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2011 DIGILAW 1707 (PNJ)

Minakshi Thapar v. Union of India

2011-09-07

KANWALJIT SINGH AHLUWALIA

body2011
JUDGMENT Kanwaljit Singh Ahluwalia, J. 1. For the reasons stated in the application, the same is allowed and the delay of 122 days occurred in re-filing of the appeal is condoned. Main Case Union of India, Ministry of Telecom, through its General Manager, Telecom, Patiala instituted a suit for recovery of ` 47,835/-. It was pleaded in the suit that a telephone bearing No. 214375 (PCO) was provided at the premises of the defendant and the same was utilized by her. Various bills were raised by the plaintiff-Department between 6th February, 1997 to 21st June, 1997 and an amount of ` 47,835/- became due and was outstanding in the account of the defendant. Defendant had failed to make the payment of outstanding bills, hence, the suit was filed. 2. In the present case, the suit was instituted on 22.7.2000. The only question which this Court is called upon to answer is as to whether the suit was filed by the plaintiff-respondent within the period of limitation or not. During the course of arguments, an ancillary question has also been raised by Counsel for the appellant that respondent-plaintiff could not have filled the lacuna by leading additional evidence before the lower appellate court. 3. In the present case, the trial court had dismissed the suit on the ground that PW 1 K.N. Prashar, Junior Accounts Officers, BSNL, Patiala had stated that the defendant was not personally known to him and he had not visited the premises where the alleged connection was installed. Furthermore, he had also stated that the telephone connection was not installed in the demised premises in his presence. It was stated by the trial court that since a definite stand was taken by the defendant that telephone No. 214375 was not installed at her premises and she had not applied for the same, it was incumbent upon the plaintiff to prove by leading evidence that defendant had got the telephone installed and had availed the facility. 4. Aggrieved against the judgment rendered by the trial court, Union of Indian - plaintiff-respondent filed an appeal and also an application for leading additional evidence. Application for leading additional evidence was allowed. Shri S.L. Verma and S.K. Batra were examined as PW 2 and PW 3 respectively. PW 2 S.L. Verma, Divisional Engineer, BSNL, Patiala tendered his duly sworn affidavit as Ex. Application for leading additional evidence was allowed. Shri S.L. Verma and S.K. Batra were examined as PW 2 and PW 3 respectively. PW 2 S.L. Verma, Divisional Engineer, BSNL, Patiala tendered his duly sworn affidavit as Ex. PW 2/A in examination-in-chief wherein it was stated that he was posted as Commercial Officer in the year 1994 in the office of Telecom District Manager, Department of Telecom, Patiala and he had dealt with the commercial file of the defendant. He identified his signatures and proved the bank guarantee furnished by the defendant and the demand notice issued to her. PW 3 S.K. Batra deposed regarding installation of the telephone and furthermore, he had done the acceptance testing of the STD/PCO. The lower appellate court taking the additional evidence into consideration, gave a finding of fact that PCO having STD facility was installed in the premises of the defendant and as per the outstanding register Ex. P3, an amount of ` 47,835/- was payable by the defendant. The lower appellate court decreed the suit and held the plaintiff-respondent entitled to recover the said amount of ` 47,835/- along with interest @ 9% per annum till its realization. 5. In the present appeal, Shri Arun Jindal, Counsel appearing for the appellant, has stated that last bill was issued by the plaintiff-respondent-Department on 21.6.1997 whereas the suit was instituted on 22.7.2000, i.e., after a period of more than three years, hence, the suit was barred by limitation. 6. This Court in M/s. Sunder Das Inder Sain v. Bharat Sanchar Nigam Limited (RSA No. 2040 of 2010), decided on 4.8.2011, had considered the question of limitation and has held as under:- The only question which has been raised before this Court is as to whether the suit instituted by the respondent-plaintiff was time barred or not. In other words, whether the suit could be instituted within a period of three years by a Company held by the Central Government or it is to be construed that in view of the transfer of assets and liabilities, and the amount which became due to Central Government of India, the period of limitation prescribed will be 30 years or not. Mr. Mr. Gurdial Singh Jaswal, Advocate appearing on behalf of the appellant-defendant, has relied upon 'Bharat Sanchar Nigam Limited v. Pawan Kumar Gupta', 2007 (4) R.C.R. (Civil) 10: 2007 (4) CCC 366 (P & H), wherein it was held that Bharat Sanchar Nigam Limited is a Company owned and controlled by the Government, and thus, cannot be termed as Central Government under the provisions of General Clauses Act, 1897 and therefore, the period of limitation shall be three years. Mr. Anil Rathee, Advocate appearing for the respondent-plaintiff, has relied upon a judgment rendered by this Court in 'Rai Singh v. Bharat Sanchar Nigam Limited' (RSA No. 3817 of 2007, decided on 23rd September, 2008). It will be apposite here to reproduce extensively from Rai Singh's case (supra), as under: Learned counsel for the appellant next contended that the suit is barred by limitation inasmuch as the major amount is of the bills dated 1.9.1997 and the suit was instituted on 26.9.2003 i.e. after expiry of six years from the date of bills when the cause of action accrued, and limitation period for filing the suit by the plaintiff, being a Company incorporated under the Companies Act, was only three years like any other person. This contention although apparently attractive is also devoid of merit. The plaintiff-Corporation came into existence with effect from 1.10.2000. Prior to it, Department of Telecommunication of Union of India was entitled to file the suit for recovery of the disputed amount having granted the telephone connection to the defendant. Limitation period for any suit to be filed by Department of Telecommunication was 30 years in accordance with Article 112 of the Schedule to the Limitation Act, 1963. However, after the plaintiff-Corporation came into existence w.e.f. 1.10.2000, the limitation period for the plaintiff was admittedly only three years. However, in the instant case, if limitation period of three years is counted from 1.9.1997, the date of the bills in question, the limitation period had expired even before the plaintiff-Corporation came into existence on 1.10.2000. However, it cannot be said that the plaintiff could not file the instant suit at all. If the plaintiff-Corporation had not come into existence, the limitation period for suit to be filed by Union of India would have expired in August 2027. However, it cannot be said that the plaintiff could not file the instant suit at all. If the plaintiff-Corporation had not come into existence, the limitation period for suit to be filed by Union of India would have expired in August 2027. However, after the plaintiff came into existence w.e.f. 1.10.2000, it may be said that the limitation period for filing the suit by the plaintiff commenced with effect from that date i.e. with effect from 1.10.2000 and therefore, suit filed on 26.9.2003 i.e. within three years thereof, is well within limitation. This conclusion of mine finds support from unreported judgment dated 7.1.2008 of this Court in Regular Second Appeal No. 3558 of 2006 titled as 'Bharat Sanchar Nigam Limited v. H.V. Rai, Advocate'. However, learned counsel for the appellant in support of his contention placed reliance on 'Bihar State Electricity Board, Patna and another v. M/s. Gaya Cotton Jute Mills Ltd., AIR 1979 Pat 83 . In that case, Electricity Board came into existence on 1.4.1958 and the suit was filed on 27.9.1962 i.e. more than four years after the Electricity Board had come into existence. Thus, in that case, the suit was not filed even within three years after the Electricity Board came into existence. In addition to it, there was a special provision in Section 60-A of the Electricity (Supply) Act, introduced by amendment, to provide for limitation period for suits to be filed by Electricity Board. Consequently, this judgment has no applicability to the instant case. Similarly, judgment in the case of 'Amar Singh v. State of Punjab and another', (1969) 2 I.L.R. P&H 81, cited by learned counsel for the respondent, also has no applicability to the case in hand because in that case also, there was a specific statutory provision provided for such situation. In the instant case, however, no corresponding statutory provision has been brought to the notice of this Court by either party. In the absence thereof, the ordinary period of limitation of three years shall be deemed to have commenced on 1.10.2000, when the plaintiff came into existence. Any other interpretation would make the suit of the plaintiff to be time barred even before the plaintiff came into existence. Judgment in the case of 'Bharat Sanchar Nigam Limited v. H.V. Rai', Advocate (supra) is squarely applicable to the instant case. Consequently, the suit is held to be within limitation. Any other interpretation would make the suit of the plaintiff to be time barred even before the plaintiff came into existence. Judgment in the case of 'Bharat Sanchar Nigam Limited v. H.V. Rai', Advocate (supra) is squarely applicable to the instant case. Consequently, the suit is held to be within limitation. I find myself in agreement with the proposition of law propounded in Rai Singh's case (supra), as in case of Pawan Kumar Gupta (supra) the question that the amount which had become due to the Central Government earlier to the incorporation of Bharat Sanchar Nigam Limited was not an issue under consideration. 7. In view of the legal position propounded in M/s. Sunder Das Inder Sain's case (supra), this Court is of the view that BSNL came into existence only on 1.10.2000 whereas in the present case the amount became due to the Department of Telecom on 21.6.1997 thus, limitation period for any suit to be filed by the Department of Telecom is 30 years as per Article 112 of the Schedule to the Limitation Act, 1963. Therefore, in the present case, suit was filed within the period of limitation. So far as the other question raised before this Court, that the lower appellate court could not have permitted to lead additional evidence, is concerned, it is to be pointed out that the lower appellate court is a Court of fact and law. Therefore, reliance placed by the Counsel for the appellant on Haryana State Industrial Development Corporation v. M/s. Cork Manufacturing Co., 2008 (1) RCR (Civil) 78 is not applicable on the facts of the instant case. In the judgment relied upon, it was held that the inadvertence or lack of proper and legal advice is not a ground to admit additional evidence in the second appeal as it will not constitute a substantial cause. Furthermore, in the judgment so relied, there was a different opinion as to whether in a Regular Second Appeal additional evidence can be permitted on the ground that inadvertence or lack of proper legal advice will be a substantial question of law or not, is not applicable to the first appeal filed by the plaintiff-respondent. Hence, there is no merit in the present appeal. The same is dismissed as the questions raised in the present appeal are answered against the appellant. Appeal dismissed.