Himachal Pradesh High Court
M/S Himalayan Store vs Bharat Sanchar Nigam Limited And Others on 9 May, 2016
Bench: Sanjay Karol, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No. 14 of 2016
Date of decision: 9.5.2016
.
M/s Himalayan Store, The Mall Manali. ...Appellant
Versus
Bharat Sanchar Nigam Limited and others. ...Respondents
Coram
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
of
Whether approved for reporting?1 Yes.
For the Appellant: Mr. B.C. Negi, Senior Advocate with Mr. Raj
rt Negi, Advocate.
For the Respondents: Mr.Rajesh Verma, Advocate, vice Mr.Rajinder
Dogra, Advocate, for respondent No. 1.
Tarlok Singh Chauhan, J.
The seminal issue that emanates for consideration in this Letter Patent Appeal is as to whether the plaintiff/respondent No. 1 can be held entitled to the benefit of Article 112 of the Limitation Act, when admittedly it is not "Government" although it is statutory authority and "State" within the meaning of Article 12 of the Constitution of India.
2. The facts given rise to the present appeal are that the plaintiff/respondent No. 1 filed a suit for recovery of `1,26,70,969/-
along with 12% interest per annum up to the filing of the suit. The appellant/defendant No. 1 filed an application under Order 7 Rule 11(d) read with Section 151 of the Code of Civil Procedure for rejection of plaint on the ground that the same was barred by limitation.
3. The respondent/plaintiff contested the application by claiming that it was a Government Company, wherein the Central Government had 100% shares and therefore, it was entitled to the Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 15/04/2017 20:18:19 :::HCHP 2 LPA No. 14 of 2016extended period of limitation, as envisaged under Article 112 of the Limitation Act.
4. The learned Single Judge after taking assistance of Article .
12 of the Constitution held the respondent to be a "State" and proceeded to apply Article 112 of the Limitation Act, 1963 and held the suit to be within time.
We have heard the learned counsel for the parties and have of gone through the records of the case.
5. It is not in dispute that the respondent/plaintiff is a rt Government Company as defined under Section 617 of the Companies Act, which essentially means that not less than 51% of the paid share capital is held by the Central Government. It is further not in dispute that the respondent after having registered under the Companies Act is no longer as a part and parcel of the Department of Telecommunication of the Union of India and is a distinct and separate legal entity.
6. Article 112 of the Limitation Act provides as under:-
"112. Any suit (except a suit before the Thirty years. When the period of Supreme Court in the exercise of its limitation would original jurisdiction) by or on behalf of begin to run under the Central Government or any State this Act against a Government including the like suit by a private Government of the State of Jammu person.
and Kashmir.
7. Undoubtedly, respondent Company is a State within the meaning of Article 12 of the Constitution, but the question is whether the words "Central Government" and "State Government" used in Article 112 of the Limitation Act should also be read to include 'State' within the meaning of Article 12 of the Constitution of India.
8. Identical issue was considered by one of us (Justice Tarlok Singh Chauhan, J.) in OMP No. 34 of 2015 in Civil Suit No. 43 of 2014, titled Bharat Sanchar Nigam Ltd. Vs. M/s Best Gas Service and others, ::: Downloaded on - 15/04/2017 20:18:19 :::HCHP 3 LPA No. 14 of 2016 decided on 3.3.2015, wherein after referring to various provisions of the law and relying upon the judgment rendered by a Learned Single Judge of Punjab and Haryana High Court in Bharat Sanchar Nigam Ltd. Vs. .
Pawan Kumar Gupta, 2007 (4) PLR 414, it was held that BSNL was not entitled to the benefit of Article 112 of the Limitation Act.
9. Notably, the issue in hand is no longer resintegra, in view of the authoritative pronouncement of Hon'ble Supreme Court in Bharat of Sanchar Nigam Limited Vs. Pawan Kumar Gupta (2016) 1 SCC 363, wherein the judgment rendered by the High Court of Punjab and rt Haryana in Pawan Kumar Gupta case (supra) itself had been assailed before the Hon'ble Supreme Court. The Hon'ble Supreme Court has now held that though BSNL is a statutory authority, it is not Synonymous with the Central Government, even though share capital of the company owned in the name of the President is 100% and is undoubtedly under the control of the Central Government, as it is financed and its administration is under the absolute control of the Central Government. It has further been held that BSNL was a Company distinctly and independently a separate entity than the Central Government and therefore, was not entitled to the benefit of limitation under Article 112 of the Limitation Act. It is apt to reproduce the following observations:-
"11. It could be seen from the undisputed facts, which are adverted to in the impugned judgment that undisputedly the suit claims against the debtors/subscribers are beyond the period of three years of limitation which is available. Therefore, contention of the learned senior counsel on behalf of the appellant-company that the benefit accrued in favour of the Central Government under Article 112 of the Limitation Act is attracted to the fact situation, has a far reaching consequences for the reason that, though the Company is a statutory authority, it is not synonymous with the Central Government. The ::: Downloaded on - 15/04/2017 20:18:19 :::HCHP 4 LPA No. 14 of 2016 expression 'Central Government' under the General Clauses Act is clearly defined, which relevant provision is extracted in the aforestated portion of this judgment. By a reading of the aforestated definition, at no stretch of imagination it can be construed that the appellant-
.
company which is registered under the Companies Act, though share capital of the company owned in the name of the President is 100 per cent, it cannot be construed as the Central Government for the reason that the appellant-company by registration under the Companies Act, no doubt it is under the control of the Central Government as it is financed and its administration is under the absolute control of the of Central Government, nonetheless, it shall not be construed as the Central Government for the reason that the appellant-company is a separate legal entity. It also cannot claim that it is entitled to the rt benefit under Article 112 of the Limitation Act on the ground that a debt recoverable from the subscriber is an actionable claim in terms of Section 3 of the TP Act, even if the same has been transferred under Section 130 of the TP Act by execution of the Office Memorandum, referred to supra, thereby vesting in it the rights and the remedies vis-
a-vis the same. No doubt, by execution of the said instrument it has got the actionable claim transferred, the assets that must be recoverable debts from the debtors and subscribers. As could be seen from the claim, the undisputed facts of these appeals are that on the date of the transfer, some of the claims were time barred, therefore, the company cannot construe that the time barred debts are also an actionable claim by way of transfer in its favour, which entitles it to avail the benefit of Section 112 of the Limitation Act i.e. the period of thirty years to institute suits for recovery of the same. Such an interpretation is contrary to Article 112 of the Limitation Act, 1963.
12. A careful reading of Article 112 of the Limitation Act clearly reveals that in any suit (except a suit before the Supreme Court in the exercise of its original jurisdiction) by or on behalf of the Central Government or any State Government, including the Government of the State of Jammu and Kashmir, the period of limitation would be thirty years. The period of limitation time from which the period begins to run is mentioned under Column 3 of the above Article of the Limitation in the Schedule, which reads as follows.
"When the period of limitation would begin to run under this Act against a like suit by a private person."
By a careful reading of the aforesaid Article, it makes abundantly clear, that a suit can be instituted by or on behalf of the Central Government. It is not the case of the appellant herein that it has filed the suit on behalf of the Central Government. This is for the reason ::: Downloaded on - 15/04/2017 20:18:19 :::HCHP 5 LPA No. 14 of 2016 that the appellant-company has instituted the suit on the basis of the instrument of Office Memorandum wherein the DoT has transferred its assets and actionable claims. It cannot be said that it has filed the suit on behalf of the Central Government because the appellant/plaintiff is .
a company, a distinctly independent and separate entity. Therefore, the reliance placed upon the aforesaid Article 112 of the Limitation Act to claim that there would be thirty years of limitation period as the asset transferred is an actionable claim due to the DoT is wholly misconceived in law.
13. The other argument advanced by the learned senior counsel of on behalf of the appellant-company that it is an agency or instrumentality under the Central Government which falls within the inclusive definition as defined under Section 3(8) of the General rt Clauses Act is wholly misconceived for the reason that Article 112 of the Limitation Act speaks of the Central Government or the State Government. Its agencies or instrumentalities are not incorporated under Article 112 of the Limitation Act. Such an argument is contrary to the Constitution Bench judgment of this Court in the case of Padma Sundara Rao (Dead) and Ors. vs. State of T.N. and Ors. reported in (2002) 3 SCC 533. In paragraph 14 of the said judgment it is categorically stated that the legislative casus omissus cannot be supplied by judicial interpretative process and the Court cannot do the legislative functions. Para 14 of the said judgment read thus:
"14. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd., (2000) 5 SCC 515. The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiah's case, (1996) 3 SCC 88. In Nanjudaiah's case, (1996) 10 SCC 619, the period was further stretched to have the time period run from date of service of High Court's order. Such a view cannot be reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only clauses (i) and/or (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent." (emphasis supplied)
14. In the connected matter i.e. Civil Appeal No. 2409/2009, learned counsel appearing for the respondent has placed reliance on two ::: Downloaded on - 15/04/2017 20:18:19 :::HCHP 6 LPA No. 14 of 2016 judgments of this Court in the cases of A.K. Bindal & Anr. vs. U.O.I. & Ors., (2003) 5 SCC 163 paras 5, 14 and 17 and Food Corporation of India vs. Municipal Committee, Jalalabad & Anr., (1999) 6 SCC 74, in support of the contention that the expressions 'Central Government' or .
'State Government' in terms of Section 3(8) and Section 3(60) of the General Clauses Act do not include in their purview or definition their agencies or instrumentalities.
15. In view of the aforesaid judgments of this Court, the legal contention urged by the learned senior counsel appearing on behalf of the appellant that the appellant being the agency or instrumentality of of the Central Government is entitled to maintain the suit claims within thirty years as provided under Article 112 of the Schedule in the Limitation Act or alternatively, whatever the limitation period which rt was available for the Central Government, within three years from the date of execution of the agreement are wholly unsustainable in law."
10. Having said so, the next question that arises for consideration is as to what provisions of the Limitation Act would be applicable to the instant case. Perusal of the suit evidently reveals that the same has been instituted for recovery pursuant to the breach of the contract and therefore, would be thus governed by Article 55 of Schedule 1 of the Limitation Act, which reads thus:-
55. For compensation for Three years. When the contract is broken the breach of any contract, or (where there are express or implied not successive breaches) when herein specially provided the breach in respect of for. which the suit is instituted occurs or (where the breach is continuing) when it ceases.
11. The respondent/plaintiff has pleaded the cause of action in para 12 of the plaint in the following manner:
"12. That the cause of action arose to the plaintiff in the year 2002 when the agreement was entered between the parties and thereafter when the fraud came in the knowledge of the plaintiff on 3.11.2003, thereafter, the record pertaining to the suit was seized which was returned to the plaintiff by the CIA on dated 24.6.2011."
::: Downloaded on - 15/04/2017 20:18:19 :::HCHP 7 LPA No. 14 of 201612. It is manifestly clear from the above that the cause of action as pleaded accrued to the respondent/plaintiff in the year 2002, when it entered into an agreement with the defendants. The fraud, if any, came .
to its knowledge on 3.11.2003, which would be the starting point of limitation. The mere fact that the record pertaining to the suit was seized and returned to the plaintiff by CIA on 24.6.2011 would not furnish the respondent a fresh cause of action and the same can also of not be termed to be a continuing cause of action.
13. Indisputably, the suit came to be filed only on 4th October, rt 2013, which is nearly ten years after the fraud came to the knowledge of the plaintiff i.e. 3.10.2003 and therefore, the suit is clearly time barred in terms of Article 55 of the Limitation Act. Once, it is so, then the application filed by the appellant for rejection of plaint ought to have been allowed.
In view of the aforesaid, the impugned order passed by the learned Single Judge cannot be sustained and is accordingly set aside and consequently, the application filed by the appellant under Order 7 Rule 11(d) of the Code of Civil Procedure is allowed and the plaint instituted by the respondent is ordered to be rejected, leaving the parties to bear their costs. However, the plaintiff/respondent shall be entitled to refund of the court fees, if any, in accordance with rules.
(Sanjay Karol), Judge.
(Tarlok Singh Chauhan) th 9 May, 2016 Judge.
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