Supreme Court - Daily Orders
Directorate Of Revenue Intelligence vs Puspha L. Tolani on 16 July, 2024
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7808/2024
[ Arising out of SLP (Civil) No.19949 of 2021 ]
DIRECTORATE OF REVENUE INTELLIGENCE Appellant(s)
VERSUS
PUSPHA L. TOLANI & ORS. Respondent(s)
O R D E R
Leave granted.
1. Heard Mr. V. Chandra Shekhar Bharathi, learned counsel appearing for the appellant (defendant). The respondent No.1 (plaintiff) is represented by Mr. Abhay Kumar, learned counsel. The 2nd respondent is represented by Mr. Umakant Misra, learned counsel.
2. The short issue to be considered here is whether the suit filed by the plaintiff claiming damage for malicious prosecution against the Directorate of Revenue Intelligence and their Officer is maintainable and if the suit is filed within the period of limitation prescribed for such suits.
3. It is not in dispute that the instant suit for compensation for malicious prosecution is to be filed within one year of the plaintiff’s acquittal. The plaintiff was prosecuted under Section 132 & 135 of the Customs Act, 1962 but acquitted by the Court on 11.04.2007. A one year period is prescribed as limitation for filing such suit.
4. Signature Not Verified The respondent no. 1 filed the suit on 11.04.2008, on the 365 th Digitally signed by Deepak Joshi Date: 2024.07.26 day of her acquittal, and theoretically the suit was filed within 17:05:46 IST Reason:
limitation. However, the defendants raised the plea that the suit was filed without issuing a notice under Section 80 of the Civil Procedure Code, 1908 (CPC) and therefore the notice being mandatory, the suit, at the time of filing, was not maintainable.
5. Under the impugned judgment, the High Court however adverted to the provisions of Section 155(2) of the Customs Act to state that the suit was filed within time and was therefore maintainable.
6. To address the rival contention, we have perused the provisions of Section 80 of the CPC. Section 80 of the CPC prescribes that if a suit is to be instituted against the Government or against a public officer, a notice under Section 80 is mandatory and unless and until expiration of two months next after notice in writing has been delivered against the concerned Government or the Officer, the suit is not maintainable. In the present case, when the suit for damage for malicious prosecution was filed on 11.04.2008, the notice under Section 80 of the CPC was yet to be issued. Eventually, the notice came to be issued on 06.05.2008 and thereafter the suit was re-filed on 18.07.2008. This would indicate that when the plaint was re-filed after due service of notice and expiry of two months from the date of notice under Section 80 of the CPC, it was beyond the one year period prescribed for limitation for such suit.
7. In the present case, the High Court proceeded to consider the maintainability of the suit under Section 155(2) of the Customs Act. However, in our considered opinion, the maintainability of the suit should have been considered vis-à-vis the provision of 2 Section 80 of the CPC.
8. In Bihari Chowdhary & Anr v. State of Bihar reported in (1984) 2 SCC 627, it is clearly specified that suit against the Government or public officer to which the requirement of a prior notice under Section 80 CPC is attracted, cannot be validly instituted until expiration of period of two months next after the notice in writing has been delivered to the authority concerned in the manner prescribed. The relevant passage in this judgement is extracted below for ready reference:-
“6. It must now be regarded as settled law that a suit against the Government or a public officer, to which the requirement of a prior notice under Section 80 C P. C is attracted, cannot be validly instituted until the expiration of the period of two months next after the notice in writing has been delivered to the authorities concerned in the manner prescribed for in the Section and if filed before the expiry of the said period, the suit has to be dismissed as not maintainable.”
9. Then again, in State of Gujarat v. Kothari & Associates reported in (2016) 14 SCC 761, the Court has clearly held that the notice under Section 80 should have been issued before the suit became time barred. In the present matter, the time for filing the suit admittedly expired on 11.04.2008 and only thereafter the suit came to be re-filed after issuing the notice under Section 80 CPC.
10. The law in India does not envisage condonation of delay in filing a suit for which limitation is prescribed. In support of such a view, we may benefit by adverting to the ratio in F. Liansanga & Ors v. Union of India & Ors [(SLP) 32875-76 of 2018].
In the suit, the plaintiff has prayed for a decree jointly and/or separately against the defendants for payment of a sum of Rupees Two Crores. With such a prayer, it was imperative for the 3 plaintiff to then have issued a prior notice under Section 80 of the CPC, before the suit came to be filed claiming damage for malicious prosecution. The notice was yet to be issued when the suit was filed on 11.04.2008 which happens to be the last date for filing such a suit under the Limitation act. Without the notice and without waiting for the two months period after issuing such notice, the Suit was not maintainable. When it was relied on 18.07.2008 (after complying with the requirement of section 80 of the CPC), the Suit was time barred.
11. In the above circumstances, the High Court in our opinion erred in declaring that the suit was maintainable. The view is found to be unacceptable and is set aside and quashed. In other words, it is declared that the suit is barred by time. With such declaration, the appeal stands allowed.
12. Pending application(s) including application for transposition stand closed.
....................J. [ HRISHIKESH ROY ] ....................J. [ S.V.N. BHATTI ] NEW DELHI;
JULY 16, 2024.
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ITEM NO.49 COURT NO.5 SECTION XIV-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No.19949 of 2021 DIRECTORATE OF REVENUE INTELLIGENCE Petitioner (s) VERSUS PUSPHA L. TOLANI & ORS. Respondent(s) IA No. 3871/2023 - CLARIFICATION/DIRECTION IA No. 161256/2022 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES) Date : 16-07-2024 This matter was called on for hearing today. CORAM : HON'BLE MR. JUSTICE HRISHIKESH ROY HON'BLE MR. JUSTICE S.V.N. BHATTI For Appellant(s) Mr. N. Venkatraman, A.S.G. Mr. Mukesh Kumar Maroria, AOR Mr. Akshay Amritanshu, Adv.
Ms. Swati Ghilldiyal, Adv.
Mr. Shetty Uday Kumar Sagar, Adv.
Mr. V.C. Bharathi, Adv.
Mr. Shreeyash U Lalit, Adv.
Mr. Udai Khanna, Adv.
Mr. G. S. Makker, Adv.
For Respondent(s) Ms. Anisha Banerjee, Adv.
Mr. Rajat Khattry, Adv.
Mr. Abhay Kumar, AOR Mr. Umakant Misra, Adv.
UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeal is allowed in terms of the signed order. Pending applications including application for transposition stand closed.
(DEEPAK JOSHI) (KAMLESH RAWAT)
ASST. REGISTRAR-cum-PS ASSISTANT REGISTRAR
(Signed Order is placed on the File)
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