Rosa Power Supply Co. Ltd. vs Union Of India & Ors.
2014 Latest Caselaw 3654 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 12th August, 2014

+                               W.P.(C) No.3821/2014

       ROSA POWER SUPPLY CO. LTD.              ..... Petitioner
                   Through: Mr. Sujit Ghosh with Mr. Nakul
                            Mohta & Mr. Sashank, Advs.

                          Versus
    UNION OF INDIA & ORS.                       ..... Respondents

Through: Mrs. Kiran Jai, CGSC & Mr. Chandra Shekhar, Adv. for R-1 to 5.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This petition under Article 226 of the Constitution of India, filed in or

about the second half of May, 2014, impugns the four orders, all dated 21st

March, 2011 of the respondent no.3 Zonal Joint Director General of Foreign

Trade, intimating to the petitioner the decision taken in the meeting of the

Policy Interpretation Committee held on 15th March, 2011 under the

Chairmanship of the Director General of Foreign Trade, of denying Deemed

Export Benefits (DEB) "if the Bill of Entry is in the name of the project

authority" as was in the case of the petitioner and accordingly denying the DEB

to the petitioner. The petition of course also impugns the minutes of the said

meeting dated 15th March, 2011 and seeks a direction to the respondents to give

the DEB to the petitioner, which during the hearing was disclosed to be in the

value of Rs.72 crores.

2. Though the petition, as per the Roster of this Court, was listed before the

learned Single Judge, but finding that the challenge is also to certain

notifications and circulars of the Foreign Trade Policy on the basis of

interpretation whereof the DEB was denied to the petitioner, was ordered to be

listed before this Bench.

3. We, at the outset enquired from the counsel for the petitioner as to how

the claim in the petition which is in the nature of a monetary claim is

maintainable. The said claim of the petitioner, as aforesaid was rejected on 21 st

March, 2011. No Article to the Schedule to the Limitation Act, 1963 is found

to provide for limitation for such a claim. Mention may however be made of

A. Venkatasubba Rao Vs. State of Andra Pradesh AIR 1965 SC 1773, holding

that the limitation for a suit for recovery of amount illegally appropriated by the

Government is governed by Article 62 of the Schedule to the Limitation Act,

1908 (which is equivalent to Article 24 of the Limitation Act, 1963),

prescribing the limitation of three years commencing from the date when the

money is received , for a suit for money payable by the defendant to the

plaintiff for money received by the defendant for the plaintiff‟s use. The

argument that the residuary Article (120 of the 1908 Act and 113 of the 1963

Act) providing a limitation of six years under the 1908 Act would be applicable

was rejected. It was generally observed that a suit for recovery of tax illegally

collected is governed by the said Article 62 and has to be brought within three

years from when the tax was illegally collected. The said view was followed in

Tilokchand Motichand Vs. H.B. Munshi (1969) 1 SCC 110. However, the

present is not a case of illegal recovery of tax or other monies by the

Government. We are concerned with the denial by the Government of a

monetary benefit to which the petitioner claims to be entitled. Thus Article 113

would apply, which prescribes limitation of three years from the date when the

right to sue accrues. There is no doubt that the right to sue in the present case

accrued on 21st March, 2011 when the claim of the petitioner for DEB was

rejected. The challenge thereto could have been made within three years i.e. on

or before 20th March, 2014. The present petition has been filed after more than

one month therefrom. We may further add that the distinction which existed

under the 1908 Act, between Article 62 thereof providing limitation of three

years and Article 120 thereof, providing limitation of six years, also does not

exist under the 1963 Act. Thus, even if Article 24 thereof were to be held to

apply, the limitation would not change.

4. The petitioner also, conscious of the said aspect though in the writ

petition in para no.23 has stated that "delay and laches is not applicable in the

present case, as the impugned order came as a shock to the petitioner and it was

exploring the options to take up the matter with the officials of the DGFT,

Central Government and various other authorities" but has not given any

particulars. The only plea is of the petitioner after the receipt of the letter dated

21st March, 2011 having sent letter dated 20th September, 2011 stating that the

decision taken in the meeting held on 15th March, 2011 was not applicable to

the petitioner and asking the respondents to release the payments towards DEB

due to the petitioner. However the petitioner admits that no response was

received thereto. However the same does not advance the case of the

petitioner. In fact, the counsel is unable to show that there was any duty of the

respondents to respond to such letter. The counsel for the petitioner is also

unable to tell whether any remedy of appeal was available to the petitioner

against the decision taken in the meeting dated 15th March, 2011 or against the

communication dated 21st March, 2011. It is the settled principle of law (See

S.S. Rathore Vs. State of M.P. (1989) 4 SCC 582 followed by the Division

Benches of this Court in judgment dated 7th August, 2012 in LPA No.559/2012

titled Indian Hydraulic Industries (P) Ltd. Vs. NDPL and in judgment dated

30th January, 2012 in W.P.(C) No.586/2012 titled Rifleman Ram Bahadur

Thapa Vs. UOI and in T.K. Bhardwaj Vs. Director General of Audit

MANU/DE/2127/2011 and Karnataka Power Corp. Ltd. Vs. K. Thangappan

(2006) 4 SCC 322) that repeated representations and rejection thereof neither

extend the period of limitation nor is a satisfactory explanation of the delay.

5. The counsel for the petitioner except for drawing attention to the letter

dated 20th September, 2011 is not able to show any plea or document to the

effect that the matter remained alive thereafter.

6. The counsel for the respondents appearing on advance notice informs

that this petition has been filed after another writ petition was allowed by this

Court and against which order Special Leave Petition (SLP) has been preferred

to the Supreme Court.

7. The present is clearly a case of the petitioner having indulged in fence

sitting. The petitioner clearly chose not to pursue its own claim and was

satisfied with the rejection of its request. The petitioner, in our opinion, cannot

be permitted to revive such a claim which it had given up and / or which had

become stale merely because some other who was not satisfied with a similar

rejection of its claim having challenged the same and the said challenge having

succeeded.

8. The matter in fact is not res integra. A Division Bench of this Court (of

which one of us Rajiv Sahai Endlaw, J. was a member), in Government of NCT

of Delhi Vs. New Variety Tent House 189 (2012) DLT 65 has held that money

claim, suit for which has become barred by time / limitation, cannot be allowed

in writ jurisdiction. Reliance was placed on State of Madhya Pradesh Vs.

Bhailal Bhai AIR 1964 SC 1006 laying down that though the provisions of

Limitation Act do not apply to the grant of relief under Article 226 of the

Constitution of India however the maximum period fixed by the Legislature as

the time within which the relief by a suit in a Civil Court must be brought may

ordinarily be taken to be a reasonable standard by which delay in seeking

remedy under Article 226 of the Constitution of India can be measured and on

Tilokchand Motichand supra laying down that the extraordinary remedies

under the Constitution are not intended to enable the claimant to recover

monies, the recovery of which by suit is barred by limitation and that where the

writ remedy under Article 226 corresponds to a remedy in an ordinary suit and

the latter remedy is subject to the bar of a statute of limitation, the Court in its

writ jurisdiction acts by analogy to the statute, adopts the statute as its own rule

of procedure and in the absence of special circumstances imposes the same

limitation on the summary remedy in writ jurisdiction. We find that the SLP

being CC No.12686/2012 was dismissed in limine on 3rd August, 2012.

9. Reference in this regard may also be made with benefit to yet another

judgment of the Division Bench of this Court in Standing Conference of

Public Enterprises Vs. BSES Rajdhani Power Ltd. 198 (2013) DLT 186

holding that since the suit for recovery of amount in question, had it been filed

on the date the writ petition was filed, would have been barred by limitation, it

would not be appropriate to direct payment of the aforesaid amount, in exercise

of discretionary jurisdiction under Article 226 of the Constitution. Mention

with benefit may also be made of D.Cawasji & Co. Vs. State of Mysore (1975)

1 SCC 636.

10. Mention may also be made of Godavari Sugar Mills Ltd. Vs. State of

Maharashtra (2011) 2 SCC 439 [also noticed in New Variety Tent House

(supra)] laying down that normally a petition under Article 226 of the

Constitution of India will not be entertained to enforce a civil liability.

11. The counsel for the petitioner after the hearing has handed over copies of

the judgment in H.D. Vora Vs. State of Maharashtra (1984) 2 SCC 337 and

Miss Parvati K. Moorjani Vs. A. Fonseca AIR 1988 Bombay 366 (FB). While

in the former, the plea of laches was rejected for the reason of the petitioner

having a very strong case and the order impugned being invalid on the first

count, in the latter, the Court inspite of holding the petition to be delayed and

barred by laches, did not reject the same for the reason that a large number of

petitions were pending decision on the points raised in the petition. We fail to

see the applicability of either to the present controversy which as aforesaid is

but a monetary claim of the petitioner. It is not the case of the petitioner that

the decision dated 15th March, 2011 was by an authority which was not

competent to take the decision.

12. There is thus no merit in the petition which is dismissed.

No costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE AUGUST 12, 2014/„gsr‟