Delhi District Court
Union Of India vs Sh. S.S. Plani on 16 May, 2011
IN THE COURT OF SH. SAURABH KULSHRESHTHA:
CCJ:ARC(EAST):KARKARDOOMA COURTS: DELHI
Civil Suit no: 526/07
ID No:02402C0656762005
Union of India
(Ministry of Railways)
through Dy. Chief Personnel Officer (Gaz).,
Central Railway,
Mumbai CS-400001. ... Plaintiff
Versus
Sh. S.S. Plani,
B-104, Anand Vihar,
New Delhi110092. .... Defendant
Suit for recovery of Rs.57,942/- Rupees Fifty Seven Thousand Nine
Hundred Forty Two) alongwith pendente lite & future interest
Date of institution of the Suit : 06.08.2002
Date on which judgment was reserved : 29.04.2011
Date of decision : 16.05.2011
Decision : Partly Decreed
JUDGMENT:-
1. This is a suit for recovery of outstanding loan/ advance granted by the Ministry of Railways, Union of India to one of its employees.
2. The version of the plaintiff is that the defendant, who was an CS No.526/07 Page No: 1/16 employee with the Indian Railways was sanctioned and disbursed a loan of an amount of Rs.60,000/- towards house building advance under execution of a mortgage deed while the plaintiff was on deputation with RITES in February 1987. The Defendant was on deputation with RITES and after completion of the deputation period, the defendant was permanently absorbed in RITES in December 1988. However inadvertently the entire settlement dues of the defendant were paid by the Railways without any adjustment of the House building Advance in March 1990.
3. It is further the case of the plaintiff that despite repeated requests and reminders the defendant did not pay the outstanding loan amount and interest and the administration could recover only Rs.15,000/- from the defendant during the period April 1993 to September 1993. In July 1993, FAO Central Railway directed GM, RITES to recover Rs. 5000/- per month from the salary of the defendant from July 1993 for recovery of the principal amount and Rs.6000/- from July 1994 to November 1994 for recovery of interest on H.B.A.
4. It is further the case of the plaintiff that being aggrieved by the said order of FA & CAO, Central Railways, the defendant filed O.A. No. CS No.526/07 Page No: 2/16 2002/93 before the Hon'ble Principal Bench, CAT, New Delhi for quashing the said letter dated 09.07.1993 of FA & CAO and claimed the balance amount of Rs.11,000/- of PF and interest on delayed payment on other settlement dues. The O.A. filed by the defendant against the defendant was decided by the Hon'ble Central Administrative Tribunal vide judgment dated 25.08.94 with the direction to the plaintiff to connect all the recoveries made towards Provident Fund and pay the said amount as due as well as interest on prevailing rates upto the date of actual payment. The Tribunal had also allowed interest @ 12% p.a. for the 100% commuted amount for the period from March 1989 to March 1990. The interest for the period 30.06.1989 to March 1990 on the actual amount of Provident Fund released in march 1990 was also allowed at the prevailing rate of interest. The plaintiff was directed to recast the entire statement of HBA taking into account the actual date of payment of HBA and installments of recoveries and interest on delayed payment.
5. It is further the case of the plaintiff that the plaintiff complied with the directions of the Hon'ble Central Administrative Tribunal and after taking into account interest on 100% commuted amount and Provident Fund dues etc. an amount of Rs.25,396/- was allowed as set off against the CS No.526/07 Page No: 3/16 outstanding amount of HBA. Revised instructions for recovery of outstanding amount of Rs.19,604/- and interest on HBA amount were issued.
6. It is further the case of the plaintiff that however the Plaintiff failed to pay the balance principle amount of Rs.19,604/- as well along with the agreed interest @ 8% p.a amounting Rs.38,338/- calculated upto 30.04.2002. The plaintiff has prayed for recovery of the said amount of Rs. 57,942/- along with pendente lite and future interest @ 8% p.a. on the suit amount.
7. The Defendant appeared pursuant to service of summons and filed his written statement. The defendant stated that the suit is barred by limitation. The defendant further stated that the plaintiff has approached the court after a long gap of about 8 years since 25.08.1994 when the judgment of Hon'ble Central Administrative Tribunal was pronounced and therefore the suit is barred by limitation.
8. The Defendant further pleaded that the Hon'ble Central Administrative Tribunal had directed the plaintiff to implement the CS No.526/07 Page No: 4/16 judgment within a period of three - four months but the plaintiff miserably failed to do so. The defendant further stated the defendant' s balance P/F amount along with interest has been still retained by the railways illegally and other pending issues have not been given due consideration. He further averred that the plaintiff had wrongly withheld an amount of Rs.2000/- as FD. He further stated that part payment of P.F. amount with interest thereon was not only withheld but was also denied by the plaintiff and the same has been still withheld by the plaintiff despite the judgment of the Hon'ble Central Administrative Tribunal. The defendant disputed the calculations made by the plaintiff and denied that the amount claimed by the plaintiff was due and payable. The defendant prayed for dismissal of the suit.
9. Plaintiff filed replication to the written statement of the defendant and denied the averments of the written statement and simultaneously reiterated and reaffirmed the contents of the plaint.
10. Vide order dated 12.02.2004, the following issues were framed in this case:
1. Whether the suit is barred by limitation? (OPP)
2. Whether the plaintiff is entitled to decree for a sum of Rs.57,942/- as prayed for? (OPP) CS No.526/07 Page No: 5/16
3. Whether the plaintiff is entitled to interest? If so, at what rate and for what period? (OPP)
4. Relief.
11. Plaintiff examined Mrs. Sandhya Kapoor posted as Sr. Section Officer, FA & CAO, Mumbai as PW-1 and Sh. M.C. Patki, Senior Staff and Welfare Inspector-I as PW-2. PW-1 and PW-2 deposed on the lines of the plaint. PW-1 proved letter of the plaintiff dated 28.03.2000 as Ex. PW-1/1, Letter of plaintiff dated 16.03.99 as Ex. PW-1/2, letter of plaintiff dated 24.04.98 as Ex. PW-1/3, Copy of judgment dated 25.08.94 of CAT as Ex. PW-1/4, letter of plaintiff dated 06.02.87 as Ex. PW-1/5, letter of RITES dated 03.02.87 as Ex. PW-1/6, letter of RITES dated 04.09.86 as Ex. PW-1/7, Table I showing dues paid to the defendant as Ex. PW-1/8, Table
-II showing the amount recoverable without interest as Ex. PW-1/9, Table- III showing the net due (with interest) final amount as Ex. Pw-1/10 and statement of HBA particulars is Ex. PW-1/11.
12. The Defendant examined himself as DW-1 and deposed on the lines of the written statement.
13. During the course of arguments certain clarifications were CS No.526/07 Page No: 6/16 sought from the plaintiff and thereafter the plaintiff had reworked the statement of account and filed the revised account. Thereafter, PW 1 was recalled and further examined. The revised accounts/ calculations and records were exhibited as Ex. PW-1/12 (colly).
14. I have heard the Ld. Counsel for the parties and have given due consideration to the rival contentions and carefully perused the record. My issue-wise findings are as follows:
Issue No. 1
15. The question to be answered is as to whether the suit is within limitation. The loan in question was granted to the defendant somewhere in February 1987. Thereafter, the department of the plaintiff sought to recover the loan installments vide letter dated 09.07.1997. This was challenged by the defendant before the Hon'ble Central Administrative Tribunal. The tribunal disposed off the petition vide judgment dated 25.08.1994 and directed the plaintiff to recast the entire statement of house building advance. The outstanding amount was reworked. However, the defendant did not pay the same. The plaintiff filed the present suit on 06.08.2002.
CS No.526/07 Page No: 7/16
16. The defendant has contended that this is suit for recovery of outstanding of Rs.57,942/- towards the outstanding loan amount as well as interest and the cause of action accrued in February 1987 and hence the suit is barred by limitation as the same was filed on 06.08.2002.
17. However, Article 112 of the schedule of the Limitation Act provides that the limitation to file any suit by or on behalf of the central government is 30 years and the same is to be reckoned from the date when the period of limitation would begin to run under this Act against a like suit by a private person. Therefore, the limitation period for filing of a recovery suit like the present suit is 30 years and not 3 years. Even if the said period is reckoned from the date of grant of advance/ loan i.e. February 1987 the said period has still not expired. The suit having been filed on on 06.08.2002 is well within limitation.
This issue is therefore decided in favour of the plaintiff and against the defendant.
Issue nos. 2 & 3.
18. The questions to be answered are as to whether the plaintiff is CS No.526/07 Page No: 8/16 entitled for a decree for a sum of Rs.57,942/- as prayed for and for interest as prayed for. The onus to prove theses issues was upon the plaintiff.
19. The plaintiff examined PW-1 & PW-2 who deposed on the lines of the plaint. The PWs deposed that the defendant was sanctioned HBA for a sum of Rs.60,000/- in February 1987, while the defendant was on deputation with RITES and he was absorbed in RITES in December 1988. The plaintiff requested the defendant to repay the outstanding loan amount same of Rs.52,548/- but he did not repay the same. The administration could recover only Rs.15,000/- from the defendant during the period April 1993 to September 1993. In July 1993, FAO Central Railway directed GM, RITES to recover Rs. 5000/- per month from the salary of the defendant from July 1993 for recovery of the principal amount and Rs. 6000/- from July 1994 to November 1994 for recovery of interest on H.B.A.
20. PW 1 and PW 2 further deposed that the Defendant approached the Hon'ble Central Administrative Tribunal and vide judgment dated 25.08.1994 connect all the recoveries made towards Provident Fund and pay the said amount as due as well as interest on prevailing rates upto the date of actual payment. The Tribunal had also allowed interest @ 12% CS No.526/07 Page No: 9/16 p.a. for the 100% commuted amount for the period from March 1989 to March 1990. The interest for the period 30.06.1989 to march 1990 on the actual amount of Provident Fund released in march 1990 was also allowed at the prevailing rate of interest. The plaintiff was directed to recast the entire statement of HBA taking into account the actual date of payment of HBA and installments of recoveries and interest on delayed payment. The entire statement of HBA was recast and an amount of Rs.25,396/- was allowed as set off against the outstanding amount of HBA. Therefore the plaintiff is entitled for an amount of Rs. 57,942/- alongwith pendente lite and future interest @ 8% per annum.
21. The defendant examined himself as DW-1 and deposed on the lines of the written statement. DW-1 had admitted that he had taken the loan in question. In his cross examination he admitted that he had executed the mortgage deed. However, he has deposed that the Central Administrative Tribunal had directed the plaintiff to rework the statement of account and same has not been properly implemented. He further deposed that his Provident Fund amount along with interest payable to him has not been calculated properly and the same has been withheld. He further deposed that an amount of Rs. 2000/- has been withheld as FD without any valid reason.
CS No.526/07 Page No: 10/16 He further deposed that calculations have not been properly made and other pending issues have not been given due consideration.
22. The judgment of the Hon'ble Central Administrative Tribunal has been placed on record and the same is Ex. PW 1/4. The Hon'ble Central Administrative Tribunal The Tribunal had also allowed interest @ 12% p.a. for the 100% commuted amount for the period from March 1989 to March 1990. The interest for the period 30.06.1989 to march 1990 on the actual amount of Provident Fund released in march 1990 was also allowed at the prevailing rate of interest. Respondents were directed to recast the entire statement taking into account the actual date of payment of HBA and further installments of recoveries of Rs.2000/- and Rs.13000/- and the interest on delayed payment of 100% commuted amount and these recoveries should be reckoned against the relevant periods.
23. During the course of arguments certain clarifications were sought from the plaintiff and thereafter the plaintiff had reworked the statement of account and filed the revised account. Thereafter, PW 1 was recalled and further examined. The revised accounts/ calculations and records were exhibited as Ex. PW-1/12 (colly). The said revised statement CS No.526/07 Page No: 11/16 of account was reworked considering that the first installment of the loan of Rs. 40,000/- was disbursed only in January 1987 and therefore interest is to be charged from January 1987. The FD amount of Rs. 2000/- was set off for March 1990 instead of August 1993. The missing Provident Fund entries were reworked and the amount payable towards Provident Fund and interest thereupon was reworked.
24. The Provident Fund amount was reworked after taking into account the missing entries and after adding the amount of interest on the delayed payment of the Provident Fund amount the same came out to be Rs. 20,923.75. During the course of arguments the defendant again disputed this reworked amount. However the defendant had himself submitted a calculation sheet showing the total amount of Provident Fund along with interest due in December 1995 as Rs. 22,491/-. The plaintiff recalculated the said amount as Rs.20,923.75 till November 1995 only and rightly so as the amount has been set off against the HBA in December 1995. The defendant has not been able to point out any flaw in the calculation of the plaintiff whereby the Provident Fund amount with interest has been calculated as Rs. 20,923.75.
CS No.526/07 Page No: 12/16
25. The Plaintiff has contended that the cheque for an amount of Rs. 16,434/- towards Provident Fund and interest on delayed payment of Provident Fund was sent to the defendant in December 1995, however, the same was not accepted by the defendant. First of all as per Ex. PW-1/12 the correct amount towards Provident Fund and interest comes out to Rs. 20,923.75/- and hence the tender of a cheque for an amount of Rs. 16,434/- cannot be said to be a valid tender. Further the plaintiff has failed to establish that any such cheque was sent to the defendant. In this respect a belated letter dated 24.04.1998 has been placed on record and the same is Ex. PW 1/3, however there is no evidence to show that the said letter was dispatched to the defendant or the same was received by the defendant. No postal record has been proved to establish that the said cheque was sent to the defendant. No such cheque has been placed on record and the details of the same have also not been proved. The plaintiff was supposed to pay the PF amount by December 1995. The plaintiff has not been able to establish that the said amount was paid or even the cheque was tendered to the defendant or that he refused to accept the same.
26. The defendant during the course of arguments contended that the said amount should be set off against the original principal outstanding CS No.526/07 Page No: 13/16 amount. There is substance in the contention of the defendant. The said amount was payable in December 1995 and therefore the same should be set off against the outstanding loan amount for the period December 1995 as the said Provident Fund amount along with interest has been illegally withheld by the plaintiff since December 1995.
27. It has not been disputed that as per the policy of the plaintiff the principal loan amount is to be repaid/ adjusted first and then the payment of the accrued interest is to be made. The principal amount was Rs. 60,000/-. Rs. 15,000/- were recovered by the department. An adjustment was made of an amount Rs. 25,396/- in terms of the judgment of CAT. Thus the balance principal outstanding amount was 19,604/- in November 1995 as per Ex. PW 1/9. This amount has to be set off against the amount of Rs.20,924/- payable by the plaintiff towards Provident Fund dues. It is therefore to be deemed that the entire principal amount stood repaid in December 1995. The balance amount of Rs.1,320/- payable by the plaintiff to the defendant is to be adjusted against the interest component.
28. The interest component computed from January 1987 to December 1995 comes out to Rs. 27,425/- as per the revised calculation CS No.526/07 Page No: 14/16 sheet Ex. PW 1/12. No anomaly could be established by the defendant by any cogent evidence in respect of the interest component payable by him. When the amount of Rs.1,320/- payable by the plaintiff is adjusted against the same the net amount payable by the plaintiff towards interst component of the HBA comes out to Rs. 26,105/-. No further interest is payable after December 1995 as the entire principal stood paid up by December 1995.
29. No pre suit interest has been claimed by the plaintiff on the outstanding HBA amount which now comes out to Rs. 26,105/-, accordingly the amount which remains to be paid by the defendant is only Rs.26,105/-.
30. Since the plaintiff had initially claimed a sum of Rs.57,942/-, however, the correct amount which is payable is Rs.26,105/- and there were numerous mistakes in the calculations of the plaintiff and even at the stage of final arguments the plaintiff had amended and reworked its statement of account I am of the opinion that the interests of justice require that no pendente lite interest be awarded to the plaintiff. The claim for pendente lite interest is accordingly declined. However, the plaintiff shall be entitled to future interest @ 6% p.a. on the decretal/ principal sum adjudged i.e. Rs.
CS No.526/07 Page No: 15/16 26,105/-.
31. The suit is therefore partly decreed in favour of the plaintiff and against the defendant for and amount of Rs. 26,105/- (Rupees Twenty Six thousand One Hundred and Five only) along with future interest @ 6% p.a. on the decretal sum from the date of decree till the date of realization. No order as to costs in the facts and circumstances of the case.
32. Decree sheet be prepared accordingly. Thereafter, file be consigned to record room.
Announced in the open (SAURABH KULSHRESHTHA)
Court on 16.05.2011 CCJ/ARC(East)
(Judgment contains 16 pages.) KARKARDOOMA COURTS,
DELHI
CS No.526/07 Page No: 16/16