Delhi High Court

M/S.. Agency Sales Limited vs Delhi Vidyut Board And Another on 3 July, 2009

Author: P.K.Bhasin

*              IN THE HIGH COURT OF DELHI AT NEW DELHI



+                     RFA NO. 286 OF 2005



%                               Date of Decision: 3rd July, 2009


#     M/S. AGENCY SALES LIMITED                         ...Appellant
!                          Through: Mr. T.A. Francis and Mr.Mahesh
                                    Katyayan, Advocate

                               Versus



$     DELHI VIDYUT BOARD AND ANOTHER                        ...Respondents
^                                                           Through: None


      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN

1. Whether Reporters of local papers may be allowed to see
   the Judgment?(No)
2. To be referred to the Reporter or not?(No)
3. Whether the judgment should be reported in the digest?(No)

                          JUDGMENT

P.K.BHASIN, J(ORAL)

This appeal has been filed by an unsuccessful plaintiff who had filed

a suit for damages against the respondents herein but the trial Court

vide judgment dated 19th January,2005 has rejected the plaint under

Order VII Rule 11(d) of the Code of Civil Procedure, 1908('CPC' in short).

2. The relevant facts are that the appellant-plaintiff, a Company

having Registered office in England and run by Non Resident Indians, had

purchased property no. 11/78, West Punjabi Bagh, Delhi in a public

auction conducted by the Income Tax Department on 15th February, 1995

to start its office in India also. The Company obtained its physical

possession on 31-05-1995. After taking over the possession of the said

property the plaintiff found that there was no electricity connection

installed there and so to get the electricity connection it approached

Delhi Vidyut Board, respondent no.1 herein, sometime in the first week of

August, 1995. The request of the plaintiff for sanction of electricity

connection, however, was not accepted for quite some time and the

decision was being postponed for one reason or the other and bribe was

also being demanded by the officials of respondent no. 1 through touts.

Finally, the plaintiff was constrained to file a writ petition in this Court

seeking a direction to Delhi Vidyut Board to sanction the electricity

connection applied for. Notice of the Writ Petition was issued for 23rd

January,1996. However, before that date the electricity meter was

installed by the respondent no.1 herein in the afore-said premises. On

23rd January, 1996 when the writ petition was taken up for hearing the

Court was informed by the counsel for Delhi Vidyut Board that electricity

meter had already been installed and consequently the Writ Petition was

disposed of as having become infructutous. The plaintiff, however, felt

aggrieved by the delay caused by the officials of respondent no. 1

granting the electricity connection and so it had served a notice dated 24-

02-1996 under Section 80 CPC upon the Delhi Government, respondent

no.2 herein, and Delhi Vidyut Board claiming damages to the extent of Rs.

10,00,000/-. Since the demand of damages was not met by the

respondents the plaintiff Company filed a suit on 29th April, 2007 for

recovery of Rs. 10,00,100/- along with pendente lite and future interest

@ 24% p.a. The plaintiff claimed that it had suffered loss of business

because it could not set up its office in the aforesaid premises because of

the delay in installation of electricity meter and on that account a sum of

Rs.7,00,000/- was claimed as damages. Rs.3,00,000/- were claimed as

damages on account of expenses incurred by the Director of the plaintiff

Company in coming to India from United Kingdom on many occasions in

connection with the sanction of the electricity connection. Rs.10,000,00/-

were claimed on account of compensation due to physical and mental

agony suffered in following up the matter with the respondents. On

account of loss of business also a sum of Rs.4,00,000/- was claimed.

Rs.25,000/- were claimed on account of legal expenses etc. Although the

total amount which according to the plaintiff it was entitled to claim as

compensation was Rs.24,25,000/- but the relief in the suit was restricted

to a sum of Rs.10,01,000/- only. Joint and several decree for this amount

was prayed for against both the respondents-defendants.

3. The respondents-defendants filed a joint written statement and

resisted the plaintiff's claim, inter-alia, on the grounds that the suit was

time barred having been filed beyond the period of limitation prescribed

under Article 72 of the Limitation Act, 1963; the suit had not been filed,

signed and verified by a duly authorized person; the suit was not

maintainable against Government of National Capital Territory of Delhi

in view of the provisions of Section 52 of the Government of National

Capital Territory Act, 1991 and that the suit was liable to be dismissed for

want of notices under Section 80 CPC or Section 477 of the Delhi

Municipal Corporation Act. On merits, the suit claim was resisted on the

grounds that the sanction of the electricity connection applied for by the

plaintiff had got delayed because the plaintiff was asking for restoration

of old connection in the name of original owner of the property which

was disconnected in 1986 for non-payment of electricity dues and its

restoration was not possible without completion of certain formalities

which the plaintiff was not willing to fulfil. The plaintiff then had applied

for new connection on 04/12/95 alongwith the requisite documents and

the connection was released on 19/12/95.

4. The learned trial Court framed the following four preliminary issues

only on 07-07-2004 for decision:-

1. Whether the suit is within limitation?

2. Whether the suit has been instituted by authorized person?

3. Whether the suit is liable to be dismissed on account of mis joinder of parties due to non following of section 52 of Govt. of National Capital Territory Act, 1991?

4. Whether the suit is liable to be dismissed for want of notice u/s 80 CPC and/or Sec. 477 DMC Act?

While framing the afore-said four issues the learned trial Court had

observed in its order that all these issues were purely legal issues

requiring no evidence and so they were being treated as preliminary

issues.

5. After hearing the arguments on the afore-said four preliminary

issues from both the sides the learned trial Court vide judgment dated 19-

01-2005 decided issue nos. 1,2 and 3 against the plaintiff and issue no. 4

was decided against the defendants on the ground that no notices under

Section 80 CPC or Section 477 of the Delhi Municipal Corporation Act

were required to be given by the plaintiff since neither the Union of India

was a party to the suit nor the Municipal Corporation of Delhi. The final

order which came to be passed as a result of the findings on issues no. 1,2

and 3 was the rejection of the plaint under order VII Rule 11(d) CPC.

Feeling aggrieved by the said decision of the trial Court the plaintiff filed

the present appeal.

6. I have heard the learned counsel for the appellant only since none

appeared on behalf of the respondents.

7. In my view, none of the four issues framed and decided by the

learned trial Court could be decided as preliminary issues nor could the

plaint be rejected under Order VII Rule 11(d) CPC. Under Order XIV Rule

2 CPC the Court has the power to frame and decide certain issues as

preliminary issues and postpone settlement of other issues which may

also arise out of the pleadings of the parties but that can be done only if

those issues relate to the jurisdiction of the Court or a bar to the suit of

the suit created under any law for the time being in force. In the present

case, the learned trial Court while treating the four issues as preliminary

issues has not even stated in the order passed while framing the four

issues that these issues were being treated as preliminary issues since

they relate to the jurisdiction of the Court or to a bar to the suit created

by any law for the time being in force.

8. The trial Court has held the suit to be time barred by invoking

Article 72 of the Limitation Act under which the period of limitation for a

suit for compensation " for doing or for omitting to do an act alleged to

be in pursuance of any enactment in force for the time being" is one year.

The question of limitation is a mixed question of law and fact. If the suit

does not appear to be barred by limitation on the face of it, then the facts

necessary to prove limitation must be pleaded and then proved. If any

authority is need on this point reference can be made to the judgment of

the Hon'ble Supreme Court in "Basaria Construction(P)Ltd. Vs Hanuman

Seva Trust and ors.", (2006)5 SCC 658.

9. The question of limitation in the facts of this case cannot be said to

be a question of law only as has been considered by the trial Court. The

plaintiff had filed a suit for damages/compensation on the grounds which

have been noticed already. Whether Article 72 of the Limitation Act

providing a shorter period of limitation of one year only for filing of suit

for compensation was attracted, as was the plea of the respondents-

defendants, or whether Articles 91 or 113(residuary article) providing

three years period of limitation, as is the plea of the plaintiff, were

attracted was a question which could be decided only after recording

evidence on relevant facts and not merely on the basis of pleadings of the

parties. If the officials of the respondents acted bona fide while

processing the request of the plaintiff for grant of electricity connection

the shorter period of limitation of one year under Article 72 may become

applicable but if they are shown to have acted mala fide in delaying the

plaintiff's request for new electricity connection, as is the plaintiff's case,

making the Government liable to compensate the plaintiff then normal

period of limitation of three years would become applicable. These are

the questions which normally arise for determination in suits for

compensation against the Government for tortuous acts of Government

servants and the same can be answered only after parties have led

evidence. Regarding the applicability of Article 72 of the Schedule to the

Limitation Act the Hon'ble Supreme Court had in "State of Andhra

Pradesh vs Chhalla Ramkrishna Reddy and ors." reported in 2002 Civil

Law Reports 438 observed as under:

" .......... This Article would be attracted to meet the situation where the public officer or public authority or, for that matter, a private person does an under power conferred or deemed to be conferred by an Act of the Legislative by which injury is caused to another person who invokes the jurisdiction of the Court to claim compensation for that act. Thus, where a public officer acting bona fide under or in pursuance of an Act of the Legislature commits a "tort", the action complained of would be governed by this Article which, however, would not protect a public officer acting mala fide under colour of his office. The Article as worded, does not speak of "bona fide" or "mala fide" but it is obvious that the shorter period of limitation, provided by this Article, cannot be claimed in respect of an act which was malicious in nature and which the public officer or authority could not have committed in the belief that the act was justifiable under any enactment."

10. The question whether any public servant acted bona fide or mala

fide cannot be determined on the basis of pleadings alone. Similarly, it

could not be said that the suit was barred by law of limitation on the face

of it. While invoking Order VII Rule 11(d) CPC the Court is to assume the

averments in the plaint to be true and still if the Court finds that

assuming all the averments in the plaint to be true the suit appears to be

barred under some law for the time being in force only then the plaint

can be rejected and if for deciding any point the defence of the defendant

is to be taken into consideration then the provisions of Order VII Rule 11

CPC cannot be invoked. In the present case, the learned trial Judge has

not even arrived at a finding that based on the averments in the plaint

itself the suit was time barred. Casually it has been observed that Article

72 of the Schedule to the Limitation would be more appropriately

applicable to the facts of this case, as was the plea of the defendants. The

trial Judge certainly appears to have invoked Article 72 keeping in mind

the defence of the defendants which approach was not correct. In

"C.Natarajan vs Ashim Bai", AIR 2008 SC 363 , the Hon'ble Supreme

Court while dealing with the applicability of Order VII Rule 11 CPC when a

plea for rejection of the plaint is raised on the ground of limitation had

observed as under in paras 7 and 8 of the judgment:

"7. An application for rejection of plaint can be filed if the allegations made in the plaint if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence ...............................................................................

8. Applicability of one or the other provision of the Limitation Act per se cannot be decisive for the purpose of determining

the question of as to whether the suit is barred under one or the other article contained in the Schedule appended to the Limitation Act."(emphasis laid)

11. Similarly, the question as to whether the suit had been filed by a

duly authorized person or not is also not a question relating to the

jurisdiction of the Court or to the maintainability of the suit. It is purely a

question of fact requiring evidence from the side of the plaintiff to

establish whether the suit had been filed by a duly authorized person on

its behalf. Issue regarding the non-joinder of Government of India as a

party to the suit also cannot be said to be an issue of law relating to the

jurisdiction of the Court or to any bar to the maintainability of the suit

and so even this issue based on the objection of the defendants of non-

joinder of Government of India could not be treated as a preliminary

issue.

12. I am, therefore, of the view that the impugned judgment of the