JUDGMENT : HANCHATE SANJEEVKUMAR, J. 1. This appeal is filed by the defendant challenging the judgment and decree dated 27.04.2019 passed by the Court of XI Addl. City Civil Judge, Bangalore City, in O.S.No.3954/2012, thereby, the suit filed for recovery of money is decreed. 2. The rank of parties is referred to as per their rankings before the trial court. 3. It is the case of plaintiff as per plaint averments in brief that the plaintiff is a transport corporation and the defendant was appointed as a Conductor and retired from the service on 31.08.2004 after attaining the age of superannuation. At the time of retirement, the defendant has received gratuity amount of Rs. 1,69,740/-. 4. The defendant has filed an application before the Assistant Labour Commissioner, Controlling Authority, Bengaluru, under the Payment of Gratuity Act, 1972 (for short ‘the Act’) claiming a sum of Rs. 1,61,644/- towards difference in gratuity. On 12.09.2007 the Controlling Authority determined the gratuity payable to the defendant at Rs. 2,24,050/- after deducting a sum of Rs. 1,69,740/- already paid and ordered to pay balance of Rs. 1,04,310/- with interest for 3 years at Rs. 31,293/- p.a., totally Rs. 1,35,603/-. 5. Both plaintiff and the defendant preferred the appeals before the Appellate Authority and the Appellate Authority allowed the appeal filed by the defendant and dismissed the appeal filed by the plaintiff and after deducting the amount already paid of Rs. 1,69,740/-, the gratuity was re-determined at Rs. 2,83,500/- and directed to pay balance of Rs. 1,13,760/- with interest at 10% p.a. 6. It is the case of the plaintiff that while preferring the appeal the plaintiff has deposited a sum of Rs. 1,15,381/- as per Section 7 of the Act. Against the order passed by the Appellate Authority on 26.06.2008 three writ petitions were filed in W.P.No.10836/2008 by the Corporation and the workman has filed W.P.No.12180/2008 and W.P.No.11914/2008. This Court on 09.03.2009 has allowed all the writ petitions by passing common order and remanded the matters to the Controlling Authority to determine the gratuity afresh. After remand, the Controlling Authority on 26.05.2011 has re-determined the gratuity at Rs. 1,70,719/- after deducting a sum of Rs. 1,69,740/-, which was already paid and it was ordered the balance of Rs. 979/- to be payable to the defendant, but the defendant had already withdrawn the amount of Rs. After remand, the Controlling Authority on 26.05.2011 has re-determined the gratuity at Rs. 1,70,719/- after deducting a sum of Rs. 1,69,740/-, which was already paid and it was ordered the balance of Rs. 979/- to be payable to the defendant, but the defendant had already withdrawn the amount of Rs. 1,15,381/-, which was the amount deposited by the plaintiff while preferring the appeal before the appellate authority. Therefore, the defendant has received the amount twice totaling to amount of Rs.2,85,121/- and therefore, this is observed by the Controlling Authority in its order. Therefore, the plaintiff has filed the suit for recovery of money. 7. The defendant has filed the written statement denying all the averments made in the plaint. It is contended that the defendant has correctly received the amount and there is no double claim made by the defendant or there is no excess amount received by the defendant and whatever the defendant is entitled to receive the gratuity amount, the same has been received. Therefore prays to dismiss the suit. 8. Upon pleadings, the trial court has framed the following issues: (1) Whether the plaintiff proves that the defendant is liable to pay the amount of Rs.1,14,402/- as stated in para No.6 of the plaint? (2) Whether the suit is barred by limitation? (3) Whether the civil court has no jurisdiction to try the suit in view of Sec.13 of Payment of Gratuity Act 1972? (4) Whether the plaintiff is entitled for the amount of Rs.1,14,402/- along with interest at 18% p.a. from the date of suit till realization? (5) What order or decree? 9. The official of the plaintiff/Corporation was examined as PW1 and produced documents and got them marked as Exs.P-1 to P-4. The defendant is examined as DW1 and produced documents, which are marked as Exs.D-1 to D-6. 10. The trial court after assessing the evidence on record had found that the gratuity amount determined by the Controlling Authority at Rs.1,70,719/- has attained finality. At the time of retirement of the defendant on 31.08.2004, the defendant was paid an amount Rs.1,69,740/- and subsequently when a dispute arose for re-determining the gratuity amount, the plaintiff has filed an appeal before the Appellate Authority and has deposited a sum of Rs.1,15,381/-, which was withdrawn by the defendant. At the time of retirement of the defendant on 31.08.2004, the defendant was paid an amount Rs.1,69,740/- and subsequently when a dispute arose for re-determining the gratuity amount, the plaintiff has filed an appeal before the Appellate Authority and has deposited a sum of Rs.1,15,381/-, which was withdrawn by the defendant. Therefore, the defendant has received the gratuity amount in excess and accepting the case of the plaintiff, the trial court has decreed the suit. 11. Being aggrieved by decreeing the suit the defendant preferred an appeal by raising various grounds in the memorandum of appeal and the learned counsel for the appellant vehemently submitted that the suit is not maintainable for recovery of money in the case of gratuity amount. He places reliance on Section 8 of the Act. Further submitted that as per Section 13 of the Act protection is given to employee for making attachment of the gratuity amount. Therefore, submitted that the suit is not maintainable. Further submitted that the Controlling Authority while passing the order - Ex.P-1 has not issued notice to the defendant and it was an exparte order. Therefore, the suit filed based on Ex.P-1 is not correct. 12. Further submitted that as per Ex.D-5 the defendant has filed an application seeking to withdraw the amount and the same is allowed by the Controlling Authority and paid the amount for which the defendant could not be found fault with. Therefore, submitted that anyway the defendant has not received any excess amount. Hence, the suit filed is frivolous one and this is not considered by the trial court correctly. Hence, prays to allow the appeal and set aside the judgment and decree. 13. Learned counsel for the plaintiff/respondent submitted that the issue regarding maintainability of the suit is already determined as Issue No.3 and the said finding on maintainability of the suit has attained finality and that cannot be reagitated in this appeal, as the defendant has not preferred any appeal as against the finding on Issue No.3. Further submitted that Section 8 of the Act is applicable to the employee in case the gratuity amount is not paid by the employer, but here the suit is for recovery of excess money received by the defendant and hence, there is no question of non-payment of gratuity is concerned by the plaintiff/respondent. Hence, Section 8 of the Act is not applicable. 14. Hence, Section 8 of the Act is not applicable. 14. Further submitted that Section 13 of the Act is also not applicable as the present suit is not for any attachment in execution of any decree, but the suit is for recovery of money of excess amount paid as gratuity. Therefore, submitted Section 13 of the Act is also not applicable. 15. Further by filing the synopsis in this regard, submitted that the calculation made by the Controlling Authority in Ex.P-1 is correct, which has attained finality as the defendant has not preferred any appeal despite having knowledge that the order at Ex.P-1 is passed. Therefore, based on the order passed by the Controlling Authority as per Ex.P-1, the suit is filed as liberty is granted by the Controlling Authority. Therefore, justified the judgment and decree passed by the trial court and prays to dismiss the appeal. 16. Upon hearing the submissions of learned counsel for both sides, the following points would arise for consideration are: (1) Whether, under the facts and circumstances involved in the case, the plaintiff is able to establish that the defendant has received the excess amount of Rs.1,14,402/- towards gratuity and thus, the plaintiff is liable to recovery the said excess amount? (2) Whether, under the facts and circumstances involved in the case, the defendant is able to establish that he has not received the excess gratuity amount? (3) Whether, under the facts and circumstances involved in the case, the judgment and decree passed by the trial court requires any interference by this Court? 17. It is an admitted fact that the defendant was working as a conductor under the plaintiff/Corporation and retired from the service on 31.08.2004. It is also not in dispute that soon after retirement from the service the defendant has received an amount of Rs.1,69,740/-. The dispute is regarding the difference in payment of gratuity amount is concerned. The defendant has filed an application before the Assistant Labour Commissioner and Controlling Authority, Bangalore, under the Act claiming a sum of Rs.1,61,644/- towards difference in gratuity. Therefore, according to the defendant the plaintiff had to pay another sum of Rs.1,61,644/- apart from the amount of Rs.1,69,704/-, which has already been paid. 18. The defendant has filed an application before the Assistant Labour Commissioner and Controlling Authority, Bangalore, under the Act claiming a sum of Rs.1,61,644/- towards difference in gratuity. Therefore, according to the defendant the plaintiff had to pay another sum of Rs.1,61,644/- apart from the amount of Rs.1,69,704/-, which has already been paid. 18. The Controlling Authority on 12.09.2007 has re-determined the gratuity at Rs.2,24,050/- after deducting a sum of Rs.1,69,740/-, which has already been paid and thus, held balance amount at Rs.1,04,310/- by adding interest for 3 years thereon and ordered to pay the balance amount of Rs.1,35,603/-. These facts are not disputed by the plaintiff and the defendant. 19. Against the determination of gratuity of Rs.2,24,050/- the plaintiff has preferred an appeal before the Appellate Authority and at the time of filing the appeal, as required under Section 7(7) of the Act, the plaintiff/Corporation has deposited the amount of Rs.1,15,381/-. During the pending adjudication of the appeal the defendant withdrew the said amount of Rs.1,15,381/-, which is not in dispute. Therefore, it is admitted fact that the defendant has received an amount of Rs.1,69,740/-, which was soon after retirement from the service and a sum of Rs.1,15,381/- when the plaintiff has preferred the Appellate Authority questioning the order passed dated 12.09.2007. 20. Against the order passed by the Controlling Authority the plaintiff has filed a W.P.No.10836/2008 and workman had filed W.P.No.12180/2008 and the defendant has filed the W.P.No.11914/2008 claiming interest at 18% p.a. from the date of retirement. This Court has allowed all the writ petitions and set aside the order of Appellate Authority and Controlling Authority and the remanded to Controlling Authority with a direction to re-determine the gratuity amount. 21. The Controlling Authority after remanding the case from this Court has adjudicated and re-determined the gratuity and held that the defendant is entitled to total gratuity amount of Rs.1,70,719/-. Though the defendant is contending that the order - Ex.P-1 is exparte order, but that was not challenged before the Appellate Authority. With reference to Ex.P-3 - order sheet maintained by the Controlling Authority it is evident that the defendant has not appeared, but the fact that the defendant has not challenged the said Ex.P-1 - order has attained finality. 22. With reference to Ex.P-3 - order sheet maintained by the Controlling Authority it is evident that the defendant has not appeared, but the fact that the defendant has not challenged the said Ex.P-1 - order has attained finality. 22. Ex.P-2 is the legal notice dated 27.01.2012 issued by the plaintiff/Corporation to the defendant intimating the recovery of excess amount by stating that the Controlling Authority has passed order as per Ex.P-1, but inspite of it the defendant has not filed any appeal against the order passed as per Ex.P-1. Therefore, the order passed as per Ex.P-1 has attained finality. 23. In Ex.P-1 the Controlling Authority has re-determined the gratuity amount of Rs.1,70,719/- on 26.05.2011. Therefore, despite defendant having knowledge regarding the order passed as per Ex.P-1, the defendant has accepted the same. In Ex.P-1 the Controlling Authority has in detail assessed the amount of gratuity and observed that the defendant has received the amount twice on the guise of gratuity of Rs.1,69,740/- and a sum of Rs.1,15,381/-, therefore held that the defendant has received an excess amount of Rs.1,14,402/-. Therefore, liberty is reserved to the plaintiff /Corporation to recover the said amount and as such the suit filed by the plaintiff is maintainable. 24. Sections 8 and 13 of the Act read as follows: “ 8. Notice for payment of gratuity. -- (1) Within fifteen days of the receipt of an application under Rule 7 for payment of gratuity, the employer shall: (i) If the claim is found admissible on verification, issue a notice in Form `L' to the applicant employee, nominee or legal heir, as the case may be, specifying the amount of gratuity payable and fixing a date, not being later than the thirtieth day after the date of receipt of the application, for payment thereof, or (ii) If the claim for gratuity is not found admissible, issue a notice in Form ‘M’ to the applicant employee, nominee or legal heir, as the case may be, specifying the reasons why the claim for gratuity is not considered admissible. In either case a copy of the notice shall be endorsed to the controlling authority. In either case a copy of the notice shall be endorsed to the controlling authority. (2) In case payment of gratuity is due to be made in the employer's office, the date fixed for the purpose in the notice in Form ‘L’ under Clause (i) of sub-rule (1) shall be re fixed by the employer, if a written application in this behalf is made by the payee explaining why it is not possible for him to be present in person on the date specified. (3) If the claimant for gratuity is a nominee or a legal heir, the employer may ask for such witness or evidence as may be deemed relevant for establishing his identity or maintainability of his claim, as the case may be. In that case, the time limit specified for issuance of notice under sub-rule (1) shall be operative with effect from the date such witness or evidence, as the case may be, called for by the employer is furnished to the employer. (4) A notice in Form ‘L’ or Form ‘M’ shall be served on the applicant either by personal service after taking receipt or by registered post with acknowledgement due. (5) A notice under sub-section (2) of Section 7 shall be in Form ‘L’.” “ 13. Administration of oath.-- The controlling authority may authorise a clerk of his office to administer oaths for the purpose of making affidavits.” 25. The submission made by the learned counsel for the defendant that as per Sections 8 and 13 of the Act, the suit is not maintainable does not hold the water since Section 8 is relating to where employer fails to pay gratuity and remedy provided to the employee to file an application before Controlling Authority for claiming gratuity. Likewise, Section 13 of the Act provides protection of gratuity in case in any proceedings of recovery of money in any suit in the nature of civil, revenue or criminal, the amount of gratuity shall not be attached. Under the facts and circumstances of the present case, as above stated, these two provisions are not applicable as the remedies are under different circumstances. In the present case, it is not the case that the plaintiff has not paid the gratuity but the plaintiff has paid gratuity as determined by the Controlling Authority. Under the facts and circumstances of the present case, as above stated, these two provisions are not applicable as the remedies are under different circumstances. In the present case, it is not the case that the plaintiff has not paid the gratuity but the plaintiff has paid gratuity as determined by the Controlling Authority. Hence, there is no question of non-payment of gratuity so as to apply Section 8 of the Act. Furthermore, the plaintiff’s claim is not in civil, revenue or criminal proceedings to recover the amount in any other case so as to recover the amount by making attachment of the gratuity amount. But here the instant suit is simply for recovery of money as the amount is paid twice to the defendant. Therefore, the excess amount paid in the name of gratuity and recovery of the same, the suit is filed. Therefore, Sections 8 and 13 of the Act are not applicable as argued by the counsel for the appellant/defendant. 26. Further learned counsel for the appellant/defendant places reliance on the judgment of the Hon’ble Supreme Court in the case of THOMAS DANIEL v. STATE OF KERALA & ORS. Civil Appeal No.7115/2010 dated 02.05.2022 and argued that even if the defendant has received the amount in excess, but the defendant is a Senior Citizen and retired from the service 20 years before, therefore at this advanced age the amount cannot be recovered. 27. In the above said judgment namely, Thomas Daniel’s case the crux are that the Corporation has made excess payment due to mistake in interpreting Kerala Services Rules, which was subsequently pointed out by the Accountant General. Therefore, under these circumstances, the Hon’ble Apex Court has ordered that it is not appropriate to recover the excess amount paid to the employee, but in the present case the excess amount paid is not by misinterpreting any of the provision of the law, but it is only the calculation made in determining the gratuity amount. In the present case, admittedly the defendant has received the gratuity amount twice. One is, Rs.1,69,740/- soon after retirement from the service and for second time, the defendant has received a sum of Rs.1,15,381/-, which was the amount deposited by the plaintiff/Corporation while preferring the appeal against the order of the Controlling Authority. Therefore, the plaintiff has received an amount of Rs.2,85,121/- towards gratuity. One is, Rs.1,69,740/- soon after retirement from the service and for second time, the defendant has received a sum of Rs.1,15,381/-, which was the amount deposited by the plaintiff/Corporation while preferring the appeal against the order of the Controlling Authority. Therefore, the plaintiff has received an amount of Rs.2,85,121/- towards gratuity. But as per order - Ex.P-1 dated 26.05.2011 the Controlling Authority has finally determined the gratuity payable is Rs.1,70,719/-. Therefore, on these circumstances, the Controlling Authority has passed order as per Ex.P-1 holding that the defendant has received a sum of Rs.1,14,402/- in excess and accordingly granted liberty to recover the same as per law and that is why the plaintiff has filed the suit. Therefore, all these facts and circumstances are correctly appreciated by the trial court and delivered the judgment, which is perfectly found to be justifiable and legal. Therefore, there is no need to make any interference in the judgment and decree of the trial court. Accordingly, I answer Point No.(1) in the affirmative and Point Nos.(2) and (3) in the negative. 28. For the reasons aforestated, I proceed to pass the following: ORDER (1) The appeal is dismissed (2) The judgment and decree dated 27.04.2019 passed by the Court of XI Addl. City Civil Judge, Bangalore City, in O.S.No.3954/2012, is confirmed. (3) Draw the decree accordingly. (4) No costs.