there is no proof shown on behalf of the first defendant topersuade the lower appellate Court to come to the conclusion that thelimestone stock quarried by the second defendant had been taken away bythe plaintiff, illegally, without the permission of the seconddefendant. In such circumstances, it would not be proper to direct theplaintiff to approach the higher authorities by resorting to alternateremedies. 27. In such view of the matter and also in view of the fact thatthe first defendant had returned the amount of Rs.30,000/- to theplaintiff, withheld as value of the limestone stock alleged to havebeen removed by the plaintiff, the suit filed by the plaintiff inO.S.No.387 of 1986, on the file of the District Munsif Court, Ariyalur,is partly allowed to the extent of the plaintiff's claim against thefirst defendant with regard to the payment of Rs.5,000/- withheld aspenalty. However, the conclusions arrived at by the lower appellateCourt in A.S.No.111 of 1992 and the cross-objection in A.S.No.111 of1992, would stand confirmed with regard to the claim of Rs.6,150/-.Accordingly, by partly setting aside the judgment and decree of thelower appellate Court, dated 29.7.1994, made in A.S.No.111 of 1992 andthe cross objection in A.S.No.111 of 1992, the second appeal is partlyallowed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. Ist Additional District Judge, Tiruchirapalli2. The Principal District Munsif, Ariyalur3. The Section Officer, V.R.Section, High Court, Madras1 cc To M/s.Sarvabhuaman Associates, Advocate, SR.43384.S.A.No.674 of 1996 VC(CO)RVL 12.02.2008