State Bank Of India vs Smt.Vijay Lakshmi Thakral
2011 Latest Caselaw 1477 Del

    IN THE HIGH COURT OF DELHI AT NEW DELHI

                     Judgment reserved on: 18.11.2010
                     Judgment delivered on: 15.03.2011


                     RFA No.141/2003

STATE BANK OF INDIA                       ......Appellant
                 Through: Mr.S.L. Gupta & Mr. Ram Gupta,
                                Advocates.

                          Vs.

SMT.VIJAY LAKSHMI THAKRAL             ......Respondent
                 Through: Mr. J.R.Bajaj, Advocate.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                     Yes
2. To be referred to Reporter or not?                  Yes
3. Whether the judgment should be reported             Yes
   in the Digest?


KAILASH GAMBHIR, J.

*

1. By this appeal filed under Section 96 of the Code of

Civil procedure, 1908 the appellant seeks to set aside the

judgment and decree dated 11.11.2002 passed by the Court of

the ADJ, Delhi whereby the suit for recovery filed by the

respondent was decreed in favour of the respondent and

against the appellant.

2. Brief facts of the case relevant for deciding the

present appeal are that the respondent is the widow of late

Sh. Satish Chander Thukral who was working as an officer in

the State Bank Of India and had expired on 22.11.84 leaving

behind the respondent widow and his mother as legal heirs.

That after the death of her husband, the respondent vide her

application dated 29.3.85 requested the appellant bank to

release his terminal dues like provident fund and gratuity, etc.

In response, when the Bank asked the respondent to submit

the requisite papers including the succession certificate, she

was unable to do so due to the inter se disputes between the

legal heirs. For this purpose, the respondent had approached

the concerned civil court which granted the succession

certificate on 4.6.97 in favour of the respondent. On

furnishing the same on 6.6.97, the Bank released the terminal

dues of the deceased in October, 1997 but did not pay any

interest on the amount for the delayed period. The respondent

consequently filed a suit for recovery of the interest which

vide judgment and decree dated 11.11.2002 was decreed in

favour of the respondent for a sum of Rs.3,76,404 alongwith

costs and pendentalite and future interest @10.5% p.a.

Feeling aggrieved with the same, the appellant has preferred

the present appeal.

3. Mr. S.L. Gupta, learned counsel for the appellant

submitted that the suit filed by the respondent was clearly

barred by limitation as the time prescribed for filing of the

recovery suit against the bank is three years, the same being

a simple recovery suit. The contention of the counsel for the

appellant was that the ld. Trial Court has wrongly observed

that the succession certificate was a money decree which can

be executed within a period of 12 years. Counsel further

submitted that before the Succession Court the appellant was

not a party and in any case the succession certificate cannot

be enforced as a money decree against the appellant bank,

the same being a decision by the succession court inter se

between the legal heirs of the deceased employee of the bank.

Counsel thus stated that the suit for recovery filed by the

respondent was clearly barred by limitation. The other

argument raised by the counsel for the appellant was that the

appellant was not liable to pay the interest on the amount of

gratuity and the provident fund as the appellant had never

shown any reluctance to pay the amount of terminal dues to

the legal heirs of the deceased employee and it was only on

account of the inter se dispute between the legal heirs that

the appellant bank was prevented from releasing the amount

of the provident fund and the gratuity. Counsel further

invited attention of this court to the letter dated 16.05.1985

(Ex. DW 1/3) addressed by the nominee of the deceased

employee as well as the injunction order dated 20.9.85

granted by the Succession Court. Counsel thus stated that it

was not the fault of the appellant bank but due to the in-

fighting of the legal heirs themselves due to which the

appellant could not make the timely payment of the said dues.

Counsel also submitted that the Rule 359 on which the ld.

Trial court placed reliance is not applicable to the instant

facts; firstly, because the said rule is from a reference book

which has no binding effect on the appellant and secondly

even under the reference book in the illustration (3) of Rule

362 it has been clearly provided that the nominee/legal heirs

are entitled for interest from the date of submission of the

application in the prescribed format and not from the date of

the death of the member. The contention of the counsel for

the appellant was that the application in the prescribed

format for seeking release of the said amount was made by

the wife of the deceased employee only after the grant of the

succession certificate and not prior thereto. Counsel also

placed reliance on sub Section 3A of Section 7 of the Payment

of Gratuity Act, 1972, proviso of which clearly provides that

the interest shall not be paid by the employer if there is a

delay on the part of the employee in claiming the said

payment. The appellant submitted that in fact the appellant

bank has its own rules which govern the payment of gratuity

and the provident fund. Counsel also invited attention of the

Court to Rule 33 of the SBI Employees' Provident Fund Rules

which states that interest on the money standing in the books

of the fund to the credit of a member shall cease on the day

such particular employee leaves the service of the bank or on

the day when he dies, whichever event shall happen first. The

contention of the counsel for the appellant was that the said

rules governing the Provident Fund and Gratuity have been

framed by the appellant bank deriving its power from Section

50(2)(o) of the State Bank of India Act, 1955 and thus have a

statutory force. Counsel thus submitted that the provident

fund amount and the gratuity amount were immediately

released by the appellant bank after the respondent had

submitted the succession certificate along with application in

the duly prescribed form. Counsel also submitted that the

respondent has claimed the amount in suit for the payment of

interest at one particular rate of 9% p.a. and then charging

the interest at the higher interest rate @ 18% p.a. while

calculating the decreetal amount and this fact has been

overlooked by the learned trial court while granting relief to

the respondent. Counsel for the appellant hence submitted

that in any event of the matter the appellant is not legally

obligated to pay the interest amount.

4. Mr. Bajaj, learned counsel for the respondent on

the other hand argued that the Reference Book on Staff

Matters which was relied upon by the respondent in fact is a

Bible for the appellant bank and the same contains various

administrative instructions and statutory rules governing the

service conditions of the employees of the bank including the

retiral benefits. Counsel for the respondent submitted that

under Rule 359 of the Employees Provident Fund Rules

forming part of the Reference book on Staff Matters, the bank

is under a legal obligation to release payment towards

provident fund from the date of death of the employee or from

the date of the application submitted by the legal heirs of the

deceased employee. Counsel further submitted that in the

present case, there is an enormous delay on the part of the

bank in releasing the provident fund and the gratuity amount

and, therefore, the respondent became entitled to interest in

terms of illustration 3 of the said Rule 362. Similarly, counsel

submitted that the respondent is entitled to interest on the

delayed payment of gratuity in terms of Rules 415 and 417 of

the said reference book. Under Rule 417, the bank is even

liable to pay compound interest @ 9% p.a. for the intervening

period during which the bank fails to pay the amount of

interest on the gratuity amount. Mr.Bajaj also placed reliance

on Section 8 of the Payment of Gratuity Act, 1972, which

gives right to an employee to recover the amount of gratuity

payable together with compound interest thereon, if it is not

paid within the prescribed time.

5. Counsel further invited attention of this Court to

the legal opinion submitted by the Assistant General Manager

(Law) dated 02.02.1999 to the Chief Manager (Personnel),

State Bank of India thereby taking a stand that the bank is

liable to pay interest for the period from 20.09.1985 till the

date of production of succession certificate by the respondent.

This stand was taken by the said officer of the appellant-bank

after looking into the bank's extant instructions and also on

account of the fact that the said money remained with the

bank because of the operation of the restraint order. Counsel

further submitted that the money was with the bank as per

the privity of contract of an employee with the bank and not

with the provident fund trust and, therefore, the said money

being with the bank must have fetched interest thereon and

hence the bank cannot deny payment of interest to the

respondent. Counsel also submitted that the suit filed by the

respondent was within the prescribed period of limitation as

the appellant-bank through its letter dated 05.03.1999 took a

stand to deny the said interest to the respondent and the

learned court has rightly decided the issue of limitation in

favour of the respondent.

6. I have heard learned counsel for the parties and

gone through the records.

7. The respondent had filed a suit for recovery of

Rs.3,76,404/- against the appellant-bank mainly on the ground

that the appellant-bank failed to pay the interest on the

provident fund amount and the gratuity amount of the

deceased-husband of the respondent who was employed as an

officer with the appellant-bank. Before dealing with the rival

contentions of both the parties, it would be useful to refer to

some of those facts which are not in dispute between the

parties. These admitted facts are:-

a) The husband of the respondent was working as an

Officer with the appellant-bank and had died on

22.11.1984 leaving behind the respondent i.e. his

widow, and his mother Smt.Saraswati Devi as the only

legal heirs.

b) That vide letter dated 09.01.1985 the appellant-bank

called upon the respondent to submit the requisite

papers so as to enable the appellant-bank to process her

claim and make the necessary payments including the

provident fund amount etc.

c) In response to this letter dated 9.1.1985, a reply dated

21.01.1985 was sent by the respondent to the appellant-

bank stating that she was not in a position to submit the

papers desired by the appellant-bank.

d) The respondent vide her letter dated 29.03.1985 made a

request to the appellant-bank to pay the terminal dues of

her deceased husband such as provident fund, gratuity,

leave encashment and salary for 22 days etc. In this

letter dated 29.03.1985 the respondent informed the

appellant-bank that she was the only legal heir to claim

right over the retiral benefits of the deceased including

the provident fund and gratuity etc. as were admissible

as per the Bank Rules and Regulations. The respondent

further informed the bank not to entertain any claim

from any other family member of her husband.

e) That vide letter dated 09.05.1985, the appellant bank

received a legal notice from Smt. Saraswati Devi,

mother-in-law of the respondent, thereby informing the

appellant bank that she being the mother of her late son,

Satish Chander Thukral, was entitled to equal share

along with his widow. In this letter, mother-in-law of the

respondent also requested the appellant bank not to

take any hasty action.

f) That vide letter dated 16.05.1985, Mr.Ram Dutta

Thukral informed the appellant bank that he was the

nominee of the deceased and thus in that capacity he

was entitled for the payment of entire retiral dues of the

deceased.

g) That vide order dated 20.09.1985, the Court of Shri

J.P.Sharma, Sub-Judge, First Class passed a restraint

order against the bank from paying any amount to any

one till further orders are passed by the Court. The said

order was duly intimated to the appellant-bank.

h) That succession certificate was granted by the Court of

Administrative Civil Judge vide order dated 04.06.1997

in favour of the respondent.

i) That on 06.06.1997 the respondent forwarded a copy of

the succession certificate to the appellant bank and the

appellant bank released the provident fund amount of

Rs.58,049/- on 06.10.1997 and gratuity amount of

Rs.29,250/- on 21.10.1997.

8. In the background of the aforesaid admitted facts,

the rival contentions raised by both the parties need to be

examined and appreciated. Rule 359 of the Staff Reference

Book is the sole basis for the learned Trial Court to accept the

claim of the respondent. The said reference book is a

compilation of various rules governing the service conditions

of the employees of the Bank and the said Rule 359 deals with

the payment of interest when refund is delayed. For better

appreciation of the said rule, the same is reproduced as

under:-

"Para 359. It is observed that despite efforts to settle expeditiously the claims on account of refund of the Provident Fund balance of Ex. Employees, delays some times abnormally long continue to occur. There have also been a few instances where delays have occurred in the settlement of pension payable. All this causes hardship to employees who have a record of long, loyal service to the Institution, besides depriving them of interest on sizeable funds for long periods. While efforts should continue to be made to settle these claims expeditiously, to ameliorate the hardships to the extent possible, interest rate prevailing for Provident Fund account be allowed to the Provident Fund balance of ex.

Employees from the date of employees' application for refund of Provident Fund or from the date of retirement whichever is later, to the date of actual refund. The procedure for application of interest will also be the same as applicable to the Provident Fund account maintained at Central Accounts office."

9. Certainly, the aforesaid rule 359 is a beneficial rule

framed for the expeditious settlement of the provident fund

dues and pension claims of bank employees and to burden the

bank with the interest liability in the event of any delay. The

delay envisaged in the said Rule is not the delay which can be

attributed to the retiring employee himself or the legal heirs

including the nominee of the deceased employee. It is a

matter of common knowledge that despite various directions

given by the High Courts and the Hon'ble Supreme Court, the

retiral dues, pensionary benefits and provident fund, gratuity

etc. are not released to the retiring employees with

promptitude the same deserves. The said Rule 359 thus deals

with such routine delays caused by the Bank in the release of

provident fund balance of the ex employees or in the

settlement of the pension payable to such employees and

manifestly not in those cases where the delay is caused at the

end of such an employee or the legal heirs of the deceased-

employee.

10. The learned counsel for the appellant also placed

reliance on Rule 33 of the State Bank of India Employees

Provident Fund Rules to support his argument that interest on

all moneys as standing to the credit of the employee shall

cease on the day on which he dies. Counsel also placed

reliance on the judgment rendered by the Division Bench of

the Madras High Court in the case of State Bank of India

Vs. P. Sarathy (MANU/TN/3318/2006) in support of his

argument. In the said judgment of the Madras High Court, a

similar question arose for consideration and the Court took a

view that if the delay is not due to the laches on the part of

the Bank then the employee cannot be entitled to any interest

on the amount of the provident fund. The Division Bench of

Madras High Court also upheld the legality and

constitutionality of the said Rule 33 of the State Bank of India

Employees Provident Fund Rules in the said case. The

relevant paras of the said judgment are reproduced as under:-

"8. Mr.K.M.Ramesh, learned Counsel appearing for the respondent/writ petitioner contended that as per Rules, it is the duty of the employer/here Trustees of the Fund to intimate the employee and make payment. In the light of the specific provision in Rule 33 of the Rules, we are of the view that after cessation of service, the employee is required to make a demand for refund of the P.F. balance and then only it becomes payable. As rightly pointed out by the learned Senior Counsel for the Bank, if the service of the employee is terminated as a result of disciplinary action, the Provident Fund balance becomes ready for settlement and even after making a request for payment of the P.F. balance lying in his credit, he can contest the order of the disciplinary authority before different forums, viz., Appellate Authority, Reviewing Authority or by filing writ in the High Court and Appeal up to the Supreme Court, however, if he feels the acceptance of the Provident Fund does prejudice his case, he has to obtain necessary order for keeping the P.F. amount in fixed Deposit and if he does not obtain such order, the Bank cannot pay interest on the said amount. Further, some employees may, even after cessation of employment, purposely leave the amount under the fund as the P.F. interest rate offered by the Board is higher than the deposit rates prevailing in the Banks. It is also brought to our notice that the interest income on P.F., which was not withdrawn, is eligible for tax benefit. Therefore, if delay is not due to laches on the part of the Bank, the employee cannot be entitled to interest on the said amount.

10. Coming to the case of the respondent/petitioner, it is brought to our notice that, at the time of admission to the P.F., he had subscribed to the Rules, therefore, it cannot be said that he was not put on notice about Rule-33. In such case, it was for the petitioner to apply for settlement of his dues immediately after his cessation of employment. It is not in dispute that he was removed from service by the Bank on 11.01.1983. It is equally true that he was questioning the order of removal by way of departmental appeal, review, civil suit, writ petition in this Court and even went upto the Supreme Court. Merely because he was agitating his order of removal before various authorities, it cannot be said that, for the entire period, interest is payable on his P.F. amount."

11. Somewhat similar situation has arisen in the

present case. From the admitted facts already reproduced

above, it is manifest that immediately after the death of the

husband of the respondent, the appellant-bank wrote to the

respondent vide its letter dated 09.01.1985 thereby calling

upon the respondent to submit necessary papers so as to

enable it to release the necessary dues but, in response

thereto, the respondent expressed her helplessness in

submitting the desired papers. Even vide letter dated

29.03.1985, on which much emphasis was laid by the counsel

for the respondent, the respondent is not seen to have fulfilled

the Bank's formalities. The main concern expressed by the

respondent in the said letter was that the Bank should not

entertain claim of any other member of her husband's family

and she being the only legal heir was entitled for the grant of

provident fund, gratuity and other terminal dues of her

deceased husband. The respondent has not disputed the fact

that the mother of the deceased-employee was also one of the

legal heirs entitled to an equal share in the said terminal

benefits. In claiming her legal rights, the mother-in-law of the

respondent had even served a legal notice dated 09.05.1985

upon the appellant bank.

12. Another fact which cannot be ignored is the claim

of the nominee, Mr.Ram Dutta Thukral, who also vide his

letter dated 16.05.1985 called upon the appellant bank to pay

the provident fund amount to him being the nominee of the

deceased employee. In such a scenario, it cannot be said that

there was a delay on the part of the appellant-bank in not

making the timely payment of provident fund and gratuity

amount to the respondent. The argument of counsel for the

respondent was that immediately on the death of the

employee, his wife became entitled to the retiral benefits

including the amount lying in the provident fund account,

gratuity etc. even though no application in writing was made

by the legal heir. It would be useful to reproduce section 7 of

the Payment of Gratuity Act,1972 here:

"7. DETERMINATION OF THE AMOUNT OF GRATUITY. - (1) A person who is eligible for payment of gratuity under this Act or any person authorised, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity.

(2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in sub-section (1) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity so determined.

(3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.

(3A) If the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in sub-section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify : Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground.

....................".

Looking attractive at the first blush, but on deeper

examination of such claim of the respondent, the argument

lacked any merit. No doubt as it is clear from the language of

Section 7 that so far the payment of gratuity amount is

concerned, sub section 2 casts an obligation on the employer

to determine the amount of gratuity even in a case the

application, as referred to in sub section 1, has been made or

not. But clearly sub section 2 does not envisage a situation

where there are inter se disputes between the legal heirs of

the deceased employee. Rather, Proviso 1 of Sub Clause (3A)

of Section 7 will be attracted to the facts of the present case

which states that no such interest shall be payable if the delay

in payment is due to the fault of the employee.

13. Black's Law Dictionary (7th Edition) defines

'interest' inter alia as the compensation fixed by agreement or

allowed by law for the use or detention of money, or for the

loss of money by one who is entitled to its use; especially, the

amount owed to a lender in return for the use of the borrowed

money. According to Stroud's Judicial Dictionary of Words

And Phrases (5th edition) interest means, inter alia,

compensation paid by the borrower to the lender for

deprivation of the use of his money. The essence of interest in

the opinion of Lord Wright, in Riches v. Westminister Bank

Ltd., (1947) 1 All ER 469 is that it is a payment which

becomes due because the creditor has not had his money at

the due date. It may be regarded either as representing the

profit he might have made if he had had the use of the money,

or, conversely, the loss he suffered because he had not used

that money. The general idea is that he is entitled to

compensation for the deprivation. Hence interest is a

compensation payable when the money is unnecessarily

withheld by one whose obligation was to pay the same at a

given time and the same is not paid in breach of the legal

rights of the creditor.

14. The Hon'ble Supreme Court in a catena of

judgments has held that the provident fund amount or the

gratuity amount has to be paid by the employer immediately

on the retirement of the employee or on the cessation of his

service and the employee would be entitled to interest if there

is a delay on the part of the employer in payment of such

amounts. The judgment of the Hon'ble Apex Court in

H.Gangahanume Gowda Vs. Karnataka Agro Industries

Corporation Ltd. AIR 2003 SC 1526 and in M/s Champaran

Sugar Co. vs. Joint Commissioner & Ors. AIR 1987 Patna 96

cited by the counsel for the respondent, reiterating the said

legal position, will be of no help to the respondent in the facts

of the present case, as the consistent view of the Courts is

that the interest would be payable only where the delay is not

due to the fault of the employee.

15. As discussed above, in the facts of the present

case, the appellant-bank cannot be blamed for not making the

refund of the provident fund amount and gratuity amount to

the respondent; firstly because the respondent did not come

forward to make the proper application after completing all

the formalities of the bank as was notified to her by the bank

vide its letter dated 09.01.1985; secondly because of the inter

se dispute between the legal heirs of the deceased employee.

Once the succession certificate was obtained by the

respondent in her favour and the same was forwarded to the

appellant bank, then the requisite amounts were released by

the appellant bank to the respondent on 06.10.1997 and

21.10.1997 without much delay.

16. The appellant has also contended that the

respondent has claimed the amount of interest @9% p.a and

@18% p.a both and the learned trial court without going into

the question of rate of interest has granted the same. The

respondent however cannot calculate the amount due by

applying two types of rate of interest. The general principle

governing the grant of interest is looking at the facts and

circumstances of each case as to whether such interest is in

the nature of compensation, damages or penal interest. The

delay which causes the interest to be accrued on the amount

due should be such so as to cause harassment to the rightful

beneficiary of such amount. In the case at hand the release of

benefits to the respondent was rather swift within a period of

almost three to four months as compared to what it takes in

normal circumstances.

17. Coming to the argument of the counsel for the

appellant that the suit is barred by limitation, this court also

does not subscribe to the finding given by the learned trial

court on the issue no.1, taking the view that the recovery suit

could be filed by the respondent within a period of 12 years

from the date of grant of succession certificate. This finding

has been given by the learned trial court on the premise that

the period of limitation for the execution of a decree has been

prescribed for 12 years under Article 136 of the Limitation

Act 1963 and therefore, the suit filed by the respondent on

6.2.2002, five years from the date of the succession certificate

was well within the prescribed period of limitation. This court

is of the considered view that the reasoning given by the

learned trial court is wholly fallacious and contrary to the

legal position. Under Section 2(2) of the Code of Civil

Procedure 'decree' has been defined in the following words:

"Section 2

(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when

such adjudication completely disposes of the suit, it may be partly preliminary and partly final; "

18. Before the succession court, the lis was between

the legal heirs of the deceased and not between the legal

heirs on one hand and the appellant bank on the other and

thus the bank clearly was not a party to the said lis, therefore,

it cannot be said that any 'decree' was passed by the

succession court against the appellant bank. The grant of

succession certificate merely clothes the holder of the

certificate with an authority to realize the debts of the

deceased and to give authority of discharge. In Shri

Banarasi Dass Vs. Mrs. Tekku Dutta (2005) 4 SCC 449,

the Apex Court has held that the object of the succession

certificate is to facilitate the collection of the debt, to regulate

the administration of succession and to protect persons who

deal with the alleged representatives of the deceased. The

purpose of the grant of succession certificate is thus to give a

valid discharge of the debt. The succession certificate is

granted by the court while conducting summary proceedings

and the grant of succession certificate is not a final decision

to determine the rights of the parties. In the case of Joginder

Pal Vs. Indian Red Cross Society, (2000) 8 SCC 143, the

Apex Court held as under:

"These Sections make it clear that the proceedings for grant of succession certificate are summary in nature and that no rights are finally decided in such proceedings. Section 387 puts the matter beyond any doubt. It categorically provides that no decision under Part X upon any question of right between the parties shall be held to bar the trial of the same question in any suit or any other proceeding between the same parties. Thus Section 387 permits the filing of a suit or other proceeding even though a succession certificate might have been granted.

16. This question was also considered by this Court in the case of Madhvi Amma Bhawani Amma and Ors. v. Kunjikutty Pillai Meenakshi Pillai and Ors. : AIR2000SC2301 . In this case after having considered the provisions of Sections 370 to 390 of the Indian Succession Act as well as Section 11 of the CPC, it has been held that any adjudication under Part X does not bar the same question being raised between the same parties in a subsequent suit or proceeding. It has been held that Section 387 of the Indian Succession Act takes a decision given under Para X of the Indian Succession Act outside the purview of Explanation VIII to Section 11 of the CPC. It has been held that Section 387 gives a protective umbrella to ward off from the rays of res judicata to the same issue being raised in a subsequent suit or proceeding. We are in full agreement with the view expressed in this case."

It would be thus seen that the grant of succession certificate

in favour of the petitioner cannot operate even as res judicata

in a subsequent suit as the succession court only prima facie

determines the right of a person entitled to collect the debts

of the deceased. Therefore in the background of this settled

legal position, the succession certificate cannot be treated as

a decree which can be said to have conclusively determined

the rights of the parties and in any event of the matter in the

present case the bank and other debtors are not before the

court nor their rights are involved for any determination. The

succession certificate therefore cannot be treated as a decree

as envisaged under Section 2(2) of the Code of Civil

Procedure. The grant of succession certificate in favour of

the respondent thus entitled her to file the recovery suit

within a period of three years from the date of the grant of

said succession certificate. There is no particular Article in

the Limitation Act which deals with the limitation period to

recover the statutory dues and therefore the residuary Article

113 of the Limitation Act would attract to such a suit and the

period of three years would be reckoned from the date when

the right to sue is accrued. In the facts of the present case,

the right to sue in favour of the appellant accrued on the date

of grant of the succession certificate or at the most when the

respondent had presented the application with the bank to

seek release of the said statutory dues of the deceased

employee. The recovery suit was filed by the respondent on

6.2.2002, whereas the succession certificate was granted on

4.6.97 and it was submitted by her to the appellant bank on

6.6.97. Therefore, undoubtedly the suit of the respondent was

hopelessly barred by time.

19. In the light of the above discussion, the present

appeal is allowed and the impugned order dated 11.11.02

passed by the learned trial court is set aside.

March 15, 2011                    KAILASH GAMBHIR, J