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2022 DIGILAW 16 (SIK)

Mamta Gurung v. Director, Vigilance Department

2022-04-13

BHASKAR RAJ PRADHAN

body2022
JUDGMENT Bhaskar Raj Pradhan, J. - The present appeal seeks to assail the judgment passed by the learned District Judge, Special Division-I, Sikkim at Gangtok, in Money Suit No. 240 of 2018 dated 26.06.2021 as well as the decree dismissing the suit filed by the appellant herein against the Director, Vigilance Department, Sikkim Police, Government of Sikkim (defendant no.2 in the suit and the sole respondent herein). 2. The plaint was filed under Order VII of the Code of Civil Procedure, 1908 and styled as suit for recovery of money and other reliefs. The suit was filed against the Managing Director, Sikkim Co-operation Milk Producer's Union (SCMPU) as defendant no.1 and the Director, Vigilance Department, Sikkim Police, Government of Sikkim as defendant no.2. In the plaint, it was the appellant's case that SCMPU had auctioned a Maruti Alto Car bearing registration no. SK-02/A-0524 (the vehicle) on 16.02.2007 in which she participated and was declared the highest bidder. The appellant states that on 16.02.2007, she purchased the vehicle in the auction for a total consideration of Rs.1,01,000/-. It is alleged that although the appellant was declared the real owner of the vehicle the SCMPU has failed to transfer the ownership of the vehicle in the name of the appellant and continues to be recorded in the name of the original owner. It is the appellant's case that the purchase of the vehicle was for the purpose of plying a taxi by Ratan Kumar Gurung (younger brother of the appellant), as he was unemployed. It is asserted that in the month of May 2007, the defendant no.2 had illegally and forcefully taken away the said vehicle from the makeshift garage of the appellant along with the ignition key, documents, etc., without specifying valid reason or giving any prior notice. Ever since then the vehicle had been in the custody of the respondent. The appellant had requested for handing over the vehicle or refund the money paid by the appellant to the SCMPU but in vain. The property seizure memo by which the respondent seized the vehicle was also annexed to the plaint. It is the case of the appellant that her brother Ratan Kumar Gurung could have earned a sum of Rs.26,64,000/- with the use of the vehicle as per the Table provided in paragraph 11 thereof. The Table is reproduced hereinbelow:- SL NO. The property seizure memo by which the respondent seized the vehicle was also annexed to the plaint. It is the case of the appellant that her brother Ratan Kumar Gurung could have earned a sum of Rs.26,64,000/- with the use of the vehicle as per the Table provided in paragraph 11 thereof. The Table is reproduced hereinbelow:- SL NO. PERIOD NUMBER OF DAYS (@ average of 30 days per month) EARNING PER DAY (in rupees) TOTAL (in rupees) 1 01.07.2007 to 31.12.2007 180 DAYS 600 1,08,000/- 2 01.01.2008 to 31.12.2010 1080 DAYS 600 6,48,000/- 3 01.01.2011 to 31.12.2015 1800 DAYS 700 12,60,000/- 4 01.01.2016 to 31.03.2018 810 DAYS 800 6,48,000/- 26,64,800/- 3. The appellant further states that the respondent filed a case against her husband and others before the learned Special Judge, Prevention of Corruption Act, East Sikkim at Gangtok, being Sessions Trial (Vig) case No. 1 of 2011, in which he was convicted under section 420 read with section 120B and Section 13(1)(d)(ii) punishable under section 13(2) of the Prevention of Corruption Act, 1988 (P.C. Act) and sentenced to undergo simple imprisonment of one year and to pay a fine of Rs.5000/- for the offence under section 13(1)(d)(ii) of the P.C. Act and in default of payment of fine to undergo further imprisonment of five months. According to the appellant herself, the gravemen of the prosecution case was that the vehicle which belonged to SCMPU was disposed of for a sum of Rs.1,01,000/- by her husband. The appellant claims that in appeal before this court, by a judgment dated 09.08.2015 (sic, 09.06.2015) in Crl. Appeal No. 9 of 2014 (Dr. Kamal Gurung vs. State of Sikkim), the appellant's husband was acquitted of the charges. The appellant states that she is entitled to damages for mental torture, harassment and financial losses which she and her family had suffered and continues to undergo due to the wrongful acts of the respondent. It is claimed that the amount of Rs.26,64,000/- is liable to be paid to her by the respondent for loss of earning for last 11 years and Rs.10,00,000/- as damages for mental sufferings, agonies, torture and harassment. It is claimed that a notice was issued to the SCMPU as well as the respondent demanding from both, payment of Rs.36,64,000/-. It is claimed that the amount of Rs.26,64,000/- is liable to be paid to her by the respondent for loss of earning for last 11 years and Rs.10,00,000/- as damages for mental sufferings, agonies, torture and harassment. It is claimed that a notice was issued to the SCMPU as well as the respondent demanding from both, payment of Rs.36,64,000/-. It is claimed that the cause of action to file the suit arose on 01.05.2007 when the respondent seized the vehicle from the appellant and also on 09.08.2015 (sic, 09.06.2015) when this court acquitted the appellant's husband. It is claimed that cause of action arose when the appellant sent a notice under section 80 of the CPC to the respondent. On those pleadings, the appellant claimed the following reliefs:- a. Rs.10,00,000/- as general damage for mental and bodily pain and loss of reputation. b. Rs.1,01,000/- cost of the vehicle. c. Rs.26,64,000/- loss of earning. d. interest pendent lite and future. e. any other relief/reliefs as this Hon'ble Court may deem fit and proper, in the interest of justice and equity. 4. The SCMPU filed written statement contesting the suit. The respondent contested the suit on the ground that the vehicle was the subject matter of investigation and therefore, required to be seized by them and it could not have been handed over without orders of the court. It was submitted that the appellant had no cause of action against the respondent since the vehicle was seized for investigation of a cognizable case and in discharge of its official duty. It is further asserted that the respondent in terms of the judgment dated 24.03.2014, passed by the learned Special Court, P.C. Act in S.T. (Vig.) Case No. 01 of 2011, had asked the appellant to take necessary steps for release of the vehicle but the appellant did not take any steps for the same. 5. The appellant as well as her brother, Ratan Kumar Gurung, filed evidence on affidavit reiterating the averments in the plaint. The appellant exhibited Money Receipt dated 16.02.2007 for payment made for the vehicle as exhibit-1; the letter dated 15.03.2007 addressed to the Joint Secretary of the Department of Motor Vehicle for making arrangement to register the vehicle in her name as exhibit-2; the property seizure memo by which the vehicle was seized by the defendant no.2 as exhibit-3; the judgment of this court in Crl. A. No. 9 of 2014 as exhibit-4; Notice dated 02.04.2018 issued by the appellant as exhibit-5; the photocopies of envelopes for posting the Notice and postal receipts as exhibits - 6 and 7; and the notice under section 80 CPC dated 06.04.2018 as exhibit-8. 6. The respondent filed the evidence on affidavit of Shri Passang Tshering Lepcha who was the Investigating Officer of criminal case no. S.T (Vig) Case No. 01 of 2011 reiterating the stand taken in the written statement. He exhibited Home Department's Notification No. 16(2)-Home/78 dated 28.11.1978 as exhibit D-1; the Inquiry/Verification Report dated 29.03.2007 as exhibit D-2; the charge sheet in R.C. case No. 4 of 2007 as exhibit D-3; certified copy of the FIR dated 01.05.2007 as exhibit D-4; certified copies of the letter dated 28.05.2010 and 19.04.2010 as exhibits - 5 & 6; certified copy of judgment of conviction dated 24.03.2014 as exhibit D-7; and certified copy of reply of the respondent dated 31.05.2018 to the legal notice of the appellant as exhibit D-8. Shri M. Ravindran, the Technical Expert in the Vigilance Department, also deposed for the respondent. 7. It transpires that on 03.09.2019 a petition filed by SCMPU under Order I Rule 10(2) CPC was allowed and consequently, SCMPU, the then defendant no.1, was deleted from the array of defendants leaving the respondent alone to contest. The learned District Judge concluded then that SCMPU was neither interested in the claim made by the appellant nor was its presence necessary for proper and effective adjudication of the suit and for granting relief. The entire case of the appellant was against the respondent only and the loss and damages suffered by the appellant was because of the seizure of the vehicle by the respondent. This order was not assailed and has become final. 8. The learned District Judge framed four issues, tried them and held all the issues against the appellant. The appellant is aggrieved by the impugned judgment and decree dismissing her suit. 9. The first issue on the maintainability of the suit was decided against the appellant. The learned District Judge held that the suit was for recovery of money and other reliefs and not for malicious prosecution as contested by the learned government Advocate. The appellant is aggrieved by the impugned judgment and decree dismissing her suit. 9. The first issue on the maintainability of the suit was decided against the appellant. The learned District Judge held that the suit was for recovery of money and other reliefs and not for malicious prosecution as contested by the learned government Advocate. It further held that admittedly the cause of action first arose on 16.02.2007 when the appellant paid Rs.1,01,000/- in the auction for the vehicle and thereafter on 01.05.2007 when the vehicle was seized by the respondent. The learned District Judge held that the cause of action cannot be taken from the date on which the appellant's husband was acquitted by this court in appeal since the conviction and acquittal has no nexus with the cause of action for recovery of money. The period of limitation therefore was to be reckoned from 16.02.2007 and since limitation of recovery of money itself is three years, it is hopelessly barred by law of Limitation. Considering the averments in the plaint as well as the prayer for compensation, it is quite evident as rightfully pointed by Mr. Yadev Sharma that it is Article 91 of the Limitation Act, 1963 which would be the appropriate Article. The suit for compensation for wrongfully taking or injuring or wrongfully detaining any other specific movable property would be guided by Article 91(b) of the Limitation Act, 1963 which prescribes a period of three years as the period of limitation and time begins to run when the property is wrongfully taken or injured or when the detainer's possession becomes unlawful. It is the case of the appellant that the vehicle which was purchased by her was wrongfully seized by the respondent on 01.05.2007. As per the averments in the plaint itself, the cause of action of the suit first arose on the said date. Applying the said Article, limitation would expire on or about 01.05.2010. Admittedly, the plaint was filed on 05.06.2018 after eleven years. The suit was hopelessly barred by limitation and the learned District Judge has rightfully held the suit to be barred by limitation. 10. The second issue held against the appellant was - Whether the seizure and detention of the vehicle by the defendant was done malafide and with ulterior motive? Admittedly, the plaint was filed on 05.06.2018 after eleven years. The suit was hopelessly barred by limitation and the learned District Judge has rightfully held the suit to be barred by limitation. 10. The second issue held against the appellant was - Whether the seizure and detention of the vehicle by the defendant was done malafide and with ulterior motive? Admittedly, there is no averment in the plaint that the seizure and detention of the vehicle was malafide and with ulterior motive. In paragraph 10, it is averred that the respondent had illegally and forcefully taken away the vehicle. This is the only averment in the plaint. Ms Navtara Sarda fairly submits that there is no evidence laid by the appellant to prove that the seizure was malafide and with ulterior motive. It is the clear stand both in the written statement as well as in the evidence of Mr. Passang Tshering Lepcha that the seizure was done in connection with an investigation of a criminal case alleging a cognizable offence regarding the very same vehicle and that the seizure was necessary. The learned District Judge concluded that the seizure of the vehicle by the respondent was as per law and there was no personal grudge against the appellant. This court is of the firm view that the reasoning of the learned District Judge is sound. 11. The third issue held against the appellant was - Whether the plaintiff had suffered mental pain, agony and monetary loss due to the action of the Defendant and whether the Plaintiff is entitled for the recovery of loss and damages as prayed? The appellant had averred that the vehicle was purchased by her for the use of her younger brother Ratan Kumar Gurung to ply as a taxi and due to the seizure of the vehicle they had suffered a loss as given in the Table above. Both the appellant as well as Ratan Kumar Gurung reiterated this fact in their evidence on affidavits. In cross-examination of Ratan Kumar Gurung, he admitted that he did not get an opportunity to ply the vehicle as taxi and therefore there was no loss and that the claim for the loss of Rs.26,64,000/- was calculated on an average and on assumption. In cross-examination of Ratan Kumar Gurung, he admitted that he did not get an opportunity to ply the vehicle as taxi and therefore there was no loss and that the claim for the loss of Rs.26,64,000/- was calculated on an average and on assumption. A perusal of the evidence laid by the plaintiff discloses that there is no evidence to support the claim of the appellant as given in the Table. There is not even a statement that the rate for plying taxi at the relevant time was as claimed leave alone any proof thereof. As such the issue was correctly decided against the appellant. The learned District Judge has, thus, rightly held that the appellant was not entitled for any reliefs. 12. The appellant has failed to prove her case against the respondent of mental agony or loss of earning. Insofar as the cost of the vehicle is concerned, it seems that the appellant had not sought for release of vehicle from the trial court which disposed of the criminal case against her husband. In any case, the appellant has failed to prove that the respondent is liable to pay for the cost of the vehicle. 13. The appeal is accordingly dismissed and disposed of. 14. Copy of this judgment be transmitted to the court of the learned District Judge, Special Division-I, Sikkim at Gangtok.