Dharmarth Trust J&K Jammu & Ors vs Dinesh Chander Nanda

1

3) Brief facts:

(a) The Respondent, a qualified, registered and licensed

Architect, is engaged in his professional business in the

name of M/s Nanda Designers Consortium having its

office at 60 Purani Mandi, Jammu. On 19.10.1992, he

was engaged by the Trust for the purpose of providing

professional consultancy services as an architect for

various projects at different sites in Jammu. As per the

terms of the said contract, a fee of 2.5% of the total project

cost was fixed for providing such services.

(b) On 14.12.1993, the appellants-Trust telephonically

communicated the respondent not to work further for

their projects and terminated his services as an Architect.

A formal communication was also served on 16.01.1994

regarding the termination of his services.

(c) On 16.10.1996, the Respondent served a legal notice

to the Trust claiming compensation amounting to

Rs. 38,77,263.75 towards professional charges including

2 interest thereon for various projects. After not getting

any reply from the Trust, after a gap of four years, on

29.01.1998, a suit was filed by the Respondent in the

Court of the Ist Additional District Judge, Jammu,

claiming an amount of Rs, 43,30,797/-. During the

pendency of the suit, on 08.02.1999, the Respondent filed

an application under Order VI Rule 17 of the Code of Civil

Procedure for amendment in the Plaint. On 22.09.1999,

the Trust filed their reply objecting to the maintainability

of the application. By order dated 08.10.1999, the trial

Court allowed the application. Challenging the said order,

the Trust filed Civil Revision No. 162 of 1999 before the

High Court praying that the trial Court had committed an

error in law by allowing the amendment in the plaint

without addressing the legal issue regarding its

maintainability. The High Court, vide order dated

19.07.2001, disposed of the civil revision petition filed by

the Trust and remanded the matter back to the trial Court

3 to address the legal issue regarding

maintainability/limitation. Thereafter, on 27.09.2005, Ist

Additional District Judge framed the issue and passed an

order holding that the case is governed by Article 119 and

not by Article 56 of the Jammu & Kashmir Limitation Act,

1995 (hereinafter referred to as "the Act") and

consequently, allowed the amendment to the Plaint.

d) Challenging the said order, the Trust filed Civil

Revision No. 177 of 2005 before the High Court. Vide

order dated 18.10.2007, the High Court dismissed the

revision and upheld the order dated 27.09.2005, passed

by the Ist Additional District Judge. Aggrieved by the said

order, the Trust has filed this appeal by way of special

leave before this Court.

4) Heard Mr. Ashok Mathur, learned counsel for the

appellants and Mr. V. Giri, learned senior counsel for the

respondent.

5) The short question that arises for consideration in this

appeal is whether the suit filed by the respondent-Architect is

4 covered under Article 56 of the Act or whether the said suit is

covered under Article 119 of the Act.

6) The Trial Court and the High Court have held that the suit

is covered by Article 119 of the Act. According to the

appellants, the suit filed by the respondent-Architect is

governed by Article 56 of the said Act and the same was

barred by limitation on the date of its institution. On the

other hand, the submission of the respondent is that the same

was covered by the residuary Article 119 which provides for a

period of 6 years on the ground that the nature of services

provided was professional services and the remuneration for

the same being termed as `fee' and the same does not fall

within the expression `price' for `work done'.

7) Article 56 and Article 119 of the Schedule to the Jammu

and Kashmir Limitation Act, 1995 provides as follows:-

Article For the price of work done by the Three When the 56 Plaintiff for the Defendant at his Years work is done.

request, where no time has been fixed for payment.

Article Suit for which no period of limitation Six When the 119 provided elsewhere in the Scheduel. Years right to sue accrues.

5

8) The term `price', as appearing in Article 56, is to be

understood in common parlance/ordinary or normal sense. It

takes it colour from the meaning attached to the term `price' in

the Articles immediately preceding `Articles 52 to 55'. `Price'

does not cover the services provided by the professionals such

as Architect, Lawyer, Doctor etc., as professionals charge a

`fee'. Also, the term `work done' in Article 56 will not be

applicable to professionals such as Architect, Lawyer, Doctor

etc. as these professionals render services to their clients. The

remuneration of a professional is in the form of a `fee' and

therefore, it cannot be said that the professional earns a

`price'. In common usage, the term `price' refers to goods sold.

For illustration, the term `price' is defined in Section 2 (10) of

the Sale of Goods Act, 1930 as "price" means the money

consideration for a sale of goods.

9) The word `price' according to Websters Encyclopedic

Unabridged Dictionary means:

"Price- 1. the sum or amount of money or its equivalent for which anything is bought, sold, or offered for sale 2. a sum offered for the capture of a person alive of dead: The authorities put a price on his head. 3. the sum of money, or other consideration, for which a person's support, consent, etc., may be obtained, esp. in cases involving sacrifice of

6 integrity: They claimed that every man has his price. 4. that which must be given, done, or undergone in order to obtain a thing: He gained the victory, but at a heavy price. 5. Odds (def.2). 6. Archaic, value or worth: The price of an honest man is beyond measure. 7. Archaic, great value or worth (usually prec by of): Among the inventory were many articles of price. 8. at any price, at any cost, no matter how great:

There were no bananas to be had at any price. He would have his own way at any price. 9. beyond or without price, of incalculable value; priceless: The crown jewels are beyond price.-v.t. 10. to fix the price of. 11. to ask or determine the price of: We spent the day pricing furniture at various stores.

"Chambers Twentieth Century Dictionary defines

"price" to mean:

"The amount, usually in money, for which a thing is sold or offered; that which one for goes or suffers for the sake of or in gaining something: money offered for capture or killing of anybody; that for which one can be bribed; betting odds; value."

According to P. Ramanatha Iyer, Law Lexicon (2nd Edn.

1997),

"the term `price' is the value which a seller places upon his goods for sale. It is not a fixed or unchangeable thing. It may be one thing today and another tomorrow and one valuation to one customer and a different one to another on the same day or hour. Whether a seller asks any one to give is the price until he changes it for another. The price asked is changed to another price, the former price is no longer an existing fact. "

The Law Lexicon also defines the term `price' as

"the sum or amount of money or its equivalent, which a seller asks or obtains for goods in market--the exchangeable value of a commodity--and hence, as used in a contract providing for the sale of articles at a fixed price, and that if

7 the price falls below such fixed price, a rebate will be given..."

"The term `price' is sometimes also used for "work done" in the context of work done by masons such as land filling etc. or engineering contracts. In view of the above, the term `price' is in common usage used in correlation to either goods bought or sold or work done."

There is further indication of this word in the Act itself. The

setting of Article 56 i.e. immediately after Articles 52 to 55 is

important. Articles 52 to 55 uses the expression `price'. These

are reproduced hereinbelow:-

Article For the price of goods delivered where Three The date of the 52 no fixed period of credit is agreed years delivery of upon. goods.

Article For the price of goods sold and Three When the 53 delivered to be paid for after the expiry years period of credit of fixed period of credit. expires. Article For the price of goods sold and Three When the 54 delivered to be paid for by a bill of years period of the exchange, no such bill being given. proposed bill elapses.

Article For the price of trees or growing crops Three The date of the 55 sold by the plaintiff to the defendant years sale where no fixed period of credit is agreed upon.

The term `price' has been used in Articles 52 to 55 in

correlation to goods delivered, goods sold and delivered and

trees or growing crops sold. In this way, `price' would take a

similar meaning when used in Article 56.

8

10) The intention of the Legislature can also be ascertained by

referring to Article 114 of the Act where the Legislature has

specifically provided for the period of Limitation for suits filed

by an attorney/vakil. Article 114 is as follows:-

Article By an attorney or vakil for Six The date of the termination 114 his costs of a suit or a Years of the suit or business, or particular business, there (where the attorney or vakil being no express properly discontinues the agreement as to the time suit or business) the date of when such costs are to be such discontinuance.

paid.

11) As rightly pointed out by Mr. Giri, learned senior counsel

for the respondent that the specific treatment of

attorneys/vakils who provide professional services is a

reflection of the intention of the Legislature to treat the

services provided by professionals differently from work done

by others. The word `price' was never intended to be used

synonymously with the word `fee' and, therefore, the fee

charged by an Architect for services rendered by him would

not be covered under Article 56 of the Act. In the case on

hand, the Trial Court as well as the High Court have made a

clear distinction between the terms `work done' and `services'.

9 The `work done' would refer work done by masons such as

land filling or engineering projects etc.

12) It is useful to refer to the tax treatment of Architects

under the Service Tax Law. Chapter V of the Finance Act,

1994, which contains the law relating to Service tax in India

defines an "architect" in Section 65(6) as:-

"any person whose name is, for the time being, entered in the register of architects maintained under section 23 of the Architect Act, 1972 and also includes any person engaged in any manner, whether directly or indirectly, in rendering services in the field of architecture."

It is brought to our notice that the services provided by an

architect are taxable under the Service Tax law. Under the

Service Tax Laws, the architects are considered as persons

providing a service and are liable to pay service tax. The term

`work done' has not been defined anywhere. We have already

pointed out the dictionary meaning to the definition of `work`.

The Law Lexicon defines `work' as:-

"the word "work" has a very wide meaning. It is really used in two senses of bestowing labour and that upon which labour has been bestowed. When used in plural the word certainly means some outstanding or important result of the labour that has been bestowed and large industrial and scientific establishment are called works"

10 We have already referred to Articles 52 to 55 which are placed

above Article 56. It is clear that the term `work done' as

appearing in Article 56 does not apply to the respondent, who

is an architect providing services for a fee.

13) It is also pointed out that Article 56 of the Act is a

verbatim of Article 18 of the Indian Limitation Act, 1963.

Article 18, in turn is the same as Article 56 of the old Indian

Limitation Act, 1908.

14) The High Court of Allahabad in Kaviraj Baroda Kant

Sen vs. Court of Wards in Charge of Baraon Estate, AIR

1931 All. 752, as early as in 1931, while interpreting Article 56

of the Indian Limitation Act, 1908 has stated as follows:

".....it is difficult to apply Article 56 which relates to a suit for the price of work done by the Plaintiff for the Defendant at his request. No special article appears to be applicable to a claim by a medical practitioner for recovery of his fees for attendance on a patient. The residuary Article 115 which applies to all breaches of contract, would therefore apply, for there was undoubtedly a contract, at east, an implied one, to pay the fee, and the non-payment of that fee amounted to a breach for which the plaintiff would be entitled to compensation. In Harish Chander Surmah vs Brojonath Chackerbutty [1870] 13 W.R. 96 a suit for recovery of compensation for the fees of a medical practitioner was held to lie under the corresponding article of the Limitation Act then in force"

11 15) The High Court of Gauhati in Kakodonga Tea Estate vs.

J.N. Saikia, AIR 1973 Gau. 27, has also held that "a suit to

recover unpaid professional fees by a Chartered Accountant

falls under Article 113 and not under Article 18 or Article

55...". The High Court of Gauhati further specifically held as

follows:

"8. It is easy to assume that very deep thought must have been devoted by the Legislature in giving shape to the various Articles of the old as well as the new Limitation Act. It is equally legitimate to assume that the words of each Article must have been used in their commonly accepted connotation unless contrary intention is expressed in the body of the Act just as is apparent from Section 2 wherein certain expressions have been defined to mean something less or more than what their commonly known attributes are. The expression "price" used in Article 18 must, therefore, be taken to convey the commonly accepted sense implicit in it. According to the Chambers Twentieth Century dictionary the word "price" means: the amount, usually in money, for which a thing is sold or offered; that which one forgoes or suffers for the sake of or in gaining something:

money offered for capture or killing of anybody: that for which one can be bribed; betting odds; values. In common parlance what a client pays to a professional person like an Advocate and a CA is described as "fee" and not "price".

Likewise, what a patient pays to a medical-man for the services rendered to him by the latter is called "fee" and not "price". Therefore, it would be unduly straining the expression "price" used in Article 18 if it were held synonymous in connotation with the fee paid to an Advocate, a Medical-man or a CA. For this reason alone, I believe, Article 18 does not provide for a suit for the professional fee of the nature just stated....."

16) We agree with the ratio laid down by the Allahabad and

Gauhati High Court relating to Article 56 of the Indian

12 Limitation Act, 1908 that the term "price of work done" cannot

be made applicable to professions where the professionals

merely provides services for a "fee". We accept the claim of

the respondent that the profession of an Architect is one such

service, hence Article 56 is not applicable to the present case.

Both the Trial Court as well as the High Court has arrived

correct conclusion.

17) In the light of the above discussion, we do not find any

error in the conclusion arrived at by the Trial Court and

affirmed by the High Court. Consequently, the appeal fails

and the same is dismissed with no orders as to costs. We

further make it clear that our conclusion is confined to the

interpretation relating to limitation and we have not expressed

anything on the merits of the claim made by the parties.

.........................................J. ( P. SATHASIVAM )

..........................................J. NEW DELHI; (ANIL R. DAVE) SEPTEMBER 8, 2010.

13