Sh. Rohit Sharma And Anr. vs Ntpc Ltd.
2014 Latest Caselaw 4187 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CM(M) No.28 /2014

%                                                     5th September, 2014

SH. ROHIT SHARMA AND ANR.                                     ......Petitioners
                  Through:               Mr. Milanka Chaudhary, Advocate.

                           VERSUS

NTPC LTD.                                                   ...... Respondent

                           Through:      Mr. Puneet Taneja, Advocate.



CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes

VALMIKI J. MEHTA, J (ORAL)

C.M. No.554/2014 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

C.M. No.14554/2014

2. Application is allowed and certified copy is taken on record.

C.M. stands disposed of.

+ C.M.(M) No.28/2014 and C.M.No.553/2014 (stay)

3. With the consent of the parties, the main petition is heard.

4. This petition under Article 227 of the Constitution of India

impugns the order of the trial court dated 23.10.2013 by which the trial court

rejected the application of the petitioners/defendants under Order VII Rule

11 of the Code of Civil Procedure, 1908 (CPC) by refusing to accept the

contention of the petitioners/defendants that the suit for recovery of

Rs.2,63,248/- was barred by time under Section 55 of the Limitation Act,

1963.

5. The facts of the case are that the respondent/plaintiff was the

employer. Petitioner no.1/defendant no.1 joined services of the

respondent/plaintiff by submitting the service bond for working for a

particular number of years. Petitioner no.1/defendant no.1 however before

the expiry of the bond period sent his resignation letter and asked for waiver

of the service bond agreement vide his letter dated 15.5.2009 which reads as

under:-

"To,

The General Manager NCPS, Dadri

15 May 2009

Dear Sir, Subject: Resignation letter of Rohit Sharma

My Name is Rohit Sharma (Emp. No.-100030). I am currently an Engineer (E2A) in the Operation Department (Group 1).

It is with regret that I inform you of my decision to resign from this organization. I wash to pursue postgraduate studies in management and have decided to go ahead with it. I request you sir, to relieve me of my duties effective 15 June, 2009 in accordance with the notice period rules.

I would also request you sir to consider a waiver of the service bond agreement as I am resigning for the purpose of higher studies and not to join any other organization.

It has been a pleasure working at NTPC Ltd., I hope you will make the parting process equally so.

My dues are to be credited to my bank account. Thanking You,

Yours faithfully Rohit Sharma (emp no.: 100030) Operations-Gr.I"

6. Respondent/plaintiff by its letter dated 19.6.2009 accepted the resignation but made it conditioned upon the payment by the petitioners of the service bond amount and this letter reads as under:-

"NTPC LIMITED NATIONAL CAPITAL POWER STATION-DADRI P.C. VIDYUT NAGAR, DISTT. GAUTAM BUDH NAGAR-201008 HR-EMPLOYEE BENEFITS DEPARTMENT

REF. NO. : 08/HR/EB/100030 DATE: 19.06.2009

OFFICE ORDER NO. : MS-68/2009

The resignation submitted by Mr. Rohit Sharma, Emp. No. 100030 Engineer (Opn-Th), O&M-Th has been accepted by the competent authority with release from the services of the company w.e.f. 15.06.2009 (AN). It is subject to fulfilment of the following conditions:

1. Submission/Receipt of No. Dues Certificates from all concerned.

2. Settlement of all Outstanding Dues.

3. Payment of Service Bound Amount.

4. Payment of Lumpsum Adjustable Advance against CHRC NO. 624/2007 & 639/2008

5. Settlement of Outstanding Advances / Other Dues as per F&A Records.

It is pursuance of Inter Officer Memo No. 01: NCR-HQ/HR-EB/2009 Dated 15.06.2009 issued by NCR-HQ, NOIDA.

This issue with the approval of competent authority.

(ANIL KUMAR) DY. MANAGER (HR-EB) DISTRIBUTION:

1. MR. ROHIT SHARMA EMP. NO. 100030 ENGINEER (Opn_Th) O & M-Th HOUSE NO. 442, VARUN APARTMENTS C-58/28, SECTOR-62, NOIDA (U.P.)

2. C.M.O.

3. AGM (O&M-Th)

4. A.G.M. (HR)

5. D.G.M. (OPN-Th)

6. D.G.M. (FIN-ESTT)

7. SR. MANAGER (VIG.)

8. DY. MANAGER (TA-ESTATE)

9. DY. MANAGER (HR-IE)

10. E.S. TO G.M. (NCPS)

11. PERSONAL FILE

COPY TO:

1. A.G.M. (HR), NCR-HQ, NOIDA

2. D.G.M. (HR-EB),CC

3. D.G.M.(HR-IE),CC

4. E.S.TO RED (NC)

5. SECRETARY (EMPLOYEES PF/GF/PENSION TRUST), CC"

7. The subject suit has thereafter been filed by the

respondent/plaintiff claiming basically the service bond amount i.e a claim

under Section 74 of the Indian Contract Act, 1872 (hereinafter referred to as

'the Act'). This suit no. 357/2013 was filed on 5.6.2013. The issue is that

whether a suit filed on 5.6.2013 is within limitation, and whether cause of

action can be said to have been arisen on 19.6.2009 to the

respondent/plaintiff when it sent its letter accepting the resignation but

subject to the petitioner no.1/defendant no.1 paying the bond amount.

8. Article 55 of the Limitation Act, 1963 reads as under:-

Description of suits Period of limitation Time from which period begins to run

55. For compensation Three years When the contract is broken or for the breach of any (where there are successive contract, express or breaches) when the breach in implied not herein respect of which the suit is specially provided for instituted occurs or (where the breach is continuing) when it

ceases.

9. The subject suit is a suit for recovery of amount on a breach of

contract, the amount being liquidated damages being the amount as stated in

the bond. The subject suit has its genesis in Section 74 of the Act. In a suit

alleging breach of contract and claiming damages on account of breach of

contract either Section 73 or Section 74 of the Act is applicable. When

damages are not liquidated damages the suit is filed under Section 73 of the

Act. When the damages are liquidated damages, if the conditions of Section

74 are satisfied, the suit will be under Section 74 of the Act.

10. In the present case, since the breach on behalf of the petitioner

no.1/defendant no.1 becomes clear when the respondent/plaintiff wrote its

letter dated 19.6.2009 accepting the resignation while simultaneously

refusing to waive the bond amount, the breach on the part of the petitioner

no.1/defendant no.1 with respect to the service bond thus specifically arose

on 19.6.2009. The cause of action once it arose on 19.6.2009, suit had to be

filed within three years i.e on or before 19.6.2012. The suit however, as

stated above, was only filed on 5.6.2013 i.e beyond three years limitation

period and the suit is therefore clearly barred by limitation.

11. Counsel for the respondent/plaintiff argues that actually there

are successful breaches and the petitioner/defendant actually has received

increments after the service of the letter dated 19.6.2009, however, it is not

disputed on behalf of the respondent/plaintiff that there is finality to the

letter dated 19.6.2009 in refusing to waive the bond amount. Therefore, the

cause of action with respect to the bond amount under Section 74 of the Act

arose on 19.6.2009 when this letter dated 19.6.2009 was served upon the

petitioner no.1/defendant no.1 by the respondent/plaintiff. This is not a case

of successive breaches because qua a breach of contract, breach arises when

the breach of contract is first committed unless such breach is waived. In the

facts of the present case, breach of contract achieves clarity and finality on

the respondent/plaintiff serving the letter dated 19.6.2009 upon the

petitioner/defendant.

12 (i). In view of the above, the suit of the respondent/plaintiff was

barred by limitation and the impugned order is illegal in holding that the suit

is within limitation.

(ii). At this stage, counsel for the petitioners/defendants states that

the petitioners/defendants did not press the counter claim which was filed in

response to the suit inasmuch as the suit itself is being dismissed as barred

by limitation.

13. I may for the sake of completion of narration note that by the

impugned order the trial court had decreed the suit under Order VIII Rule 10

CPC on account of the non-filing of the written statement by the

petitioners/defendants, but, before decreeing the suit under Order VIII Rule

10 CPC, trial court had held that the suit is within limitation. Since that part

of the order pertaining to limitation is set aside by the present judgment, the

consequential order under Order VIII Rule 10 CPC will also fall, and

consequently the appeal which is filed by the petitioners/defendants before

the Senior Civil Judge under Section 96 CPC need no longer be pursued.

14. In view of the above, the petition is allowed and disposed of in

terms of the abovesaid observations, leaving the parties to bear their own

costs.

SEPTEMBER 05, 2014                                   VALMIKI J. MEHTA, J
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