Avinash Rana vs Dsiidc Ltd & Anr
2012 Latest Caselaw 441 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.546/2011

%                                                      23rd January, 2012

AVINASH RANA                                                 ..... Appellant
                               Through:   Mr. Kshitij Sharda, Adv.

                      versus

DSIIDC LTD & ANR                                          ..... Respondents

Through: Ms. Anusuya Salwan, Adv.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal is to the

impugned order of the Trial Court dated 20.9.2011 refusing to grant the

benefit of Section 14 of the Limitation Act, 1963 to the appellant/plaintiff.

2. The facts of the case are that the appellant/plaintiff was the

allottee of the industrial plot no.2474, Sector B, Narela Industrial Complex,

New Delhi, however, as the possession of the plot was not being handed over

to the appellant/plaintiff, the appellant/plaintiff filed a writ petition being

WP(C) No.6200/2004 titled as Avinash Rana vs. DSIDC Ltd. In this writ

petition, a learned Single Judge of this Court finding the inaction of the

respondent to be gross, observed that even in the writ petition imposing of

liability with respect to delay in handing over possession to the petitioner,

and who is the appellant in the present appeal, would be considered. The

following order was passed in the writ petition i.e. WP(C) 6200/2004 on

1.2.2005:-

"1. There is a request for adjournment on behalf of the respondent. However, learned counsel appearing for the petitioner point out that his unit was sealed on 30.11.2004 pursuant to the directions of the Supreme Court of India on 14.11.2000 in writ petition No.4677/1985 with regard to the shifting of industries. The orders dated 30.11.2004 (placed on page 20) issued by the Sub-Divisional Magistrate states that the unit of the petitioner is operating in a non- conforming area in violation of Master Plan for Delhi 2000- 2001 provisions and directs that the petitioner unit be closed and sealed with immediate effect. The petitioner submits that pursuant thereto his unit was immediately sealed and the petitioner is without source of livelihood since that date.

2. The petitioner had made an application to the respondents and deposited the amount of `58,275/- with the respondents on 28.6.2000 and other amounts on subsequent dates bringing with the total amount deposited to `4,20,350/-. Last payment was made by the petitioner on 28.2.2001. The petitioner was directed to approach the respondent no.2/Delhi Financial Corporation for the purposes of finance of the plot. Accordingly the petitioner appears to have made the application which was granted by the respondent no.2 out of the aforestated, an amount of `2,73,000/- towards the plot was paid to the petitioner by Delhi Financial Corporation which was deposited by the petitioner with the respondent no.1/DSIDC on 15.2.2001. The amount was disbursed by respondent no.2 to the petitioner as per the terms of grant of the aforestated loan

by the respondent no.2. It is contended that the petitioner has to repay the amount in instalments along with interest rate stipulated by the respondent no.2.

3. The petitioner submits that he has not only been deprived of his source of livelihood but is being compelled to meet the liability under his loan agreement with the respondent no.2. The liability is accruing fro no fault of the petitioner but only on account of the fact that the possession of the allotted plot has been wrongfully withheld from the petitioner and the matter is being unreasonably delayed by the respondent no.1.

4. In the aforestated circumstances, in my view, apart from the relief prayed in the writ petition, the present case is a fit case where the question relating to the liability of the respondent no.1 for the delay in the matter and the dues payable to the respondent no.2 would need to be considered. It is therefore directed that the respondent no.1 shall produce the original record containing the application of the petitioner as well as all the representations made by him along with consideration of the same by the officials of the respondent no.1. The respondent no.1 shall also make available a tabulation setting out the manner in which the case of the petitioner was considered by respondent no.1, the date on which the orders were made and the names of the officials who have dealt with the same.

Counsel for the parties shall make submissions on this aspect of the matter as well and placed on record photocopies of law relied on.

List for disposal on 3.3.2005.

Copy of this order be given dasti."(underlining added)

3. It is on the basis of this order dated 1.2.2005 passed in WP(C)

No. 6200/2004 that the appellant/plaintiff was under a bonafide belief for not

filing any suit for damages for delay in handing over possession by the

respondent. The writ petition was ultimately disposed of on 16.2.2009 giving

liberty to the appellant/plaintiff to file his claim in a Civil Court by observing

as under:-

"During the hearing, learned counsel submitted that since the petitioner was handed over possession of the plot on 26.04.2005, his rights to claim appropriate relief, from the Civil Court or other forum should be preserved, against Respondent no.1. He seeks liberty to withdraw the writ petition.

Liberty granted as claimed, the petitioner may pursue such remedies as are available in accordance with law. The petitioner and accompanying applications are dismissed as withdrawn in the above terms with liberty as claimed. It is open to the petitioner to approach the Delhi Financial Corporation (DFC). In case such a request is made, the DFC shall consider it and pass appropriate orders."

4. The subject suit thereafter came to be filed on 27.8.2009, and in

which, an application was filed under Section 14 of the Limitation Act, 1963

to exempt the application of period of limitation from 1.2.2005 when the

order was passed in the writ petition to 16.2.2009, and also from 16.2.2009

till 20.3.2009 when the prayer of the appellant/plaintiff for exemption from

payment of interest charges was declined by the respondent/defendant.

5. Once we exclude the period from 1.2.2005 to 16.2.2009, since

the possession was delivered to the appellant/plaintiff by the respondent

no.1/defendant no.1 in 2005, the suit will be within limitation as it would

have been filed within 3 years from taking possession in 2005. I may reiterate

that it was on account of the honest belief which the appellant entertained by

virtue of para 4 of the order dated 1.2.2005 passed in the writ petition that the

suit for damages was not filed, and with respect to which, a specific liberty

was granted to the appellant/plaintiff while disposing of the writ petition on

16.2.2009.

6. Accordingly, in view of the aforesaid facts, the appellant/plaintiff

is entitled to exemption from the application of period of limitation from

1.2.2005 till 16.2.2009, and then till 20.3.2009. This exemption would be

available to the appellant/plaintiff by virtue of Section 14(1) of the Limitation

Act, 1963. The suit is therefore held to be within limitation.

7. The impugned judgment and order dated 20.9.2011 is

accordingly set aside. The suit is held to be within limitation by giving the

benefit of the Section 14(1) of the Limitation Act, 1963 to the

appellant/plaintiff.

8. Nothing contained in the present order is a reflection on merits of

the case of either of the parties, and the Trial Court will now hear and dispose

of the suit in accordance with law. The appeal is disposed of accordingly.

Parties are left to bear their own costs. Decree sheet be prepared.

9. Parties to appear before the District Judge, Karkardooma Courts

(East), Delhi on 23.2.2012, and on which date, the said District Judge will

mark the suit for disposal in accordance with law to a competent Court.

VALMIKI J. MEHTA, J JANUARY 23, 2012 ak