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2016 DIGILAW 409 (JK)

State of J&K v. Surinder Kumar

2016-08-01

TASHI RABSTAN

body2016
JUDGMENT : Tashi Rabstan, J. 1. The State has filed this writ petition seeking quashment of order dated 09.11.2012 issued by 1st Additional District Judge, Jammu, whereby the account head of Director, Animal Husbandry Department, Jammu has been attached in File No. 87/Ex, titled as, Surinder Kumar v. Chief Secretary & Ors. The facts-in-short, as borne out from the writ record, are that plaintiff Surinder Kumar (now deceased) was a Milk Carriage Contractor of Cooperative Milk Federation, Satwari, Jammu during the period between 11.08.2000 to 17.02.2001, as he had deployed his vehicle for transportation of milk from Jourian to Satwari at the rate of Rs. 2/- per litre. Before the milk carriage bills of plaintiff to the tune of Rs. 62,662/- for the aforesaid period could be released by the Cooperative Milk Federation, it came to be wind up. The plaintiff kept on approaching the Director Animal Husbandry, Jammu for release of the said amount along with Rs. 22,203/- as security money, but with no result. Even the plaintiff sent a notice under Section 80 of the Civil Procedure Code, but of no avail. Compelled by the circumstances, plaintiff Surinder Kumar filed a Civil Suit on 11.08.2006 before the learned 1st Additional District Judge, Jammu seeking recovery of an amount of Rs. 84,865/- (Rs. 62,662/- as milk carriage bills + Rs. 22,203/- as security money). The plaintiff filed the suit as an indigent person on the ground of being a handicapped person with 40% disability and having no sufficient means to pay the court fees, which prayer was allowed by the court below on 20.08.2007. Besides Director Animal Husbandry, Official Liquidator, Cooperative Milk Federation also participated in the proceedings and filed the written statement thereby completely admitting the claim of plaintiff with the plea that his claim had already been sent to the Government through Director Animal Husbandry and efforts were being made for realization of the said amount in favour of plaintiff. 2. It would be important to note here that during the pendency of suit, plaintiff Surinder Kumar died on 07.11.2008 and his legal heirs, Respondents 1 to 5 herein, came to be brought on record. 3. Learned court below keeping in view the admission made on the part of Liquidator, Cooperative Milk Federation, allowed the suit vide judgment dated 15.04.2011 and a decree for an amount of Rs. 3. Learned court below keeping in view the admission made on the part of Liquidator, Cooperative Milk Federation, allowed the suit vide judgment dated 15.04.2011 and a decree for an amount of Rs. 84,865/- was passed in favour of plaintiffs (Respondents 1 to 5 herein) and against the defendants in the suit with interest pendente lite @ 9% per annum from the date of institution of the suit till passing of the decree with future interest @ 6% from the date of decree till realization of the decretal amount along with costs. 4. Thereafter, the Plaintiffs-Respondents 1 to 5 herein, filed an execution petition before the court below, and the learned court below vide order dated 09.11.2012, impugned herein, directed attachment of account head of Director, Department of Animal Husbandry, Jammu. Hence, the present writ petition on behalf of State against the said order. 5. The main contention of learned counsel for petitioner, as has been averred in the writ petition also, is that it was the Liquidator, Cooperative Milk Federation, Jammu who had the liability to clear the claim of Respondents 1 to 5 and not the Director, Animal Husbandry Department, Jammu, petitioner herein. The petitioner does not owe any liability towards Respondents 1 to 5. He further contended that the job of petitioner was only to forward the claims prepared by the Liquidator to the Government and it is the Government who has to provide funds to clear the liability of Respondents 1 to 5. He, thus, contended that the petitioner is not the right person to be made liable for the recovery; the order impugned is, therefore, illegal and the same deserves to be set aside. 6. Respondents 1 to 5 have filed objections to the writ petition averring therein that they succeeded in the suit after a full length trial in which the Liquidator while admitting the claim of Respondents 1 to 5 had asserted that the process for clearing all the liabilities had been routed through the Director, Animal Husbandry Department, Jammu. They further averred that the suit has already been decided against the defendants including the petitioner herein. 7. They further averred that the suit has already been decided against the defendants including the petitioner herein. 7. Learned counsel appearing for Respondents 1 to 5 contended that the petitioner after appearing for one or two occasions in the execution petition even did not bother to attend the court below; the court below in the given circumstances had no option but to pass the order attaching the account head of petitioner, as such the order impugned has been passed in accordance with the provisions of law. 8. Heard learned counsel appearing for the parties and perused the file. For effective disposal of the case, complete suit record of learned trial Court was also called for. 9. It is the admitted case of petitioner that plaintiff Surinder Kumar (now deceased) was a Milk Carriage Contractor of Cooperative Milk Federation, Satwari, Jammu during the period between 11.08.2000 to 17.02.2001, which Milk Federation later on came to be wind up. It is also admitted by the petitioner that the Liquidator had also admitted the claim of plaintiff Surinder Kumar in the suit filed before the Court of 1st Addl. District Judge, Jammu. The only ground taken in the petition against the order impugned is that the petitioner is not the right person to be made liable for the recovery; rather either it was the liability of Liquidator or the Government to provide funds to clear the liability of Respondents 1 to 5. Thus, the stand of petitioner is that its job was only limited to the extent of forwarding the claims prepared by the Liquidator to the Government and nothing else; as such it does not owe any liability towards Respondents 1 to 5. 10. In order to deal with this contention of petitioner, I would like to quote hereunder the relevant portion of Communication No. DAHJ/Bgt/15317-19, dated 30.01.2006 addressed by the Director, Animal Husbandry, Jammu to the Liquidator. "Needless to mention here that this department has already cleared the liabilities of erstwhile Milk Federation, Jammu on account of Procurement of Milk during the year 2004-05 to the tune of Rs. 30.99/- lacs on the basis of the information provided by you to this office vide No. Liq/JCMF/352-38, dated 11.03.2005 which does not include the liability of the aforesaid person." 11. 30.99/- lacs on the basis of the information provided by you to this office vide No. Liq/JCMF/352-38, dated 11.03.2005 which does not include the liability of the aforesaid person." 11. I would also like to quote hereunder the relevant portion of Communication No. JRC/08-10, dated 10.05.2007 addressed to the Director, Animal Husbandry by the Liquidator. "Since the entire process for preferring the liabilities and the liquidation of all liabilities have been done through your office, it would not be feasible to start this exercise from this office in the mid way." 12. Therefore, in view of the above, I do not find any force in the contention of petitioner that it does not owe any liability towards respondents 1 to 5. 13. Further, a perusal of suit record reveals that the Cooperative Milk Federation, Jammu was formed by the Government which was under the administrative control of Director Animal Husbandry, Jammu as is evident from Government order dated 27.07.2004 issued by the Secretary to Government, Animal/Sheep Husbandry Department based on Cabinet Decision No. 68/5, dated 13.02.2004. Moreover, the Liquidator appointed was also under the administrative charge of Director Animal Husbandry, Jammu, who was supervising the functioning of Liquidator in the conduct of winding up of the Cooperative Milk Federation, Jammu, as is evident from various communications annexed with the suit record. 14. Further, it is the specific stand of petitioner that it also participated in the proceedings of the Civil Suit filed by plaintiff Surinder Kumar. Even in paragraph-4 of this petition, the petitioner has admitted that the written statements were filed by it and other defendants in the civil suit filed by plaintiff Surinder Kumar, wherein the Liquidator had admitted the claim of plaintiff. 15. Also, it is to be seen here that in the suit it was not the stand of petitioner that it was not the right person to be made liable for recovery; rather after filing written statement in the Civil Suit, wherein the Liquidator had admitted the claim of plaintiff Surinder Kumar, the petitioner herein as well as Liquidator opted to remain absent and resultantly they were set ex parte. In the said suit the petitioner did not take a concrete stand that either it was the Liquidator or the Government who has to satisfy the claim of plaintiff. In the said suit the petitioner did not take a concrete stand that either it was the Liquidator or the Government who has to satisfy the claim of plaintiff. Therefore, in view of admission on the part of Liquidator and in absence of any specific stand taken by the petitioner herein, the trial Court had no option but to allow the suit. 16. Even in the objections filed by the petitioner to the Execution Petition, the petitioner never took a specific stand that it was not the right person to be made liable for recovery; rather the only stand taken in the objections to the execution petition was that the plaintiff had no cause of action against the petitioner herein, which is nothing but an evasive reply. Thus, neither in the Civil Suit nor in the Execution Petition the petitioner herein had ever taken a stand that he was not the right person to be made liable for recovery. The suit was filed on 11.08.2006 and the execution petition came to be filed on 07.10.2011 and during these years the petitioner never took such a specific stand. Even after filing objections to the execution petition, the petitioner did not bother to appear before the Trial Court. Now, for the first time, the petitioner herein has in the instant writ petition, which came to be filed by on 22nd January, 2013, taken a stand that it was not the right person to be made liable for recovery, although in paragraph-4 of the petition, the petitioner has admitted that written statements were filed by it and other defendants in the Civil Suit filed by plaintiff Surinder Kumar, wherein the Liquidator had admitted the claim of plaintiff. Therefore, in view of the above discussion, the petitioner has no locus to say at this stage that it does not owe any liability towards Respondents 1 to 5, which is a totally new stand having no connection with the stand taken by the petitioner herein in the trial Court, which cannot be allowed by way of writ petition. Therefore, I do not find any merit in the writ petition and the same is liable to be dismissed. 17. Therefore, I do not find any merit in the writ petition and the same is liable to be dismissed. 17. Otherwise too, the instant writ petition is liable to be dismissed on the ground that the judgment and decree came to be passed by the learned trial Court on 15.04.2011 holding the defendants therein, including the petitioner herein, liable for payment of decretal amount, but the petitioner herein never bothered to challenge the same in appropriate forum. Thus, the same has attained finality as it has not been challenged by the petitioner herein. The petitioner herein cannot be allowed to play a second inning in the garb of present writ petition. Even when order dated 09.11.2012, impugned herein, came to be passed by the learned trial Court in the execution petition, even then the petitioner instead of challenging the judgment and decree, has filed the present writ petition questioning the order attaching its account head. The present petition, therefore, on the face of it is not maintainable. 18. Therefore, in view of the above discussion and after going through the material placed on record, I do not find any merit in the writ petition being not maintainable and the same is, accordingly, dismissed along with connected miscellaneous petition(s), if any. Interim direction dated 23.01.2013 shall stand vacated forthwith. Trial Court is directed to go ahead with the execution petition. 19. Before parting, I would like to state that in its ideal form, a Welfare State is expected to mitigate the sufferings of its own people, rather to add woes to their sufferings they are already going through. Here, in the present case, I would like to express the plight of original plaintiff as well as Respondents 1 to 5 herein. The suit amount relates to the period between 11.08.2000 to 17.02.2001. When plaintiff Surinder Kumar failed to get his due amount despite issuance of notice, he filed a Civil Suit before the trial Court on 11.08.2006, wherein defendant No. 4 while admitting the claim of plaintiff stated that his claim has already been forwarded to the Government through the petitioner herein. However, during the pendency of suit the plaintiff died on 07.11.2008 and his legal heirs, Respondents 1 to 5 herein, were brought on record. Ultimately, the suit came to be decreed in favour of plaintiffs on 15.04.2011. However, during the pendency of suit the plaintiff died on 07.11.2008 and his legal heirs, Respondents 1 to 5 herein, were brought on record. Ultimately, the suit came to be decreed in favour of plaintiffs on 15.04.2011. Now it is July, 2016 and still Respondents 1 to 5 have been hankering for getting their genuine petty amount for the last about 16 years only because of laxity and non-serious approach of defendants in the original suit despite the claim being admitted by them, that too when the plaintiff was allowed to file the suit as an indigent person with 40% disability. In the given circumstances, petitioner is burdened with costs of rupees thirty thousands, to be deposited by it in the Registry of this Court within a period of one month from today. On deposit, the same shall be released in favour of Respondent No. 1 after proper verification and identification. It is made clear that in case the petitioner fails to deposit the costs within the aforesaid period, Registrar (Judicial) is directed to frame a separate robkar against the petitioner, and after issuing notice to the petitioner, list the same before the Court. This amount would be in addition to the costs as directed by the trial Court. Registry to forthwith send a copy of this judgment to the learned trial Court.