Andhra HC (Pre-Telangana)
Zuari Crefin Limited Rep. By Its ... vs Asst. Commissioner Of Police And Ors. on 27 December, 1996
Equivalent citations: 1997(2)ALT86
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER P. Venkatarama Reddi, J.
1. This Civil Revision Petition is filed against the order returning the plaint for representation with an endorsement that the same has to be represented only after complying with Section 80 C.P.C.
2. The petitioner presented the suit seeking the following reliefs against the defendants:
"(a) Mandatory direction to the first defendant to deduct the equated monthly instalments (EMI) from the salary of the second defendant as per the undertaking dated 22-3-1993 given to the plaintiffs and continue to do so till the amounts are fully recovered to the plaintiff.
(b) A decree or in the alternate of Rs. 32,151/- against the defendants Nos.2 to 4 jointly and severally being the amounts due and payable under the loan agreement together with towards delayed payment charges, and
(c) Damages of Rs. 5,000/- against the defendants Nos. l to 4 jointly and severally.
(d) Interest at 36% per annum on the amount of payable towards the balance of monthly instalments not paid.
(e) Costs of the petition and
(f) Such other relief or reliefs as this Hon'ble Court feels just and necessary in the nature and circumstances of the case."
The second defendant in the suit is the principal borrower with whom the petitioner entered into an agreement in connection with an agreement providing financial assistance for the purchase of consumer durables. The second defendant is an employee under the administrative control of the first respondent namely, the Assistant Commissioner of Police, CAR Head quarters, Hyderabad. Defendants 3 and 4 are guarantors. It is alleged in the plaint that a declaration was obtained by the second defendant from his drawing officer, who is the first defendant, undertaking to deduct equated monthly instalments from out of the salary of the 2nd defendant and remit the same to the plaintiff. It is contended that during the period of Agreement, the second defendant cannot revoke the undertaking nor can the Disbursing Officer (D-l) refuse to deduct the monthly instalments payable and remit the same to the petitioner, It is then alleged that the first defendant initially deducted five instalments from out of Defendant No. 2's salary and paid it over to the petitioner and thereafter he failed and neglected to deduct the instalments and pay the same to the petitioner. This is an illegal act, according to the petitioner amounting to breach of undertaking and the defendants are liable for damages.
3. It is submitted by the learned counsel for the petitioner that though the first respondent is a Government Officer generally discharging public duties, the act complained of arises purely out of contract and what is expected to be done by the 1st respondent (D-l) is not in the nature of a public or official function. It is, therefore, submitted that Section 80 CPC has no application. Reliance has been placed on the decision of Privy Council in the case of Revati Mohan v. Jatindra Mohan, AIR 1934 P.C. 96 and also on the case of United Bank v. Tatanagar Foundry, .
4. It is difficult to accept the contention of the learned counsel for the petitioner. A reading of the averments and contentions in the plaint makes it clear that the petitioner wants to enforce an obligation cast on the first respondent in his capacity as Drawing/Disbursing Officer. According to the petitioner, there is a breach of duty on the part of the first respondent. It is indisputable that the duty which the petitioner expects the first respondent to perform cannot be disassociated from his official functions. The fact that the alleged obligation originates from a contract does not make any difference for the purpose of applicability of Section 80 CPC. It is not the case of the petitioner that the first respondent in giving the alleged undertaking to deduct certain sum from the salary of the second defendant and to pay it over to the petitioner conducted himself in a private capacity or otherwise than as a public officer. Whether such undertaking or arrangement is strictly within the scope of his authority is not a matter which needs to be gone into at this stage and is not relevant for the purpose of considering the applicability of Section 80 CPC. Even a purported act done in official capacity by a public officer comes within the scope of Section 80 CPC. The decisions cited by the learned counsel rest on different set of facts and different principle.
5. I, therefore, see no illegality in the impugned order returning the plaint for non-compliance of Section SO CPC. The Civil Revision Petition is dismissed at the admission stage.