Delhi High Court
Dr. Mahendra Singh vs Union Of India & Anr. on 3 December, 2013
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 3rd December, 2013.
+ RFA 269/2011
STATE FARMS CORPORATION OF
INDIA LTD. & ANR. ...... Appellants
Through: Mr. G. Joshi, Adv.
Versus
DR. MAHENDRA SINGH .....Respondent
Through: Respondent in person.
AND
+ RFA 371/2011
DR. MAHENDRA SINGH .....Appellant
Through: Appellant in person.
Versus
UNION OF INDIA & ANR. .....Respondents
Through: Mr. G. Joshi, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. Both appeals impugn the judgment and decree dated 03.02.2011 of the
Court of Additional District Judge-07, Central, Tis Hazari Courts, Delhi in
CS No.118/2008 (ID No.02401C5086002004) filed by the appellant in RFA
No.371/2011 against the appellants in RFA No.269/2011. RFA
No.269/2011 filed by the judgment debtors in the suit was admitted for
hearing and vide order dated 12.05.2011 the operation of the impugned
judgment and decree stayed. RFA No.371/2011 was also admitted for
hearing on 25.07.2011. On application of the appellant in RFA No.371/2011
that he is a senior citizen, hearing was expedited by placing both the RFAs
in the category of Regular Matters of Senior Citizens.
2. The counsel for the appellants in RFA No.269/2011 and the appellant
in person in RFA No.371/2011 have been heard.
3. The suit from which the appeals arise was instituted on 15.03.2004 by
the appellant in RFA No.371/2011 (hereinafter referred to as the plaintiff)
against the appellants in RFA No. 269/2011 State Farms Corporation of
India Ltd. (SFCI) and Union of India (UOI) through the Secretary, Ministry
of Agriculture (hereinafter together referred to as the defendants) for
recovery of a principal sum of Rs.10,06,784/- and interest at the rate of
12.5% till the date of institution of the suit of Rs.5,65,014/- i.e. for a total
sum of Rs.15,71,798, pleading:
(i) that the plaintiff was employed as Professor, Soil Science as
well as Controlling Officer of University Farms with the
Chaudhary Charan Singh Haryana Agricultural University from
12.06.1965 till 29.02.2000;
(ii) that a post of Managing Director of the defendant SFCI was
advertised by Public Enterprise Selection Board (PESB) for
which the plaintiff applied through proper channel;
(iii) that the plaintiff was appointed as the Managing Director of the
defendant SFCI by the President of India vide appointment
letter dated 27.04.1995, as per Article 50 of the Memorandum
and Articles of Association of defendant SFCI;
(iv) that the date of superannuation of the plaintiff was defined as
29.02.2000 in the letter dated 28.08.1997 of the defendant UOI
as well as in the letter dated 01.09.1997 issued by PESB;
(v) that the terms and conditions of service of the plaintiff during
deputation as Managing Director of the defendant SFCI were
contained in the Memorandum dated11.01.1996 and letter dated
23.01.1996 of the defendant UOI to the defendant SFCI;
(vi) that the service terms and conditions of the plaintiff were
mandatory and the Board of the defendant SFCI could not
interfere therewith;
(vii) that though the plaintiff was also a Director on the Board of
defendant SFCI but was not governed by the Rules and
Regulations of the defendant SFCI and was governed by All
India Services (Discipline and Appeal) Rules, 1969 and All
India Services (Death-cum-Retirement Benefits) Rules, 1958
and the Board of Directors of the defendant SFCI had no power
to take any action against the plaintiff or with respect to the
service conditions of the plaintiff;
(viii) that the plaintiff joined the defendant SFCI as Managing
Director on 01.05.1995;
(ix) that in the month of July, 1997, the defendant UOI proposed to
repatriate the plaintiff prematurely without giving him any
notice;
(x) that the plaintiff challenged the said decision before this Court
by filing CWP No.3679/1997 and in which vide interim order
dated 08.09.1997 status quo was directed to be maintained;
(xi) that notwithstanding the said interim order, the Board of
Directors of the defendant SFCI vide decision taken in the
meeting dated 30.09.1997 withdrew the powers of the plaintiff
and stopped payment of his dues and allowances to which the
plaintiff was entitled to as per his service conditions and which
also was beyond the powers of the Board;
(xii) that contempt of court proceedings were instituted by the
plaintiff in this Court and though during the pendency thereof
the counsel for defendant No.2 SFCI stated that an amount of
Rs.6,00,000/- had been paid to the plaintiff but in fact was not
paid;
(xiii) that the contempt proceedings were finally decided on
26.03.2003 without any effective order as far as the payment of
dues of the plaintiff was concerned, giving liberty to the
plaintiff to institute proper proceedings therefor; and,
(xiv) that the following amounts were due to the plaintiff:
Sl. No. Heads Amount (Rs.)
1 Dues of salary under old scale 1,02,586.00
from 01.04.1998 to 09.05.1999.
2 Arrears of revised pay under 4,38,634.00
option of Industrial Dearness
Allowances.
3 Entertaining expenditure at 45,025.00
residence of plaintiff.
4 Self lease as well as rent of 3,88,000.00
Rs.10,500/-p.m.
5 Repairs and renovation of 40,000.00
plaintiff‟s house
6 Newspaper charges 375.50
7 Taxi charges 860.00
8 Transfer travel allowance 26,985.00
9 Excess expenditure 1,600.00
Total 10,44,065.50
4. The defendant UOI contested the suit by filing the written statement,
pleading:
(a) that the suit was barred by limitation; the plaintiff was
repatriated to his parent department from the services of the
defendant SFCI with effect from 07.05.1999 i.e. immediately
after dismissal of his writ petition No.3679/1997 and
consequent vacation of stay; that the plaintiff was claiming his
dues for the period up to 07.05.1999; however the suit was filed
in March, 2004;
(b) that the President of India is the sole shareholder of the
defendant SFCI and the sole authority to constitute the Board of
Directors of the defendant SFCI;
(c) that the plaintiff was appointed as Managing Director of
defendant SFCI with effect from 01.05.1995 to 29.02.2000 or
till the date of his superannuation, on deputation basis; that the
appointment was also terminable during the said period by
either side;
(d) that in view of the defendant SFCI‟s poor performance coupled
with activities of the plaintiff, the defendant UOI started the
process of prematurely repatriating the plaintiff to his parent
department;
(e) that however in view of the interim order of status quo in the
writ petition filed by the plaintiff, the plaintiff could not be so
repatriated till 07.05.1999 when the writ petition was disposed
of holding that the plaintiff was deemed to have been
repatriated on his attaining the age of superannuation which
then was 58 years in defendant SFCI;
(f) that in view of misuse of powers by the plaintiff, the Board of
Directors of defendant SFCI vide Resolution dated 30.09.1997
withdrew the executive powers earlier delegated to the plaintiff
as Managing Director and re-vested the executive powers in the
Board of Directors itself;
(g) that the plaintiff filed another writ petition No.4710/1997 in this
Court challenging the said action of the Board of Directors of
defendant SFCI and which was also directed to be listed with
writ petition No.3679/1997 filed by the plaintiff and disposed
of along with writ petition No.3679/1997;
(h) that the plaintiff filed civil contempt petition No.220/1998 in
relation to CWP No.3679/1997 alleging violation of the order
dated 08.09.1997 of status quo and stoppage of his salary and
other allowances and demanding Rs.11,74,000/- towards
principal and interest;
(i) that the defendant SFCI in its reply to the contempt petition
denied any liability and raised counter demand against the
plaintiff;
(j) that the contempt petition was disposed of on 26.03.2003
observing that no contempt had been committed and if the
plaintiff had any grievance with regard to non payment of his
dues, he may seek appropriate remedy in accordance with law;
(k) denying that plaintiff was not governed by the Rules and
Regulations of defendant SFCI; and,
(l) that the plaintiff had drawn advances amounting to
Rs.6,35,314.13p from defendant SFCI which were neither
adjusted nor refunded and ordered to be recovered back from
the plaintiff.
5. The defendant SFCI filed a separate written statement contesting the
suit, in addition to the grounds in the written statement of the defendant
UOI, on the grounds:
(I) that this Court while disposing of the writ petitions filed by the
plaintiff vide order dated 07.05.1999 had held that the plaintiff
upon attaining the age of superannuation of 58 years prevalent
in defendant SFCI could be repatriated to his parent department
where the age of superannuation was 60 years;
(II) denying that anything was due to the plaintiff;
(III) that the salary for the period 01.04.1998 to 07.05.1999 in old
scale amounting to Rs.97,054.50p along with Rs.2,900/-
towards entertaining expenses for March, 1998 and Rs.375.50p
towards newspaper bill for the periods January, 1999 to March,
1999 aggregating to Rs.1,00,330/- had been adjusted against the
outstanding advances drawn by the plaintiff from the defendant
SFCI;
(IV) that the balance arrears of pay amounting to Rs.1,12,087.20p
due to the plaintiff had also been adjusted against the
outstanding dues from the plaintiff to the defendant SFCI;
(V) that the plaintiff could not be granted pay scale under the
Industrial Dearness Allowance (IDA) pattern at a later stage
after his repatriation and after taking benefit of 5th Pay
Commission with effect from 01.01.1996;
(VI) that the claims of the plaintiff for reimbursement of
entertainment expenditure incurred at his residence for the
period April, 1998 to October, 1998 were submitted to the
Board of Directors of defendant SFCI for approval which vide
Resolution dated 28.09.1999 rejected the same;
(VII) that during the period 30.09.1997 till repatriation, the plaintiff
was not enjoying the powers of Managing Director because the
same were withdrawn by the Board and the Board itself was
exercising such powers;
(VIII) that reimbursement of entertainment expenses was made to the
plaintiff up to March, 1998 but the authenticity of subsequent
claims was doubted and the same were rejected; the plea of the
plaintiff that the Board of Directors had no power of rejection
was baseless;
(IX) that as per terms of appointment, the defendant SFCI could
permit the plaintiff to opt for self-lease if he owns a house at the
place of his posting and / or desirous of taking his own house
on self-lease for his residential purpose; that the facility of
residential accommodation was extended to the plaintiff by
hiring a house for him for the period May, 1995 to May, 1996;
the plaintiff vacated the hired accommodation on 12.05.1996
and shifted to his own house at Noida; that self-lease of house
located in Uttar Pradesh was not admissible as the plaintiff was
not staying at the place of posting at New Delhi; the plaintiff
thus according to the terms of his appointment was only entitled
to Rs.1,500/- per month without production of rent receipt and a
sum of Rs.54,339/- only was due to the plaintiff on this count
till the date of his repatriation to his parent department;
(X) consequently, the plaintiff was also not entitled to the amount
for repair / renovation of his house;
(XI) that the admissible amount due towards transferred travelling
allowance if any will be adjusted against the outstanding
advance against the plaintiff; and,
(XII) that no travelling allowance bill was submitted by the plaintiff.
6. The defendant SFCI also made a counter claim for recovery of
Rs.6,35,314.13p with interest from the plaintiff.
7. It was inter alia the plea of the plaintiff in his replication / written
statement to the counter claim, that the counter claim was barred by time.
8. The plaintiff, besides filing the written statement to the counter claim
of the defendant SFCI, also applied for rejection under Order 7 Rule 11 of
the CPC of the counter claim of the defendant SFCI as barred by time.
9. The learned Additional District Judge, vide order dated 25.07.2005,
rejected the counter claim of the defendant SFCI as barred by time.
10. I am told that the said order of rejection of the counter claim of the
defendant SFCI as barred by time was upheld right till the Supreme Court.
11. On the pleadings of the parties, the following Issues were framed in
the suit on 20.05.2006:
"1. Whether the present suit is barred by law of
limitation? (OPD)
2. Whether the executive powers of plaintiff were
withdrawn by the Board of Directors on its 153rd
Board meeting held on 30.09.1997 and whether these
powers are reverted to the Board of Directors of
defendant corporation? (OPD)
3. Whether the plaintiff during his service as M.D. in
the defendant corporation and his personal staff had
withdrawn huge advances for expenses and these
advances were not refunded nor accounted for?
(OPD)
4. Whether the Board of Directors of defendant
corporation had directed the plaintiff to refund the
said advances on several occasions? (OPD)
5. Whether the Board of Directors of the defendant
corporation had directed that if the said advances
are not refunded or accounted for by the plaintiff by
a specified date, such advances shall be adjusted
against the dues payable by the Corporation to the
defendant? (OPD)
6. Whether the deputation rules as on Annexure 26 and
reproduced in that Book for Central Government
Employees were applicable to plaintiff? (OPD)
7. Whether the plaintiff is entitled to recover his salary,
allowances and other dues including claims of IDA
scale upto 09.05.1999 withheld by Corporation?
(OPP)
8. Whether plaintiff is entitled for self lease of
Rs.10,500/- per month for his NOIDA house? (OPP)
9. Whether plaintiff is entitled for proposed repair and
renovation charges as per lease conditions? (OPP)
10. When President of India was sole authority, could
corporation self assume presidential powers w.r.t.
service conditions of plaintiff as M.D. and could
claim even non ascertainable and non recoverable
dues against plaintiff.
11. Relief."
12. The plaintiff besides himself examined five other witnesses. The
defendants examined three witnesses.
13. The learned Additional District Judge has allowed the claims
aforesaid of the plaintiff, except the claim for self-lease of his Noida
accommodation and for repair and renovation thereof and for excess
expenditure, finding/observing/ holding:
(A) that it was the contention of the counsel for the plaintiff that as
per Section 14 of the Limitation Act, 1963, the four years
period during which the contempt petition filed by the plaintiff
remained pending in the High Court claiming his unpaid salary
and allowances, was to be excluded while considering the
period of limitation for the suit;
(B) that in case Section 14 of the Limitation Act was applied, the
suit claim was within limitation;
(C) that though the contempt petition was primarily not for
recovery of money but intent behind it will have to be seen;
(D) that the record revealed that the plaintiff was under a bona fide
belief that he would be paid his dues in the civil contempt
petition since he considered the act of defendant SFCI of
withholding his salary and allowances as a violation of the
interim order of status quo in the writ petition;
(E) that this Court also while disposing of the contempt petition had
specifically mentioned that grievance qua non payment could
be agitated separately in accordance with law; had there been
no bona fide in the claim of the plaintiff therefor, this Court
would not have made such an observation;
(F) that Section 14 of the Limitation Act thus came to the rescue of
the plaintiff;
(G) the fact that the writ petitions filed by the plaintiff were
ultimately dismissed would not justify denying the benefit of
Section 14 of the Limitation Act to the plaintiff;
(H) that the claim of the plaintiff was thus within time;
(I) that the counsels had agreed that Issues No.2, 3 to 6 and 10 be
dealt with along with each monetary claim of the plaintiff;
(J) that there was no pleading in the plaint as to for what period the
plaintiff was claiming Rs.3,88,000/- qua self-lease, house rent
at Rs.10,500/- per month;
(K) that the plaintiff did not make any attempt to bring the original
lease on record even though as per him the original was lying
with the defendant SFCI; however defendant SFCI denied that
the original was ever submitted by the plaintiff;
(L) that the plaintiff was residing in defendant SFCI‟s rented
accommodation till 12.05.1996 when he shifted to his new
house at Noida; as such the tenure for which the plaintiff was
claiming HRA was from 12.05.1996 to 07.05.1999 i.e. for
around 36 months;
(M) that as per the Clause 6(c) of the terms and conditions of
appointment of the plaintiff, the plaintiff was entitled to rent
allowance as per self-lease subject to maximum of Rs.8,400/-
per month; the claim of the plaintiff at the rate of Rs.10,500/-
per month was on the basis of Memorandum issued by the
Department of Public Enterprises on 03.03.1992 empowering
the Board of Directors of a Public Sector Enterprise to enhance
monthly rent beyond sealing by 25%;
(N) that the photocopy of the self-lease produced by the plaintiff
was inadmissible as the original thereof was not registered;
(O) hence the plaintiff was not entitled to the sum of Rs.3,88,000/-
towards self-lease or the sum of Rs.40,000/- towards repairs
and renovation of the said house;
(P) that the only defence of the defendant SFCI to the claim of the
plaintiff for newspaper charges of Rs.375.50p and taxi charges
of Rs.860/- was the adjustment thereof against the outstanding
dues from the plaintiff; however no such adjustment had been
proved; thus the plaintiff was entitled to the said amount;
(Q) that similarly the only defence to the claim of the plaintiff for
Rs.26,985/- towards Transfer Travel Allowance was of
adjustment which had not been proved; accordingly, the
plaintiff was entitled to the said amount also;
(R) that the plaintiff had conceded having not proved the claim for
Rs.1,600/- towards excess expenditure and which was
accordingly declined;
(S) that the only defence of the defendant SFCI to the claim of the
plaintiff for Rs.45,025/- towards entertainment expenditure for
the period of 01.03.1998 to 09.05.1999 at the residence of the
plaintiff was rejection thereof by the Board of Directors though
the plaintiff had placed the requisite vouchers before the Board
of Directors;
(T) that the reason given by the Board of Directors for rejection of
the said claim of the plaintiff was incorrect as once the status
quo order was passed by this Court on 08.09.1997 and which
continued till 07.05.1999, the Board of Directors of defendant
SFCI was not justified in law to reject the entertainment
allowance of the plaintiff for the said period; thus the plaintiff
was held entitled to the said amount;
(U) that the plaintiff on 27.05.1995 was appointed as Managing
Director under the IDA pattern at Rs.7500-200-8500;
subsequently, vide letter dated 23.01.1996 upon the plaintiff
exercising option to get his payment converted to Central
Dearness Allowance (CDA) pattern, the plaintiff started
drawing salary under the pay scale of Rs.4500-7300 and which
was as per the CDA pattern;
(V) that the CDA pattern was revised retrospectively on 01.01.1996
under the 5th Pay Commission whereunder the plaintiff was
given an opportunity to exercise an option to either continue to
draw benefits under the CDA pattern prospectively or under the
IDA pattern retrospectively;
(W) that the plaintiff exercised option and requested for being paid
as per IDA pattern;
(X) however the needful was not done and as such the dues of the
plaintiff remained unpaid;
(Y) that the contention of the defendant SFCI that the plaintiff
having himself opted for CDA pattern was not entitled to get
the same changed to IDA was in contravention of Chapter-IV
qua Deputation, of Swami‟s Fundamental Rules and Service
Rules which permitted such change even on deputation;
(Z) that the plaintiff was thus entitled to get his pay revised and get
it fixed as per IDA pattern from 02.01.1996 till 07.05.1999
when he was repatriated;
(AA) that the defendants had not controverted the calculation done by
the plaintiff of Rs.4,38,634/- being due to him on this account;
thus the plaintiff was entitled thereto;
(BB) that the claim of the plaintiff of Rs.1,02,586/- towards dues of
salary under the old scale from 01.04.1998 to 09.05.1999 had
been admitted in the written statement of the defendant SFCI
and the only defence thereto was of adjustment in the
outstandings from the ex-PA of the plaintiff to the defendant
SFCI;
(CC) that it had however not been shown as to how the dues to the
plaintiff could be adjusted against the outstandings from the ex-
PA of the plaintiff; and,
(DD) the said adjustment thus could not be allowed and resultantly
the plaintiff was entitled to the said sum of Rs.1,02,586/-.
14. The counsel for the defendants, in RFA No.269/2011 has argued only
with respect to the finding of the learned Additional District Judge on the
aspect of the claim of the plaintiff being within time. He has otherwise not
made any submissions qua the merits of the claim except for stating that
he supports the judgment insofar as denying the two claims of the plaintiff
and challenges the same insofar as allowing the remaining claims of the
plaintiff. The challenge to the finding of the learned Additional District
Judge of the claim of the plaintiff being within time is made by contending
that the learned Additional District Judge has wrongly given the benefit of
Section 14 of the Limitation Act to the plaintiff. It is further contended,
(I) that under Section 14 of the Limitation Act, time spent in
prosecuting with due diligence only another civil proceeding
can be excluded;
(II) contempt proceedings, exclusion of time spent in pursuing
which has been allowed, are not civil proceedings;
(III) contempt proceedings are not inter se parties but are between
Court and the alleged contemnor;
(IV) reliance in this regard is placed on Supreme Court Bar
Association Vs. Union of India (1998) 4 SCC 409, State of
Maharashtra Vs. Mahboob S. Allibhoy (1996) 4 SCC 411,
B.K. Savithri Vs. B.V.S. Anand (2005) 10 SCC 207 and Annu
alias Kallappa Vs. Sheshu Gundappa AIR 1970 Mysore 318;
(V) that the prayer of the plaintiff in the contempt proceedings was
for punishment of the Directors of the defendant SFCI; and,
(VI) that the principles of limitation, as applicable to the counter
claim made by the defendant SFCI against the plaintiff and
which was held to be time barred, are applicable to the claim of
the plaintiff also and on the same parity, the claim of the
plaintiff also should have been dismissed.
15. Per contra, the plaintiff appearing in person has contended:
(i) that he had in the contempt petition, besides the relief of
punishment, also sought a direction for restoration of his salary
and Entertainment Allowance which had been denied to him
and for such orders as may be deemed fit to meet the ends of
justice; it thus cannot be said that the issue of his dues was not
the subject matter of the contempt petition;
(ii) that he was repatriated to his parent department only vide order
dated 07.05.1999 and was thus entitled to all his dues as
Managing Director of defendant SFCI till that date;
(iii) that his appointment and terms of appointment were by the
hand of the President of India and only the President of India
could have repatriated him and not the Board of Directors;
reliance in this regard is placed on Memorandum and Articles
of Association of the defendant SFCI and the letter dated
04.07.1997 issued on behalf of the President of India of his
appointment as the Managing Director of defendant SFCI and
on Section 2(26) of the Companies Act, 1956 defining the
Managing Director;
(iv) Reliance is placed on Om Prakash Jaiswal Vs. D.K. Mittal
AIR 2000 SC 1136 laying down that filing of an application or
petition by a private party for initiating contempt proceedings
does not amount to initiating of contempt proceedings by the
Court and the contempt proceedings are not initiated even when
notice of such application / petition is issued or reply thereto is
called and contempt proceedings are initiated only when the
Court applies its mind to the facts and issues a notice calling
upon the alleged contemnor to show cause as to why contempt
proceedings be not initiated against him and it is argued that no
such notice was ever issued in the contempt petition filed by the
plaintiff till the same was disposed of and the said proceedings
thus cannot be called contempt proceedings and retained the
character of a civil proceeding;
(v) that once this Court itself had permitted the plaintiff to institute
appropriate proceedings for recovery of his dues, the plea that
Section 14 of the Limitation Act is not applicable is not
available to the defendants;
(vi) Reliance is placed on United Bank of India Vs. Naresh Kumar
AIR 1997 SC 3 laying down that just causes should not be
permitted to be denied on the technicalities of limitation;
(vii) Reliance is placed on Vaditho Anantharao Naik Vs.
Bhoomisetty Rajaiah 1994 (2) Current Civil Cases 45 (AP)
permitting the application of the principle of Section 14 of the
Limitation Act but which is not found to be applicable to the
facts of the case; and,
(viii) that the claims of the plaintiff in the plaint had not been
controverted in the written statement.
16. RFA No.269/2011 has been preferred impugning the judgment and
decree to the extent, in the sum of Rs.6,14,465.50 paise with costs and
interest against the defendant SFCI. RFA No.371/2011 has been filed by the
plaintiff to the extent, it decides Issue No.8 & 9 against the plaintiff and
declines the plaintiff the reliefs inter alia towards house rent as claimed in
the suit.
17. The counsel for the defendant SFCI having argued on the aspect of
limitation only, there is no need to adjudicate the merits of the decree insofar
as against the defendant SFCI. The outcome of RFA No.371/2011 is also
dependant upon the finding on the said aspect of limitation. The question of
deciding RFA No.371/2011 on merits will arise only if the claim is found to
be within limitation.
18. The claim of the plaintiff, as aforesaid, was for dues against salary and
other emoluments for the period till 7th May, 1999. The applicable Article of
the Schedule to the Limitation Act would be Article 7 i.e. a suit for wages,
the limitation of three years prescribed wherefor commences from the date
when the wages accrue due. It is not the case of the plaintiff that the wages
accrued due on any date other than the date when the wages fell due i.e. by
the end of the month or the next English Calendar Month. The suit instituted
on 15th March, 2004 was definitely beyond three years from even the last
date for which wages are claimed to be due i.e. 9th May, 1999.
19. The plaintiff also during arguments has not pegged his case on the suit
for recovery of the said wages being within the prescribed period of time but
has pegged his case on Section 14 of the Limitation Act.
20. However, as would be obvious from the narrative above, the plaintiff
neither pleaded Section 14 of the Limitation Act or ingredients thereof nor
was the plaint accompanied by any application under Section 14 of the
Limitation Act. Rather, the plaintiff in the cause of action paragraph in the
plaint pleaded, the cause of action to have accrued on 26th March, 2003
when the contempt petition filed by the plaintiff was dismissed. Even in the
replication to the paragraph of the written statement containing the plea of
the claim in suit being barred by time, Section 14 of the Limitation Act or its
ingredients were not pleaded. The plaintiff rather proceeded on the premise
that since he had been permitted vide the order dismissing his contempt
petition to take appropriate remedies, the cause of action for the suit accrued
on that date only.
21. I may at the outset state that the order dated 26th March, 2003 in the
contempt petition, being C.C.P. No.220/1998 in Civil Writ No.3679/1997,
the relevant part whereof is as under:
"By order dated 8th September, 1997 this Court directed
the parties to maintain status quo in relation to aforesaid
prayers of the petitioner. The petition was dismissed on 7th
May, 1999. This Court held that the petitioner was deemed to
have been repatriated on administrative grounds and as per the
terms of appointment, he was repatriated on his attaining the
age of superannuation. The order of repatriation was
sustained.
During the pendency of the aforesaid writ petition, the
petitioner also filed another writ petition being CW. 4710/97
inter alia praying therein that respondent No.1 be restrained
from interfering with the powers of Managing Director. This
petition was also dismissed on 7th May, 1999.
The grievance of the petitioner is that despite having
worked till 7th September, 1999, the respondents have not paid
him salary with effect from 1st April, 1998. Counsel for the
respondents states that interim orders passed by Court were to
the effect that he be not repatriated. The orders have been duly
complied with. Counsel for the petitioner confirms the
statement of counsel for the respondents.
In light of the aforesaid position, I am satisfied that
orders of this Court have been complied with. If the petitioner
has grievance with regard to non payment of salary, he may
seek appropriate remedy in accordance with law. No further
orders are called for.
The petition is disposed of. Notice is discharged."
can by no stretch of imagination be said to be dealing with the aspect
of limitation. Rather, a perusal of the memorandum of parties in the C.C.P.
No.220/1998 shows that the defendant SFCI was not a party thereto and only
the Chairman of Board of Directors and three of the then Directors of the
defendant SFCI were impleaded as parties thereto.
22. For Section 14 of the Limitation Act to apply, pleading and proof of
good faith is essential. The Division Bench of this Court in Debjyoti Gupta
Vs. Indiabulls Securities Ltd. 202 (2013) DLT 563 has held that if a party
seeks the benefit of exclusion which is permissible in accordance with any
law akin to Section 14 of the Limitation Act, the onus is upon such party to
clearly plead and prove the attendant facts and circumstances and in the
absence of any pleading, argument is without force. Reference in this regard
may also be made to Nina Garments Pvt. Ltd. Vs. Unitech Ltd. 196 (2013)
DLT 57, Alliance Paints & Varnish Works Pvt. Ltd. Vs. Hari Kishan
Gupta 168 (2010) DLT 591 and Susanne Lenatz Vs. C.J. International
Hotels Ltd. MANU/DE/8192/2007 where it was held that it is obligatory
under Order VI Rule 7 of the CPC for a plaintiff to specifically plead such
an exemption in the plaint and in the absence thereof, the Court under
Section 3 of the Limitation Act, would be required to dismiss/reject the suit,
if otherwise barred by time. In Paras Ram Vs. Sheoji Ram
MANU/DE/1282/2010, this Court has held that a separate application under
Section 14 of the Limitation Act is not mandatory to avail the benefit
thereunder. Though some of the High Courts in Binodilal Vs. Satyendra
Singh AIR 1956 MP 57, Patel Babu Lal Pranlal Brothers Vs. Pameric
Export International, Cochin AIR 1999 Kerala 355 and Union Bank of
India Vs. Suresh Bhailal Mehta AIR 1997 Gujarat 48 appear to have taken
a different view but in the light of the judgments aforesaid of this Court, I
am bound thereby though may observe that if the essential ingredients of
Section 14 are found to be pleaded whether in the plaint or by way of a
separate application, mere non reference thereto would not come in the way
of the Court giving the relief thereunder.
23. Not only has the plaintiff in the present case not made any pleading of
the ingredients of Section 14 of the Limitation Act but a perusal of the
affidavit by way of examination-in-chief of the plaintiff reveals the same
also to be lacking therein; in fact, the affidavit is merely a repetition of the
contents of the plaint just by changing the narrative in the third person to
first person.
24. Section 14 of the Limitation Act empowers the Court, in computing
the period of limitation for any suit, to exclude therefrom the time during
which the plaintiff has been prosecuting with due diligence another civil
proceeding, whether in a Court of first instance or of appeal or revision,
against the defendant, where the proceeding relates to the same matter in
issue and is prosecuted in good faith in a Court which, from defect of
jurisdiction or other cause of like nature, is unable to entertain it. Thus, for
Section 14 to apply, the plaintiff has to prove:
(i) that he was prosecuting with due diligence;
(ii) another civil proceeding against the defendant;
(iii) relating to the same matter in issue;
(iv) in good faith; and,
(v) that Court from defect of jurisdiction or other cause of a like
nature, was unable to entertain the said proceeding.
Reference in this regard can be made to Consolidated Engineering
Enterprises Vs. Principal Secretary, Irrigation Department (2008) 7 SCC
169.
25. Though it may be possible for a Court where Section 14 of the
Limitation Act is invoked, to gauge from the orders in the previous
proceedings, the nature thereof and the reason for which the relief in that
proceeding was not granted to the plaintiff but good faith and due diligence,
in the absence of any plea and proof, cannot be presumed. As aforesaid,
there is no pleading or proof of due diligence or good faith on the part of the
plaintiff in prosecuting the contempt petition on the basis of which exclusion
is sought. The Supreme Court in Madhavrao Narayanrao Patwardhan Vs/
Ram Krishna Govind Bhanu AIR 1958 SC 767 has held that the burden to
prove good faith and due diligence to avail benefit of Section 14, is on the
plaintiff.
26. The plaintiff on the other had proceeded not on the premise of Section
14 of the Limitation Act but on the basis of the order dismissing the
contempt petition furnishing a cause of action for the suit and which is not
tenable in law. Orders of the Court do not ordinarily/normally furnish cause
of action save for preferring a remedy thereagainst (See Union of India Vs.
M.K. Sarkar (2010) 2 SCC 59). All that the Court in the present case did
while dismissing the contempt petition filed by the plaintiff, was to state that
if the plaintiff was entitled to the relief of recovery of monies, for payment
of which direction was sought in the contempt petition, he should take
appropriate remedy therefor. It is not as if the right to the
wages/emoluments claimed in the suit accrued to the plaintiff by passing of
the said order. The said right had accrued as aforesaid, when the wages
became due and from which date the limitation commenced running.
Section 14 of the Limitation Act is not a causus provision but an exclusion
provision which applies only to exclude the time specified therein, which
otherwise continues running from the accrual of cause of action. Thus, the
pleading of the plaintiff, of the cause of action having accrued on dismissal
of the contempt petition, cannot be construed as a pleading for exclusion of
time under Section 14 of the Limitation Act. It has been so held in
Consolidated Engineering Enterprises supra.
27. Next is the question, whether the contempt proceedings can be said to
be civil proceedings for Section 14 of the Limitation Act to apply with
respect thereto. The reliance placed by the plaintiff on Om Prakash Jaiswal
supra in this regard is misconceived, having been overruled in Pallav Sheth
Vs. Custodian (2001) 7 SCC 549. The judgments of the Supreme Court
relied upon by the counsel for the defendant SFCI in this regard, though not
in relation to Section 14 of the limitation Act, lay down that an action of
contempt of Court, is not stricto sensu a cause or a matter between the
parties inter se and is primarily between the Court and the person who is
alleged to have committed the contempt of Court and for this reason no
impleadment even can be permitted thereunder.
28. Though, I have also not been able to find any judgment directly on the
interplay of contempt proceedings and Section 14 of the Limitation Act but
as far back as in Yeswant Deorao Deshmukh Vs. Walchand Ramchand
Kothari AIR 1951 SC 16, it was held that there could be no exclusion of
time occupied by insolvency proceedings which clearly was not for the
purpose of obtaining the same relief. It was held that the relief sought in
insolvency is different from the relief sought (in a suit for recovery of
money); in insolvency proceedings an adjudication of the debtor as insolvent
is sought with the vesting of all his estate and administration of it by the
Official Receiver for the benefit of all the creditors; it may be that ultimately
in insolvency proceedings (the petitioner) may be able to realize his debt
wholly or in part but this is a mere consequence or result; not only is the
relief of a different nature in the two proceedings but the procedure is also
widely divergent.
29. This Court in Anil Pratap Singh Chauhan Vs. Onida Savak Ltd. AIR
2003 Delhi 252, relying on the aforesaid and considering a plethora of other
judgments applied the principle to also proceedings for winding up of a
company which were held to be akin to insolvency proceedings.
30. In my view, the said principle will apply equally to contempt
proceedings. Merely because in contempt proceedings a direction for
payment of monies may also be issued, if deemed necessary to restore the
position as had been directed to be maintained, is not reason enough to held
the contempt proceedings to be a civil proceeding relating to the same matter
in issue so as to invite applicability of Section 14 of the Limitation Act.
They were also, as aforesaid, not between the same parties. The exclusion
of the time spent in a proceeding for partition under the Land Reform Act
was in Jai Prakash Vs. Satnarain Singh 1994 Supp. (1) SCC 153 held to be
not permissible in a suit for possession filed before the Civil Court.
31. Not only so, the argument of the plaintiff loses sight of another
essential ingredient of Section 14 of the Limitation Act. It is not as if the
Court was unable to entertain the contempt proceedings owing to a defect of
jurisdiction or other cause of a like nature. "Other cause of a like nature"
has in Zafar Khan Vs. Board of Revenue, U.P. 1984 (Supp.) SCC 505 been
held to be ejusdem generis to "defect of jurisdiction". A bare perusal of the
order in the contempt proceeding shows the same to have been disposed of
not by expressing any inability owing to defect of jurisdiction but on a
finding of no contempt having been committed. The Supreme Court in
Bakhtawar Singh Vs. Sada Kaur (1996) 11 SCC 167 held that where the
order in the earlier proceeding did not show the same to have been not
entertained for defect of jurisdiction or other cause of like nature, the benefit
of Section 14 cannot be legitimately extended to the subsequent suit.
32. The only other argument of the plaintiff on the aspect of limitation is
on the basis of the judgment in United Bank of India supra. It was a case of
a failure of the plaintiff Union Bank of India in that case to have proved
institution of the suit and signing and verification of the plaint by a duly
authorized person on behalf of the plaintiff Union Bank of India. That case
was not concerned with the aspect of limitation. It was in such situation and
finding public monies at stake that the Supreme Court held that such
technical defects could not be allowed to come in the way of recovery of
public dues, particularly in the light of interpretation of Order XXIX of the
CPC. The said judgment has been distinguished by this Court in Birla D/W
Ltd. Vs. Prem Engineering Works 77 (1999) DLT 171 (DB).
33. Notice may however be taken of the judgment in Madras Port Trust
Vs. Hymanshu International (1979) 4 SCC 176 where the Supreme Court,
finding the claim to be barred by time, to be just one and supported by
recommendations of the Assistant Collector of Customs also, in exercise of
discretion under Article 136 of the Constitution of India directed payment
thereof. However, subsequently in Krishna Gopal Kakani Vs. Bank of
Baroda (2008) 13 SCC 485, the argument (on the basis of Madras Port
Trust supra) that it is inappropriate for a Public Sector Undertaking to raise a
plea of limitation when the amount was due, was not accepted. In the
present case, the defendant SFCI has disputed the claim of the plaintiff not
only on the aspect of limitation but also on merits as well. Thus, the suit of
the plaintiff has to be necessarily held to be barred by time. The learned
Additional District Judge has dealt with the issue of limitation cursorily and
not in the correct perspective.
34. I find it unfortunate that while the counter-claim of the defendant
SFCI against the plaintiff, arising from the same set of facts, was dismissed
as barred by time without any trial, the claim of the plaintiff was
unnecessarily put to trial even though the benefit of Section 14 of the
Limitation Act was not claimed by the plaintiff as well.
35. Once, the claim of the plaintiff is found to be barred by time, no
purpose would be served in dealing with the merits of the claims which have
been denied to the plaintiff and against which denial RFA No.371/2011 has
been preferred.
36. Resultantly, RFA No.269/2011 is allowed and RFA No.371/2011 is
dismissed. However, in the facts, no costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
rd
DECEMBER 3 , 2013
„gsr/bs‟
