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Himachal Pradesh High Court · body

2015 DIGILAW 1826 (HP)

Himalayan Store v. Bharat Sanchar Nigam Limited

2015-12-09

P.S.RANA

body2015
JUDGMENT : P.S. RANA, J. 1. Interim Order upon application filed under Order 7 Rule 11 (d) read with Section 151 CPC:- Present application filed under Order 7 Rule 11 (d) read with Section 151 CPC for rejection of plaint filed in Civil Suit No. 4069 of 2013-B titled Bharat Sanchar Nigam Limited vs. M/s. Himalayan Store and others. Brief facts of the case 2. Bharat Sanchar Nigam Limited through its General Manager (Mobile) plaintiff filed a suit for recovery of Rs.12670969/- (Rupees One crore twenty six lacs seventy thousands nine hundred sixty nine) including interest @12% per annum upto filing of the suit. It is pleaded that plaintiff is a Company incorporated under the Companies Act 1956 and having its registered office at Sanchar Bhawan 20 Ashoka Road New Delhi. It is further pleaded that plaintiff Company has also office in Himachal Pradesh. It is further pleaded that plaintiff is under the direct control of Department of Telecommunication Govt. of India. It is further pleaded that Department of Telecommunication has administrative and financial control over the plaintiff. It is further pleaded that Govt. of India is holding 100% capital share of the plaintiff company. It is further pleaded that SIMS (Subscriber Index Module) cards were sold through BSNL franchise as per agreement dated 14.11.2002. It is further pleaded that defendants approached the plaintiff for appointing as authorized dealer for marketing and distribution of cellular phones/ connections within the State of Himachal Pradesh subject to terms and conditions executed inter se parties. It is further pleaded that defendants also furnished unconditional Bank Guarantee in the sum of Rs.500000/- (Rupees five lacs). It is further pleaded that defendants appointed retailer/agents/sales executive force for the purpose of booking new connections and appointed many agents/sales executive/sales force for the expansion of business. It is further pleaded that defendants had caused financial loss to the plaintiff to the tune of Rs.12670969/- (Rupees One crore twenty six lacs seventy thousands nine hundred sixty nine). Prayer sought for grant of decree for recovery of Rs.12670969/- (Rupees One crore twenty six lacs seventy thousands nine hundred sixty nine). 3. Co-defendant No.1 did not file written statement in Civil Suit No. 4069 of 2013-B. Co-defendant No.1 filed application under Order 7 Rule 11 (d) read with Section 151 CPC for rejection of plaint. 4. Prayer sought for grant of decree for recovery of Rs.12670969/- (Rupees One crore twenty six lacs seventy thousands nine hundred sixty nine). 3. Co-defendant No.1 did not file written statement in Civil Suit No. 4069 of 2013-B. Co-defendant No.1 filed application under Order 7 Rule 11 (d) read with Section 151 CPC for rejection of plaint. 4. Court heard learned Advocates appearing on behalf of parties at length and also perused the entire record carefully. 5. Following points arise for determination in OMP No. 1 of 2014:- 1. Whether application filed under Order 7 Rule 11 (d) read with Section 151 CPC for rejection of plaint is liable to be accepted as mentioned in memorandum of grounds of application? 2. Relief. Findings upon Point No.1 with reasons: 6. Submission of learned Advocate appearing on behalf of applicant that present civil suit is filed by Bharat Sanchar Nigam Limited and Bharat Sanchar Nigam Limited is a separate legal entity distinct from its share holders and did not come within the definition of State as defined in Article 12 of the Constitution of India and it is submitted that Article 12 of the Constitution of India is relevant for the purpose of filing petition under Article 32 or Article 226 of the Constitution of India and on this ground plaint be rejected on the basis of Limitation Act 1963 is rejected being devoid of merits for the reasons hereinafter mentioned. There is specific pleading in the plaint that Govt. of India is holding 100% of the share of the capital of the plaintiff company. There is special recital in the plaint that plaintiff is the agency of the Govt. of India for providing basic telephone services. In the present case public exchequer to the tune of Rs.12670969/- (Rupees One crore twenty six lacs seventy thousands nine hundred sixty nine) is involved. As per Constitution of India word “State” has been defined in Article 12 of the Constitution of India. Article 12 of the Constitution of India is quoted in toto: “Article. 12 Definition:- In this part unless the context otherwise requires “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.” 7. 12 Definition:- In this part unless the context otherwise requires “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.” 7. It is held that words “under the control of Government of India” mentioned in Article 12 of the Constitution of India are very material in the present civil suit. Plaintiff has submitted in the plaint that 100% shares are of Govt. of India. There is further recital in the plaint that plaintiff is the agency of the Govt. of India. There is further recital in the plaint that administrative and financial matters of plaintiff are governed by Central Govt. of India. In view of above stated facts it is held that plaintiff comes within the definition of “State” as defined in Article 12 of the Constitution of India. It was held in case reported in AIR 1981 SC 487 (Five Judges Bench) titled Ajay Hasia vs. Khalid Mujib that if entire share capital is held by Government then it would be deemed agency of Government or under control of Government as defined in Article 12 of Constitution of India. 8. Submission of learned Advocate appearing on behalf of applicant that Article 12 of the Constitution of India is applicable to writ jurisdiction Courts only is rejected being devoid of merits for the reasons hereinafter mentioned. It is held that Constitution of India is binding upon all Courts situated in India. 9. As per Article 112 of the Limitation Act 1963 limitation for filing a suit on behalf of Central Government or State Government is 30 years from the date of cause of action. In the present case as per para 12 of the plaint cause of action arose to plaintiff in the year 2002 when the agreement was executed between the parties and thereafter on 3.11.2003 when fraud to the tune of Rs.12670969/- (Rupees One crore twenty six lacs seventy thousands nine hundred sixty nine) was detected. Present civil suit was filed by the plaintiff on 4.10.2013. Hence it is held that it is not expedient in the ends of justice to reject plaint under Order VII Rule 11 (d) of Code of Civil Procedure 1908. Point No.1 is decided against the applicant. Point No.2 (Relief) 10. Present civil suit was filed by the plaintiff on 4.10.2013. Hence it is held that it is not expedient in the ends of justice to reject plaint under Order VII Rule 11 (d) of Code of Civil Procedure 1908. Point No.1 is decided against the applicant. Point No.2 (Relief) 10. In view of above stated facts application filed under Order 7 Rule 11 (d) read with Section 151 CPC for rejection of plaint is dismissed. Observations will not effect merits of C.S. No. 4069 of 2013-B in any manner and will be strictly confined for disposal of OMP No. 1 of 2014. OMP No. 1 of 2014 is disposed of.