Delhi High Court

Nilambar Datt Sharma vs Central Bank Of India & Ors. on 10 January, 2013

Author: A. K. Pathak

$~R-4

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+       RFA 314/2010

                                        Decided on 10th January, 2013

        NILAMBAR DATT SHARMA                          ..... Appellant

                             Through:    Petitioner in person.

                    versus

        CENTRAL BANK OF INDIA & ORS.               ..... Respondents

                             Through:    Mr. R.S. Mathur, Adv.


CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J.(ORAL)

1. Appellant filed a suit for declaration and damages before the

trial court which has been dismissed being time barred vide

judgment and decree dated 17th February, 2010 which is impugned

in this appeal.

2. Arguments heard and trial court record perused.

3. Appellant alleged in the plaint that he joined the respondent

no. 1 as a Clerk in the year 1962 at Amritsar. He was promoted

from time to time and posted in different parts of country. In the

month of December, 1989 appellant was posted as Internal Auditor

at Delhi and thereafter, remained posted in Delhi on different

positions and ultimately superannuated on 31st March, 2000. At

that time he was posted as Branch Manager of Jamia Nagar

Branch, Delhi of respondent no.1.

4. In the year 1997 appellant was promoted to the post of

Senior Manager grade with effect from 1st July, 1997 in the pay

scale of Rs.8970-230-9200-250-10450 and this decision was

communicated vide letter dated 12th July, 1997. Promotion was to

come into effect subject to compliance of certain conditions by the

appellant which included his joining as Regional Manager, Gaya

under the jurisdiction of Zonal Manager, Patna on 4th August,

1997. It was categorically stated in the letter that failure to report

on the stipulated date shall be deemed as refusal of the promotion.

Appellant did not join his place of posting as the circumstances did

not permit him to do so. According to him it was not in his interest

to join under Mr. N.K. Jaiswal, Zonal Manager. He made

representations to post him elsewhere but said request was not

acceded to. It is alleged that appellant was victimized and harassed.

Appellant claimed that Clause 3, as contained in the letter dated

12th July, 1997, was void ab initio and non est in the eyes of law

and be declared so. It was further alleged that appellant was

continuously victimized and suffered damages to the tune of crores

of rupees but due to his financial predicament he was confining his

claim to Rs.10 lacs. In para 25 of the plaint, it is stated that

respondent no.2 was acting at the behest of respondent no.3 and

had even threatened the appellant with disciplinary action,

inasmuch as, pension amount was not paid after his superannuation

and in absence thereof, appellant‟s daughter had to abandon her job

in USA, thus, appellant reserves his right to claim damages at an

appropriate stage. During the course of hearing, it has been

pointed out that the appellant has already filed a suit for recovery

of damages of Rs.1 crore, as an indigent person, which is since

pending.

5. Relevant it would be to reproduce letter dated 12th July, 1997

which reads as under:-

"CO:PRS:PRO:III-IV(97):97-98: 980 July 12, 1997

Shri N.D. Sharma Jamianagar Branch New Delhi

Dear Sir,

Further to our Circular No.CO:PRS:97-98:29 dated 03.05.1997 informing about your empanelment for promotion to Scale IV, we are pleased to inform your that, you are being promoted to Senior Management Grade Scale IV, with effect from 1/7/97 NOTIONALLY, in the pay scale of Rs.8970-230-9200-250- 10450, subject to what is stated hereinbelow:

1. You are being placed as Regional Manager, Gaya under the jurisdiction of Zonal Manager, Patna.

2. You are advised to report to the place of posting on 04.08.1997. The monetary benefits will start accruing from the date of your reporting at the advised place of posting.

3. Failure to report on the stipulated date shall be deemed as refusal of the promotion.

4. You will be on probation for a period of one year from the above date of your reporting and your confirmation will be subject to your work, conduct and attendance being found satisfactory during the probation period.

5. Your fitment in the new scale would be communicated to you in due course by the concerned authority.

Notwithstanding what is stated hereinabove, please note that your promotion is subject to Court‟s order, if any, in this regard.

Please sign the duplicate copy of the order in token of having accepted the communication.

The new position naturally calls for greater vision, initiative, wider perspective and dynamic leadership. I am confident you will continue to display these qualities in even greater measure and be an effective member of the Bank‟s Senior Management.

I wish you all success in your new assignment.

Yours faithfully (J.J. Bhattacharjee) GENERAL MANAGER (PRS)"

6. Appellant has prayed that by way of decree of declaration

clause „3‟ of letter dated 12th July, 1997 be held as void ab initio

and be declared as a simple letter of promotion and further that the

damages to the tune of Rs.10 lacs be awarded to him.

7. A holistic reading of the plaint makes it clear that the

damages claimed in this suit are consequential to the non

promotion of the appellant pursuant to letter dated 12th July, 1997

on his failure to join at Gaya, inasmuch as, a separate suit for

damages has been filed. The fact remains that the reliefs claimed

in the suit flow from the letter dated 12th July, 1997, inasmuch as,

claim of damages is consequential thereto.

8. Article 58 of the Schedule to the Limitation Act, 1963

envisages period of three years from the date when right to sue

accrue for filing a suit for declaration. In the instant case, suit was

filed on 31st July, 2000 praying therein that clause „3‟ of letter

dated 12th July, 1997, be declared as null and void, thus, the right to

sue first accrued on 12th July, 1997. Suit for declaration has been

filed after a period of three years from the said date, thus in my

view, is barred by time. Accordingly, trial court has rightly held

that suit is barred by limitation. As regards claim of damages, same

is consequential to the main relief of declaration and suit having

been filed after three years, this relief is also barred by limitation.

9. I do not find any force in the contentions of the appellant

that his representation was rejected vide letter dated 18th April,

1997, thus, limitation gets extended and suit filed on 31st July, 2000

is within limitation. Declaration has been sought in respect of

letter dated 12th July, 1997 and limitation will start from the said

date and not from the date when request of the appellant to post

him somewhere else was declined.

10. Indubitably, the question of limitation is a mixed question of

fact and law and may require evidence and cannot be decided at the

preliminary or pre trial stage. However, if there is no dispute on

the material facts court can examine the question of limitation on

the basis of the facts disclosed in the plaint and documents filed by

the plaintiff at the pre trial stage. In V.K. Sayal versus Bharat

Heavy Electrical Ltd. (BHEL) and Ors. 2008 (102) DRJ 286, a

Single Judge of this Court has held thus "normally, the question of

limitation is a mixed question of fact and law and therefore cannot

be decided at the preliminary or pre-trial stage. However, where

there is no dispute on the material facts and Court can proceed to

examine the issue on the basis of the facts disclosed in the plaint

and the documents filed by the plaintiff". In this case, admittedly

appellant seeks declaration of clause 3 vide letter dated 12 th July,

1997 as null and void, thus, cause of action first accrued in his

favour to challenge the same on 12th July, 1997 and not from the

date when his request for posting him elsewhere was declined.

11. Section 3 of the Limitation Act reads as under :-

Bar of Limitation.

(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.

(2) For the purposes of this Act,-

(a) a suit is instituted,-

(i) in an ordinary case, when the plaint is presented to the proper officer;

(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and

(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;