- 1 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 11TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100041 OF 2020 (MON) BETWEEN: SRI. T.G. SHET AGE: 76 YEARS, OCC: CLASS-1 PWD CONTRACTOR, R/O: GURUKRUPA II CROSS, OLD INCOME-TAX OFFICE ROAD, VIDYANAGAR, HUBBALLI-580021. …APPELLANT (BY SRI. V.G BHAT, ADV) AND: 1. THE MANAGING DIRECTOR, N.W.K.R.T.C., CENTRAL OFFICE, GOKUL ROAD, HUBBALLI-580030. 2. THE EXECUTIVE ENGINEER, N.W.K.R.T.C., C.E.DIVN., GOKUL ROAD, HUBBALLI-580030. 3. THE EXECUTIVE ENGINEER, N.W.K.R.T.C., BELAUM DIVISION, BELAGAVI-590001. …RESPONDENTS (BY SMT. VEENA HEGDE, ADV FOR R1, (ABSENT) SRI. SHIVAKUMAR S BADAWADAGI, ADV FOR R2 & R3) RFA FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD.19.10.2019 PASSED IN O.S.NO.163/2013 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUBBALLI, DISMISSING THE SUIT FILED FOR RECOVERY OF MONEY. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 10:59:55 +0530 - 2 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellant challenging the judgment and final decree dated 19.10.2019 passed in O.S.No.163/2013 by the learned III Additional Senior Civil Judge and JMFC at Hubballi. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the plaintiff and the respondents were the defendants. 3. Brief facts, leading rise to the filing of this regular first appeal, are as follows: 4. The plaintiff filed a suit against the defendants for the recovery of money of Rs.1,56,61,745/- along with the interest at the rate of 18% p.a. from 01.04.2013, till the realization of the suit. - 3 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 5. It is the case of the plaintiff that he is the Class-I Contractor and undertakes the contract for the construction of Government buildings and other major works on a large scale. The plaintiff had entered into an agreement with defendant No.3 on 23.09.1999 for the estimated amount of Rs.1,24,15,000/-. Defendant No.1, after price negotiation with the plaintiff, had accepted the tender with defendant No.3, at the lowest price of Rs.1,43,05,803/-. It is contended that the plaintiff had agreed to the construction work of a divisional workshop at Bagalkot. The date of commencement of work was considered from 25.10.1999 and the defendants had granted 18 months of time for completion of the work. The plaintiff has to completed the entire project on 17.10.2002, as per the terms and conditions of the said agreement. It is further contended that after completion of the work, the defendants have failed to settle the claim amount as requested by the plaintiff. The plaintiff issued a legal notice dated 10.04.2004 to settle the claim amount, but the defendants did not heed the said request. Hence, - 4 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 the plaintiff had filed an Arbitration Case No.1/2005. After hearing both sides, the trial court, allowed the petition and referred the matter to the Arbitrator. The order of the trial Court was challenged by the defendants, before the Hon’ble High Court, in W.P.No.5653/2008. The writ petition was dismissed and the plaintiff was permitted to file a fresh petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act of 1996’ for short). Thereafter, the plaintiff filed a Civil Miscellaneous Petition in CMP No.208/2011 before this Court, and said petition was dismissed on the ground that the plaintiff is prosecuting the litigation in an alternative forum and accordingly, sought to compute the limitation. It is the case of the plaintiff that there is no delay in completion of work, but the defendants have dragged the matter for one or the other reasons, to avoid the settlement of the bill amount. The plaintiff, due to delays and default on the part of the defendants, was forced to execute certain works beyond the contract period and therefore, it is contended that the defendants are bound to - 5 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 pay the equitable revised rates with an interest, including the charges and security deposits. Hence, prays to decree the suit. 6. In pursuance of service of summons, defendants Nos.1 & 2 appeared before the trial court through counsels and as per the order dated 25.08.2014, defendant No.3 was impleaded and in pursuance of service of summons, he appeared before the Court. Defendant Nos.2 and 3 filed the written statements separately, and defendant No.1 filed a memo, adopting the written statement of defendant No.2. 7. Defendant No.2 filed a written statement, by denying the plaint averments. He contended that the suit of the plaintiff is bad for non-joinder of the necessary party, as defendant No.2 is no way concerned with the suit in hand. It is further contended that the plaintiff has entered into a contract with defendant No.3 on 23.09.1999, and the contract work was carried out at Bagalkot and hence, he has no right to file a suit within - 6 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 the territorial jurisdiction of the Civil Judge and JMFC at Hubballi. It is contended that as per the Clause 29(a)(iii) of the schedule of the said agreement, any dispute arising from the agreement, should be resolved internally and if not resolved, the plaintiff has to give a notice regarding the intention to approach the court of law within 90 days. Hence, on these grounds, prays to dismiss the suit. 8. Defendant No.3 filed a detailed written statement denying the averments made in the plaint and contended that as per the agreement dated 23.09.1999, the plaintiff was required to complete the work within 18 months, excluding the rainy season. But he had delayed the work for more than 6 months and as per his request, the time was extended up to 17.10.2002 by the levying penalty of Rs. 15,000/-. It is further contended that as per the terms of the agreement, price adjustment shall not apply for the work carried out within the stipulated time, including the granted time extension. The plaintiff has - 7 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 accepted the final measurements and bill amount, without raising any dispute against the defendants. 9. It is stated that the plaintiff has filed a suit against the defendants, after 12 years, 1 month and 3 days, from the date of completion of work i.e., on 17.10.2002. Therefore, the suit of the plaintiff is barred by limitation. It is further stated that this court while disposing of the Civil Miscellaneous Petition in CMP No.208/2011, has specifically ordered to seek an appropriate proceeding regarding condonation of delay. It is contended that the plaintiff has no right to prosecute the present proceedings without seeking condonation of delay caused in filing of this suit. The plaintiff is required to justify the filing of the suit before the civil court after abnormal delay. Hence, on these grounds, he prays to dismiss the suit. 10. The trial Court, based on the pleadings of the parties, framed the issues and additional issues as follows: - 8 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 Framed the following Issues on 30.08.2013 1. Whether the plaintiff proves that the defendant No.2 is entered into an agreement dated 23-09- 1999 as per terms and conditions therein ? 2. Whether the plaintiff further proves that he is completed the entire work as per terms and conditions of the agreement ? 3. Whether the plaintiff further proves that the defendant No.1 and 2 have failed to settle the claim amount inspite of repeated request ? 4. Whether the defendants prove that the suit of the plaintiff is not maintainable, as this court has no jurisdiction as per terms and conditions of clause 29(3) of PWG-85 Schedule of Contract Rules ? 5. Whether the defendants prove that the suit is bad for non-joinder / mis-joinder of necessary parties ? 6. Whether the plaintiff is entitled the relief as prayed for with ? 7. What order or decree ? Framed the following Issues on 18.02.2014 1. Whether the plaintiff proves that he has completed the project as agreed ? 2. Whether the plaintiff proves that the project work was completed within the time granted by the defendants ? 3. Whether the plaintiff proves that the defendants are liable to pay the rates as per the revised rates as averred in the plaint ? - 9 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 4. Whether the plaintiff proves that the defendants are in due of 1,56,61,745/- as on the date of suit ? 5. Whether the plaintiff proves that the defendants are liable to pay interest at the rate of 18% p.a. ? 6. Whether the defendants prove that this court has no jurisdiction to try the suit ? 7. Whether the defendants prove that the suit is barred by limitation ? 8. Whether the defendants prove that the suit is bad for non-joinder of necessary parties ? 9. Whether the plaintiff is entitled the reliefs claimed in the suit ? 10. What order or decree ? Framed the following Issues on 12.01.2015. 1. Whether the plaintiff proves that the defendants are liable to pay the rates as per the revised rates as averred in the plaint ? 2. Whether the plaintiff proves that the defendants are in due of ₹ 1,56,61,745/- as on the date of suit ? 3. Whether the plaintiff proves that the defendants are liable to pay interest at the rate of 18% p.a.? 4. Whether the defendants prove that the suit is barred by limitations ? 5. Whether defendant No.3 proves that this court has no territorial jurisdiction to entertain the suit ? - 10 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 11. To substantiate the plaintiff’s case, he examined himself as PW.1 and examined one witness as PW.2, and marked 12 documents as Ex.P1 to Ex.P12. On the other hand, the defendants examined their officer as D.W.1 and marked 3 documents as Ex.D1 to D3. 12. The trial court, after hearing both side and on assessment of the oral and documentary evidence, answered the issues and additional issues, as follows: i) Issues framed on 30.08.2013: Issue Nos.1, 5 and 6 does not arise for consideration, issue No.2 partly in the affirmative, issue No.3 in the negative, and issue No.4 was already decided on 27.04.2015. ii) Issues framed on 18.02.2014: Issue Nos.1 and 2 partly in the affirmative, issue No.8 does not arise for consideration and issue Nos.2 to 7 and 9 in the negative. - 11 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 iii) Additional issues framed on 12.01.2015: Issue No.4 in the affirmative and issue Nos.1 to 3 and 5 in the negative. iv) Issue No.7 framed on 30.08.2013 and issue No.10 framed on 18.02.2014 were as per the final order. 13. The suit of the plaintiff was dismissed vide judgment dated 19.10.2019. The plaintiff, aggrieved by the judgment and decree passed in O.S.No.163/2013, preferred this Regular First Appeal. 14. Heard the learned counsel for the plaintiff and the learned counsel for the defendant Nos.2 and 3. 15. Learned counsel for the plaintiff submits that the plaintiff made 11 claims and the claims made by the plaintiff are genuine. He submits that the plaintiff was forced to execute certain items of work beyond the contract period. He submits that the delay in work was due to a delay in payment of bills amount, change of work - 12 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 site and change in specifications made by the defendants. The defendants are bound to pay the equitable revised rates for all the works carried out by the plaintiff beyond the stipulated tender period, as per the contract conditions. The trial court has failed to appreciate the documents from a proper perspective and wrongly came to this conclusion that the plaintiff himself applied for an extension of time, and hence, he cannot claim revised rates on the extended period. He submits that some bills have been paid after the stipulated period by the defendants and no interest has been calculated on the delayed payment. Further, according to the terms of the contract, the plaintiff has to obtain Bagalkot Cement to save transportation charges, but the defendants Corporation has instructed the plaintiff to obtain cement from ‘Wadi’ through its letter dated 22.10.1999. The plaintiff has incurred additional expenses for getting the cement from ‘Wadi’. The defendants have not paid the price adjustment amount to the plaintiff. He submits that the plaintiff is entitled for the payment of interest on EMD - 13 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 and FSD (deposits). The defendants have not paid the interest on such deposits while returning the same. He submits that the plaintiff is a Class-I Contractor and because of the fault on the part of the defendants, the prescribed 18 months of work has been extended to 27 months, which has resulted in loss in productivity, profit and overheads etc. The plaintiff is entitled to the said amount. He submits that there was a delay on the part of the officials of the defendants Corporation in executing the work and the defendants Corporation extended the time for completion of the project. He submits that the trial court appointed a Court Commissioner and the Court Commissioner submitted a report. The defendants filed objections to the said Commissioner’s report. The trial court issued a summons to the Court Commissioner to give evidence. In response to the said summons, the Court Commissioner appeared before the trial court on 10.11.2017 and affixed his signature on the order sheet. He submits that the defendants have not taken any steps to call the Court Commissioner for cross-examination. The - 14 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 aforesaid facts were not considered by the trial court, and if committed an error in passing the impugned judgment. Hence, on these grounds, he prays to allow the appeal. 16. Per contra, learned counsel for defendant Nos.2 and 3 submits that the defendants have issued tender notification for the construction of Government buildings, PWD buildings and office complexes. The plaintiff entered into an agreement with defendant No.3 on behalf of defendant No.1, on 23.09.1999 on estimation amount of Rs.1,24,15,000/-. Defendant No.1 accepted the tender at the lowest price of Rs.1,43,05,803-27 with defendant No.1. He submits that the plaintiff had to complete the entire project on or before 17.10.2002, but the plaintiff did not complete the project work within the stipulated period. The defendants extended the time for completion of the project. Despite the extension of time, the plaintiff did not complete the project within the time extended. He submits that the claim made by the plaintiff is barred by limitation. He submits that there is a delay of 12 years in filing the - 15 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 suit for recovery of money. He submits that the plaintiff has accepted all the running bills without protesting or raising any dispute as required under Clause 29 of the Schedule of Contract. Therefore, the plaintiff is estopped from raising any dispute. He submits that the plaintiff’s claim is false and imaginary. He submits that the trial court was justified in passing the impugned judgment and decree. Hence, the impugned judgment and decree passed by the trial court is just and proper and does not call for any interference by this court. Hence, on these grounds, he prays to dismiss the appeal. 17. Perused the records and considered the submissions of the learned counsel for the parties. 18. The points that would arise for our consideration are; 1) Whether the plaintiff proves that he has completed the entire work as per the terms and conditions of the Schedule of Contract dated 23.09.1999 and defendants failed to - 16 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 settle the claim amount, despite repeated requests? 2) Whether the plaintiff proves that the defendants are liable to pay the bills, at the revised rates? 3) Whether the defendants prove that the suit is barred by limitation? 4) What order or decree? Point No.1. 19. The plaintiff to substantiate his case examined himself as P.W.1. He reiterated the plaint averments in his examination-in-chief. To prove his case, he produced the documents. Ex.P1 is the agreement dated 23.09.1999 entered into between the plaintiff and defendant No.3. Ex.P2 is the certified copy of the work order dated 23.09.1999 issued by defendant No.3 in favour of the plaintiff. Ex.P3 is the letter dated 22.10.1999 regarding the work issued to the plaintiff. Ex.P4 is the letter dated 10.04.2004 issued by defendant No.3 to the Managing - 17 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 Director of NWKRTC. Ex.P5 is the letter dated 09.10.2004 issued to the plaintiff. Ex.P6 is the certified copy of the order passed in W.P.No.5653/2008, wherein the defendants challenged the order passed in Arbitration Case No.1/2005 dated 05.12.2007 by the I Additional Civil Judge (Sr.Dn.), Hubli, wherein the civil court has passed an order under Section 8 of the Act of 1996. The learned Single Judge of this court, as per Ex.P6 has held that the petition, under Section 8 of the Act of 1996 filed before the civil court, was not maintainable, as no judicial proceedings were pending before the civil court. If such a petition is permitted to be filed directly under Section 8 of the Act of 1996, it will render the provisions under Section 11 of the Act of 1996, redundant. The plaintiff was entitled to withdraw the petition before the civil court and a liberty was reserved to the plaintiff to file a fresh petition under Section 11 of the Act of 1996 and the order passed by the civil court under Section 8 of the Act of 1996 was set aside by holding the same, without jurisdiction. Ex.P7 is the petition filed under Section 11 of the Act of 1996. The - 18 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 plaintiff in CMP No.208/2011. The learned Single Judge vide order dated 18.10.2012 dismissed the petition. Ex.P8 is the register containing the particulars of the materials. Exs.P9 and P10 are the recommendation letters for extension of time. Ex.P11 is the letter dated 16.02.2001 issued to the plaintiff by the Executive Engineer, NWKRTC, Belagavi. Ex.P12 is the letter dated 04.07.2001 issued to the plaintiff, by the Executive Engineer, NWKRTC, Belagavi. 20. In the cross-examination, it was suggested that the plaintiff had to complete the work within the stipulated period as per the agreement. He has not completed the project within the time stipulated in the original deed. The said fact has been admitted by P.W.1. It is also suggested that the plaintiff had applied for extension of time on two occasions to complete the work and the penalty of Rs.15,000/- was imposed on him for extension of time. The said suggestion was admitted. Further, P.W.1 has also - 19 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 admitted regarding the proceedings of the meetings held on 21.05.2002 and 22.05.2002. 21. The plaintiff also examined one witness as P.W.2, who has deposed in the same lines as P.W.1. But during cross-examination, he has admitted that, for extension of time, the parties have to explain the delay in completing the project. 22. In rebuttal, defendants were examined as D.W.1 and reiterated the written statement averments in the examination-in-chief. He has deposed that, as per the terms and conditions of the Schedule of Contract, the plaintiff was supposed to complete the project on or before 17.10.2002. He deposed that the plaintiff has not completed the entire project within the stipulated time. He deposed that the plaintiff applied for the extension of time on two occasions. The defendants have extended time on two occasions. He deposed that the plaintiff has filed a petition under Section 8 of the Act of 1996. The said petition was allowed. The defendants, aggrieved by the - 20 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 order passed by the trial court, under Section 8 of the Act of 1996, filed a writ petition in W.P.No.5653/2008. The said writ petition was allowed vide order dated 07.09.2011. Thereafter, the plaintiff filed a petition under Section 11 of the Act of 1996 in CMP No.208/2011 for the appointment of an arbitrator. The said petition was dismissed by the learned Single Judge vide order dated 18.10.2012. After dismissal of the CMP, the plaintiff filed the present suit. He deposed that the suit filed by the plaintiff is barred by limitation. He deposed that the defendants have paid all the running bills and the plaintiff has accepted the bills without protest or raising any dispute. The plaintiff is estopped from claiming the suit claim. Further, to prove their defence, the defendants have produced the documents. Ex.D1 is the letter issued by the Executive Engineer dated 14.01.2004. Ex.D2 is the work progress meeting report, and Ex.D3 is the copy of the agreement dated 23.09.1999. - 21 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 23. D.W.1 also deposed that, as per Clause 7(a)(b) of the schedule of contract, the Contractor was required to mention the schedule rate in the monthly bills. If any extra work ordered in pursuance of the contract conditions and not mentioned or provided for in the tender, the charges in the bills shall be entered at the rates provided for such work. 24. The perusal of the evidence on record, discloses that there was an agreement between the plaintiff and the defendants for the construction of Government buildings, PWD buildings and complexes. An agreement, dated 23.09.1999, was entered into between the plaintiff and the defendants for an estimated amount of Rs.1,24,15,000/-. As per the terms and conditions of the agreement, the plaintiff must complete the work on or before 17.10.2002. It is the case of the plaintiff that the defendants have entrusted the extra work, which was not mentioned in the tender notification, and the plaintiff carried out the extra work, for which, he is entitled to the revised rates. The - 22 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 plaintiff could not complete the project within the stipulated period. The plaintiff has applied for extension of time. Clause 5(a) of the Schedule of Contract Form provides for extension of time. It says that if the contractor shall desires for an extension of time for completion of the work, on the ground of his having been unavoidably hindered in its execution or on any other ground, he shall apply in writing to the Executive Engineer before the expiration of the period stipulated in the tender or before the expiration of 30 days from the date on which he was hindered. The defendants have extended the time on two occasions. 25. As per Clause 13(a)(i), the Executive Engineer shall have the power to make any alterations in, omissions from additions to or substitutions for the original specifications, drawings etc., and he shall have the power to order the contractor to do and the contractor shall do all the work assigned by the Executive Engineer. Further, as per Clause 13(d), the determination of rates for items, not - 23 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 found in the estimate or schedule of rates, the Executive Engineer shall determine the rate of such rates based on the observed data and failing this, based on the prevailing market rates. The contractor shall suspend the work on the plea of non-settlement of rates for items falling under this clause. However, the plaintiff used to submit the bills as and when the work was completed and the said bills were cleared by the defendants Corporation. P.W.1 has admitted that the defendants Corporation has cleared all the running bills. P.W.1 has admitted that he has not mentioned in the income tax return that he is entitled to receive the balance of Rs.20,00,000/- from the defendants. He also admitted that he has not maintained the correct account for his claim Nos.2 to 10. 26. As per Clause 44(a)(ii), the price adjustment shall not be applicable to the additional, altered or substituted items of work or extra quantities executed by the contractor in respect of which rates computed on the - 24 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 basis of the schedule or rates or market rates etc., prevailing at the time of execution of work. 27. As observed above, as per the terms and conditions of the contract, the plaintiff could not complete the work within the stipulated period, and the time was extended on two occasions by imposing a penalty. Though the plaintiff has proved that the plaintiff was entrusted with the construction of Government buildings etc. as per the agreement dated 23.09.1999, but did not complete the work within the stipulated time period and hence, the work carried by the plaintiff is not in accordance with the terms and conditions of the said agreement. The plaintiff has failed to prove that the defendants have failed to settle the claim despite repeated requests. Hence, we answer point No.1 in the negative. Point No.2. 28. It is the case of the plaintiff that the additional work was entrusted to the plaintiff and he had carried out the additional work. Hence, he is entitled to the revised - 25 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 rates. Clause 13(d), of the schedule of the contract, relates to the determination of rates for items not found in estimate or schedule of rates, which reads as under; “13(d). If the rates for additional, substituted or altered work cannot be determined in the manner specified by sub-clauses (b) and (c) above, then the contractor shall within 7 days of the date of receipt by him of the order to carry out the work, inform the Executive Engineer at the rates which it is his intention to charge for such class of work, supported by analysis of the rate or the rates claimed. Thereupon, the Executive Engineer shall determine the rate or rates on the basis of observed data and failing this, on the basis of prevailing market rates. Under no circumstances, the contractor shall suspend the work on the plea of non-settlement of rates for items falling under this clause. In the event of any dispute regarding the rates for such items the decision of the Managing Director shall be final.” 29. The bare reading of Clause 13(d), it discloses that, the rates for additional, substituted or altered work cannot be determined in the manner specified by sub- clauses (b) and (c) above, then the contractor shall within 7 days of the date of receipt by him of the order to carry - 26 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 out the work, inform the Executive Engineer at the rates which it is his intention to charge for such class of work, supported by analysis of the rate or the rates claimed. Thereupon, the Executive Engineer shall determine the rate or rates on the basis of observed data and failing this, on the basis of prevailing market rates. It is not the case of the plaintiff that the plaintiff intimated the Executive Engineer within 7 days of the date of receipt of the order to carry out the work, informed the Executive Engineer at the rates which his intention to charge for such class of work. The said intimation is not supported by analysis of the rates claimed. In the absence of a receipt and analysis of the rates, the Executive Engineer shall determine the rates or rates on the basis of the observed data. Further, in the event of any dispute regarding the rates for such items, the decision of the Managing Director shall be final. As observed above, the plaintiff has not submitted any representation for determining the rates which he intends to charge for such a class of work. Further, the plaintiff has not approached the Managing Director as required - 27 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 under the terms of the contract. In the absence of compliance of the Clause 13(d), the plaintiff cannot contend that he is entitled to the revised rates. The plaintiff has failed to fulfill the requirement of Clause 13(d) of the Schedule of the Contract Form. The plaintiff is estopped to claim that he is entitled for the revised rates. Based on the above discussion, we answer point No.2 in the negative. Point No.3. 30. The plaintiff filed a petition under Section 8 of the Act of 1996 in Arbitration Case No.1/2005 on the file of the I Additional Civil Judge (Sr.Dn.), Hubballi. The said petition was allowed by the trial court vide order dated 05.12.2007. The defendants, aggrieved by the order passed in Arbitration Case No.1/2005 filed a writ petition in W.P.NO.5653/2008. The learned Single Judge vide order dated 07.09.2011, allowed the writ petition and set aside the order passed under Section 8 of the Act of 1996, with the liberty to file a fresh petition under Section 11 of the - 28 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 Act of 1996. After the disposal of the said writ petition, the plaintiff filed a petition under Section 11(6) of the Act of 1996 in CMP No.208/2011. The learned Single Judge while dismissing the petition vide order dated 18.10.2012, has recorded its finding, which reads as under; “5. Though the learned counsel for the petitioner seeks to justify the filing of the instant petition by referring to the said order, it cannot be in doubt that when the Act or any legal provision does not vest the Court with the jurisdiction, the Court cannot assume jurisdiction in that regard. If this basic legal position is kept in view, when it is not pointed out that there is an arbitration clause under the agreement, this Court also cannot exercise its jurisdiction to appoint an arbitrator as provided under Section 11 of the Act. Therefore, the prayer made in the petition cannot be granted. 6. At this stage, the learned counsel for the petitioner would contend that, he had been litigating in this regard from the year 2005 and if he has to approach the appropriate forum, he shall not be shunted out only on the ground of limitation. Though at this juncture, nothing can be said in that regard. The petitioner would do well to avail of the remedy available to indicate that he was prosecuting - 29 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 the litigation in an alternate fourm, which did not have jurisdiction and accordingly, seek to compute the limitation.” 31. The learned Single Judge has clearly recorded its finding that the plaintiff to avail the remedy available to indicate that he was prosecuting the litigation in an alternate fourm, which did not have the jurisdiction, and sought to compute the limitation. Hence, the suit filed by the plaintiff is within time. Based on the above discussion, we answer point No.3 in the negative. Point No.4. 32. As we answered point Nos.1 to 3 in favour of the defendants, the trial court considering the terms and conditions mentioned in the Schedule of Contract Form has rightly dismissed the suit. We do not find any error in the impugned judgment and decree passed by the trial court. Accordingly, we proceed to pass the following; ORDER i) The Regular First Appeal is dismissed. - 30 - NC: 2025:KHC-D:3730-DB RFA No. 100041 of 2020 ii) The judgment and final decree dated 19.10.2019 passed in O.S.No.163/2013 by the learned III Additional Senior Civil Judge and JMFC at Hubballi is hereby confirmed. iii) No order as to the cost. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE MBS CT: BSB List No.: 1 Sl No.: 7