C.P. Kapur vs The Chairman & Ors
2012 Latest Caselaw 6243 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+           CS(OS) 2678/2012 and I.As. No.16212-16213/2012

                                     Date of Decision: 17th October, 2012

      IN THE MATTER OF
      C.P. KAPUR                                              ..... Plaintiff

                         Through:    Mr. Narendera Kalra, Advocate

                   versus

      THE CHAIRMAN & ORS                                     ..... Defendants

                         Through:    None.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The present suit has been instituted by the plaintiff for the recovery

of a sum of Rs.54,50,960/- jointly and severally against the defendants.

The reliefs sought by the plaintiff in the present suit are as follows:-

(A) Pass a decree for a sum of Rs.54,50,960.00 in favour of the plaintiff and against the defendants jointly and severally.

(B) Pass an interim order to pay the monthly pension with immediate effect as it is required for the plaintiff to meet out the route expenses and other expenses such as medical as the plaintiff do not have any regular source of income at this age.

(C) Pass necessary directions against the defendant No.6 i.e. M/s Oracle Financial Services Software Ltd. thereby directing this defendant to pay the highest value of the shares which were allotted to the employees of M/s Citi Bank to the plaintiff of his share.

(D) Allow interest pendentility and future @ 12% per annum in favour of the plaintiff and against the defendant from the date of filing of the suit till its realization.

(E) Allow cost of the suit."

2. The present suit was listed before the Joint Registrar for admission

on 4.9.2012 on which date, learned counsel for the plaintiff had sought

some time to produce the case law on the issue of limitation of the

present suit. At his request, the matter was adjourned to 22.09.2012.

3. On 22.09.2012, the Joint Registrar heard the counsel for the

plaintiff and was of the opinion that the present suit has been filed

beyond the period of limitation and, therefore, the same has been placed

before the Court.

4. Though it has been averred in the plaint that the plaintiff was

employed with the Citibank in the year 1972 and his services were

illegally terminated in the year 1994, for reasons best known to him, he

has not impleaded Citibank as a defendant in the present suit. Instead,

the plaintiff has impleaded the Chairman, Central Board of Direct Taxes as

defendant No.1 the Trustee, Citi Bank Provident Fund Branch as

defendant No.2, the Vice President & Managing Director of Citibank by

name as defendant No.3, M/s Oracle Financial Services Ltd. as defendant

No.5 and the Regional Provident Fund Commissioner as defendant No.6

(wrongly described as D-7 in the memo of parties).

5. Learned counsel for the plaintiff submits that the services of the

plaintiff were actually terminated in the year 1991 and this had resulted

in litigation between him and Citibank which was finally settled in the year

1999 when Citibank had agreed to pay a sum of Rs.64 lacs to the plaintiff

as a settlement amount. It is the case of the plaintiff that it was

mandatory for Citibank to have issued to him a TDS Certificate under the

Income Tax Act, but the needful was not done at the relevant time and

nor did the bank provide him with Form 16 due to which he could not

claim refund of the excess tax deposited by him with the Income Tax

Authorities.

6. It is averred in the plaint that the aforesaid inaction on the part of

the bank had resulted in huge losses to the plaintiff and after running

from pillar to post for refund of the TDS deducted by the Bank, the

plaintiff had written several letters/legal notices to the bank. Specific

reference is made by learned counsel for the plaintiff to the letter dated

10.06.2010 addressed by the plaintiff to the CEO of Citibank and the reply

dated 11.08.2010 addressed by the lawyers of the bank to the plaintiff.

7. A perusal of the letter dated 10.06.2010 addressed by the plaintiff

to Citibank reveals that he had himself admitted that he had waited for a

period of 12 years for issuance of the TDS Certificate and despite the

same, the said certificate was not issued by the bank. In reply to the

aforesaid letter, the lawyers of the bank had stated in their letter dated

11.08.2010 that all amounts that were due and payable to him by the

bank had been duly paid and were accepted by him in full and final

settlement and nothing further was due or payable by the Bank.

8. Learned counsel for the plaintiff states that as the defendants had

replied to the plaintiff for the first time on 11.08.2010, the said reply

forms a part of the cause of action for instituting the present suit and

therefore, the same is not barred by limitation.

9. Pertinently, the cause of action para of the plaint reads as below:-

"Para 34.That the cause of action arose in favour of the plaintiff and against the defendants firstly when the plaintiff joined the services of the bank, it again arose when the services of the workman were terminated. It again arose on all the dates when the bank imitated writ petition before Hon'ble Delhi High Court, it further arose when the settlement was arrived at, when the payment was released by the bank, when the defendants failed to issue form 60 and the certificate of TDS, it kept on accrue when the plaintiff attain the age of 60 years and started writing letters and meetings the officials of the defendant bank, it again arose on 5.5.2012 when the bank failed to release the payment. Since no payment has been released the cause of action is continuing one."

10. A perusal of the aforesaid para relating to cause of action itself

reveals that the plaintiff has been deliberately vague and has refrained

from mentioning any relevant date in the said para, except for the date

05.05.2012, when he claims that he had sent a final legal notice to

Citibank, a party that has not even been impleaded as a defendant in the

present proceedings.

11. It is settled law that parleys between the parties cannot be treated

as a substitute for invoking legal remedies and nor can such

correspondence enlarge the period of limitation for instituting appropriate

legal proceedings. It has been held in a catena of judgments that the

starting point of limitation shall remain unaffected by the conduct of the

parties or by the correspondence exchanged between them and that mere

attempt on the part of a litigant to persuade the authorities to accede to

his claim by dispatching letters may not be a ground for claiming

extension of limitation for institution of a suit. [Ref: East and West Steam

Ship Company, George Town, Madras Vs. S. K. Ramalingam Chettiyar

reported as AIR 1960 SC 1058, Bhootamal Vs Union of India reported as

AIR 1962 SC 1716, S. S. Rathore Vs State of Madhya Pradesh reported

as AIR 1990 SC 10 and Balram Sehgal Vs Vinod Kumar Sehgal reported

as 156(2009) DLT 538].

12. In the present case, the plaintiff has stated that his services were

terminated as long back as in the year 1991 and that he had received the

entire amount as agreed upon between him and his employer, Citibank in

the year 1999 when a writ petition was filed by the bank against the

judgment of the Labour Court, registered as W.P.(C) 2145/1995 and the

same was ultimately disposed of in the year 2000. If the plaintiff had a

grievance as to the non-issuance of the TDS Certificate at the relevant

time, then it was for him to have approached the competent court for

appropriate relief within a reasonable time therefrom. However, no such

efforts were made by him.

13. As per the counsel for the plaintiff, the plaintiff had filed an

application in the aforesaid disposed of writ petition filed by the bank,

seeking revision of the TDS Certificate, but he was directed to approach

the Income Tax Authorities for appropriate reliefs. Again, the plaintiff did

not do so and nor did he seek any legal recourse against the Income Tax

Authorities. The cause of action to institute the present suit had at best

arisen in the year 1999, when the plaintiff claims to have arrived at a

settlement with Citibank. The said limitation can neither be extended on

the strength of a notice issued by the plaintiff on 10.06.2010, nor on the

repudiation of his claim by the bank, vide its letter dated on 11.08.2010.

It is also relevant to note that the aforesaid correspondence exchanged

between the plaintiff and Citibank did not make any mention of the non-

issuance of the TDS certificates and further, that the said correspondence

between the parties can hardly be relied upon by the plaintiff, when he

has not sought any relief against Citibank and has not impleaded it as a

defendant in these proceedings.

14. In the aforesaid facts and circumstances, this Court is constrained

to hold that the present suit is patently barred by limitation. It is also

relevant to note that even while instituting the present suit, no relief

whatsoever has been sought by the plaintiff for issuance of revised TDS

Certificates or for issuance of Form 16, which were grievances that he

claimed he had raised in his correspondence with Citibank and were

responded to by Citibank in its letter dated 11.08.2010 addressed to him.

Under the Limitation Act, the period of limitation for recovery of amounts

as claimed by the plaintiff is to be reckoned as three years from the date

when the demand was made. Admittedly, the plaintiff had been making

such demands upon Citibank for the past about 12 years and in such

circumstances the starting point of limitation would remain the same.

The present suit, as instituted by the plaintiff is therefore found to be

hopelessly barred by limitation and is accordingly dismissed as not

maintainable alongwith the pending applications.

HIMA KOHLI, J OCTOBER 17, 2012 mb/mk/rkb/sk