Delhi Development Authority vs Madhur Krishna
2016 Latest Caselaw 210 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                   RSA 221/2014 & CM APPL.13917/2014

                                          Decided on: 12th January, 2016

       DELHI DEVELOPMENT AUTHORITY             ..... Appellant
                    Through: Mr. Pawan Mathur, Standing
                             Counsel for the DDA.
                    versus

    MADHUR KRISHNA                                          ..... Respondent
                  Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is a regular second appeal filed by the appellant/Delhi

Development Authority (DDA) against the judgment and decree

dated 11.02.2014 passed in RCA No.49/13/11 titled Delhi

Development Authority v. Mr. Mahur Krishan by virtue of which

the judgment and decree dated 30.10.2010 passed by the learned

Civil Judge, West Delhi dismissing the suit of the appellant as

being barred by limitation has been upheld.

2. Briefly stated that facts of the case are that the appellant/DDA filed

a suit against the respondent for recovery of Rs.3,25,264.19P on

account of having awarded a work of laying water line vide

Agreement dated 18.11.1983. It was alleged that the work was to

be completed by 27.08.1984, however, the respondent abandoned

the work without completing the same as a consequence of which

the appellant had to get the work completed through M/s. R.K.

Mohan Construction Company. In terms of Clause 7 of the

agreement, the respondent never submitted the final bill and the

work was ultimately not completed by the respondent on

27.08.1984. This resulted in filing of the suit for recovery of the

aforesaid amount.

3. The respondent filed his written statement and contested the suit by

raising the plea of the same being barred by limitation as it was

filed after expiry of 13 years from the date when the work was

scheduled to be completed i.e. 27.08.1984. The reason for non-

completion of the work given by the respondent was non-

availability of the drawing details, specifications and the stipulated

material, etc. apart from rainy season and the obstruction created

by the residents of the area. This was refuted by the appellant in

the replication. On the pleadings of the parties, following three

issues were framed:-

"(i) Whether the suit of the plaintiff is barred by limitation as stated in preliminary objection? OPD.

(ii) Whether the plaintiff is entitled to recovery Rs.3,25,264.19 as claimed? OPP.

(iii) Relief."

4. So far as issue No.1 is concerned, the learned Civil Judge after

recording of evidence came to the conclusion that as the suit was

filed after expiry of 13 years, therefore, the suit was barred by

limitation.

5. The appellant feeling aggrieved against the judgment and decree of

the dismissal preferred the appeal before the Court of Additional

District Judge-V, West District, Tis Hazari Court, Delhi contesting

the judgment and decree passed by the learned Civil Judge.

6. The first Appellate Court agreed with the finding returned by the

learned Civil Judge that the suit was barred by limitation as the

appellant got the work completed on 12.05.1986 which was

scheduled to be completed on 27.08.1984 but the suit for recovery

was filed on 04.12.2001 and if the period of limitation is reckoned

from either of the two dates it is beyond 13/15 years and therefore,

the suit is barred by limitation. The factum of suit having been filed

after 13 years is stated to have been admitted by Mr. S.C. Gupta,

Executive Engineer, WD-II, DDA who had appeared as PW-1.

7. Still not feeling satisfied, the present second appeal has been filed

by the appellant/DDA.

8. Mr. Mathur, the learned counsel for the appellant for the first time

without raising the aforesaid submission before the trial Court or

the first Appellate Court has taken a plea that the DDA being part

of the Central Government, therefore, in terms of Article 112 of the

Constitution of India, a suit for recovery could have been filed

within 30 years. It is this point which has been urged by the

learned counsel that is stated to be raising a substantial question of

law. For the purpose of canvassing his argument that DDA is a

part of the Central Government, it has placed reliance on The

Government of India (Allocation of Business) Rules.

9. I have heard the learned counsel for the appellant and gone through

the record.

10. I do not agree with the contention of the learned counsel for the

appellant that the submission made by the learned counsel for the

appellant raises any substantial question of law. This is on account

of the two reasons.

11. Firstly, that the plea which is sought to be taken by the appellant

now with regard to limitation period being 30 years has neither

been pleaded in the plaint nor taken during the course of arguments

either before the learned Civil Judge or the first appellant Court.

Therefore, this plea, in my view cannot be taken by the appellant at

the stage of second appeal. There has to be a foundation in the

pleading before any substantial question of law is said to be arising

from the appeal. This is a last straw which the appellant is clinging

only to continue the suit unnecessarily. It is pertinent here to

mention what has been averred by the appellant in the plaint with

regard to cause of action as under:-

"14. That the cause of action arose in favour of the Plaintiff and against the Defendant for the purpose of the aforesaid suit arose firstly on 9.10.1998 and on 29.01.1999 when the Plaintiff wrote to the Defendant and acquaint him about the amount to be payable by him. It further arose on 24.06.1999 when the Defendant personally visited the office of the Plaintiff and had written a letter to the Executive Engineer. It further arose on 10.05.2000, 26.05.2000 and 02.08.2000 when the Plaintiff got served the reminders on the Defendant. In spite of that neither the

Defendant has any reply to the aforesaid letters/reminders nor make the payment of the said amount intentionally. The cause of action continue to arisen as the payment has not been made till date."

12. Apart from this, the cause of action clause the appellant has no

where pleaded in the plaint that the DDA is a Central Government

agency therefore the period of limitation is 30 years as per Article

112 of the Limitation Act, 1963 or that the suit is filed by them

within limitation. It is observed that before such a plea is taken,

there must be some basic foundation with regard to same in the

pleadings which is being sought to be raised.

13. The contention of the learned counsel for the appellant is that the

Government of India (Allocation of Business) Rules which have

been drawn in exercise of the powers of Clause (3) of Article 77 of

the Constitution of India laid down that the Central Government

will function from the various departments and at serial number of

the First Schedule there is a department of Urban Development,

Shahari Vikas Mantralya mentioned which is functioning through

various departments of its own including the DDA which is

essentially a statutory body for the purpose of acquisition and

distribution of nazul land and creation of Master and Zonal Plan,

therefore, it is equivalent to Central Government. I do not agree

with said contention of the learned counsel for the appellant.

Firstly, the plea that Article 112 of Limitation Act, 1963 would be

applicable was not taken by DDA in trial Court or the first

Appellate Court. Secondly, it was also not pleaded that DDA is

suing the respondent on behalf of Central Govt. This view can be

fortified by a recent judgment of the Supreme Court in Bharat

Sanchar Nigam Ltd. v. Pawan Kumar Gupta, 2015 (10) SCALE

337. In the said case it was held that period of limitation is not 30

years as the appellant Company (BSNL) cannot be equated with

Central Govt. since it is a distinctly independent and separate

entity. It was further observed that Article 112 of Limitation Act

does not incorporate agency or instrumentality of Govt. The facts

of the aforesaid squarely fit to the present case.

14. The judgments which have been relied upon by Mr. Mathur in

support of his contention that the period of limitation is 30 years

are distinguishable. In the case of Accountant General (A&E) &

Anr. v. V. Sethumadhavan Nair, (2004) 13 SCC 14, the facts of the

case were that the recovery was tried to be effected by the State

Govt. from one of its employees who had illegally drawn the house

rent allowance. It was in this context that the Hon'ble Apex Court

observed that the period of limitation is 30 years under Article 112.

15. Accountant General (A&E) is essentially a part of Govt. of India

and being a part of the Government, it cannot be equated with the

present appellant which is admittedly a statutory body created by

an Act, i.e. Delhi Development Authority Act, 1957. Therefore,

this judgment of Accountant General (A&E) is of no help to the

appellant.

16. The second judgment which has been relied upon by the appellant

is a judgment of the Division bench of this Court in G.R. Gupta v.

Lok Sabha Secretariat, 204 (2013) DLT 694 (DB), where the

Division Bench has observed that the period of limitation for filing

an eviction petition against unauthorized occupation of the official

accommodation and recovery of damages under the Public

Premises (Eviction of Unauthorized Occupants) Act, 1971 is 30

years. As regards the abovementioned judgment, there is no dispute

about the fact that eviction of an unauthorized occupant will be

governed by Article 112 of Schedule I of the Limitation Act and

moreover, in the case of unauthorized occupation gives rise to

continuous cause of action till the time the unauthorized occupant

is evicted and thrown out from the premises in question.

17. But in the instant case a suit for recovery has been filed and in

case of a suit for recovery the money pursuant to breach of a

contract the period of limitation has been prescribed as 3 years

under Article 55 of Schedule I. Unless and until this period of

three years is enlarged in terms of Section 18/19 of the Limitation

Act, the Court will not be within its power to entertain a suit for

recovery after expiry of three years. Therefore, I feel that the suit

which has been filed by the appellant was highly barred by time

and it does not raise any substantial question of law.

18. The appeal of the appellant is accordingly dismissed by observing

that it does not raise any substantial question of law.

19. Pending application also stands disposed of.

V.K. SHALI, J.

JANUARY 12, 2016 vk