Union of India Vs Ms Bindeshwari Negi

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( 2024:HHC:4332 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

	RSA No.571 of 2009 Reserved on : 27 th June, 2024 Decided on : 3 rd July, 2024
Union of India & Another	…..Appellants
	Versus
Bindeshwari Negi	…..Respondent

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Coram

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The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?¹

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For the appellants	: Mr. Shiv Pal Manhans, Senior
	Panel Counsel.
For the respondent	: Mr. Harsh Khanna, Advocate.

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Virender Singh, Judge .

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Appellants have preferred the present Regular Second Appeal against the judgment and decree dated 30.06.2009, passed by the Court of learned District Judge, Shimla, District Shimla, H.P. (hereinafter referred to as the ‘First Appellate Court’), in Civil Appeal No.8-S/13 of 2008, titled as Bindeshwari Negi Vs. Union of India & Another. 2. Vide judgment and decree dated 30.06.2009, the appeal preferred by respondent Bindeshwari Negi, has been

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1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

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2

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allowed by the learned First Appellate Court, which has been preferred, against the judgment and decree dated 14.05.2007, passed by the Court of learned Civil Judge (Junior Division), Court No.3, Shimla, District Shimla, H.P. (hereinafter referred to as the ‘trial Court’), in Civil Suit No.76/1 of 2003, titled as Union of India & Another Vs. Bindhyeshwari Negi.

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Vide judgment and decree dated 14.05.2007, the learned trial Court has decreed the suit filed by the plaintiffs, by granting the following relief to the appellants:-

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“ In view of my findings given on the various issues above, the suit of the plaintiff is decreed with costs against the defendant for the recovery of Rs.88,895/- with pending and future interest at the rate of 9% per annum till the realization of the entire decreetal amount. Decree sheet be prepared accordingly. File after due completion be consigned to the record room.”

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For the sake of convenience, the parties to the present lis are hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court.

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Brief facts, leading to the filing of the present appeal, before this Court, may be summed up, as under:-

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5.1. Plaintiffs have filed the suit for recovery of Rs.88,895/-, against the defendant, being outstanding bills of telephone number SM-5385/72336/241336 (hereinafter

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referred to as the ‘telephone number in question’), which was closed due to non-payment OF BILLS.

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5.2. Plaintiffs have filed the suit on the ground that the defendant was subscriber of the telephone number in question, which was installed, on the request of defendant and the same was used by her, as per her requirement. For the billing period 10/95 to 4/97, a sum of Rs.88,895/- is stated to be outstanding against the defendant, which, despite repeated requests, made by the plaintiffs, was not paid.

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On the basis of the above facts, a prayer has been made to decree the suit.

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When put to notice, the suit has been contested by defendant, by filing the written statement, wherein the preliminary objections that the suit is barred by limitation; the suit is not maintainable, in the present form; the suit is bad for non-joinder of necessary parties, as the State of Himachal Pradesh through Chief Secretary and the FC Tribal Development Department of Shimla are the necessary parties; the suit has not been properly verified; the suit is not properly valued for the purposes of Court fee and jurisdiction; and the plaintiffs have not approached the Court with clean hands, have been taken.

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On merits, the suit has been contested by denying that the plaintiffs are competent to file the present suit on behalf of Union of India. The suit has further been contested by denying that the telephone number in question, was installed on the request of the defendant.

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According to the defendant, when she was posted, as Additional Deputy Commissioner at Kaza, to manage the administration of far off places, the Government of Himachal Pradesh allowed the facility of telephone for the defendant, at her local residence at Shimla. For the said period, Financial Commissioner, Tribal Development Department, Shimla, has also verified the bills of defendant, at that time.

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According to the defendant, the State Government, through Chief Secretary and Financial Commissioner, Tribal Department, Shimla, are liable to make the payment of the amount, claimed as bill, for the period in question. Other allegations have also been denied.

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On the basis of the above facts, a prayer has been made to dismiss the suit.

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The plaintiffs filed the replication denying the preliminary objections, as well as, the contents of the

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written statement, by virtue of which, the suit has been contested, by reiterating that of the plaint.

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From the pleadings of the parties, the following issues were framed by the learned trial Court vide order dated 13.12.2005:-

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1. Whether the plaintiff is entitled to recover the amount in the sum of Rs.88895/- with interest from the defendant as alleged? OPP

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2. Whether the suit is barred by limitation? OPD 3. Whether the plaint has not been filed in accordance with provisions of Order 7 Rule 1 and 2 CPC, as alleged? OPD

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4. Whether the suit is bad for non-joinder of necessary parties? OPD

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5. Whether the plaint has not properly verified in accordance with law? OPD

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6. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD

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7. Whether the plaintiff has not come to the Court with clean hands? OPD

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8. Relief.

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Thereafter, the parties to the lis were directed to adduce evidence.

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After closure of the evidence, learned trial Court has decreed the suit of the plaintiff, vide judgment and decree, as referred to above.

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Aggrieved from the said judgment and decree, the defendant has preferred the appeal, under Section 96 of the Code of Civil Procedure (hereinafter referred to as ‘the CPC’), before the learned First Appellate Court.

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Learned First Appellate Court, vide judgment and decree dated 30.6.2009, has allowed the appeal, mainly on the ground that the suit filed by the plaintiffs is not governed by the limitation, as prescribed, under Article 112 of the Limitation Act.

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Feeling aggrieved from the said judgment and decree, the present appeal has been preferred before this Court, on the ground that the learned First Appellate Court has wrongly held that the suit of the plaintiffs is not governed by Article 112 of the Limitation Act, wherein limitation for filing the suit, on behalf of the Union of India or State Government, has been prescribed to be 30 years.

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Asserting the claim, on the basis of Article 112 of the Limitation Act, the findings have been assailed on the ground that the plaintiffs are under direct control of Ministry of Telecom, Government of India, and governed by the Rules and bylaws of the Government of India.

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These grounds have been put forward to prove that the learned First Appellate Court, has wrongly held that

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the suit of the plaintiffs is not covered under Article 112 of the Limitation Act.

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On the basis of the above grounds of appeal, Shri Shiv Pal Manhans, learned Senior Panel Counsel has prayed that the judgment and decree passed by learned First Appellate Court, may kindly be set aside by restoring the judgment and decree passed by the learned trial Court.

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Per contra, Shri Harsh Khanna, learned counsel appearing for the respondent-defendant has opposed the prayer, so made by the learned Senior Panel Counsel, appearing for the appellants-plaintiffs and prayed for dismissal of the appeal.

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The appeal has been admitted on the following substantial questions of law, vide order dated 16.12.2010:-

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1. Since the suit has been filed by the plaintiff Nigam on behalf of Government of India who is under the direct control of Government of India for the purpose of administration, Finance etc., whether the suit of the plaintiff is within period of limitation in view of Article 112 of Limitation Act and whether the plaintiff Nigam comes within the definition of State as construed under Article 12 of the Constitution of India?

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2. Since the learned First Appellate Court has very categorically held that the defendant has failed to make the payment of bill due to the Government of India as she was personally liable to pay the same, whether the findings of the learned First Appellate Court is sustainable in the eyes of law with respect to limitation in the absence of any documentary and oral evidence led by the defendant.

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Although, at the time of admission, the appeal has been admitted on both the above mentioned substantial questions of law, but, to the considered opinion of this Court, substantial question of law at serial No.1, is to be taken up first.

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The suit has been filed by the Union of India through General Manager, Telecom District (BSNL), Block No.35 SDA Complex, Kasumpati, Shimla-9, along with Accounts Officer (Telecom Revenue Account), Office of the General Manager, Telecom District (BSNL), block No.35 SDA Complex, Kasumpati, Shimla-9.

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The material question, which arises for determination before this Court, as to whether the plaintiffs fall within the expression ‘Central Government’, is liable to be decided against the plaintiffs, in view of the decision of Hon’ble Supreme Court in Bharat Sanchar Nigam Limited versus Pawan Kumar Gupta, (2016) 1 Supreme Court Cases 363 , in which, it has been held that the BSNL does not fall within the expression ‘Central Government’. Relevant paragraphs 8 to 13 of the judgment, are reproduced, as under:-

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“8. The query that falls for our scrutiny in that, though, in respect of the claim against the respondent-subscriber, the amount due from the installation of the telephone connection i.e. 29.01.1992 till its disconnection on 16.03.1998 is Rs.25,296/-, the DoT of the Central Government is entitled to file a suit within thirty years under the period of limitation provided under Article 112 of the Limitation Act, whether this benefit will accrue in favour of the appellant-company either from the date of the execution of the Office Memorandum, referred to supra, transferring the assets and liabilities and remedies, or the date of its incorporation. This aspect of the matter is examined by us very carefully in the light of the provisions of Section 3 and Section 130 of the TP Act and in the backdrop of the Office Memorandum vis-a-vis the Office Memorandum dated 30.09.2000 executed in favour of the appellant-company transferring its assets and liabilities and also remedies available for the transferor in favour of the appellant-company, the legal contention urged is that by virtue of the said transfer an actionable claim, i.e. a claim to any debt from the subscriber should be recoverable debt from the subscriber by the company. Reliance is placed upon the Accounting Standards and Corporate Accounting, referred to supra, and the clarification given in the said extracts, to contend that the actionable claim/ current assets includes the inventories and trade receivables and the said principle is applicable to the appellant-company, being a registered company under the provisions of the Companies Act. Section 133 of the Companies Act, 2013 which provides that the Central Government would prescribe accounting standards and Section 3(8) of the General Clauses Act, which relevant provision is extracted hereinabove, have been relied upon to substantiate the contention that the appellant-company is an agency or instrumentality of the Central Government as it is being financed and controlled by the Central Government, and therefore, the benefit accrued in favour of the DoT of the Central Government under Article 112 of the Limitation

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Act would stand extended to the appellantcompany, it being an instrumentality of the Central Government for the reason that 100% share capital of the company is owned in the name of the President of India, and therefore, it partakes the character of Central Government. It is urged that this aspect of the matter has not been properly examined and considered by the courts below while rendering the impugned judgments and decrees.

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9. These contentions cannot be accepted by this Court for the following reasons.

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10. No doubt, the assets and liabilities are transferred by the erstwhile DoT in favour of the appellant-company, including the debts due from the subscribers, the respondents herein, an asset which is registered with the company pursuant to the transfer of assets and liabilities as provided under Section 130 of the TP Act upon which reliance is placed by the learned senior counsel. What requires to be carefully examined is that the actionable claim, a claim to any debt from a subscriberdebtor after the assets and liabilities are transferred by an instrument, the Office Memorandum, referred to supra, in favour of the appellant-company, is a legally recoverable debt to avail the remedy which is transferred in favour of the appellant-company.

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11. It could be seen from the undisputed facts, which are adverted to in the impugned judgment that undisputedly the suit claims against the debtors/subscribers are beyond the period of three years of limitation which is available. Therefore, contention of the learned senior counsel on behalf of the appellantcompany that the benefit accrued in favour of the Central Government under Article 112 of the Limitation Act is attracted to the fact situation, has a far reaching consequences for the reason that, though the Company is a statutory authority, it is not synonymous with the Central Government. The expression 'Central Government' under the General Clauses Act is clearly defined, which relevant provision is extracted in the aforestated portion of this judgment. By a reading of the

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aforestated definition, at no stretch of imagination it can be construed that the appellant-company which is registered under the Companies Act, though share capital of the company owned in the name of the President is 100 per cent, it cannot be construed as the Central Government for the reason that the appellant-company by registration under the Companies Act, no doubt it is under the control of the Central Government as it is fnanced andi its administration is under the absolute control of the Central Government, nonetheless, it shall not be construed as the Central Government for the reason that the appellantcompany is a separate legal entity. It also cannot claim that it is entitled to the benefit under Article 112 of the Limitation Act on the ground that a debt recoverable from the subscriber is an actionable claim in terms of Section 3 of the TP Act, even if the same has been transferred under Section 130 of the TP Act by execution of the Office Memorandum, referred to supra, thereby vesting in it the rights and the remedies vis-a-vis the same. No doubt, by execution of the said instrument it has got the actionable claim transferred, the assets that must be recoverable debts from the debtors and subscribers. As could be seen from the claim, the undisputed facts of these appeals are that on the date of the transfer, some of the claims were time barred, therefore, the company cannot construe that the time barred debts are also an actionable claim by way of transfer in its favour, which entitles it to avail the benefit of Section 112 of the Limitation Act i.e. the period of thirty years to institute suits for recovery of the same. Such an interpretation is contrary to Article 112 of the Limitation Act, 1963.

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12. A careful reading of Article 112 of the Limitation Act clearly reveals that in any suit (except a suit before the Supreme Court in the exercise of its original jurisdiction) by or on behalf of the Central Government or any State Government, including the Government of the State of Jammu and Kashmir, the period of limitation would be thirty years. The period of limitation time from which the period begins to

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run is mentioned under Column 3 of the above Article of the Limitation in the Schedule, which reads as follows.

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“When the period of limitation would begin to run under this Act against a like suit by a private person.”

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By a careful reading of the aforesaid Article, it makes abundantly clear, that a suit can be instituted by or on behalf of the Central Government. It is not the case of the appellant herein that it has filed the suit on behalf of the Central Government. This is for the reason that the appellant-company has instituted the suit on the basis of the instrument of Office Memorandum wherein the DoT has transferred its assets and actionable claims. It cannot be said that it has filed the suit on behalf of the Central Government because the appellant/ plaintiff is a company, a distinctly independent and separate entity. Therefore, the reliance placed upon the aforesaid Article 112 of the Limitation Act to claim that there would be thirty years of limitation period as the asset transferred is an actionable claim due to the DoT is wholly misconceived in law.

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13. The other argument advanced by the learned senior counsel on behalf of the appellant-company that it is an agency or instrumentality under the Central Government which falls within the inclusive definition as defined under Section 3(8) of the General Clauses Act is wholly misconceived for the reason that Article 112 of the Limitation Act speaks of the Central Government or the State Government. Its agencies or instrumentalities are not incorporated under Article 112 of the Limitation Act. Such an argument is contrary to the Constitution Bench judgment of this Court in the case of Padma Sundara Rao (Dead) and Ors. vs. State of T.N. and Ors. reported in (2002) 3 SCC 533. In paragraph 14 of the said judgment it is categorically stated that the legislative casus omissus cannot be supplied by judicial interpretative process and the Court cannot do the legislative functions. Para 14 of the said judgment reads thus:

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“14. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiah's case, the period was further stretched to have the time period run from date of service of High Court's order. Such a view cannot be reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only clauses (i) and/or (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent.”

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(emphasis supplied)

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In view of the law laid down by the Hon’ble Supreme Court, in Pawan Kumar Gupta ’s case supra, this Court is of the view that the plaintiffs are not entitled to the benefit of Article 112 of the Limitation Act.

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Article 112 of the Limitation Act is reproduced as

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under:-

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Any suit (except a suit before the Supreme Court in the exercise of its original jurisdiction) by or on behalf of the Central Government or any State Government, including the Government of the State of Jammu and Kashmir.

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Thirty When the period of years. limitation would begin to run under this Act against a like suit by a private person.

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It is the case of the plaintiffs that the defendant has not paid telephone bills from October 1995 to April 1997, and the suit is liable to be filed within a period of three years, from the date, when, the cause of action accrued, in favour of the plaintiffs.

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In the present case, the cause of action, if, it has to be taken, from the date of last default, has accrued to the plaintiffs, in the month of May 1997, whereas, the suit has been filed on 29.9.2003, i.e. after a period of six years. Consequently, said suit, from any stretch of imagination, cannot be said to be within limitation.

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In view of the discussion made hereinabove, the substantial question of law No.1 is decided against the plaintiffs and it is held that the suit of the plaintiffs is barred by limitation.

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Once, it has been held that the suit of the plaintiffs is barred by limitation, there is no need to adjudicate upon substantial question of law No.2.

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In view of the above findings, the appeal filed by the plaintiffs fails and the same is accordingly dismissed, by affirming the judgment and decree passed by the learned First Appellate Court. There shall be no order so as to costs. 34. Decree sheet be prepared accordingly.

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Record be sent back.

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(Virender Singh) July 03, 2024 (ps) Judge

Union of India v. Ms Bindeshwari Negi

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Union of India v. Ms Bindeshwari Negi

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