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M/s. Barson Construction, Represented by its Proprietor Sristi Pawan Barua, Assam v/s The State of Assam, Represented by the Commissioner and Secy., Public Works Deptt. & Others

    FAO No. 62 of 2017
    Decided On, 24 February 2022
    At, High Court of Gauhati
    For the Petitioner: S. Saikia, Advocate. For the Respondents: R6 & R7, B.K. Das, Advocate.

Judgment Text
Heard Mr. R. J. Das, learned counsel appearing for the appellant as well as Mr. B. K. Das, learned counsel representing the respondents.

2. This is an appeal under Order 43 Rule 1(a) of the Code of Civil Procedure, 1908 against the judgment and order dated 02.05.2017 passed by the learned Civil Judge No. 2, Kamrup (M), Guwahati in Title Suit No. 122 of 2014 returning the plaint filed by the appellant to be presented in the appropriate court having territorial jurisdiction.

3. The facts necessary for disposal of this appeal are:- The Oil & Natural Gas Corporation Limited (ONGCL) had a Memorandum of Understanding with the State of Assam for construction of a road in the district of Sivasagar. On acceptance of a tender, the appellant was given the work of construction of the said road. Thereafter, some disputes arose between the parties and, therefore, the appellant filed the suit being Title Suit No. 122/2014 in the Court of the Civil Judge No. 1, Kamrup (M) at Guwahati, Assam seeking a decree declaring that the State of Assam and ONGCL shall be jointly liable to pay certain amount of money to the appellant.

4. The present respondents 1 to 5 contested the claim by filing written statement. Whereas the remaining respondents i.e. the ONGCL did not contest the suit by filing written statement.

5. As many as 8 (eight) issues were framed by the trial court. The appellant examined one witness and the contesting respondents examined two witnesses. One of these two witnesses did not appear in the witness box to face cross-examination. Therefore, his evidence was not considered.

6. Finally, the trial court held that the work order was issued by the respondents 1 to 4, who have their offices at Dibrugarh and Sivasagar districts. The court further held that the actual work was executed beyond the jurisdiction of the court at Guwahati. For the said reasons, the trial court ultimately held that the court at Guwahati did not have the territorial jurisdiction to try the suit.

7. The learned counsel Mr. Das appearing on behalf of the appellant has referred the Section 20 of the Code of Civil Procedure, 1908 and submitted that when there are more than one defendants in a suit, such a suit can be instituted where any of the defendants at the commencement of the suit actually and voluntarily resides and carries on business or personally works for gain. Mr. Das has submitted that since the respondent Public Works Department carries on business throughout the State of Assam, the court below erroneously held that it did not have territorial jurisdiction.

8. I have given my anxious consideration to the submissions made by the learned counsels for both sides.

9. Sections 16, 17, 18, 19 and 20 lay down the law as to where a suit is to be filed. In the case in hand, the appellant raised money bills for work done by it in the district of Sivasagar. Those bills were not paid by the respondents. For that reason, the suit was filed for recovery of money along with interest thereon.

10. There is no dispute that the project of construction of work was executed in the district of Sivasagar. The appellant wanted to substantiate its claim that the court at Guwahati has jurisdiction to try the suit by stating that the Public Works Department of the State of Assam does business throughout the State of Assam.

11. This Court has decided to disagree with the submission made by the appellant. The Public Works Department is an instrument of the State of Assam. Its primary duty is to execute works relating to creation of infrastructure meant for development of the State. This Department does not do any business. In Black's Law Dictionary, the word “Business” has been defined as activity or enterprise for gain, benefits, advantage for livelihood. Whenever a person sells something to another person and earns monetary profit in that transaction is said to be doing business. The Public Works Department carries on construction works through some other persons, whom we know as contractors and for doing the work Government of Assam provides them money that comes from tax payers. The Government of Assam or the PWD does not earn any profit in

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such transactions. They just utilize tax payers’ money for providing benefits to public at large. 12. Now, this court is the opinion that the court at Guwahati does not have territorial jurisdiction to try the suit of the appellant and, therefore, the trial court rightly returned the plaint. 13. Under the aforesaid premised reasons, this court finds that the appeal is devoid of merit and, therefore, stands dismissed. 14. Send back the LCR.