Calcutta High Court
West Bengal Agro Industries ... vs Union Of India on 31 July, 2001
Equivalent citations: (2001)3CALLT315(HC)
Author: S.K.Mukherjee
Bench: Subhro Kamal Mukherjee
JUDGMENT S.K.Mukherjee, J.
1. This is a plaintiff's second appeal against a Judgment of affirmance is respect of suit for realisation of money.
2. Money suit No. 16 of 1986 was instituted, on November 26, 1986 in the Court of the learned Munsif, First Court at Krishnagar, District: Nadia for recovery of compensation to the extent of Rs. 3329/- (Rupees three thousand three hundred twenty nine) only with interest at the rate of 12% percent per annum from September 28, 1982 till realisation thereof.
3. The plaintiff/appellant in the plaint of the said suit alleged that the plaintiff is a Government Company having its registered office at 23/B, Netaji Subhash Road, 3rd floor, Calcutta-1, established for the development in agricultural sector in the State of West Bengal. The Rastriya Chemicals and Fertilizers Limited despatched a consignment of 1097 bags of suphala 15:15:15, each bag containing 50.2 Kgs., from Trombay, a station in the Central Railway, under Inv/RR No. 69/671499 dated September 8, 1982 to Krishnanagar City, a station in the Eastern Railway. The consignee was the West Bengal Agro Industries Corporation Limited, that is, the plaintiff. At the time of taking delivery at Krishnanagar on September 21, 1982 the plaintiff found 27 bags short out of 1097 bags and as a result plaintiff got 1070 bags in good condition instead of 1097 bags resulting in shortage of 1350 Kgs. of suphala. The competent authority at Krishnanagar Railway Station issued a short certificate bearing No. 32269 dated September 28, 1982. Shortage of the above consignment caused a loss to the plaintiff and the plaintiff was entitled to recover compensation to the extent of Rs. 3239/- (Rupees three thousand two hundred thirty nine) only at the rate of Rs. 2399.25 per M.T. Such shortage was due to the gross negligence, misconduct and carelessness of the railway administration, their Agents and/or employees concerned. A notice under Section 78B of Indian Railway Act, 1890 was served upon the railway. The plaintiff, also served a notice under Section 80 of the Code of Civil Procedure and the defendant received the same on March 26, 1985. The defendant failed to pay the amount claimed by the plaintiff and as such the plaintiff filed the present suit.
4. The defendant/respondent, that is, Union of India contested the said suit by filing a written statement wherein all the plaint averments have been denied. It was, however, contended that the suit was barred by limitation. The defendant challenged the validity and service of notice Under Section 78B of Indian Railways Act, 1890. The defendant, also, denied that loss was due to the negligence on the part of the railway administration. The defendant, therefore, prayed for dismissal of the suit with cost.
5. By judgment and decree dated June 25, 1988 the learned Munsif dismissed the suit holding, inter alia, that the suit was barred by limitation.
6. The plaintiff/appellant preferred Money Appeal No. 6 of 1988 in the Court of the learned District judge, Nadia, which was eventually transferred to the Court of the learned Additional District judge, Third Court at Krishnanagar, District: Nadla and the learned Judge in the lower appellate Court, also, held that the suit, filed after four years and two months from the date of cause of action, was barred by limitation and, accordingly, dismissed the appeal.
7. The plaintiff/appellant being aggrieved has come up with this second appeal.
8. Mr. Subal Maitra, learned Advocate, appearing in support of the appeal, argued that the Courts below were wrong in construing the relevant Articles of the Limitation Act, 1963; and the Court below ought to have held that, in the facts and circumstances of the present case. Article 112 of the Limitation Act, 1963 was applicable and the Courts below erroneously dismissed the suit on a misconception that the suit was governed under Article 11 of the Limitation Act, 1963. Mr. Maitra in support of his contentions cited the case of Nav Tattanmal and others v. State of Rajasthan . Mr. Maitra, on the basis of the said reported decision, argued that legislature has consciously maintained a distinction between the claims of the Government and that of the Individuals and it is permissible to treat the Government differently as regards the period within which claims might be put in suit. Mr. Maitra argued that the Article 112 of the Limitation Act, 1963 was amended by the Limita tion (West Bengal Amendment) Act, 1977 (West Bengal Act XXVIII of 1977); under section 3 of the said Act XXVIII of 1977 in the first column against Article 112, after the Words "Jammu and Kashmir " the following words should be and should be deemed always to have been added, namely: "Of a Government Company owned wholly either by the Central Government or by the State Government or jointly by the central and the State Government." Mr. Maitra argued that the plaintiff admittedly being a Government Company, the learned judges in the Courts below ought to have held that the suit was filed well within the period of limitation.:
9. In my view, this second appeal involves the following substantial question of law :
10. Whether Article 112 of the Limitation Act, 1963, as amended by West Bengal Act XXVIII of 1977, governs a suit Instituted by a Government Company for realisation of compensation of money on account of shortage of delivery against the Union of India?
Article 112 of the Limitation Act of 1963 runs as under:
Description of suit Period of limitation Time from which period beings to run " 112. 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 & Kashmir.
Thirty years;
When the period of Limitation would begin to run under this Act against a like suit by a private person."
11. The said Article was amended by the West Bengal Act XXVIII of 1077 and is made applicable to Government Companies owned wholly either by the Central Government or by the State Government or Jointly by the Central and the State Government. Admittedly, the plaintiff company is a Government company.
12. Article 112 of the Limitation Act of 1963 corresponds to Article 149 of the Limitation Act of 1908 which was as follows:
" 149. Any suit by or on behalf of the Central Government or any State Government except a Suit before the Supreme Court in the Exercise of its original Jurisdiction.
Sixty years.
When the period of Limitation would begin to run under this Act against a like suit by a private person."
13. In the Article 112 the period was reduced from sixty years to thirty years and this, also, brings the period in accord with that prescribed for local authorities under Article 111 of the Limitation Act, 1963. In the State of West Bengal, Article 112 is applicable to a suit Instituted by a Government company owned wholly either by the Central Government or by the State Government or Jointly by the Central Government and the State Government in view of the amendments made to this Article by the State of West Bengal by section 3 of the West Bengal Act XXVIII of 1977.
14. Article 112 has to be interpreted in a liberal way promoting public interest. The test for.the applicability of the Article is whether the property or the benefit sought in the suit belongs wholly or solely to the Government and. In the State of We,st Bengal, to the Government companies. A suit by or on behalf ofGovernment or, in the State of West Bengal, by a Government company does not cease to be so solely because it is, also, a suit against Union of India. Article 112 would obviously apply whenever the suit is by or on behalf Government or, in the State of West Bengal, a Government company, whosoever might be the defendant unless the suit is one covered by the Article 131 of the Constitution of India.
15. A Division Bench of Bombay High Court in the case of Mantlal Gangadas Desai v. The Secretary of State for India reported in 17 Bombay Law Reporter 1115 held that. In a suit against the councillors of a municipality by the Secretary of State for India for recovery of certain sums of money embezzled from the municipality by its 'Secretary and accounts clerk would be governed by Article 149 of the Limitation Act, 1908 (corresponding to Article 112 of the Limitation Act. 196'3). The Division Bench observed as under:
Mr. Thakur urged that the suit was barred by limitation, because it fell under Acticle 36 of the Indian Limitation Act. My answer to that is that the suit does hot fall under that article, but being, not only in name but in substance, a suit by the Secretary of State for Indta, it falls under Article 149,"
16. A Division Bench of this Court in the case of State of West Bengal v. Union of India held as under:
" It is undisputed that the present suit having been filed in 1962 in respect of a consignment booked in 1948 was palpably barred by time, if Articles 30/31 governed the, matter. Article 149, however, provided a period of 60 years for "any suit by or on behalf the Central Government or any State Government, except a suit before the Supreme Court in the exercise of its original Jurisdiction". The instant suit was one by a State Government, though it was against the Central Government also. But a suit by or on beheld of .a State Government does not cease to be so solely because it is also a,sult against another State Government or the Central Government. Article 149 (now Article 112 of the 1963 Act) would obviously apply whenever the suit is by or on behalf'of a Government, whosoever .might be the defendant, whether any other Government or a private citizen, unless the suit is one covered by''Article 131 of the Constitution. The Legislature in enacting Article 149,of the Limitation Act of 1908 ( as in enacting Article 112 of the present Act) 'carved out only one exception to the applicability of that Article in respect of suits before the Supreme Court in the exercise of its original Jurisdiction and we would be Indulging in legislation, so to say, if we carve out another exception to the operation of the Article in respect of suits by one Government against another Government even though not instituted in the orginal Jurisdiction of the Supreme Court under Article 131 of the Constitution. It is true that the Railway being also carriers within the meaning of Articles 30/31 of the Limitation Act (now Articles 10/11 of the 1963 Act), the suit was also a suit against carriers within the meaning of those Articles, But those were general Article meant to apply to all suits where the carriers were the defendants and had nothing to do with the character of the plaintiff. But Article 149 was a special Article meant to apply to any suit by the Government artd it is settled law that if a special Article also applies to a suit, that alone would govern it and not the general Article. As the maxim goes, Generalla Special bus Non Derogant. It is also the settled law that if two Articles of limitation are wide enough to apply to a suit, and neither of them applies more specifically than the other, the Court should generally apply that Article which would keep alive rather than the one which would bar the remedy. We are accordingly of the vleW that the learned Judge was right in holding that the suit was governed by Article 149 of the Limitation Act and was not barred by limitation."
17. In my view, therefore, the Courts below went wrong in dismissing the suit as barred by limitation. The suit was not barred by limitation as the same was filed only after four years and two months from the date when the cause of action arose and that Article 11 of the Limitation Act, 1963 has no application, but the present suit is governed by Article 112 of the Limitation Act, 1963 as the suit was by a Government company.
18. The Judgment and decree passed by the Courts below are, therefore, set aside. I am unable to give a decree in favour of the plaintiff from this Court as there was no discussion by the Courts below on the merits of the claim of the plaintiff. The Court below ought to have, in view of the provisions of Rule 2 of Order 14 of the Code of Civil Procedure, pronounced judgment on all the issues notwithstanding the decision of the Courts that the suit was barred by limitation as such course would have saved considerable harassments and delay in disposing the lis.
19. I am, therefore sending back Money Suit No. 16 of 1986 to the Court of the learned Civil Judge, (Junior Division), first Court at Krishnagar, district: Nadia for decision afresh oh the merits of the claims of the plaintiff in accordance with law.
The appeal is, thus, allowed.
There will be no order as to costs.
Drawing up of formal decree is dispensed with.
Let a copy of this Judgment and the lower Courts' records be sent down to the trial Court by a special messenger at the cost of the plaintiff/appellant and such cost be put in by two weeks.
20. Appeal allowed