Union Of India vs A.M.Mishra & Ors
2013 Latest Caselaw 4965 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 29th October, 2013

+                                RFA 532/2004
       UNION OF INDIA                                         ..... Appellant
                    Through:            Mr. Amrit Pal Singh, CGSC with Mr.
                                        R.P. Singh, Advs.

                                    Versus

       A.M.MISHRA & ORS                                      ..... Respondents

                    Through:            None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The appeal impugns the judgment and decree dated 1 st April, 2004 of

the Addl. District Judge, Delhi of dismissal of Suit No.115/2002 filed by the

appellant for recovery of Rs.16,11,569.44p jointly and severally from the

three defendants/respondents.

2. Notice of the appeal was issued and the Trial Court record

requisitioned. The appellant/plaintiff did not take any steps for service of the

respondents/defendant and vide order dated 27 th February, 2007 last

opportunity was given to the appellant/plaintiff with the direction that if the

appellant/plaintiff did not take steps the appeal shall be dismissed for non-

prosecution. Thereafter, though steps were taken but ineffective. Ultimately

notice was issued pursuant to order dated 10 th March, 2008. The said notices

were received back with the report that the respondents/defendants No.1&2

were not found at the address furnished and the respondent/defendant no.3

had died. Thereafter again no effective steps were taken on behalf of the

appellant/plaintiff, neither for furnishing fresh addresses of the

respondents/defendant no.1&2 nor for substitution of the legal

representatives of the respondent/defendant no.3. Ultimately on notice being

issued it was reported that the respondent/defendant no.2 had also died.

Thereafter also no steps were taken for substitution of legal heirs of the

respondents/defendants no.2&3. As far as the respondent no.1 is concerned,

he was ultimately ordered to be served by publication in the newspaper

Times of India and was so served. The order dated 10 th September, 2013 of

the Registrar (Appellate) records that the respondent/defendant no.3 had

been ordered to be deleted from the array of defendants before the Trial

Court itself. None appeared for the respondent/defendant no.1 despite

publication. The respondent/defendant no.1 was vide order dated 8 th

October, 2013 proceeded against ex parte. The appellant/plaintiff having not

taken any steps for service of the legal heirs of the respondent/defendant

no.2, the appeal in so far as against the respondent/defendant no.2 has

abated. The counsel for the appellant/plaintiff has been heard.

3. The appellant/plaintiff on 3rd June, 2002 instituted the suit from which

this appeal arises, pleading:-

(a). that the appellant/plaintiff has been administering the National

Scheme of Scholarship for study Abroad to provide financial

assistance to meritorious students who are citizens of India and

who do not have the means to go Abroad for higher studies;

(b). that in response to the offer for grant of scholarship under the

said scheme for the year 1984-85, the respondent/defendant

no.1 applied and was selected and awarded the scholarship for a

period of two years i.e. from 23 rd September, 1985 to 22nd

September, 1987 on the terms & conditions contained in the

letter dated 10th October, 1984 of the appellant/plaintiff to the

respondent/defendant no.1 who accepted the said conditions

and which inter alia provided for execution of a bond with the

appellant/plaintiff;

(c). that in accordance with the aforesaid terms & conditions, each

of the respondents/defendants no.1 to 3 executed a bond,

binding themselves that in case of violation they and their heirs

would pay to the appellant/plaintiff all monies paid to the

respondent/defendant no.1 or expended on his account as part

of the said scholarship together with interest thereon;

(d). that at the time of grant of scholarship, the

respondent/defendant no.1 was an employee of J.K. Paper

Mills, Jaykapur, Korput, Orissa and as per terms of the bond he

was to rejoin his employer within a period of not more than one

month from the date of arrival back in India and to serve in

India for a minimum period of three years;

(e). that the term of scholarship of the respondent/defendant no.1

was extended till 22nd September, 1988;

(f). that the respondent/defendant no.1 however did not return to

India and chose to remain in USA;

(g). that the respondent/defendant no.1 was accordingly declared a

violator of the bond executed by him and the appellant/plaintiff

on 10th May, 1991 raised a demand for Rs.15,99,469.44p

against him besides some other expenses and on 31 st July, 1995

increased the demand to Rs.16,11,569.44p by addition of the

other expenses;

(h). that in accordance with the bond, the respondent/defendant no.1

is also liable to pay interest at 14.5% per annum;

(i). that no response was received from the respondent/defendant

no.1 and enquiries were made from the respondent/defendants

no.2&3;

(j). that the respondent/defendant no.1 ultimately on 20 th October,

1995 responded stating that if suitable job according to his

qualifications was offered, he was willing to return to India;

(k). that the said response of the respondent/defendant no.1 was not

in accordance with the terms on which scholarship was granted

to him; and,

(l). accordingly the suit for recovery of Rs.16,11,569.44p with

pendente lite and future interest at 14.5% per annum from the

respondent/defendant no.1 and if not paid by the

respondent/defendant no.1, from the respondents/defendants

no.2&3, was filed.

4. The respondent/defendant no.2, upon being served with the summons

of the suit, besides written statement filed an application under Order 7 Rule

11 of the CPC on which the following preliminary issue was framed on 1 st

November, 2002:-

"Whether the suit is barred by limitation?"

5. Vide order dated 23rd November, 2002 the said preliminary issue was

decided in favour of the appellant/plaintiff by observing that the application

under Order 7 Rule 11 was premised on the limitation being three years from

the date of cause of action but the applicable Article of the Schedule to the

Limitation Act, 1963 was Article 112 since the suit was on behalf of the

Union of India i.e. Central Government and the limitation for filing the suit

was 30 years and which had not expired and the suit was thus within time.

6. Summons of the suit sent to the respondent/defendant no.3 were

received back with the report that he had died. The counsel for the

appellant/plaintiff on 23 rd April, 2003 informed the Suit Court that it had

been confirmed by the District Authority that the family of the deceased

respondent/defendant no.3 was not in a comfortable position from the

financial point of view and so the appellant/plaintiff was not desirous of

impleading his legal representatives. The counsel for the

respondent/defendant no.2 opposed, stating that the liability was joint and

several on all the respondents/defendants and non-impleadment of the legal

heirs of the respondent/defendant no.3 would affect the rights of the

respondent/defendant no.2. However the said objection was overruled

reasoning that the decretal amount of the share of the legal heirs of the

respondent/defendant no.3 could be recovered by the respondent/defendant

no.2 and the appellant/plaintiff was exempted from substitution of the legal

heirs of the respondent/defendant no.3 whose name was struck off from the

memo of parties of the suit.

7. The respondent/defendant no.1 failed to appear before the Suit Court

also despite service by publication and was on 28 th May, 2003 proceeded

against ex parte.

8. The respondent/defendant no.2 contested the suit besides on legal

pleas, pleading that the appellant/plaintiff did not care to make any

arrangement for the job security and employment in India of the

respondent/defendant no.1 and the respondent/defendant no.1 had thus not

violated any terms & conditions of the bond.

9. Even though the aspect of limitation had been decided on 23rd

November, 2002 under a preliminary issue but on 17 th July, 2003 on the

pleadings of the parties, the following issues including on the aspect of

limitation were framed:-

"(i). Whether the plaintiff is entitled to the decree of the suit amount with interest? OPP

(ii). Whether this Court has no territorial jurisdiction to entertain the present suit? OPD

(iii). Whether the suit has been signed, verified and filed by duly authorized person? OPP

(iv). Whether the suit is barred by limitation? OPD

(v). Whether the suit is without any cause of action qua defendant No.2? OPD

(vi). Whether the suit is bad since the bond is not adequately stamped and as such suit is liable to be dismissed? OPD

(vii). Whether Court fees paid on the plaint is insufficient? OPD

(viii). Relief."

10. The appellant/plaintiff examined its Under Secretary, Ministry of

Human Resource Development in support of its claim. The

respondent/defendant no.2 alone appeared as a witness in his defence. No

other witnesses were examined.

11. The learned Addl. District Judge, vide the impugned judgment has

dismissed the suit, finding/observing/holding:-

(A). that the Court at Delhi had territorial jurisdiction to try the suit;

(B). that the plaint in the suit, though could be signed and verified

by an Under Secretary of the Government conversant with the

facts, but the Under Secretary who had signed and verified the

plaint had joined the Department only on 1 st January, 2001 and

was thus not conversant with the facts and the suit was thus not

signed, filed and verified by a competent person on behalf of

the appellant/plaintiff;

(C). that the respondents/defendants no.1 to 3 had executed the bond

on 5th September, 1985; that the terms and conditions of the

bond were violated when the respondent/defendant no.1 failed

to return to India on/or before 22 nd September, 1988; that

Article 30 of the Limitation Act provides limitation of three

years on a bond subject to a condition, commencing from the

date when the condition is broken; that the suit had been filed

on 3rd June, 2002 i.e. after more than three years when the cause

of action accrued to the appellant/plaintiff; the suit was thus

barred by time; issue No.5 was accordingly decided in favour of

the respondent/defendant No.2 against the appellant/plaintiff;

(D). that bond on which the suit was based was not duly stamped

and was thus impounded and issue no.6 decided accordingly;

and,

(E). the appellant/plaintiff was held to have paid appropriate Court

Fees on the plaint.

however in view of the findings on issues no.3,4&6 the suit was

dismissed.

12. To summarize, though the appellant/plaintiff was held entitled to the

monies for recovery of which the suit was filed, the suit was dismissed on

the grounds of:-

(i). the claim therein being barred by time;

(ii). the suit having not been filed and the plaint having not been

signed and verified by a duly authorized person on behalf of the

appellant/plaintiff and;

(iii). the bond on which the suit was based being not duly stamped.

13. I find error apparent on the face of the record in so far as the first and

the third of the aforesaid three grounds on which the suit has been dismissed.

The learned Addl. District Judge under issue no.6 having impounded the

document and having directed recovery of deficient stamp duty and penalty

thereon, could not have dismissed the suit on the said ground. Moreover the

learned Addl. District Judge totally lost sight of the fact that the

appellant/plaintiff was the Union of India and even if, as a party to the bond,

liable for payment of stamp duty, was exempt under Proviso (1) to Section 3

of the Indian Stamp Act, 1899 from payment of Stamp Duty.

14. As far as the first of the aforesaid grounds of limitation on which the

suit has been dismissed is concerned, the counsel for the appellant/plaintiff

is correct in contending that the issue of limitation having been decided on

23rd November, 2002 on a preliminary issue framed at the instance of the

respondent/defendant no.2, could not have been revisited by the learned

Addl. District Judge. Not only so, the learned Addl. District Judge while

adjudicating the aspect of limitation, again lost sight of the fact that the

appellant/plaintiff was the Central Government/Union of India the limitation

prescribed for suits by whom is 30 years and not three years. Thus the said

ground given for dismissal of suit is also patently erroneous.

15. That leaves the ground, of the suit having not been filed and the plaint

having not been signed and verified by a duly authorized person on behalf of

the appellant/plaintiff. In this respect the learned Addl. District Judge though

has held that person who had filed the suit and signed and verified the plaint

on behalf of the appellant/plaintiff was occupying the office which was

authorized to institute the suit and sign and verify the plaint but has held the

suit to be not duly filed, signed and verified for the reason of the said officer

being not familiar with the facts for the reason of having joined the

concerned Department after the date when the cause of action had accrued. I

am afraid this is not the correct position in law. The officers in the various

departments of the Government are transferred/shuffled from time to time

and it is not essential that the officer in whose regime the cause of action has

accrued would be there when the suit is filed, especially when the limitation

therefor provided is of 30 years. Moreover, familiarity with the facts can

also be on the basis of records and need not be only by being personally

present in the office when the cause of action accrues. I have also perused

the affidavit by way of examination-in-chief and the cross examination of

the said officer and therefrom also find that the said officer on the basis of

the records was fully familiar with the facts of the case. The said ground

given by the learned Addl. District Judge thus also has no legs to stand.

16. As far as the merits of the claim of the appellant/plaintiff is

concerned, the only defendant i.e. the respondent/defendant no.2 who

contested the suit did not deny execution of the bond or the amount claimed

being due thereunder. The only defence raised was of the appellant/plaintiff

having not provided suitable employment opportunity for the

respondent/defendant no.1 in India. However a perusal of the bond executed

by all the respondents/defendants shows that there was no such obligation

thereunder on the appellant/plaintiff. Moreover it was for the

respondent/defendant no.1 to plead as to what attempts he had made for

finding employment in India. This was not done, neither by filing a written

statement nor was it so stated in the response sent by the

respondent/defendant no.1 to the demand preceding the suit. Even

otherwise, for such beneficial schemes to continue to run and for more and

more deserving candidates to reap benefit therefrom, it is essential that the

terms of the bond are strictly adhered to and the defaulters made to plough

back what they had agreed to.

17. The appeal therefore succeeds. The impugned judgment and decree is

set aside. The suit of the appellant/plaintiff is decreed for recovery of

Rs.16,11,569.44p together with pendente lite and future interest till the date

of payment at 14.5% per annum, however against the respondent/defendant

no.1 only. The appellant/plaintiff shall also be entitled to the costs of the suit

and the costs of this appeal from the respondent/defendant no.1.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

OCTOBER 29, 2013 pp