Punjab-Haryana High Court
Bhupinder Kumar Sharma vs State Of Punjab And Ano on 5 April, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:046896
CM-12947-C-2013;
CM-12949-C-2013 in/and 2024:PHHC:046896
RSA-4811-2013
1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(208) CM-12947-C-2013;
CM-12949-C-2013 in/and
RSA-4811-2013
Date of Decision : 05.04.2024
Bhupinder Kumar Sharma
...Appellant
Versus
State of Punjab and another
...Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Harsh Aggarwal, Advocate for the appellant.
Mr. Rohit Ahuja, Deputy Advocate General, Punjab.
***
Harsimran Singh Sethi J. (Oral)
CM-12947-C-2013
Present application has been filed for seeking condonation of
delay of 853 days in re-filing the appeal.
Keeping in view the averments made in the application,
which are duly supported by an affidavit, the application is allowed and
delay of 853 days in re-filing the appeal is condoned.
RSA-4811-2013
1. In the present appeal, the challenge is to the judgments and
decrees of the lower appellate court by which, the judgment and decree of
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CM-12947-C-2013;
CM-12949-C-2013 in/and 2024:PHHC:046896
RSA-4811-2013
the trial court dated 17.12.2004 has been set-aside and the suit filed by the
respondents-plaintiffs qua recovery of the principle amount of ₹8,26,075/-
as well as interest of ₹6,74,622/- calculated @ 12% per annum, has been
allowed.
2. Certain facts needs to be mentioned for the correct
appreciation of the issue in hand.
3. The appellant-defendant was working with the respondents-
plaintiffs and was posted as Incharge of the Procuring Centre at Mehal
Kalan. Under the charge of the appellant-defendant, the wheat and other
articles were stored by the respondents-plaintiffs-department. The
appellant-defendant absented himself from duty w.e.f. 10.10.1983 without
any intimation to the department and thereafter, the respondents-plaintiffs
came to know that certain quantity of wheat and other articles, which
were stored under the custody of the appellant-defendant, was missing
and the keys of the storage facility had also been taken by the appellant-
defendant.
4. Thereafter, a Committee was formed of one Sh. Atma Singh
Gill, the then Assistant Food and Supplies Officer, Mehal Kalan, who
looked into the aspect of the shortage of wheat and other stocks and in
order to find out the actual items present in the storage store, the lock was
broke open and ultimately, it was found that the wheat and other articles
to the tune of ₹14,91,718.41 paise were missing. Thereafter, the stock
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Neutral Citation No:=2024:PHHC:046896
CM-12947-C-2013;
CM-12949-C-2013 in/and 2024:PHHC:046896
RSA-4811-2013
was verified again by the Committee and a revised report was submitted
to the department, wherein, the shortage of wheat and other missing
stock was found to the tune of ₹8,26,074.73 paise. The said shortage was
put upon the appellant-defendant to be recovered.
5. In order to recover the loss caused, the suit was filed by the
respondents-plaintiffs against the appellant-defendant, which was
dismissed by the trial court vide judgment and decree dated 17.12.2004
against which an appeal was preferred before the lower appellate court.
The lower appellate court after examining the evidence as well as the fact,
set-aside the judgment and decree of the trial court dated 17.12.2004 and
allowed the suit filed by the respondents-plaintiffs qua the amount
claimed i.e. the principle as well as interest. The interest on the amount
claimed was allowed in favour of the respondents-plaintiffs @ 12% per
annum from the date it accrued till the actual payment. The said
judgment and decree of the lower appellate court dated 30.11.2010 is
under challenge in the present appeal.
6. Learned counsel for the appellant-defendant submits that the
judgment and decree of the lower appellate court is perverse to the
evidence, which has come on record. Learned counsel for the appellant-
defendant submits that PW2, namely, Darshan Singh, who was the auditor
with the respondents-plaintiffs-department, has conceded in his statement
that he never visited the godown, where the items were stored hence, the
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Neutral Citation No:=2024:PHHC:046896
CM-12947-C-2013;
CM-12949-C-2013 in/and 2024:PHHC:046896
RSA-4811-2013
question as to how, the shortages qua the material were ascertained, has
not come on record, hence, the allowing of the suit of recovery filed by
the respondents-plaintiffs by the lower appellate court is perverse to the
evidence on record.
7. The next argument, which has been raised by the learned
counsel for the appellant-defendant is that the appellant-defendant was
Co-incharge of the Storage Facility and an amount of more than ₹7 lacs
has already been recovered from one Chamkaur Singh, hence, allowing
the said amount to be recovered from the appellant-defendant will amount
to undue enrichment and the said aspect has not been considered by the
lower appellate court while passing the judgment and decree dated
30.11.2010, hence, the same is liable to be set-aside.
8. The last argument, which has been raised by the learned
counsel for the appellant-defendant is that while awarding the interest, the
interest @ 12% per annum has been granted on an amount of
₹11,23,462/-, which amount also includes the interest, hence, interest on
interest has been granted, which is not permissible and even the rate of
interest granted in favour of the respondent-plaintiff is higher and is liable
to be reduced.
9. Learned counsel appearing on behalf of the respondents-
plaintiffs submits that the judgment and decree of the court below is
perfectly valid and legal. Learned counsel submits that it has already
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CM-12947-C-2013;
CM-12949-C-2013 in/and 2024:PHHC:046896
RSA-4811-2013
come on record that a Committee of the Officers was constituted to find
out the missing stock items, which were in the custody of the appellant-
defendant and the said Committee visited the Storage Facility and broke
open the lock and then found as to which items were missing so as to seek
the remedial action. Learned counsel for the respondents-plaintiffs
further submits that the items, which were missing, were brought to the
notice of the auditor to find out the actual amount of loss caused by the
appellant-defendant, hence, those auditors need not have gone to the
Storage Facility to find out whether, those items were missing, especially
when the report qua the missing items was given by the Committee
inspecting the Storage Facility, which evidence is already on record.
10. Learned counsel for the respondents-plaintiffs further
submits that the question whether the amount in question, sought to be
recovered from the appellant-defendant has been recovered from
Chamkaur Singh, nothing has come on record that Chamkaur Singh was
made liable for the said loss caused and rather, no such argument has been
raised before the courts below for consideration, hence, in the absence of
any evidence, which has come on record that the amount sought to be
recovered from the appellant-defendant qua the loss caused has already
been recovered from Chamkaur Singh, the appeal is liable to be rejected.
11. Learned counsel for the respondents-plaintiffs further
submits that keeping in view the facts and circumstances of the case, the
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CM-12947-C-2013;
CM-12949-C-2013 in/and 2024:PHHC:046896
RSA-4811-2013
amount of shortage has rightly been allowed along with interest @ 12%
per annum, which need not be modified on the asking of the appellant-
defendant.
12. I have heard learned counsel for the parties and have gone
through the record with their able assistance.
13. Qua the first argument, which has been raised by the learned
counsel for the appellant-defendant that Auditors did not go to the Storage
Facility to find out whether there was actual shortage of the items or not,
hence, the judgment and decree of the lower appellate court is liable to be
set-aside. It may be noticed that the said argument has already been dealt
with in paragraph Nos. 18 and 19 of the judgment of the lower appellate
court. The lower appellate court has already recorded a finding that in
order to find out the shortages qua the material, a Committee was
constituted under the Chairmanship of the then Additional District Food
and Supplies Controller, namely, Karnail Singh. Karnail Singh also
appeared as a witness and supported his report qua the shortages found at
the Storage Facility. Once, the said evidence has already come on record,
the same has rightly been taken into account by the lower appellate court
to record the finding that there were shortage qua the material, which was
entrusted to the appellant-defendant. The Auditors were only required to
ascertain the amount of the items, which were found sought so as to find
out actual loss caused in terms of finances. Those Auditors, who were to
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CM-12947-C-2013;
CM-12949-C-2013 in/and 2024:PHHC:046896
RSA-4811-2013
access the amount of loss caused keeping in view the missing articles,
need not to go to the Storage Facility to record the amount of loss caused,
hence, the argument of the learned counsel for the appellant-defendant
that the testimony of PW-2, namely, Darshan Singh has been ignored, is
incorrect and cannot be accepted.
14. The second argument of the learned counsel for the
appellant-defendant is that loss caused to the respondents-plaintiffs-
department, which is sought to be recovered from the appellant-
defendant, has already been recovered from Chamkaur Singh. On being
asked to point out the evidence, which has come on record that for the
same shortage attributed to Chamkaur Singh, the loss is being recovered
from the appellant-defendant, no such document/evidence has been
brought to the notice of this Court. Even otherwise, no such argument
was raised before the lower appellate court for consideration.
15. In the regular second appeal only the perversity is to be seen
keeping in view the evidence, which has come on record. Once, no such
evidence that the amount sought to be recovered from the appellant-
defendant is for the same loss which Chamkaur Singh was made liable,
the said argument cannot be allowed so as to set-aside the judgment and
decree of the lower appellate court.
16. The last argument, which has been raised by the learned
counsel for the appellant-defendant is that while awarding the amount, the
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CM-12947-C-2013;
CM-12949-C-2013 in/and 2024:PHHC:046896
RSA-4811-2013
interest upon interest has been directed to be paid by the appellant-
defendant, which is not correct and even the rate of interest fixed by the
lower appellate court @ 12% per annum is exorbitant. It may be noticed
that the interest can be granted by the courts below keeping in view
Section 34 of the CPC. As per Section 34 CPC, the interest can be
granted on a bank rate prevalent at the time.
17. Nothing has been brought to the notice of this Court by the
learned counsel for the respondents-plaintiffs that at the time when the
loss was caused by the appellant-defendant, the bank rate admissible was
12%/. Rather, no such evidence has been brought on record to support
that the loss caused should be returned with interest @ 12% per annum,
which was the bank rate. Even otherwise, the principle amount sought to
be recovered was ₹8,26,075/- along with interest, which was being
claimed upto the date of filing of the suit. Interest has been directed to be
paid on principle amount as well interest i.e. ₹11,23,462/- which actually
means that the appellant-defendant is being asked to pay interest on
interest, which is not permissible, hence, the judgment of the lower
appellate court needs to be modified to the said extent that the suit filed
by the respondents-plaintiffs qua the principle amount of ₹8,26,075/- is
allowed along with interest @ 6% per annum, which is the bank rate
admissible keeping in view Section 34 of CPC. The interest will be paid
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CM-12947-C-2013;
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from the date amount became due till the discharge of the liability by the
appellant-defendant.
18. The judgment and decree of the lower appellate court is
accordingly modified.
Pending miscellaneous application, if any, also stands
disposed of.
April 5th, 2024 (HARSIMRAN SINGH SETHI)
kanchan JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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