THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Appellate Jurisdiction)
---------------------------------------------------------------------------------------------
Single Bench: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
---------------------------------------------------------------------------------------------
R.F.A. No. 02 of 2021
Mamta Gurung,
W/o Kamal Gurung,
R/o Burtuk Busty,
P.O. & P.S. Gangtok,
East Sikkim. ..... Appellant
Versus
The Director,
Vigilance Department,
Sikkim Police,
Top Floor GPF and Pension Office,
Government of Sikkim,
Gangtok,
East Sikkim. ..... Respondent
Appeal under Order XLI Rule 1 and 2 of the
Code of Civil Procedure, 1908.
----------------------------------------------------------------------------
Appearance:
Ms Navtara Sarda, Advocate (Legal Aid Counsel), for the
Appellant.
Mr. Yadev Sharma, Government Advocate with Mr. Sujan
Sunwar, Assistant Government Advocate for the respondent.
-----------------------------------------------------------------------------
Date of hearing : 13.04.2022
Date of judgment: 13.04.2022
J U D G M E N T (ORAL)
Bhaskar Raj Pradhan, J.
1. The present appeal seeks to assail the judgment passed by
the learned District Judge, Special Division-I, Sikkim at Gangtok, in
Money Suit No. 240 of 2018 dated 26.06.2021 as well as the decree
dismissing the suit filed by the appellant herein against the Director, 2 R.F.A. No. 02 of 2021 Mamta Gurung vs. The Director, Vigilance Department
Vigilance Department, Sikkim Police, Government of Sikkim
(defendant no.2 in the suit and the sole respondent herein).
2. The plaint was filed under Order VII of the Code of Civil
Procedure, 1908 and styled as suit for recovery of money and other
reliefs. The suit was filed against the Managing Director, Sikkim Co-
operation Milk Producer's Union (SCMPU) as defendant no.1 and the
Director, Vigilance Department, Sikkim Police, Government of Sikkim
as defendant no.2. In the plaint, it was the appellant's case that
SCMPU had auctioned a Maruti Alto Car bearing registration no. SK-
02/A-0524 (the vehicle) on 16.02.2007 in which she participated and
was declared the highest bidder. The appellant states that on
16.02.2007, she purchased the vehicle in the auction for a total
consideration of Rs.1,01,000/-. It is alleged that although the
appellant was declared the real owner of the vehicle the SCMPU has
failed to transfer the ownership of the vehicle in the name of the
appellant and continues to be recorded in the name of the original
owner. It is the appellant's case that the purchase of the vehicle was
for the purpose of plying a taxi by Ratan Kumar Gurung (younger
brother of the appellant), as he was unemployed. It is asserted that in
the month of May 2007, the defendant no.2 had illegally and forcefully
taken away the said vehicle from the makeshift garage of the appellant
along with the ignition key, documents, etc., without specifying valid
reason or giving any prior notice. Ever since then the vehicle had been
in the custody of the respondent. The appellant had requested for
handing over the vehicle or refund the money paid by the appellant to
the SCMPU but in vain. The property seizure memo by which the 3 R.F.A. No. 02 of 2021 Mamta Gurung vs. The Director, Vigilance Department
respondent seized the vehicle was also annexed to the plaint. It is the
case of the appellant that her brother Ratan Kumar Gurung could
have earned a sum of Rs.26,64,000/- with the use of the vehicle as per
the Table provided in paragraph 11 thereof. The Table is reproduced
hereinbelow:-
SL PERIOD NUMBER OF EARNING PER TOTAL
NO. DAYS (@ DAY (in rupees)
average of 30 (in rupees)
days per
month)
1 01.07.2007 180 DAYS 600 1,08,000/-
to
31.12.2007
2 01.01.2008 1080 DAYS 600 6,48,000/-
to
31.12.2010
3 01.01.2011 1800 DAYS 700 12,60,000/-
to
31.12.2015
4 01.01.2016 810 DAYS 800 6,48,000/-
to
31.03.2018
26,64,800/-
3. The appellant further states that the respondent filed a
case against her husband and others before the learned Special Judge,
Prevention of Corruption Act, East Sikkim at Gangtok, being Sessions
Trial (Vig) case No. 1 of 2011, in which he was convicted under section
420 read with section 120B and Section 13(1)(d)(ii) punishable under
section 13(2) of the Prevention of Corruption Act, 1988 (P.C. Act) and
sentenced to undergo simple imprisonment of one year and to pay a
fine of Rs.5000/- for the offence under section 13(1)(d)(ii) of the P.C.
Act and in default of payment of fine to undergo further imprisonment
of five months. According to the appellant herself, the gravemen of the
prosecution case was that the vehicle which belonged to SCMPU was
disposed of for a sum of Rs.1,01,000/- by her husband. The appellant
claims that in appeal before this court, by a judgment dated 4 R.F.A. No. 02 of 2021 Mamta Gurung vs. The Director, Vigilance Department
09.08.2015 (sic, 09.06.2015) in Crl. Appeal No. 9 of 2014 (Dr. Kamal
Gurung vs. State of Sikkim), the appellant's husband was acquitted of
the charges. The appellant states that she is entitled to damages for
mental torture, harassment and financial losses which she and her
family had suffered and continues to undergo due to the wrongful acts
of the respondent. It is claimed that the amount of Rs.26,64,000/- is
liable to be paid to her by the respondent for loss of earning for last 11
years and Rs.10,00,000/- as damages for mental sufferings, agonies,
torture and harassment. It is claimed that a notice was issued to the
SCMPU as well as the respondent demanding from both, payment of
Rs.36,64,000/-. It is claimed that the cause of action to file the suit
arose on 01.05.2007 when the respondent seized the vehicle from the
appellant and also on 09.08.2015 (sic, 09.06.2015) when this court
acquitted the appellant's husband. It is claimed that cause of action
arose when the appellant sent a notice under section 80 of the CPC to
the respondent. On those pleadings, the appellant claimed the
following reliefs:-
a. Rs.10,00,000/- as general damage for mental and bodily pain and loss of reputation.
b. Rs.1,01,000/- cost of the vehicle. c. Rs.26,64,000/- loss of earning. d. interest pendent lite and future. e. any other relief/reliefs as this Hon'ble Court may deem fit and proper, in the interest of justice and equity.
4. The SCMPU filed written statement contesting the suit.
The respondent contested the suit on the ground that the vehicle was
the subject matter of investigation and therefore, required to be seized
by them and it could not have been handed over without orders of the 5 R.F.A. No. 02 of 2021 Mamta Gurung vs. The Director, Vigilance Department
court. It was submitted that the appellant had no cause of action
against the respondent since the vehicle was seized for investigation of
a cognizable case and in discharge of its official duty. It is further
asserted that the respondent in terms of the judgment dated
24.03.2014, passed by the learned Special Court, P.C. Act in S.T. (Vig.)
Case No. 01 of 2011, had asked the appellant to take necessary steps
for release of the vehicle but the appellant did not take any steps for
the same.
5. The appellant as well as her brother, Ratan Kumar
Gurung, filed evidence on affidavit reiterating the averments in the
plaint. The appellant exhibited Money Receipt dated 16.02.2007 for
payment made for the vehicle as exhibit-1; the letter dated 15.03.2007
addressed to the Joint Secretary of the Department of Motor Vehicle
for making arrangement to register the vehicle in her name as exhibit-
2; the property seizure memo by which the vehicle was seized by the
defendant no.2 as exhibit-3; the judgment of this court in Crl. A. No. 9
of 2014 as exhibit-4; Notice dated 02.04.2018 issued by the appellant
as exhibit-5; the photocopies of envelopes for posting the Notice and
postal receipts as exhibits - 6 and 7; and the notice under section 80
CPC dated 06.04.2018 as exhibit-8.
6. The respondent filed the evidence on affidavit of Shri Passang
Tshering Lepcha who was the Investigating Officer of criminal case no.
S.T (Vig) Case No. 01 of 2011 reiterating the stand taken in the written
statement. He exhibited Home Department's Notification No. 16(2)-
Home/78 dated 28.11.1978 as exhibit D-1; the Inquiry/Verification
Report dated 29.03.2007 as exhibit D-2; the charge sheet in R.C. case 6 R.F.A. No. 02 of 2021 Mamta Gurung vs. The Director, Vigilance Department
No. 4 of 2007 as exhibit D-3; certified copy of the FIR dated
01.05.2007 as exhibit D-4; certified copies of the letter dated
28.05.2010 and 19.04.2010 as exhibits - 5 & 6; certified copy of
judgment of conviction dated 24.03.2014 as exhibit D-7; and certified
copy of reply of the respondent dated 31.05.2018 to the legal notice of
the appellant as exhibit D-8. Shri M. Ravindran, the Technical Expert
in the Vigilance Department, also deposed for the respondent.
7. It transpires that on 03.09.2019 a petition filed by SCMPU
under Order I Rule 10(2) CPC was allowed and consequently, SCMPU,
the then defendant no.1, was deleted from the array of defendants
leaving the respondent alone to contest. The learned District Judge
concluded then that SCMPU was neither interested in the claim made
by the appellant nor was its presence necessary for proper and
effective adjudication of the suit and for granting relief. The entire case
of the appellant was against the respondent only and the loss and
damages suffered by the appellant was because of the seizure of the
vehicle by the respondent. This order was not assailed and has become
final.
8. The learned District Judge framed four issues, tried them
and held all the issues against the appellant. The appellant is
aggrieved by the impugned judgment and decree dismissing her suit.
9. The first issue on the maintainability of the suit was
decided against the appellant. The learned District Judge held that the
suit was for recovery of money and other reliefs and not for malicious
prosecution as contested by the learned government Advocate. It 7 R.F.A. No. 02 of 2021 Mamta Gurung vs. The Director, Vigilance Department
further held that admittedly the cause of action first arose on
16.02.2007 when the appellant paid Rs.1,01,000/- in the auction for
the vehicle and thereafter on 01.05.2007 when the vehicle was seized
by the respondent. The learned District Judge held that the cause of
action cannot be taken from the date on which the appellant's
husband was acquitted by this court in appeal since the conviction
and acquittal has no nexus with the cause of action for recovery of
money. The period of limitation therefore was to be reckoned from
16.02.2007 and since limitation of recovery of money itself is three
years, it is hopelessly barred by law of Limitation. Considering the
averments in the plaint as well as the prayer for compensation, it is
quite evident as rightfully pointed by Mr. Yadev Sharma that it is
Article 91 of the Limitation Act, 1963 which would be the appropriate
Article. The suit for compensation for wrongfully taking or injuring or
wrongfully detaining any other specific movable property would be
guided by Article 91(b) of the Limitation Act, 1963 which prescribes a
period of three years as the period of limitation and time begins to run
when the property is wrongfully taken or injured or when the
detainer's possession becomes unlawful. It is the case of the appellant
that the vehicle which was purchased by her was wrongfully seized by
the respondent on 01.05.2007. As per the averments in the plaint
itself, the cause of action of the suit first arose on the said date.
Applying the said Article, limitation would expire on or about
01.05.2010. Admittedly, the plaint was filed on 05.06.2018 after
eleven years. The suit was hopelessly barred by limitation and the
learned District Judge has rightfully held the suit to be barred by
limitation.
8
R.F.A. No. 02 of 2021 Mamta Gurung vs. The Director, Vigilance Department
10. The second issue held against the appellant was -
Whether the seizure and detention of the vehicle by the defendant was
done malafide and with ulterior motive? Admittedly, there is no
averment in the plaint that the seizure and detention of the vehicle
was malafide and with ulterior motive. In paragraph 10, it is averred
that the respondent had illegally and forcefully taken away the vehicle.
This is the only averment in the plaint. Ms Navtara Sarda fairly
submits that there is no evidence laid by the appellant to prove that
the seizure was malafide and with ulterior motive. It is the clear stand
both in the written statement as well as in the evidence of Mr. Passang
Tshering Lepcha that the seizure was done in connection with an
investigation of a criminal case alleging a cognizable offence regarding
the very same vehicle and that the seizure was necessary. The learned
District Judge concluded that the seizure of the vehicle by the
respondent was as per law and there was no personal grudge against
the appellant. This court is of the firm view that the reasoning of the
learned District Judge is sound.
11. The third issue held against the appellant was - Whether
the plaintiff had suffered mental pain, agony and monetary loss due to
the action of the Defendant and whether the Plaintiff is entitled for the
recovery of loss and damages as prayed? The appellant had averred
that the vehicle was purchased by her for the use of her younger
brother Ratan Kumar Gurung to ply as a taxi and due to the seizure of
the vehicle they had suffered a loss as given in the Table above. Both
the appellant as well as Ratan Kumar Gurung reiterated this fact in
their evidence on affidavits. In cross-examination of Ratan Kumar 9 R.F.A. No. 02 of 2021 Mamta Gurung vs. The Director, Vigilance Department
Gurung, he admitted that he did not get an opportunity to ply the
vehicle as taxi and therefore there was no loss and that the claim for
the loss of Rs.26,64,000/- was calculated on an average and on
assumption. A perusal of the evidence laid by the plaintiff discloses
that there is no evidence to support the claim of the appellant as given
in the Table. There is not even a statement that the rate for plying taxi
at the relevant time was as claimed leave alone any proof thereof. As
such the issue was correctly decided against the appellant. The
learned District Judge has, thus, rightly held that the appellant was
not entitled for any reliefs.
12. The appellant has failed to prove her case against the
respondent of mental agony or loss of earning. Insofar as the cost of
the vehicle is concerned, it seems that the appellant had not sought
for release of vehicle from the trial court which disposed of the
criminal case against her husband. In any case, the appellant has
failed to prove that the respondent is liable to pay for the cost of the
vehicle.
13. The appeal is accordingly dismissed and disposed of.
14. Copy of this judgment be transmitted to the court of the
learned District Judge, Special Division-I, Sikkim at Gangtok.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes/No
Internet : Yes/No
bp
