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2010 DIGILAW 789 (MP)

Mehmooda Bai v. Central Bank Of India

2010-08-05

J.K.MAHESHWARI, K.K.LAHOTI

body2010
Judgment (1) THE petitioner has sought following reliefs :- 1."That this Hon. Court may be pleased to call for the entire relevant records. 2.That this Hon. Court may be pleased to direct the respondent bank to pay the rent for the month of April,2009 with interest and the bank rate to the petitioner. 3.Any other relief which this Hon. Court may deem just and proper in the facts and circumstances of the case may kindly be issued in favour of petitioner with the cost of the instant petition to the petitioner." (2) THE petitioner has also challenged order dated 14.9.2009 passed by the First Addl. District Judge, Bhopal in execution Case No.40A-89/04-07 by which the Addl. District Judge declined to make payment of Rs.62,652/- to the petitioner decree holder. The facts of the case are that the petitioner filed a civil suit against the respondents No. 1,2 and 3 for eviction based on landlord tenant relationship. A decree was passed in Civil suit No.40A-89/04-07 against which a First Appeal No.593/07 has been filed before this Court. On 15.1.2008 in the first Appeal the learned Single Judge of this Court stayed the execution of judgment and decree passed by the trial Court on certain terms and in compliance of the order, the tenant/defendant No. 1,2 and 3 deposited the amount apart from other amount of Rs.62,652/- before the trial Court on 5.5.2009. A receipt of which bearing No.67 CCD. No.206 was issued in favour of the respondents. When the petitioner landlord moved an application for withdrawal of the amount, a fact revealed that the amount which was deposited by the aforesaid receipt with the Nazir of the Court, the amount was not transmitted to the Treasury. The First Addl. District Judge, Bhopal on revealing this fact passed the impugned order dated 14.9.2009 by which he declined to make payment of the said amount in favour of the petitioner. This order has cause grievances to the petitioner for filing this petition. (3) LEARNED counsel appearing for the petitioner submitted that in the case it is not in dispute that such amount was deposited by the respondent No. 1,2 and 3 in the Court, of which a due receipt was issued in favour of the tenant on 5.5.2009. This order has cause grievances to the petitioner for filing this petition. (3) LEARNED counsel appearing for the petitioner submitted that in the case it is not in dispute that such amount was deposited by the respondent No. 1,2 and 3 in the Court, of which a due receipt was issued in favour of the tenant on 5.5.2009. As the amount was deposited in the Court, the petitioner herein was entitled to withdraw the amount as she was legally entitled to withdraw the same. There was no fault on the part of the petitioner in respect of non-deposit of the amount by the concerned Nazir in the Treasury so the petitioner cannot be declined to payment of the aforesaid amount. It is further submitted that as the amount has not been deposited by the Nazir in the Treasury, the State is liable for the payment of the aforesaid amount. He has placed reliance to a judgment of the Apex Court in N. Nagendra Rao vs. State of Andhra Pradesh, [ AIR 1994 SC 2663 ]. (4) LEARNED counsel appearing for the Bank submitted that as per the order passed by this Court, respondents No.1 to 3 duly deposited the amount in the Court of which a receipt has been issued in favour of the respondents on 5.5.2009 bearing No.67 CCD 206. After deposit of the amount, the respondents were absolved from the liability of deposit of the amount. The respondents have no concern whether the amount which was deposited with the Nazir of which due receipt was issued to the Bank, was transmitted to the Treasury or not. It is further submitted that respondents No. 1 to 3 are not liable for the payment of the aforesaid amount which was already deposited by them in the Court. Learned counsel appearing for respondent No.4 submitted that the aforesaid amount was defalcated by the Nazir of the Court and in this regard a due enquiry was initiated against him. During the pendency of the proceedings an amount of Rs. 1,54,000/- was recovered from the Nazir but because of death of Nazir during the pendency of the proceedings, now the proceedings have been initiated against the legal heirs of the Nazir and appropriate order shall be passed in that regard. During the pendency of the proceedings an amount of Rs. 1,54,000/- was recovered from the Nazir but because of death of Nazir during the pendency of the proceedings, now the proceedings have been initiated against the legal heirs of the Nazir and appropriate order shall be passed in that regard. It was further submitted that the amount of which defalcation has been made by the Nazir in the official capacity can be reimbursed to the petitioner as per the circular issued by the State Government on 30.12.1995 and 2.11.1972 and the amount may be recovered by the State from the estate of the deceased employee. (5) LEARNED counsel appearing for the State opposed the aforesaid contention who submitted that it was the personal responsibility of the Nazir who defalcated the amount and the petitioner can recover the amount from the estate of Nazir. In support of his contention he placed reliance to Rule 22 Appendix 1(a) and 2 of the M.P. Financial Code and submitted that as per the aforesaid Rule, it is the sole responsibility of the said employee and the State cannot be held vicariously liable for the amount. (6) TO appreciate the rival contentions of the parties, the following position is not in dispute.- 1. That the respondents No. 1 to 3 deposited the amount in the Court on 5.5.2009 of which a due receipt was issued by the concerned Nazir on the same date bearing CCD Receipt No.67. Apart from this a due entry was made in the C.C.D register of the Court at Sr. No.206. 2. That the Nazir of the District Court, Bhopal had not deposited the amount in the Treasury which was his official responsibility. 3. That the petitioner who is the landlord is entitled for the aforesaid amount as the amount was deposited for payment to the petitioner herein. 4. That the respondents No. 1 to 3 had deposited the amount in the Court. Aforesaid amount was the rent for the month of April,2009. 3. That the petitioner who is the landlord is entitled for the aforesaid amount as the amount was deposited for payment to the petitioner herein. 4. That the respondents No. 1 to 3 had deposited the amount in the Court. Aforesaid amount was the rent for the month of April,2009. In such circumstances, who should be liable has been considered by the Apex Court in N. Nagendra Rao (supra) in which the Apex Court considering the question held in para 11 of the judgment :- "Thus, it is clear that this case recognises a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants, and acts committed by public servants, which are not referable to the delegation of any sovereign powers. If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is : was the tortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign powers of the State to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose. The act of the public servant committed by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose. This distinction which is clear and precise in law, is sometimes not borne in mind in discussing questions of the State's liability arising from tortious acts committed by public servants .........." (7) THE Apex Court in the same judgment in para 32 of the judgment, further held that :- And the citizens of the independent nation who are governed by its own people and Constitution and not by the Crown are still faced, ever after well nigh fifty years of independence, when they approach the Court of law for redress against negligence of officers of the State in private law, with the question whether the East India Company would have been liable and, if so, to what extent for tortuous acts of its servants committed in course of its employment. Necessity to enact a law in keeping with the dignity of the country and to remove the uncertainty and dispel the misgivings, therefore, cannot be doubted. (8) IN the facts of the case, the Nazir of the Court was an employee of the State and was discharging the duties which were assigned to him. IN the official capacity he received the amount from the respondents No. 1,2, and 3 and a due receipt was issued by him to the respondents No. 1,2 and 3. All these acts were done by him in his official capacity and none, either the petitioner or the respondents No. 1,2 and 3 were required to see whether after deposit of the amount it was deposited by the Nazir in the Treasury or not. It was not the duty of the petitioner or respondents No. 1,2 and 3 to keep a watch on the Nazir in this regard. It was neither expected nor it could be done by the petitioner and respondents No. 1,2, and 3 to see whether this amount was deposited by the Nazir in the Treasury or not. It was not the duty of the petitioner or respondents No. 1,2 and 3 to keep a watch on the Nazir in this regard. It was neither expected nor it could be done by the petitioner and respondents No. 1,2, and 3 to see whether this amount was deposited by the Nazir in the Treasury or not. It was an official act which ought to have been done by the Nazir and the concerned official who were responsible to look into the affairs of the Nazir ought to have seen the act of the Nazir whether he has deposited the amount in the Treasury or not. IN these circumstance, for the act of the Nazir, the State is vicarious Habile to make payment of the aforesaid amount to the petitioner. However, the State after payment of the amount can recover the amount from the estate of Nazir who is stated to be dead. It is submitted by the learned counsel for respondent No. 4 that a due enquiry was initiated against the Nazir and an amount of Rs. 1,54,000/- was recovered from him during the life time of Nazir but after his death the proceedings were initiated for recovery of the amount, from the estate of Nazir and from the persons who were liable for such defalcation. Two circulars are produced before this Court by the respondent No.4 in support of his contention that in such circumstances even when there is defalcation by an employee what recourse should be taken by the State. For ready reference, both the circulars are quoted verbatim:- (2) "Copy of M.P.F.D. Memo No. 1220/IV-B-6/72, dated 2.11.1972 addressed to all departments of Govt. All H.O.D. All Collectors. Sub:- Regarding issue of instructions in respect of procedure to be followed for adjustment etc. of the redrawal of an amount lost through misappropriation or defalcation, embezzlement etc. Under advice of the C.A.G. Of India, it has been decided that the redrawal of the amount lost through misappropriation, defalcation, embezzlement, and the like, should be debited to the head "S-Special Advances" sub-ordinate to the major head "Departmental Advances", in Section T-Deposit and Advance Part-Ill "Advances not bearing interest." Under specific sanction of the Government pending investigation of the loss, fixation of responsibility and finalisation of the action for recovery of the amount lost if possible. The loss will have to be reported in accordance with the provisions contained in Rules 22 and 23 of the MPFC Vol. I. Any amount subsequently recovered may be credited to the above head and the balance, if found irrecoverable, will have to be adjusted as a loss under the relevant service head after obtaining Govt. sanction." (9) IT is apparent that in case of defalcation or misappropriation of the amount, such amount has to be paid by the State by debeting it to the Head "S-Special Advance" and thereafter the aforesaid amount shall be recovered and deposited in the said head by the said Government officials. In view of the aforesaid circular, the contention of Shri Jain, learned Dy. A.G. that the amount should be recovered from the estate of the deceased has no legs to stand. Apart from this under Rule 22 and 25 which are referred by Shri Jain though provides that such loss can be recovered from the employees but it is an internal procedure which can be followed by the State against the employee but the person who is entitled for the refund of the amount cannot be directed to file a civil suit for the recovery of the aforesaid amount from the estate of such employee. So State, itself, has explained the Rule 22 and 25 by issuing aforesaid circulars of which correctness has not been disputed, so the contention of the State cannot be accepted. (10) IN view of the aforesaid, this petition is allowed with following directions :- i) That the respondent No.5/State shall release Rs.62,652/- within a period of 60 days from today to the District Judge, Bhopal and on release of the amount the same shall be paid to the petitioner by the District Judge, Bhopal in accordance with law and in this regard a due entry shall be made in the records of the District Judge, Bhopal. ii) After release of the amount the District Judge/competent Authority shall initiate due proceedings in accordance with law, for the recovery of the said amount from the estate of the deceased employee. iii) The District Judge shall follow due procedure of law for the recovery of the aforesaid amount. After the recovery of the amount from the estate of the deceased employee Deepak Phoopwale, the aforesaid amount shall be deposited with the State as provided under circular dated 2.11.1972 (supra). iii) The District Judge shall follow due procedure of law for the recovery of the aforesaid amount. After the recovery of the amount from the estate of the deceased employee Deepak Phoopwale, the aforesaid amount shall be deposited with the State as provided under circular dated 2.11.1972 (supra). Considering the facts of the case, there shall be no order as to costs. Petition allowed.