Vimal Kumar Goyal vs The New India Assurance Company ...
2013 Latest Caselaw 5241 Del

         *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 18th November, 2013

+                                RFA NO.530/2013

      VIMAL KUMAR GOYAL                                    ..... Appellant
                  Through:              Mr. Jos Chiramel & Mr. Ajay Singh,
                                        Advs.

                                    Versus

    THE NEW INDIA ASSURANCE
    COMPANY LTD.                                               ..... Respondent
                  Through: None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This appeal impugns the judgment and decree dated 25.07.2013 of the

Court of the Additional District Judge (ADJ)-I, New Delhi District, Patiala

House Courts, New Delhi of dismissal as time barred of suit No.402/2010

(I.D. No.02403C0243242008) filed by the appellant / plaintiff for recovery

of Rs.14,40,577/-.

2. Though the appeal has come up before this Court for the first time

today only but the learned Additional District Judge (ADJ) having dismissed

the suit claim of the appellant / plaintiff on the ground of limitation, which in

the facts and circumstances enumerated herein below is more a question of

law than an intertwined question of law and facts, the counsel for the

appellant / plaintiff has been heard at length; though I must record that at the

fag end of the hearing, the counsel for the appellant / plaintiff realizing that I

was not agreeing with his contentions played the card of this being a First

Appeal and which is required to be considered after summoning the Trial

Court record and issuing notice to the respondent / defendant. However,

when the judgment of the Trial Court is based on a legal question and when

all the Trial Court records have been filed along with the appeal and there is

no dispute on that count, I see no reason to, for the sake of lip service, admit

the appeal when no merit is found therein and when the counsel for the

appellant / plaintiff inspite of addressing for over 45 minutes is unable to

convince this Court.

3. The undisputed facts are as under:

(a) the appellant / plaintiff was employed with the respondent /

defendant;

(b) the appellant / plaintiff during the course of his employment

was posted abroad subject to his giving a personal bond as per

Service Rule No.32;

(c) the appellant / plaintiff furnished a bond whereunder, he inter

alia agreed that on his return to India, he will serve the

respondent / defendant for a period of at least three years and in

default thereof pay to the respondent / defendant liquidated

damages as mentioned therein;

(d) the appellant / plaintiff remained abroad from 24.11.1999 till he

joined back services in India on 07.11.2003;

(e) the respondent / defendant on 01.01.2004 launched a Voluntary

Retirement Scheme (VRS) for its employees;

(f) the appellant / plaintiff on 20.02.2004 applied for voluntary

retirement;

(g) the Competent Authority under the VRS, vide internal

communication dated 04.03.2004 accepted the application of

the appellant / plaintiff for voluntary retirement;

(h) the respondent / defendant vide letter dated 12.03.2004

intimated to the appellant / plaintiff of the acceptance of his

application for voluntary retirement and further intimated him

that since he had furnished the bond, the bond money would be

recovered from his terminal dues;

(i) the appellant / plaintiff was on 12.03.2004 relieved from the

employment of the respondent / defendant;

(j) the respondent / defendant, under cover of letter dated

16.09.2004 to the appellant / plaintiff paid his terminal dues as

per the VRS, after deduction therefrom of the bond amount;

and,

(k) the appellant / plaintiff on 11.08.2009 instituted the suit from

which this appeal arises for recovery from the respondent /

defendant of the amounts so deducted from his VRS package

on account of the bond.

4. The learned ADJ has vide the impugned judgment and decree though

held such deduction by the respondent / defendant of the amount on account

of bond to be illegal and further held that the respondent / defendant had

waived the condition of deduction of bond amount from the appellant /

plaintiff but has dismissed the suit as time barred.

5. The learned ADJ on the aspect of limitation has found / observed /

held:

(i) that it was the contention of the respondent / defendant that the

decision to forfeit and adjust the bond amount was

communicated to the appellant / plaintiff on 12.03.2004 itself

and thus the suit filed in August, 2009 was clearly time barred;

(ii) on the other hand, it was the contention of the appellant /

plaintiff that limitation would run from the date when the

appellant / plaintiff's demand was rejected and rejection

communicated to the appellant / plaintiff;

(iii) it was further the contention of the appellant / plaintiff that the

appellant / plaintiff had made a representation dated 17.04.2004

to the Competent Authority of the respondent / defendant

company i.e. the Chairman-cum-Managing Director of the

respondent / defendant company and rejection whereof was

communicated to the appellant / plaintiff for the first time vide

respondent / defendant's letter dated 20.07.2006 posted on

08.08.2006 and thus the suit filed on 07.08.2009 was within time

(I may however notice that the suit was not filed on 07.08.2009

but on 11.08.2009 as per the decree sheet and was thus filed

beyond three years from 08.08.2006 also);

(iv) however the representation made by the appellant / plaintiff was

not under any statute nor was it provided for under any Rules

governing the services of the appellant / plaintiff and thus the

communication of rejection of the said representation could not

extend the time;

(v) the representation made by the appellant / plaintiff or its

rejection would thus not enhance the limitation; reliance in this

regard was placed on S.S. Rathore Vs. State of M.P.1989 (4)

SCC 582; and,

(vi) that thus the cause of action had accrued to the appellant /

plaintiff on 12.03.2004 when the appellant / plaintiff was

communicated that the bond amount would be deducted from his

VRS package and the appellant / plaintiff could have filed the

suit only within three years therefrom.

6. The counsel for the appellant / plaintiff commenced his argument by

contending that the learned ADJ has in the impugned judgment wrongly

relied upon Article 58 of the Schedule to the Limitation Act, 1963 which has

no application.

7. However, a perusal of the impugned judgment shows that the learned

ADJ has not relied on Article 58 of the Schedule to the Limitation Act and

has referred thereto merely to deal with the argument of the counsels and has

else held the suit to be time barred merely on the finding that the cause of

action therefor had accrued on 12.03.2004 and the limitation therefor was of

three years.

8. I have repeatedly enquired from the counsel for the appellant /

plaintiff as to under which Article of the Schedule of the Limitation Act, the

said suit would lie. No answer has been forthcoming.

9. I have further enquired from the counsel for the appellant / plaintiff

whether not the present suit would fall under Article 7 of the Schedule to the

Limitation Act providing for a suit for recovery of wages, a limitation of

three years commencing from the date when the wages accrue due. No

answer has been forthcoming from the counsel for the appellant / plaintiff to

this also.

10. I am unable to find any other Article in the Schedule to the Limitation

Act under which the suit can be said to fall. The only other Article under

which the suit can fall is the residuary Article 113, the limitation provided

wherein also is of three years from the date when the right to sue accrues. A

perusal of the plaint filed by the appellant / plaintiff shows the appellant /

plaintiff to have also pleaded the cause of action to have accrued on

12.03.2004 when the respondent / defendant communicated its decision to

recover the bond amount out of the VRS package of the appellant / plaintiff;

the appellant / plaintiff however further pleaded the cause of action to have

accrued thereafter on 06.08.2004 when the respondent / defendant conveyed

the details of deduction towards bond to the appellant / plaintiff; on

16.09.2004 when the respondent / defendant made the actual payment of

terminal dues after deducting the bond amount therefrom; on 29.10.2004

when the respondent / defendant gave details of statement of terminal dues

and thereafter on various dates when the appellant / plaintiff made requests

in writing and orally to release the bond money; on 08.08.2006 when the

respondent / defendant sent thier letter dated 20.07.2006 rejecting the

request of the appellant / defendant for waiver of the bond money; on and

around 11.08.2006 when the appellant / plaintiff received the said letter

dated 20.07.2006; and, lastly on 03.08.2009 when the appellant / plaintiff

served the respondent / defendant with the legal notice.

11. The only thing thus for adjudication was whether the service on the

appellant / plaintiff of the letter dated 20.07.2006 of rejection of his

representation could be said to be the cause of action.

12. The counsel for the appellant / defendant upon being so confronted,

has contended that the Competent Authority under the VRS was the

Chairman-cum-Managing Director only; that the Chairman-cum-Managing

Director had accepted the application of the appellant / plaintiff for VRS

unconditionally; that it is the authority other than the Competent Authority

which has taken a decision to deduct the bond amount from the VRS

package; that the said decision could have been taken by the Competent

Authority only and not by any other authority; that it was for this reason that

the appellant / plaintiff made a representation to the Competent Authority

and rejection of which representation was communicated to the appellant /

plaintiff within three years prior to the institution of the suit.

13. The aforesaid argument, at the outset is contrary to the pleadings. A

perusal of the plaint does not show the appellant / plaintiff to have pleaded

that only the Competent Authority could have taken a decision for enforcing

the bond against the appellant / plaintiff. Moreover, the said Competent

Authority is under the VRS only i.e. for acceptance of applications for

voluntary retirement and not for taking a decision on enforcement of the

bond. A perusal of the copy of the bond filed with the memorandum of

appeal shows the same to have been furnished in favour of the respondent /

defendant and it is not the case of the appellant / plaintiff that there was any

Competent Authority under the bond or that the decision for enforcement of

the bond had not been taken by such Competent Authority.

14. The counsel for the appellant / plaintiff has then argued that the

acceptance by the respondent / defendant of the application of the appellant /

plaintiff for voluntary retirement shows that the respondent / defendant did

not require the services of the appellant / plaintiff and it is for this reason

that it could have been only the Competent Authority under the VRS which

could have taken the decision for enforcement of the bond.

15. Though the aforesaid argument is on merits and is not on the aspect of

limitation but even otherwise no merit is found therein. The counsel for the

appellant / plaintiff admits that in the VRS there was no provision with

respect to the officers / employees serving the period for which they may

have furnished a bond, though officers posted abroad or on deputation

abroad were made ineligible to avail of the Scheme. However, a perusal of

the said Scheme shows Sub-clause (ix) of Clause 8 titled 'General

Conditions' to be providing as under:

"(ix) All payments under this scheme, and any other benefit payable to an officer shall be subject to prior settlement or re- payment or adjustment in full, of loans, advances, returning of Company's property and any other outstanding dues against him / her and payable by him or her to the company.

It has thus been enquired from the counsel for the appellant / plaintiff

whether not the aforesaid clause made it abundantly clear that acceptance of

application for voluntary retirement would not relieve the appellant /

plaintiff from liability under the bond executed by the appellant / plaintiff in

favour of the respondent / defendant.

16. It has yet further been enquired from the counsel for the appellant /

plaintiff whether the appellant / plaintiff, who was informed of the deduction

of the bond amount from his VRS package in the same communication in

which he was informed of the acceptance of his application for voluntary

retirement took a stand of being willing to serve the respondent / defendant

for the bond period if the application for voluntary retirement was treated to

be in violation of the bond.

17. The counsel for the appellant / plaintiff has fairly admitted that no

such stand was taken and the only protest made by the appellant / plaintiff

was against the deduction of the bond amount from the VRS package.

18. A perusal of the letter dated 12.03.2004 served by the appellant /

plaintiff to the authority of the respondent / defendant which had

communicated to him the acceptance of his application for voluntary

retirement and deduction of the bond amount from the VRS package also

shows the appellant / plaintiff to have merely asked for 'waiver' of the

recovery of the bond amount. It was not the stand of the appellant / plaintiff

that he had applied for voluntary retirement assuming that his leaving the

employment of the respondent / defendant prior to the bond period under the

VRS was not in violation of the bond and offering his services to the

respondent during the bond period. Moreover, the appellant / plaintiff in the

letter dated 12.03.2004 had not disputed the right of the respondent /

defendant to recover the bond amount and merely sought waiver thereof.

Though the appellant / plaintiff thereafter served a detailed representation

dated 19.04.2004 but therein also did not offer his services for the bond

period.

19. The counsel for the appellant / plaintiff faced therewith, abandoned

the attempt to justify the suit claim being within time and contended that his

alternative submission is that since the impugned judgment and decree

otherwise upholds his right to the said amount, the respondent / defendant

being a State ought not to deprive, on the ground of limitation, the appellant

/ plaintiff of his just dues. Reliance in this regard is placed on:

(i) Madras Port Trust Vs. Hymanshu International (1979) 4 SCC

176 where the Supreme Court finding, the claim held to be

barred by time to be a just one supported by the

recommendations of the Assistant Collector of Customs also, in

exercise of discretion under Article 136 of the Constitution of

India directed payment thereof;

(ii) Mahabir Kishore Vs. State of Madhya Pradesh (1989) 4 SCC 1

but which is found to be a case of refund of money paid by

mistake of law and not applicable to the facts of the present

case;

(iii) India International Textile Machinery Exhibitions Society Vs.

The India Trade Promotion Organization

MANU/DE/9491/2006 but which is also a judgment on whether

the claim is within limitation or not and thus not in support of

the proposition aforesaid.

20. The counsel for the appellant / plaintiff has further argued that the

enforcement of the bond by the respondent / defendant amounts to unjust

enrichment and is inequitable.

21. However that is again not found to be the case pleaded by the

appellant / plaintiff though the learned ADJ undoubtedly in the impugned

judgment has observed that no monies were incurred by the respondent /

defendant on any training of the appellant / plaintiff. The appellant /

plaintiff, in the suit, did not seek any declaration that the said bond was

illegal or unenforceable. The plain and simple case of the appellant /

plaintiff which was put to trial was, of the appellant / plaintiff being not in

violation of the bond by leaving the services of the respondent / defendant

prior to the bond period under the VRS. The appellant / plaintiff, without

having set up a case of illegality of the bond, cannot in appeal be heard to

contend that enforcement of the bond amounts to unjust enrichment of the

respondent / defendant. Moreover, a perusal of the bond shows that the

consideration thereof was the posting abroad by the respondent / defendant

of the appellant / plaintiff at the salary stipulated for postings abroad and not

any training to be imparted to the appellant / plaintiff. The said argument is

thus not available to the appellant / plaintiff.

22. The contention then of the counsel for the appellant / plaintiff is that

since the other issues have been decided in favour of the appellant / plaintiff,

his suit claim should be held to be just.

23. I am unable to agree. The Madras Port Trust supra, the only of the

three judgments applicable to such an argument, was a case of exercise of

discretion under Article 136 of the Constitution of India by the Supreme

Court and cannot be said to be a precedent. Moreover, the claim therein was

held to be a just claim since even the respondent / defendant (in that case)

had on merits not contested the same. In fact, subsequently in Krishna

Gopal Lakani 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. The position here is entirely different. The respondent / defendant

has contested the claim of the appellant / plaintiff on merits also.

24. Though undoubtedly the learned ADJ has decided the other issues in

favour of the appellant / plaintiff but I entertain grave doubts with respect to

the reasoning of the learned ADJ. Though Sub-clause (ix) of Clause 8 supra

of the VRS was cited before the learned ADJ but the learned ADJ held the

claim of the respondent / defendant under the bond to be not covered thereby

and the said Clause being confined to re-payment / adjustment of loans /

advances and return of company's property. I am unable to agree, there is

no reason to so narrowly interpret the said clause, the language whereof

extends to all amounts payable to the respondent / defendants. Undoubtedly,

the bond amount was payable by the appellant / plaintiff to the respondent /

defendant company and there is no reason to exclude the same from Sub-

clause (ix) of Clause 8. Moreover, the appellant / plaintiff as part of his

application for voluntary retirement had also authorized the respondent /

defendant to recover and adjust all dues payable by him to the respondent /

defendant from his terminal benefits including ex-gratia. The appellant /

plaintiff at that stage also did not make the same subject to the dues under

the bond.

25. The learned ADJ relying on certain judgments dealing with other

Schemes which expressly provided that persons opting thereunder would be

subject to the bond has held that the respondent / defendant ought to have

expressly provided so in the VRS and having not provided so cannot enforce

the bond. I am unable to agree with the said reasoning also of the learned

ADJ. The Sub-clause (ix) of Clause 8 supra coupled with authorization

aforesaid in the prescribed format was sufficient for the appellant / plaintiff

to at least entertain a doubt that acceptance of his application for voluntary

retirement would not relieve him from the bond condition. The appellant /

plaintiff could have sought a clarification from the respondent / defendant in

this regard. The appellant / plaintiff did not do any such thing and which

shows that he was very eager to leave the services of the respondent /

defendant prior to the bond period.

26. Though the counsel for the appellant / plaintiff has contended that as

per the VRS, the appellant / plaintiff was not entitled to withdraw his

application for voluntary retirement but the appellant / plaintiff upon being

told of the decision of the respondent / defendant to deduct the bond amount

from his VRS package could have at least informed the respondent /

defendant that he had applied for VRS under the impression that he would

be relieved from the liability under the bond and if were not to be so relieved

was desirous of serving the respondent / defendant for the bond period. The

failure of the appellant / plaintiff to do so res ipsa loquitur speaks of the

intent of the appellant / plaintiff being to leave the employment of the

respondent / defendant during the bond period. The reason therefor is

obvious. On enquiry, it is informed that the appellant / plaintiff since

immediately after leaving the employment of the respondent / defendant on

12.03.2004 is working as an Insurance-cum-Share Broker. The appellant /

plaintiff was thus obviously seeking greener pastures. His claim for being

relieved from the liability under the bond while admittedly being in breach

thereof is thus not found to be just. Rather, a perusal of the documents filed

along with the appeal show that the respondent / defendant at the time of

accepting the application for voluntary retirement of the appellant / plaintiff

also accepted the similar application of one Mr. Ravi Shankar also who had

also furnished a bond for overseas posting and orders for recovery of the

bond money from his VRS package also were passed. It is not the case of

the appellant / plaintiff that the respondent / defendant has discriminated

against the appellant / plaintiff; rather the respondent / defendant appears to

have acted uniformly against all similarly placed as the appellant / plaintiff.

27. The counsel for the appellant / plaintiff has lastly contended that the

appellant / plaintiff had got issued a notice under Order 12 Rule 8 of the

CPC to the respondent / defendant to produce the documents containing the

decision for acceptance of his application for voluntary retirement and for

recovery of the bond amount from him and since the respondent / defendant

had failed to produce the same, the learned ADJ had vide order dated

03.03.2011 directed that the effect thereof shall be taken into consideration

at the time of final decision but has not considered the same.

28. The aforesaid argument also has no merit. The said documents are

found to be of no relevance to the claim of the appellant / plaintiff in the suit.

29. Before parting with the case, I may notice that while perusing the file

at the time of dictation, it has been found that the claim of the appellant /

plaintiff besides for the bond amount deducted from his VRS package was

also for a sum of Rs.25,000/- which he claimed to be due to him towards

profit incentives and which had been withheld and which claim was also

upheld by the learned ADJ. However, the counsel for the appellant /

plaintiff has not raised any argument with respect thereto. Moreover, the

said claim was also held to be barred by time and would be governed by the

discussion hereinabove.

30. There is thus no merit in the appeal which is dismissed. However, the

appeal having been dismissed at the initial stage, no costs.

Decree sheet be prepared.

RAJIV SAHAI ENDLAW, J NOVEMBER 18, 2013 'gsr'