Research › Search › Judgment

Gauhati High Court · body

2013 DIGILAW 121 (GAU)

Sub-Divisional Magistrate v. Dilip Kr. Modak

2013-02-22

S.C.DAS

body2013
JUDGMENT S.C. Das, J. 1. RFA No. 39 of 2002 along with CO (FA) 1 of 2003 is taken up together for hearing and disposal by this common judgment. Heard learned counsel Mr. Nepal Majumder for the appellants (herein-after mentioned as defendant Nos. 4 and 5, for short, defendants) namely the Sub-Divisional Magistrate and the Deputy Collector and learned Sr. counsel, Mr. A.M. Lodh for the respondent No. 1 (herein-after mentioned as the plaintiff for short, plaintiff) namely Sri Dilip Kr. Modak. Also heard learned counsel, Mr. A. Ghosh for the respondent No. 3, namely Director of Industries, (herein-after mentioned as defendant No. 2). 2. Respondent No. 1, as plaintiff instituted Money Suit No. 81(A) 1999 against the present appellants and the respondent No. 2 to 4 (all defendants in the Money suit) and the suit was partly decreed in favour of the plaintiff The present appellants, who were arrayed as defendant Nos. 4 and 5, in the Money Suit, filed the present appeal challenging the judgment and decree. On receipt of the notice, respondent No. 1 (plaintiff of the money suit) filed a cross objection which has been registered as CO (FA) 1 of 2003. The appeal and the cross objection have, therefore, been heard together. 3. Case of the plaintiff, as pleaded in the plaint, is that he being sole proprietor of M/s. Manashi Industries, set up an industry for manufacturing Steel Fabrication and Furniture at industrial Estate, Dukli in the year 1988. He got an interest free loan of Rs. 1,00,000/- from District Industry Centre (DIC) under Directorate of Industries, Govt. of Tripura for construction of his factory shed and got the loan amount in two installments in the year 1989 and 1991. He also approached the Tripura Industrial Development Corporation (TIDC), with a project report for sanctioning a term loan of Rs. 6,00,000/- for the purpose of purchasing machineries and ancillaries for his industry and TIDC had sanctioned a loan of Rs. 1,75,000/- in two installments in the year 1990. With the loan money and from other sources of his own, he set up the industry and started manufacturing process in the year 1991. His industry was running well and in the year 1996, he got a work order worth Rs. 6 lakhs from the Health Department, Govt. of Tripura to supply furniture to the hospitals in Tripura. With the loan money and from other sources of his own, he set up the industry and started manufacturing process in the year 1991. His industry was running well and in the year 1996, he got a work order worth Rs. 6 lakhs from the Health Department, Govt. of Tripura to supply furniture to the hospitals in Tripura. While the manufacturing process was going on, all on a sudden defendant No. 5 on 3rd December, 1996 accompanied with police staff, labourers and some truck vehicles entered into his factory at Dukli and taken away all goods, materials and machineries from the factory shed after disconnecting the electricity connections. The details of the goods, materials and machineries with the value of each item, have been mentioned in Schedule 'A' of the plaint. He further alleged that on the same day, the defendant No. 5 entered in his residence at Badharghat after breaking the lock of the door and taken away household goods and articles, cash Rs. 3700/- and golden ornaments etc. The properties taken from the residence, with the value of each item, have been mentioned in Schedule 'B' of the plaint. Hearing about the action of the defendant No. 5, the plaintiff rushed to his factory and wanted to know the reasons for taking away all such machineries from his factory and on his enquiry, defendant No. 5 told him that he could take all information from S.D.O. office, Bishalgarh. On the same day, i.e. on 03.12.96, he went to the S.D.O. office and met with defendant No. 4, S.D.O. Bishalgarh but on his query, defendant No. 4 informed him that a Certificate Case was instituted against him by the Director of Industries for nonpayment of the interest free loan and therefore, in execution of the certificate, his moveable properties have been taken to custody. He informed SDO that he had no knowledge about the Certificate Case and that no notice was served on him for payment of the interest free loan amount before institution of certificate proceeding to which defendant No. 4 told him that he had nothing to do since he has taken action pursuant to a certificate proceeding and defendant No. 4 advised him (plaintiff) to approach the Director of Industries. 3.1 The plaintiff further stated that on 04.12.96 he met General Manager (GM) of DIC and wanted to know about the action taken by the defendant Nos. 4 and 5 to which he was informed by the G.M. that the G.M. had no knowledge about any such Certificate Case. Thereafter he along with other members of Tripura Industrial Entrepreneurs Association (TIEA) wanted to meet the Director of Industries but ultimately they were not allowed to meet the Director (defendant No. 2). However, they meet MD, TIDC but MD, TIDC expressed ignorance about any such action. He moved the office of SDO through an advocate and came to know that a Certificate Case No. 21 of 96 was instituted against him for recovery of Rs. 63,563/- as arrears of land revenue for nonpayment of interest free loan taken from DIC. It is the case of the plaintiff that neither DIC issued any notice demanding the amount, nor defendant Nos. 4 and 5 issued any notice before seizure of his properties from his industry and his house. He also alleged that for the properties seized from his industry, no seizure list was prepared and no copy of the seizure list supplied to any of his labourers/employees who were present in the factory when the properties were removed. For the properties taken away from his house also, no seizure list was prepared but signature of his wife was taken in a white paper. The plaintiff also contended that under a Memo dated 31.03.1989 an amount of Rs. 47,028/- towards payment of central capital investment subsidy was sanctioned in his favour since his industry was a member of SSI Unit and he had informed the Director to adjust that amount against his interest free loan and that was also discussed in a meeting with the representatives of TIEA held on 27.12.96. The plaintiff also contended that defendant Nos. 4 and 5 made an attempt to sell the goods and machineries mentioned in Schedule 'A' and 'B' of the plaint, but ultimately could not sell it and all the seized properties were kept in the custody of defendant No. 4 in his office. The plaintiff, therefore, contended that the properties mentioned in the Schedule 'A' and 'B' of the plaint were wrongly and illegally taken away by the defendant Nos. The plaintiff, therefore, contended that the properties mentioned in the Schedule 'A' and 'B' of the plaint were wrongly and illegally taken away by the defendant Nos. 4 and 5 and the value of those properties including that of cash money and the golden ornaments would be worth Rs. 7 lakhs and therefore, he is entitled to get Rs. 7 lakhs as value of the properties. He has also alleged that due to such illegal seizure and/or taking away of the articles of his factory, he had to close his factory and therefore, his income was completely stopped and as a result he suffered a loss of Rs. 1 lakh and he prayed for Rs. 1 lakh as compensation. In total, he claimed an amount of Rs. 8 lakhs and prayed for decree against the defendants jointly and severally. 3.2 The plaintiff further stated in the plaint that after the incident, he filed a writ case before this Court vide Civil Rule No. 133 of 1997 and in that writ case, the defendants submitted counter affidavit inter alia stating that DIC issued letters dated 16.09.93, 26.06.95 and 21.08.95 to him but he averred that he received no such letter and that no demand notice under Section 62 of the Tripura Land Revenue and Land Reforms Act (for short, TLR & LR Act) was issued by the defendant Nos. 4 and 5 asking him to deposit the amount of Rs. 63,563/- and no notice was served on him. The defendants in their counter affidavit further stated that altogether 44 items were seized from the factory and the residence but actually much more articles were taken away and no seizure list was prepared. The writ petition was disposed of by order dated 16.07.97 directing the plaintiff to approach the Civil Court since there were disputing facts in the writ case. The plaintiff also alternatively prayed that the goods, materials and machineries which were seized from his factory and residence and were in good condition, may be returned to him after appointing a Commission assisted by a Mechanic, to identify the articles in good condition, to facilitate him in starting his factory again and thus he also prayed for appointment of a Commissioner. 3.3 plaintiff further stated that he issued notice under Section 80 CPC, served on the defendants by registered post on 08.12.98 but no response received from the defendants His cause of action for filing the suit arose on December 3, 1996 when the goods in Schedule 'A' and 'B' of the plaint were taken away. He, therefore, prayed for the following reliefs:- (i) A Decree be passed for recovery of Rs. 8,00,000/- (Rupees eight lakhs) against the defendants; (a) Alternatively, decree be passed releasing the seized goods in favour of the plaintiff and the amount of the materials which can be utilized for re-starting the factory in his existing place of factory, shall be deducted from the total claim as prayed for in para(i). (ii) Cost of the suit. (iii) And other relief or reliefs, the plaintiff will legally be entitled to get. 4. A joint written statement was filed by the defendants signed by the Under Secretary to the Govt. of Tripura and by the Director of Industries (defendant Nos. 1 and 2) inter alia stating that the suit was barred by limitation and that it was hit by the principles of estoppels, waiver, acquiescence etc. It is also stated that the interest free loan of Rs. 1 lakh was sanctioned on the recommendation of State Level Committee (SLC) and it was disbursed on 14.12.87 and 31.03.88 by the Director of Industries and an agreement was signed between the plaintiff and the defendant No. 2 regarding the interest free loan. As per that agreement plaintiff was supposed to return the total amount of interest free loan in 10 equal installments within a period of 12 years from the 3rd anniversary of the disbursement and that if the installments not paid by the plaintiff, the loan amount will carry penal interest of 10.50% per annum and that the defendants will be at liberty to recover the amount as arrears of land revenue under the provisions of TLR and LR Act, 1960. It is further stated that notices were issued to the plaintiff time to time by the defendants to make payment of the loan amount but the plaintiff did not pay any heed to those notices. It is further stated that for the recovery of the unpaid amount of Rs. It is further stated that notices were issued to the plaintiff time to time by the defendants to make payment of the loan amount but the plaintiff did not pay any heed to those notices. It is further stated that for the recovery of the unpaid amount of Rs. 63,563/- (out of interest free loan), the Director of Industries (defendant No. 2) instituted the certificate case which was first registered in the office of SDO, Sadar but subsequently for jurisdiction it was sent to SDO, Bishalgarh and after registration of the case, a notice in Form No. 24 was issued (Annexure R-4 to the written statement) and it was duly served on the plaintiff by the Peon of Badharghat T.K. on 08.10.96 but the plaintiff did not respond within 10 days from the date of receipt of the notice and therefore, a distress warrant in Form No. 24 was issued against the plaintiff. There was no need to serve the distress warrant on the plaintiff as per the provisions of TLR and LR Act, 1960 and therefore, on 30.11.96 defendant No. 5 went to the place of business of the plaintiff at Dukli to recover the due amount as an arrears of land revenue and in the process seized some moveable properties worth not more than Rs. 10,000/-, from the place of business by preparing a seizure list in presence of wife of the plaintiff who put her signature in the seizure list and the copy of the seizure list was also supplied to her. An attempt was taken for selling those properties in auction but because of a letter dated 20.12.96 received from TIDC it was kept withheld. It is also stated by the defendants that no cash money or ornaments were seized from the premises of the plaintiff and even after seizure of those properties plaintiff made no attempt to make payment of the due amount. It is stated that in the event the plaintiff makes the payment of the due amount, the seized properties will be handed over to him. It is further stated that there was a proposal for subsidizing some of the amount but ultimately Govt. of India refused to subsidize any amount and so the claim of the plaintiff was false. It is stated that in the event the plaintiff makes the payment of the due amount, the seized properties will be handed over to him. It is further stated that there was a proposal for subsidizing some of the amount but ultimately Govt. of India refused to subsidize any amount and so the claim of the plaintiff was false. It is further stated that the copy of the seizure list of the goods seized from the house of the plaintiff were also duly supplied to his wife and she signed in the seizure list. The allegation of seizure of cash money from the industry and that of entry in the residence breaking the lock of the door were all false and it proves the mentality of the plaintiff that he instituted a false case against the defendants govt. officials. The defendants, therefore prayed for dismissal of the suit. 5. Considering the pleadings of the parties, the trial Court framed the following issues:-- A. Is the suit maintainable and is the suit barred by limitation? B. Have the defendants No. 4 and 5 illegally and in violation of law and/rules had seized the articles mentioned in schedule "A" and "B" of the plaint from the possession of the plaintiff? C. Is the plaintiff entitled to get compensation for seizing/detention of the articles under exbt. A and B from the plaintiff by the defendants, if so, what is the quantum of compensation? D. Is the plaintiff entitled to get money decree and/or in alternative entitled to get recovery of possession of the articles mentioned to the schedule of the plaint, in this suit? E. What other relief/reliefs the parties are entitled in this suit? 6. The plaintiff examined himself as P.W. 1 and in support of his case he proved the following documents:- Exbt. 1 Notice under Section 80 CPC. Exbt. 2 series: Insurance policies in the name of Manashi Industries. Exbt. 3 series: Tax clearance certificate. Exbt. 4 series: Work orders for supplying different articles to the Health Department of the Govt. Exbt. 5: Letter of the plaintiff addressed to the insurance company. 7. On behalf of the defendants one D.W. namely Smt. Bishu Rani Debbarma, a Superintendent of DIC was examined and the defendants proved the following documents:-- Exbt. A/1: Agreement dated 24th December, 1997 signed between the plaintiff and the defendants. Exbt. Exbt. 5: Letter of the plaintiff addressed to the insurance company. 7. On behalf of the defendants one D.W. namely Smt. Bishu Rani Debbarma, a Superintendent of DIC was examined and the defendants proved the following documents:-- Exbt. A/1: Agreement dated 24th December, 1997 signed between the plaintiff and the defendants. Exbt. A/2 series: Sanction letter of interest free loan. Exbt. A/3 series: Three reminders for payment of the loan. Exbt. A/4 series: Letter written to the District Magistrate and Collector initiating the certificate proceeding. Exbt. A/5: A memo in respect of interest free loan. Exbt. A/6: series: Application for loan. Exbt. A/7: A minute of the sanctioned letter. 8. The trial Court decided issue No. A in favour of the plaintiff and issue No. B and C partly in favour of the plaintiff and pursuant to decision of Issue Nos. B & C, decided issue Nos. D & E holding that the plaintiff is entitled to get a money decree of Rs. 1 lakh as compensation for the loss of his business and that the plaintiff is entitled to get back the articles from defendant Nos. 4 and 5 after payment of due loan amount of Rs. 63,563/-. 9. Challenging the judgment and decree defendant Nos. 4 and 5 filed the first appeal and cross objection filed by the plaintiff as stated herein before. 10. Learned counsel, Mr. Majumder appearing for the appellants (defendant Nos. 4 and 5) has submitted that the suit is clearly barred by limitation. The cause of action admittedly arose on 03.12.96 but the suit was filed on 26.06.99. The formation of the suit and the reliefs claimed, clearly spelt out that the suit is covered by Article 80 of the Schedule to the Limitation Act. The trial Court superficially arrived at a finding that the suit is within limitation and is maintainable. 11. Learned Sr. counsel, Mr. Lodh has submitted that suit being one for recovery of the moveable properties must be presumed to have covered under Article 69 of the Schedule to the Limitation Act and therefore, limitation for filing the suit should be counted as 3(three) years. In support of his contention, learned counsel referred the case of Mangalji Chotelal and another v. State of Rajasthan, reported in AIR 1971 Rajasthan 167. 12. In support of his contention, learned counsel referred the case of Mangalji Chotelal and another v. State of Rajasthan, reported in AIR 1971 Rajasthan 167. 12. It is pertinent to mention here that the point of limitation was taken in the pleadings of the defendants but in the memorandum of appeal no ground of limitation was taken. The appeal was heard on 11.01.2013 when learned counsel, Mr. Majumder for the appellants argued on the point of limitation and since it was not taken as a ground in the memo of appeal, the case was taken up again for discussion and learned counsel of both side were heard again on 18.01.2013 on the point of limitation. 13. The relevant observation of the trial Court on the point of limitation while deciding Issue No. A reads as follows:- The validity of the certificate case and the proceeding not challenged. The Civil Court cannot entertain the damage and claim without declaring the action taken by the defendants as illegal, void and not according to law. Without declaration about the legality of their action in respect of the seizure of articles this money suit for realization of the amount in-consequence of the action of the defendants is not maintainable. However, this Court may consider the damage caused by any illegal action of the defendants and give compensation and in that perspective, the suit is maintainable. Plaintiff claimed this amount for the action of the defendant Nos. 4 and 5 who seized the articles from his factory and also from the house. Alleged seizure was made by the defendant Nos. 4 and 5 on 30.11.1996. This case is filed in the year 1999 and after giving demand notice to the defendants. It is also filed as per direction of the Hon'ble High Court. So, the claim is not time barred. 14. It appears the trial Court arrived at a decision on the point of limitation without discussing the relevant fact and law as to what was the constitution of the suit and under which Article of the Limitation Act the suit was covered. The Court just jumped to a conclusion that the suit is maintainable and the claim is not time barred. The Court just jumped to a conclusion that the suit is maintainable and the claim is not time barred. Admittedly, as stated by the plaintiff in Para 23 of the plaint, cause of action for the suit arose on 03.12.1996, the date, goods and articles were seized from the factory and residence of the plaintiff. The suit was filed on 26.06.1999 i.e. after one year but within three years. 15. The plaintiff filed the suit with a heading of his pleadings--Suit for recovery of Rs. 8,00,000/- (Rupees eight lakhs). The averments made in the plaint is that, the defendant Nos. 4 and 5 (appellants) in the colour of a certificate proceeding taken away and/or seized the goods, materials and machineries from his factory and his residence and the specific item with price thereof mentioned in Schedule 'A' and 'B' to the plaint. In his prayer, originally, the plaintiff prayed for decree of recovery of Rs. 8 lakhs and cost of the suit. Later on, by way of amendment, the plaintiff brought prayer No. 1(A) and thereby sought for alternative decree for releasing the seized goods which were useable. A close reading of the pleadings makes it abundantly clear that the plaintiff instituted the Suit for Tort, for the cause of action arose because of seizure of moveable properties from his factory and his house, illegally without issuing notice to him as required by law. 16. Let us now have a critical examination of Article 69 and Article 80 of the schedule of Limitation Act 1963. PART (VI) in Article 68 to 71 of the schedule to the Limitation Act deals with Suits Relating to Moveable Property. Article 69 reads thus:- PART (VII) in Article 72 to 91 of the Schedule to the Limitation Act 1963 deals with the Suits Relating to Tort. Article 80 reads thus:- 17. If we read Article 69 along with Article 68, it would appear that Article 69 applies to suit for recovery of specific moveable property which is other than the specific property described in Article 68. Article 69 is a general Article whereas other Articles in Part VI are all specific Articles. If a particular case is covered by Article 69 or any other Article of Part VI, the special Article will prevail. Article 69 is a general Article whereas other Articles in Part VI are all specific Articles. If a particular case is covered by Article 69 or any other Article of Part VI, the special Article will prevail. The heading of Part VI makes it clear that Article 68 to 71 deals with suits relating to moveable property whereas, Part VII deals with suits relating to Tort. Where a suit is instituted for recovery of value of the moveable property in the form of damage and/or compensation, it will come under the purview of tort and therefore, shall come within the precincts of Part VII of the schedule. If the suit is meant for recovery of money and the pleadings constructed is for damages and/or compensation for taking away and/or seizure of moveable property, even if there is an alternative prayer for releasing seized goods, it will certainly come under the purview of Part VII of the Limitation Act. 18. The present suit was constructed for the recovery of the price of the seized moveable properties mentioned in the schedule of the plaint, alleging that under a colour of certificate case those were seized, without giving any notice as required by law and so, the plaintiff is entitled to the price of those articles/goods seized illegally. An alternative prayer has been made that the articles/materials which were in good condition and fit to be utilized, may be directed to be released in favour of the plaintiff. It may be mentioned here that the plaintiff during the course of trial, never taken any initiative for appointment of a Commissioner to ascertain the condition of the seized articles/goods. Simply by way of amendment the plaintiff brought the fact in the pleadings but record does not speak that plaintiff ultimately insisted the Court for having passed an order appointing the Commissioner to ascertain the condition of the goods. So, the alternative prayer of the plaintiff was practically not insisted in course of trial before the trial judge. Further, when there are several reliefs claimed in a suit, the limitation period would be that of the main relief, the limitation of ancillary relief being ignored. 19. Article 80 on the other hand, prescribes limitation of a suit for compensation for wrongful seizure of moveable property under a legal process. Further, when there are several reliefs claimed in a suit, the limitation period would be that of the main relief, the limitation of ancillary relief being ignored. 19. Article 80 on the other hand, prescribes limitation of a suit for compensation for wrongful seizure of moveable property under a legal process. The conditions for applicability of Article 80 are- (i) It must be a suit for compensation, (ii) Arising out of a wrongful seizure, (iii) Of moveable property, and (iv) Seizure was under a legal process. Such a legal process emanate from the Court of law whether it is a judicial or revenue Court. Article 72 under Part VII prescribes limitation of a suit for compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in the territories to which the Act extends. Limitation prescribed for a suit is 1 year, both in case of Article 72 and Article 80. 20. A Certificate Officer pursuant to the provisions of TLR and LR Act and Rule framed thereunder, exercises jurisdiction of a Revenue Court and in the case at hand, admittedly, defendant Nos. 4 and 5 pursuant to a certificate issued by the Director of Industries, for the recovery of loan amount lying due and unpaid, seized the moveable properties from the factory and residence of the plaintiff and the plaintiff alleged that the notice which a revenue Court, while exercising the power of certificate officer, require to issue and serve, were not issued to the plaintiff and therefore their action was illegal as a result of which the plaintiff suffered damage or loss and there fore, claimed Rs. 7 lakhs towards price of the goods seized, including cash money and price of golden ornaments and also prayed for a compensation of Rs. 1 lakh for the loss of business. Therefore, the plaintiffs case clearly come under the purview of an alleged wrongful seizure of moveable property under a legal process. The plaintiff's suit, therefore does not attract Article 69 of the Limitation Act rather, it clearly comes under the domain of Article 80 of the Limitation Act, 1963 since it is a suit clearly relating to tort. 21. The decision of the Rajasthan High Court in the case of Mangalji Chotelal (supra) referred by learned Sr. counsel, Mr. The plaintiff's suit, therefore does not attract Article 69 of the Limitation Act rather, it clearly comes under the domain of Article 80 of the Limitation Act, 1963 since it is a suit clearly relating to tort. 21. The decision of the Rajasthan High Court in the case of Mangalji Chotelal (supra) referred by learned Sr. counsel, Mr. Lodh is clearly distinguishable in the context of the present case. In that reported case food grains were procured, from the plaintiff, by the officers of Rajasthan Food & Civil Supplies Dept., at prices much below the prices obtaining in the free market, under the Rajasthan Gram and Gram products (Export Control) Order 1953, Rajasthan Food grains (Rabi) Monopoly Procurement Order 1952, and Rajasthan Food grains (Rabi) Procurement Order 1953. Clause 4 & 5 of the Procurement Orders were found to be ultra vires being violative of Article 31(2) of the Constitution, plaintiff filed the suit for recovery of the amount of loss sustained by plaintiff as a result of illegal acquisition of food grains by officers of State Govt. The single bench of the Rajasthan High Court held that the suit shall come under the purview of Art. 49 of the Limitation Act 1908. Art. 49 of 1908 Act corresponds to Art. 69 of the 1963 Act i.e. the Present Act in force. I have already reproduced herein above Art. 69 of 1963 Act. There are lots of changes between Art. 69 of Present Act and Art. 49 of old Act. Art. 49 of old Act reads thus:- 22. In the case at hand, the fact is admittedly otherwise. Here a Certificate Case was indisputably in execution before the defendants for recovery of the unpaid loan amount and while execution of the certificate, the defendant No. 5 at the instance of defendant No. 4 seized the moveable property from the factory and residence of the plaintiff in course of a legal process. The allegation is that notices as required by law, which we are going to discuss later on, were not issued to the plaintiff. So, what emerges in this case, the seizure was made in a legal process and therefore, the plaintiff suffered damage and/or loss for which the plaintiff claimed the price of the seized goods/articles and for compensation. Therefore, I am constrained to hold that the present suit is distinguishable to that of reported case. So, what emerges in this case, the seizure was made in a legal process and therefore, the plaintiff suffered damage and/or loss for which the plaintiff claimed the price of the seized goods/articles and for compensation. Therefore, I am constrained to hold that the present suit is distinguishable to that of reported case. The argument of learned Sr. counsel, Mr. Lodh, that the limitation of the suit will come under the purview of Article 69, therefore, is not acceptable. 23. Public policy, no doubt requires that acts of government officials purported to have been done under the provisions of some enactments in force should be tested, if necessary, as soon as possible in order that public administration may not be affected by an erroneous course of action based on wrong application of the law for a long time; and if there has been an error, it should be rectified as soon as possible. It is also true that the scope and importance of suits of such nature alleging wrong by govt. officials are increasing. Almost every official action affecting the rights of a citizen now takes place under the colour of some enactment or the other. The sphere of common law wrongs is diminishing and the sphere of wrongs taking place under the colour of statute is expanding day by day. It is, therefore, necessary that the increased importance of such acts should be realized and reflected in the law of limitation. Law Commission, therefore, recommended the change in the period of limitation. However, our statute prescribes a limitation of one year i.e. a shorter period of limitation in the case of actions against public authorities for any act done in pursuance or execution or intended execution of any act or of public duty, or authority, or in respect of any neglect or default or in the execution of such Act, duty or authority. It protects the public authorities by providing a shorter period of limitation. At the same time a person affected by such wrong may get the scope of rectification equally without waiting for long time. 24. Since the limitation is for one year and the plaintiff could not bring the suit within the period of limitation, on that ground alone the plaintiff is not entitled to get any relief and the suit was liable to be held as time barred. 25. 24. Since the limitation is for one year and the plaintiff could not bring the suit within the period of limitation, on that ground alone the plaintiff is not entitled to get any relief and the suit was liable to be held as time barred. 25. Plaintiff in his pleadings stated that he filed a writ case and it was disposed of directing him to approach the Civil Court. The period spent by the plaintiff in wrong forum and the time spent for such litigation in wrong forum cannot legally afforded as a concession to the plaintiff in filing the suit beyond the prescribed period of limitation. 26. While deciding issue No. B and C, the trial Court observed that the plaintiff took loan from the DIC and did not make payment of the loan in time in terms of agreement (Exbt. A/1) and therefore, the plaintiff was a defaulter. The trial Court also held that the certificate case was initiated according to law but before seizure of the property, notices as required under Section 62 of the TLR and LR Act, were not issued by the defendant Nos. 4 and 5 and therefore, the seizure of the moveable properties were not according to law. The trial Court therefore, held that since the defendant Nos. 4 and 5 were authorized and legally competent to make seizure of the moveable properties in execution of the certificate, the plaintiff was not entitled to get the price of the properties as claimed in the schedule of the plaint but he will be entitled to get back the properties so seized on his payment of the amount of Rs. 63,563/-. The trial Court however, came to a decision that the plaintiff is entitled to get a compensation of Rs. 1 lakh but assigned no reason as to how Rs. 1 lakh was determined. Neither the plaintiff, nor the defendant Nos. 4 and 5 accepted the findings of the trial Court on issue No. B and C and challenged the same stating that the trial Court arrived at a wrong decision. 27. It is submitted by learned counsel, Mr. Majumder that the plaintiff did not challenge the legality or propriety of the certificate proceeding and it is admitted by the plaintiff in his pleadings that the moveable properties were seized in connection with the execution of certificate under a legally drawn proceeding. 27. It is submitted by learned counsel, Mr. Majumder that the plaintiff did not challenge the legality or propriety of the certificate proceeding and it is admitted by the plaintiff in his pleadings that the moveable properties were seized in connection with the execution of certificate under a legally drawn proceeding. So, the case of the plaintiff for recovery of the cost of those articles, as stated in Schedule 'A' & 'B' of the plaint was not maintainable. The trial Court while held that the plaintiff was a defaulter and certificate proceeding was rightly drawn against the plaintiff would dismiss the suit with cost. 28. Per contra, learned Sr. counsel, Mr. Lodh has submitted that the properties from the factory and from the residence of the plaintiff were seized on 03.12.96. The plaintiff in his pleadings by way of amendment, prayed for appointing a Commissioner to examine the seized articles as to whether those were useable and if so, to direct the defendants to return the same but that was not done and under such circumstances while the judgment was passed in 2002, the trial Court would presume that all the articles and machineries, seized from the factory, might have been damaged in the meantime and therefore, the trial Court would allow the amount of Rs. 7 lakhs towards price of the seized goods as claimed by the plaintiff in Schedule A & B of the plaint. It is also contended by learned Sr. counsel that defendant Nos. 4 and 5 did not file any written statement. In the headings of the written statement though it was stated that it was written statement on behalf of the defendants but neither defendant Nos. 4 and 5 signed the written statement nor anybody on their behalf signed it. There is also nothing on record that they have adopted the written statement as their written statement. So, the allegation made against defendant Nos. 4 and 5 remained unchallenged. Learned counsel also submitted that the plaintiff while stated the price of the goods in schedule A & B of the plaint and it remained unchallenged, the trial Court would decree the suit taking into account the price of the goods as stated in the schedule A and B. 29. Plaintiff's case is that all articles, goods and machineries from his factory at Dukli were seized and taken away. Plaintiff's case is that all articles, goods and machineries from his factory at Dukli were seized and taken away. According to the Dftff., as stated in Para 17 of the plaint, the defendants by filing their counter affidavit in the writ case stated that in connection with the certificate case, 44 items of articles/materials were seized but actually more items were seized and taken away from the factory as well as from the residence of the plaintiff. The plaintiff alleged that no seizure list was prepared in the factory and no copy of the same was supplied to the plaintiff or his agents/employees. The articles taken from his residence were also not listed and no copy supplied but signature of his wife was taken in a white paper. Schedule A of the plaint consists 21 items and Schedule B consists 17 items including that of cash money, gold ornaments etc. The plaintiff calculated the value of Schedule A items of a total price of Rs. 5,27,000/- and Schedule B items at a total price of Rs. 94,000/- totaling Rs. 6,21,000/-. But in the plaint as well as in the evidence, the plaintiff stated that the value of the items so seized were Rs. 7 lakhs. This is a serious inconsistency in the pleadings as well as in the evidence of the plaintiff. 30. Plaintiff also alleged that the defendant No. 5 broken open the lock of his house and taken away the house hold articles. In his evidence he simply stated that the defendants taken away his house hold articles from his house at Badharghat but nothing stated that door lock was broken open and the entry was made while none was present in the house. 31. Defendants, in their written statement in Para 9, while denied the allegation made in Para 4 of the plaint including the fact of seizure of goods from the residence of the plaintiff, but in Para 15 of the written statement specifically stated that the goods were seized from the residence of the plaintiff and a list was prepared and copy of the list was supplied. It was the duty of the defendants to place on record the original or copy of the seizure lists of the goods seized from the factory of the plaintiff as well as from the residence of the plaintiff. It was the duty of the defendants to place on record the original or copy of the seizure lists of the goods seized from the factory of the plaintiff as well as from the residence of the plaintiff. In the L.C. records, which are placed before this Court in file-D, I find the original seizure list, so prepared after seizure of goods from the residence of the plaintiff was placed but that was not exhibited. However, that list consist articles in 12 items and that list was signed by the wife of the plaintiff. Since it was not exhibited in course of trial, it cannot be taken into consideration for decision of the appeal. The trial Court was also wrong in holding that the defendants denied seizure of any articles from the resident of the plaintiff. 32. It is amply established that defendant No. 5 seized goods and articles from the factory and residence of the plaintiff. It is also an undisputed fact that a certificate case was initiated at the instance of defendant No. 2, the Director of Industries and in connection with the certificate proceedings the defendant Nos. 4 and 5 seized the articles. Let us first determine as to whether the seizure was made complying the legal provisions or not. The trial Court has held that no demand notice was issued to the plaintiff by defendant Nos. 4 and 5 before the seizure was made as required under Section 62 of the TLR and LR Act. The defendants failed to adduce any evidence to that effect and therefore, the seizure was not according to law and it is in violation of the provisions of the TLR and LR Act. 33. Indisputably, an agreement was signed between the plaintiff and defendant No. 2 when the interest free loan of Rs. 1 lakh was allowed. Clause 6 of the agreement reads thus:- 6. Whenever any instalment of the said amount be in arrear the same may, without prejudice to any other remedy available to the mortgagee, be recoverable from the mortgagor in the same manner as an arrear of land revenue under the provision of the Tripura Land Revenue and Land Reforms Act, 1960. It is an undisputed fact that the plaintiff was a defaulter in making repayment of the whole amount of interest free loan. It is an undisputed fact that the plaintiff was a defaulter in making repayment of the whole amount of interest free loan. It was pleaded by the plaintiff that certain subsidized amount was liable to be adjusted but the plaintiff failed to prove that there was any amount allowed as a subsidy. Under such circumstances, while the plaintiff was a defaulter in making payment of the loan amount the defendant, Director of Industries, invoked Clause-6 of the agreement and issued a certificate as per Rule 111 of Tripura Land Revenue and Land Reforms Rules, 1961 (for short, TLR and LR Rules, 1961) (Exbt. 4 series) and sent the certificate to the District Magistrate and Collector for recovery of the due amount. The certificate was ultimately sent to the defendant No. 4 for realization of the amount. Accordingly, the certificate proceeding was taken up, Chapter VII in Section 59 to 80 prescribed provision relating to realization of land revenue and other public demands. Section 62 and 63 is relevant for the purpose of this case and it is reproduced as under:- 62. An arrear of land revenue may be recovered by any one or more of the following processes, namely:- (a) By serving a written notice of demand on the defaulter; (b) By distraint and sale of the defaulter's movable property, including the produce of the land; (c) By the attachment and sale of the defaulter's immovable property. 63. The form and contents of the notice of demand and the officers by whom such notice shall be issued shall be such as may be prescribed. 34. Section 63 clearly stipulates that a notice of demand shall be issued by the officer concerned as prescribed by law. Rule 89, 90 and 91 of the TLR and LR Rules are relevant for consideration of the issue which reads thus:-- 89. Notice of demand.--(1) A notice of demand under Section 62 shall be issued in Form 24 by and under the signature and seal of the circle officer of the circle in which the holding to which the land revenue relates is situated. If such notices are required to be issued against a defaulter residing in another circle the circle officer may do so either direct or through the circle officer of such other circle. If such notices are required to be issued against a defaulter residing in another circle the circle officer may do so either direct or through the circle officer of such other circle. (2) A sub-Divisional officer or Collector may issue a notice of demand in respect of the land revenue payable on account of any holding which is situated within his jurisdiction. (3) It shall be issued in duplicate and shall be served in the manner of a notice as prescribed in Schedule III. (4) The fee for the notice of demand shall be added to the arrears for which the notice is issued and shall be included in the amount specified therein. 90. Distraint and sale of movable property.--(1) Any Collector, sub-divisional officer or circle officer may issue a warrant of distraint of movable property including the produce of the land of any defaulter in form 25 and sell the same thereafter by public auction. (2) Such auction shall be held at the spot unless the officer ordering the auction is of the opinion that the auction if held in any other place would bring a higher price in which case auction may be held at such other place. (3) If the auction is not held at the spot due publicity thereof shall be given by issuing a proclamation in Form 26 which may also be proclaimed by beat of drum, if the officer ordering the sale deems it necessary. 91. Distraint of movable property other than the produce of the land.--(1) When the property to be distained is movable property (other than the produce of the land) in the possession of the defaulter the distraint shall be effected by actual seizure and the distraining officer shall keep the property in his own custody, or in the custody of any one of his subordinates who shall be responsible for the due custody thereof. Provided that when the property so distrained be subject to speedy or natural decay, or if the expenses of keeping it in custody are likely to exceed its value, the distraining officer may if so authorized by the officer issuing the warrant of distraint sell it at once; Provided further that if the property distrained consists of live stock, agricultural implements or articles, which cannot be conveniently removed, and the distraining officer does not act under the first proviso he may- (i) Leave it in the charge of any person claiming to be interested in such property or of any other person, who is willing to under take to keep and be responsible for the custody of such property on his entering into a bond with one more sureties for an amount not less than the value of the property that he will take proper care of the property and produce it when called for or (ii) In the case of live-stock leave it in the charge of the pound keeper, if any. (2) The distraining officer shall make a list of the property distrained and obtain thereon an acknowledgement from the person in whose custody the property is left, and if possible, also of the defaulter and at last two other persons in attestation of the correctness of the list. If the property distrained includes both live stock and other articles separate lists thereof shall be prepared and got attested. 35. As required under Section 62 of the TLR and LR Act, 1960, a demand notice should have been issued in Form No. 24 as prescribed under Rule 89 of the TLR & LR Rules 1961, by the Officer concerned i.e. the Revenue Officer to whom the certificate was sent for execution. Form No. 24 prescribes thus:-- T.R.L.R. FORM 24 [See Rule 89(1)] Notice of demand under Section 62 of the Tripura Revenue and Land Reforms Act, 1960. In the Court of.......To.....................S/O...............Resident of village.............Tehsil......Thana..........Sub-Division......... You are hereby required to take notice that a sum of Rs.........is due from you on account of arrears of land revenue, and other dues realizable as land revenue, as per details given below and that unless it is paid within.............days from the receipt of this notice further proceedings for the recovery of the dues shall be taken against you according to law:-- Date........20 Circle Officer. Sub-Division Officer/ (Seal) Collector 36. Sub-Division Officer/ (Seal) Collector 36. Rule 90 of the TLR and LR Rules prescribes that for distraint and sale of movable property a warrant is to be issued in form No. 25. The form No. 25 as prescribed reads thus:- T.R.L.R. Form 25 [See Rule 90(1)] Warrant of distraint of movable property.................To (Name and office of the person charged with execution of warrant) Whereas.......son of..........resident of Village.........Tehsil.............Thana.......Circle........Sub-Division......has made default in payment of Rs. ..............on account of land revenue as per details given below, you are hereby ordered to attach the movable property of the said..............and unless the total amount due is paid to the Tehsilder, to hold the same until further orders from this Court. You are further ordered that if the property distained be subject to speedy or natural decay: or if the expenses of keeping it in custody are likely to exceed its value, you may sell it at once by public auction and deposit the proceeds according to law. You are also ordered to return this warrant on or before, the...........day of......20..., with the endorsement certifying the date and manner in which it has been executed or why it has been executed:- Date.......20 Circle Officer/Sub-Division Officer/Collector. Seal 37. Rule 89 prescribes that demand notice should be served on the defaulter in the manner as prescribed in Schedule III of the Rules. Paragraph 25 of Schedule III prescribes the procedure of service of summons and/or notice which reads thus:-- 25. A summons shall, if practicable, be served: (a) Personally on the person to whom it is addressed or failing him; (b) On his recognized agent; or (c) On any adult male member of his family usually residing with him. (1) If service cannot be effected as above, or if acceptance of service so made is refused, the summons may be served by pasting a copy thereof on the door of the usual or last known place of residence of the person to whom it is addressed or by publication in a newspaper. 26. When a summons be pasted on the door of a place of residence an acknowledgement of its having been so pasted shall be taken form two respectable neighbours. 38. The defendants contended that notices were issued to the plaintiff defaulter, but the plaintiff paid no heed to those notices as a result of which the certificate case was initiated. Exbt. When a summons be pasted on the door of a place of residence an acknowledgement of its having been so pasted shall be taken form two respectable neighbours. 38. The defendants contended that notices were issued to the plaintiff defaulter, but the plaintiff paid no heed to those notices as a result of which the certificate case was initiated. Exbt. 3 series are the notices issued to the plaintiff which consist notices dated 27.08.95, 26.06.95 and 15.09.93. Out of those 3(three) notices of Exbt. 3 series, notice dated 21.08.1995 and 26.06.1995 were issued by the Joint Director of Industries and notice dated 15.09.1993 was issued by the General Manager, District Industries Centre. Nothing produced by the defendants to show that defendant Nos. 4 and 5, in course of the revenue proceeding of the certificate case, issued any demand notice pursuant to the provisions and prescription of law as detailed above. It is, therefore, clear that defendant Nos. 4 and 5 without resorting to the procedure prescribed by law, seized the goods and articles from the factory and residence of the plaintiff and thereby committed a mischief of law. 39. Learned Sr. counsel, Mr. Lodh has contended that since the procedure prescribed by law was not followed by the Certificate Officer, the seizure of articles from the factory and residence of the plaintiff was wrong and hence, the plaintiff is entitled to get the cost of articles as detailed in Schedule A & B of the plaint. 40. Learned counsel, Mr. Majumder on the contrary has submitted that the list given in the schedule is imaginary and there is no supporting evidence and hence, the trial Court rightly decided the issues, refusing to decree the suit as prayed for. 41. Burden lies on the plaintiff to prove his case, even if it was ex parte. The plaintiff has given the names of the articles and the price thereof in Schedule 'A' & 'B' of the plaint but in support thereof I find no cogent evidence on record. In his deposition plaintiff simply stated that he suffered a loss of Rs. 7 lakhs as the value of the articles damaged and seized by the defendant Nos. 4 and 5. No document placed on record, in the evidence in support of Schedule 'A' & 'B' articles/goods, plaintiff calculated value of Schedule 'A' articles to Rs. 5,27,000/- and Schedule 'B' articles Rs. 7 lakhs as the value of the articles damaged and seized by the defendant Nos. 4 and 5. No document placed on record, in the evidence in support of Schedule 'A' & 'B' articles/goods, plaintiff calculated value of Schedule 'A' articles to Rs. 5,27,000/- and Schedule 'B' articles Rs. 94,000/-, total Rs. 6,21,000/-. Whereas plaintiff in plaint claimed Rs. 7,00,000/- towards price of those articles. According to plaintiff the industry was set up in 1988. Seizure was on 3rd December, 1996. The depreciation in the value of the articles, in the meantime, also not determined or stated by the plaintiff. The Court cannot pass a decree on such lump sum claim. Plaintiff also claimed Rs. 1 lakh for suffering loss for closing his industry. Nothing is in the plaint or in evidence of the plaintiff as to how the amount of Rs. 1,00,000/- was determined and for which period. There must be a particular of damage for consequential determination of compensation. The plaintiff claimed a lump sum compensation of Rs. 1 lakh for loss of business and trial Court also without giving any reason allowed the compensation, which is not tenable in law. Since it was a factory of the plaintiff he would have his stock register, purchase register, asset register, register of raw materials and finished products, sales register and other books of accounts to show that he had actually those goods and articles with the values as mentioned in Schedule A. Since it is a case for recovery of price of the goods alleged to have seized, the plaintiff was supposed to justify the claim adducing documentary and oral evidence. According to the plaintiff, he was neither present in the factory nor in his house when the seizure of the goods and articles were made by the defendant No. 5. The mere description of the articles and value thereof in the schedule of the plaint cannot be a basis for making a decree of money towards value of the articles seized from the factory of the plaintiff. Since the plaintiff has failed to prove the facts by adducing proper evidence, he was not entitled to get a decree of the price of the goods as claimed by him. Since the plaintiff has failed to prove the facts by adducing proper evidence, he was not entitled to get a decree of the price of the goods as claimed by him. The decree of the trial Court that the plaintiff will be entitled to get back the articles on his payment of due amount was justified but since the suit was brought after the period of limitation the plaintiff waived his right because of lapse of time and once a claim is barred by limitation it is barred for ever. 42. In view of the discussions made above, RFA No. 39 of 2002 is allowed. The judgment and decree passed by learned Civil Judge, Sr. Division in Money Suit No. 81(A) 1999 is set aside. 43. The counter objection filed by the plaintiff i.e. CO (FA) 1 of 2003 is dismissed. 44. Parties to bear their own cost. Send back the L.C. records along with a copy of this judgment. Appeal allowed.