Himachal Pradesh High Court
Prem Singh & Others vs State Of H.P. & Others on 27 May, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CWP No.3599 of 2009
.
Judgment Reserved on: 09.05.2016
Date of decision: 27.05.2016
Prem Singh & Others ....Petitioners
Versus
State of H.P. & Others. ..Respondents
of
Coram
rt
The Hon'ble Mr.Justice Sandeep Sharma,Judge.
Whether approved for reporting ?1 Yes.
For the Petitioners: Mr.Vinay Kuthiala, Senior Advocate
with Mr.Diwan Singh Negi, Advocate.
For the Respondents: Mr.Rupindr Singh Thakur, Additional
Advocate General with Mr.Rajat
Chauhan, Law Officer.
Sandeep Sharma,J.
By way of present petition the petitioners have prayed for following reliefs amongst other:-
"(i) That the respondents may be directed to produce the entire record of the case and the proceedings initiated by respondent No.3 may kindly be declared to be illegal and wholly without jurisdiction and beyond the period of limitation prescribed by law and may kindly be quashed.1
Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 2(ii) that the amount sought to be recovered by respondents 1 & 2 may kindly be declared to be time barred and the respondent be restrained from recovering .
the same in any manner whatsoever from the petitioners.
(iii) that the notice dated 13.8.2009 (Annexure P-7) as well as the claim petition (Annexure P-8), as well as proceedings pursuant thereto may kindly be quashed.
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(iv) That the respondents be directed not to resort to coercive measures in order to recover the time barred amounts from the petitioners and the petitioners be declared to be not liable for paying the rt same."
2. Bare perusal of the averments contained in this writ petition suggests that the petitioners are aggrieved with the notice dated 13.8.2009, Annexure P-7, issued by the Arbitrator i.e. respondent No.3 in Arbitration Case No.1 of 2009, calling upon the petitioners to appear personally or through authorized agent before him alongwith original record on the given date.
3. Necessary facts, which emerges from the pleadings, are that the predecessor-in-interest and father of the petitioners, namely, Shri Tenzin S/o Sh.Tuk Tuk, resident of Village Keylong, District Lahaul & Spiti, (HP) was appointed as a Depot Holder of Food Grains in the year 1969 ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 3 by the then Punjab Government for the supply of Food Grains to the general public in the Lahaul & Spiti area.
.
Documents annexed with the reply filed by the respondents also suggests that one agreement dated 10.11.1969 (Annexure R-1) was entered into at that time with the aforesaid predecessor-in-interest of the petitioners and the then Punjab Government through Deputy Commissioner, of Lahaul & Spiti, District at Keylong.
4. Since Lahaul & Spiti was snow bound area and rt use to remain cut off for six months in a year, the Government had taken a decision to appoint depot holder for sale and receipts of food-grains at Village Keylong. The depot holder was given the stocks of food-grains on consignment basis i.e. on credit basis by the Government on the understanding that he, after selling the food-grains to the public on cash, will deposit the money in to the Government Treasury within a period of six months from the date of sale.
As per the aforesaid arrangement, late Shri Tenzin continued to serve as depot-holder of food-grains from the year 1969 till his death i.e. 19th October, 1971.
5. Perusal of Annexure P-1 suggests that District Controller, Food Civil Supplies & Consumers Affairs, Lahaul & Spiti at Keylong sent an intimation to Shri Tenzin with a ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 4 direction to deposit an amount of Rs.7969.64 paise on account of selling food-grains, in the Government Treasury .
within a period of two days. However, endorsements made below Annexure P-1 also suggests that Shri Tenzin submitted that since he is ill for the last 2½ months, he will settle the accounts once he recovers from the illness. Fact remains that Shri Tenzin could not deposit the amount in of question and, ultimately, he passed away on 19.10.1971.
6. Subsequently, Deputy Commissioner, Lahaul & rt Spiti vide his letter dated 20.12.1971, appointed one Shri Sonam son of Shri Kunga as a depot holder, who was handed over the charge of food-grains stock of Shri Tenzin in the presence of one Angrup, who was alleged to be representative of Smt.Pulzon widow of Shri Tenzin. However, subsequently, it was reported in the office note that there was shortage in the quantity of food-grains for the year 1968- 69 to 1970-71, amounting to Rs.97,568.18 paise only.
7. Respondents, after recording alleged shortage, did not take any action to recover the outstanding amount for almost 10 years. It is only in the year 1981 i.e. 7.3.1981, for the first time, the matter was referred to the Collector, Lahaul & Spiti for recovery of amount to be collected as arrears of land revenue (Annexure P-3). Thereafter, again ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 5 respondents did not take any action till 21.3.1984, when Collector, Lahaul & Spiri vide letter dated 21.3.1984 .
delegated the matter to the Tehsildar, Keylong to recover an amount of Rs.1,73,567.40 paise (Rs.97,567.18 as principal and Rs.76,102.78 paise as interest) as arrears of land revenue (Annexure P-4). Respondents demanded the aforesaid amount from the present petitioners being legal of representatives of late Shri Tenzin, who were admittedly minor at that time. However, present petitioners, feeling rt aggrieved with the aforesaid order of the recovery passed by the Collector, Lahaul & Spiti, approached the Court of learned Senior Sub Judge, Lahaul & Spiti on 16.9.1985 seeking declaration that the land owned by them could not be sold by way of attachment for recovering the amount allegedly due from their predecessor-in-interest, Shri Tenzin.
It further emerges from the record that present respondents moved an application under Section 34 of the Arbitration Act, 1940, during the pendency of the aforesaid suit field by the petitioners and objected the same on the ground that as per agreement entered into between the parties, dispute, if any, arose between the parties had to be referred to the arbitration. Accordingly, vide order dated 29.8.1986, learned Senior Sub Judge, Lahaul & Spiti stayed the suit filed by the ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 6 petitioners and referred the matter to the learned Arbitrator in terms of the agreement and who was directed to decide the .
matter first and only thereafter recovery could be affected as per the Arbitration award (Annexure P-5).
8. Respondents, even after passing of order dated 29.8.1986, did not take any step to appoint Arbitrator, as was noticed in the order dated 29.8.1986, except a notice of from the Tehsildar Recovery dated 19.1.1988, calling upon the legal representatives of late Shri Tenzin to appear in the rt office and deposit an amount of Rs.1,73,670/-, failing which harsh action would be taken against them. Perusal of Annexure P-5 clearly suggests that respondents did not take any steps to appoint Arbitrator rather they persisted with the demand, which was made vide latter dated 21.3.1984. i.e. Annexure P-4. Suddenly, after more than 23 years, Arbitrator i.e. Director, Food & Civil Supply and Consumers, called upon the present petitioners to appear before him on 18.9.2009 in Arbitration case No.1 of 2009 filed by the respondents for recovery of Rs.3,25,484.49 paise from the petitioners in the capacity of legal heirs of late Shri Tenzin on account of shortage of food-grains pertaining to years 1968- 69 to 1970-71 i.e. Annexure P-7.
::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 79. Feeling aggrieved and dissatisfied with the issuance of aforesaid notice issued by the Arbitrator, .
petitioners filed the present petition invoking the extra ordinary jurisdiction of this Court. This Court, while entertaining the present petition on 9.10.2009, stayed the operation of notice issued by the Arbitrator (Annexure P-7).
10. The petitioners have contented that documents of available on record clearly demonstrate that the amount, being claimed by the respondents, is hopelessly time barred rt and at this belated stage, respondents have no authority and right to recover the same from the present petitioners. It is also contended that the recovery admittedly pertains to the year 1968-69 to 1970-71 and even, if any, amount was due to the respondents, the same could be recovered within the time prescribed, in accordance with law. It is ample clear on the record that respondents have been negligent in recovering the amount, if any, because admittedly there are documents on record to suggest that the alleged shortage in quantity of the food-grains pertain to the years 1968-69 to 1970-71, which had came to the notice of the respondent on 4.1.1972, i.e. 37 years prior to the issuance of notice by the Arbitrator i.e. 13.8.2009. It is also contended that order passed by the learned Senior Sub Judge, Lahaul & Spiti, ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 8 dated 29.8.1986 itself suggests that respondents themselves have resorted to the arbitration proceedings in terms of the .
agreement entered into by the predecessor-in-interest of the petitioners and the then Deputy Commissioner, Lahaul & Spiti District at Keylong, dated 10.11.1969 and direction was also issued to the respondents to appoint Arbitrator and decide the matter. But, admittedly, no steps whatsoever were of taken by them till 13th August, 2009 i.e. more that 23 years after appointment of Arbitrator. It has specifically been contended rt that the claim of the respondents has become stale and is hopelessly time barred because, admittedly, if alleged amount, if any, was required to be recovered by the respondents from late Shri Tenzin, the same could be recovered by the respondents well within the limitation.
11. Respondents by way of reply refuted the aforesaid averments contained in the writ petition and stated that since late Shri Tenzin, depot-holder, has mis-
appropriated the Government food-grains and had failed to deposit the sale produce of the Government as per office order dated 4.1.972, his legal representatives have been rightly asked to deposit an amount of Rs.97,567.60 paise, which includes the previous recovery of Rs.7965.64 paise, pertaining to the years 1968-69 to 1970-71. respondents ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 9 have admitted the fact with regard to passing of the order dated 29.8.1986 by the learned Senior Sub Judge, Lahaul & .
Spiti, where the learned Judge, on the application having been preferred by the respondents, had referred the matter to the Arbitrator with the direction to the respondents to refer the matter to the arbitrator, who was directed to decide the matter first and thereafter recover the amount in terms of the of arbitration award. Respondents, by way of reply, have not rendered plausible/reasonable and acceptable explanation rt for inordinate delay in either taking steps to recover the alleged amount, if any, from the petitioners or in appointing Arbitrator in terms of the orders dated 29.8.1986, passed by the learned Senior Sub Judge, Lahaul & Spiti. Only explanation rendered is that during this period matter remained pending with the authorities and, as such, plea of inordinate delay in recovering the aforesaid amount cannot be taken by the petitioners.
12. I have heard learned counsel for the parties and perused the record of the case carefully.
13. Shri Vinay Kuthiala, learned Senior Counsel, appearing on behalf of the petitioners vehemently argued that the impugned notice dated 13.8.2009 (Annexure P-7) calling upon the present petitioners to appear personally ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 10 through authorized agent, at this belated stage, is not sustainable and deserves to be quashed and set aside, .
especially in view of the fact that there is inordinate delay in appointment of Arbitrator by the respondents. He vehemently argued that Arbitrators was appointed by the learned Senior Sub Judge, Lahaul & Spiti on the application moved by the respondents themselves, wherein they invoked of arbitration clause of the agreement and prayed for appointment of Arbitrator. He invited the attention of this rt Court to the order passed by learned Senior Sub Judge, Lahaul & Spiti, Annexure P-5, which clearly suggests that the respondents have moved an application under Section 34 of the Arbitration Act, praying therein for appointment of Arbitrator in terms of agreement entered into between the parties. Admittedly, the aforesaid order was passed on 29.8.1986 i.e. 21 years back.
14. Mr.Kuthiala strenuously argued that there is no explanation, in the reply filed by the respondents, for this much inordinate delay in the appointment of the Arbitrator and only explanation rendered by the respondents, whereby they have stated that the matter remained pending before the Authority, cannot be accepted, at this belated stage. He forcefully argued that as per Limitation Act, there is a period ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 11 of three years for appointment of the Arbitrator and in the present case, admittedly, respondents did not take any steps .
to appoint the Arbitrator for almost 21 years and, as such, any order of appointment of Arbitrator as well as any action taken by the Arbitrator at the belated stage cannot be given effect because the appointment of Arbitrator, after 21 years of the passing of the order of the learned Senior Sub Judge, of is illegal and deserves to be quashed and set aside.
15. Mr.Kuthiala, during arguments, also invited the rt attention of this Court to the letter dated 9.8.1971 (Annexure P-1), whereby the District Controller, Food Civil Supply & Consumers Affairs, Lahaul & Spiti, had written to late Shri Tenzin with regard to sale produce amounting to Rs.7965.64 paise, which was required to be deposited by him within two days. He submitted that if, for the sake of arguments or discussion, it is accepted that this amount was due and admissible, it cannot be recovered from the legal heirs of late Shri Tenzin that too after an inordinate delay of 38 years i.e. from 1971 till the date of issuance of notice by Arbitrator i.e. 2009. He also referred to Office Note (Annexure P-2), whereby, while handing over the charge to the successor of late Shri Tenzin, it is concluded that amount of Rs.97,568.18 paise is recoverable from said Shri Tenzin. But period given ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 12 in that letter also suggests that recovery, if any, relates to the years 1968-69 to 1970-71, meaning thereby, that also relates .
back to period 39-40 years back. He further contented that as this recovery relates back to 40 years, no steps whatsoever can be taken by the respondents to recover the same at this belated stage, as the claim, if any, is hopelessly time barred.
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16. However, Shri Rupinder Thakur, learned Additional Advocate General, appearing on behalf of the rt respondents, stated that there is no infirmity and illegality in the notice dated 13.8.2009, issued by the Arbitrator, because there was an agreement clause entered into between the parties, which provides for the settlement of dispute by way of arbitration. He further contended that right of appointment of Arbitrator lies with the authorities and, as such, Director, Food, Civil Supplies & Consumer Afairs, H.P., Shimla, has rightly been appointed as an Arbitrator. He also stated that it stands proved on record that the predecessor-
in-interest of the present petitioners was liable to pay an amount, as has been determined by the authorities, on account of sale proceeds, which he admittedly failed to deposit despite several notices.
::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 1317. Mr.Rupinder Thakur also contended that the perusal of the record clearly suggests that the matter always .
remained under active consideration of the respondents, as such, plea of the petitioners that claim is hopelessly time barred cannot be accepted. Moreover, this is a public money which is required to be recovered and merely on technical grounds the legitimate claim of the State cannot be allowed of to be defeated.
18. After hearing the parties and perusing the rt record, it emerges that communication was sent by the respondents in the year 1971 to late Shri Tenzin calling upon him to deposit Rs.7965.64 paise on account of sale proceeds of the wheat for the period 1968-69 to 1970-71 till 24.7.1971. However, factum, with regard to misappropriation of this amount, cannot be ascertained because perusal of the record nowhere suggests that any imputation with regard to misappropriation by late Shri Tenzin was made in this behalf by the respondent authorities. It also emerges from Office Note (Annexure P-2) that while handing over the charge to Shri Sonam i.e. successor of late Shri Tenzin w.e.f. 21.12.1971, an amount of Rs.97,568/- was determined, which was allegedly recoverable from late Shri Tenzin by the respondents on ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 14 account of sale of wheat for the period 1968-69 to 1970-71.
But, document made available on the record, nowhere .
suggests that after determining the aforesaid amount, as has been pointed out in Annexure P-2, whether any attempts whatsoever were made by the respondents-authorities to associate present petitioners before determining the sum due, which has been ultimately foisted upon them. Rather, it of appears from Annexure P-3 that District Food and Supplies Controller, Lahaul & Spiti directly issued an intimation to rt the Collector, Lahaul & Spiti at Keylong, with a request to take up the recovery case under H.P. Public Money (recovery) of dues Act, 1973 against legal representatives of late Shri Tenzin and in this regard recovery certificate was issued vide extraordinary Gazette No.nil, dated 23.9.1978. But even the perusal of this communication suggests that it was issued on 7.3.1981 and it remained a fact that the Collector, Lohal & Spiti did not take any action, rather vide Annexure P-4, letter dated 21.3.1984, he authorized Tehsildar, Keylong to effect recovery from the legal representatives of late Shri Tenzin.
But even then there is no document on the record to suggest that Tehsildar, Keylong took any steps for recovery of the amount, as has been referred above. Admittedly, aforesaid notice Annexure P-4 was issued by the respondents in 1984, ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 15 but thereafter present petitioners filed suit for declaration in the Court of learned Senior Sub Judge, Lahaul & Spiti in the .
year 1988, meaning thereby that between the years 1984 and 1988, no steps whatsoever, were taken by the respondents to recover the alleged amount from the present petitioners, which clearly suggests that respondents have been quite negligent in recovering the alleged amount from of the present petitioners. Admittedly, the decision with regard to recovery of sale proceeds of the Government food-grains, rt which is a public money, was taken by the respondents and a letter dated 7.3.1981 was sent to the Collector, who vide communication dated 22.3.1984 deputed the Tehildar, Keylong to recover the money. Tehsildar, in turn, took the steps by issuing a letter dated 18.1.1988 for recovery of amount. But, as emerges from record, no steps whatsoever for almost seven years were taken by the respondents to recover the amount. Subsequently, when the suit was filed by the petitioners, the respondents, instead of filing detailed written statement; themselves prayed that the matter be referred to the Arbitrator in terms of the arbitration clause in the agreement. That prayer of the respondents was also allowed on 29.8.1986, whereby the matter was referred to the Arbitrator with the directions that first matter would be ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 16 decided and then steps would be taken to affect the recovery in accordance with arbitration award. Even at this stage .
there is no record, whatsoever to suggest that the present respondents took any steps to appoint Arbitrator, as was ordered by the learned Senior Sub Judge on 29.8.1986.
Now, suddenly in the year 2009, i.e. after more than 23 years, notice has been sent to the present petitioners with of the direction to appear before the respondent-Arbitrator, which action of the respondent, at this belated stage, cannot rt be termed as legal in any manner. Rather, it appears to be an attempt on the part of the respondents to recover the amount, which, probably at this stage, could not be recovered on account of inordinate delay on their part. Only explanation rendered by the respondents that during all this period matter remained pending before the authorities cannot be accepted at all because during this period their conduct has been very callous and negligent, rather they slept over the matter and now suddenly after 23 years steps have been taken to initiate the recovery proceedings against the legal representatives of late Shri Tenzin that too qua the claim, which have admittedly become very stale. Leaving apart issue of appointment of Arbitrator, the perusal of the record/document, placed on record, leaves no doubt in the ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 17 mind of the Court that even after issuance of recovery certificate, respondents did not take any steps, for more than .
9 years, to initiate proceedings under Act for recovery of amount. Hence this Court has no hesitation to conclude that any attempt, at this stage, by initiating arbitration proceedings against the petitioners for recovery of the amount, which is admittedly hopelessly time barred, cannot of be allowed to succeed at this belated stage. Non-placing of documents suggesting therein that legal representatives of rt late Shri Tenzin were ever associated at the time of determination of amount due, by the respondents compel this Court to conclude that actually no proceedings whatsoever, were initiated by the respondents to ascertain the sum due recoverable from late Shri Tenzin. Moreover, perusal of the agreement, which has been placed on record by the present respondents, nowhere suggests that terms and conditions of agreement binds the legal representatives of late Shri Tenzin also, being a depot-holder, had entered into an agreement with the then Deputy Commissioner/District Controller Food Civil Supplies & Consumers Affairs. Plain reading of the agreement nowhere suggests that legal representatives of late Shri Tenzin shall be liable for any acts and deeds of late Shri Tenzin, the then ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 18 depot holder. Hence, this agreement cannot be looked into while determining the right and liabilities of late Shri Tenzin.
.
19. It is undisputed in the present case that the respondents have been quite negligent in effecting recovery, if any, on account of alleged outstanding amount in the name of late Shri Tenzin from present petitioners being his legal representatives. As emerges from the record, as has been of discussed above, that no proceedings whatsoever were ever taken to its logical end by the respondents for recovery of rt amount due, rather same were persuaded half heartedly and as such even under the Limitation Act, there is no provisions which can come to the rescue of the respondents for recovery of such stale claim.
20. Undisputedly, as emerges from record, respondents now by way of arbitration proceedings, which are also hopelessly time barred, are attempting to recover the amount due from the predecessor-in-interest of the petitioners after 40 years. Respondents by way of issuance of notice of arbitration to the petitioners have now attempted to recover the amount which otherwise has become stale due to negligence and callous attitude of the respondents themselves.
::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 1921. Though as per Article 130 of Limitation Act period of 30 years have been prescribed for the State to file .
suit, but since recovery pertains to the year 1968-69 i.e. 39- 40 years back, respondents cannot be allowed to recover the same by taking benefit of Article 112 of the Limitation Act because admittedly period of 30 years, as prescribed under Article 112 of the Limitation Act, has also expired. In the of present case though steps were taken by the authorities to recover the amount as arrears of land revenue but as has rt been discussed no proceedings either in the shape of recovery suit or recovery of dues as land arrears and arbitration were taken to its logical end, rather proceedings, if any, were left in between and as such, now fresh attempt sought to be made by sending notice of the arbitration cannot be allowed to sustain at this belated stage in the given facts and circumstances of the case. What to talk about limitation provided under Article 112 of the Limitation Act, even time/period provided under Article 136 and 137 of the Limitation Act for execution of decree, if any, has expired and no benefit can be taken by the respondent by resorting to the same. At this stage, it would be apt to refer to Articles 136 and 137 of the Limitation Act, 1963.
::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 2022. As per Article 136, period of 12 years has been prescribed for execution of any decree (other than a decree .
granting a mandatory injunction) or order of any civil court.
23. Article 137 provides a period of three years for any other application for which no period of limitation is provided elsewhere in this Division.
24. In this regard reliance is placed upon the of judgment of the Hon'ble Apex Court in Maharashtra State Financial Corpn. Vs. Ashok K.Agarwal and Others, rt (2006)9 SCC 617, wherein it has been held:
"6. Article 137 of the Limitation Act applies in the facts of the present case. When Article 137 is applied, the application moved by the appellant Corporation on 2.1.1992 for proceeding against the sureties i.e. the respondents herein, was clearly barred by time and the courts below were correct in holding so. To recall the facts of the present case, the notice demanding repayment of the amount of loan was issued against the borrower, that is, M/s Crystal Marketing Private Limited on 8.3.1983 and the application under Sections 31 and 32 of the State Financial Corporation was filed against the said borrower on 25.10.1983. The liability of sureties had crystallized then.::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 21
7. The amendment under Section 31 of the State Financial Corporation Act which authorities the State Financial Corporation .
to take action under Section 31 of the Act for enforcing the liability against the sureties, was brought about in the year 1985 by introduction of sub-section (aa) in Section 31(1) of the Act. Even after this amendment the appellant did not wake up to take any step against the sureties in the of present case. Notice was issued to the sureties only on 7.12.1991 and the application for enforcement of liability rt against them was filed on 2.1.1992. application, therefore, was clearly barred The by time and the decisions of the courts below cannot be faulted. The courts below rightly dismissed the application on the ground that it was barred by limitation.
The appeal has no merit. It is dismissed with no order as to costs."
(P.620)
25. In Ram Bachan Rai and Others vs. Ram Udar Rai and Others, (2006)9 SCC 446, the Hon'ble Apex Court has held:
"8. Noticing some conflicts in views expressed by two Judge Benches judgment of this Court, reference was made to a three Judge Bench in Chiranjilal (dead) by Lrs. V. Hari Das (dead) by Lrs. (2005(2) SCC 261). A ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 22 three Judge Bench by its judgment dated May 13, 2005 in Dr. Chiranji Lal (D) by Lrs. V. Hari Das (d) by Lrs. (2005 (10) SCC 746) has .
decided the matter observing inter-alia as follows:
"24. A decree in a suit for partition declares the right of the parties in the immovable properties and divides the shares by metes and bounds. Since a decree in suit for partition creates of rights and liabilities of the parties with respect to the immovable properties, it is considered as an instrument liable for the payment of stamp duty under the Indian Stamp rtAct. The object of the Stamp Act being securing the revenue for the State, the scheme of the Stamp Act provides that a decree of partition not duly stamped can be impounded and once the requisite stamp duty along with penalty, if any, is paid the decree can be acted upon."
In paragraph 25 of the same decision, this Court also observed as follows:
25. The engrossment of the final decree in a suit for partition would relate back to the date of the decree.
The beginning of the period of limitation for executing such a decree cannot be made to depend upon date of the engrossment of such a decree on the stamp paper. The date of furnishing of stamp paper is an uncertain act, within the domain, purview and control of a party. No date or period is fixed for furnishing stamp papers. No rule has been shown to us requiring the Court to call upon or give any time for furnishing of stamp paper. A party by his own act of not furnishing stamp paper cannot stop the running of period of ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 23 limitation. None can take advantage of his own wrong. The proposition that period of thereupon an only thereafter the period limitation would .
remain suspended till stamp paper is furnished and decree engrossed of twelve years will begin to run would lead to absurdity. In Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari, it was said that the payment of court fee on the amount found due was entirely in the power of the decree- holder and there was nothing to prevent him from paying it then of and there; it was a decree capable of execution from the very date it was passed. (Emphasis supplied) In view of the said decision, the inevitable conclusion is that the Executing Court rtwas not correct in its view. It is to be noted that learned counsel for the respondents conceded to the position that the period of limitation is not to be reckoned from the date of dismissal of the Civil Revision which was filed relating to rejection of the application under Order IX Rule 13, CPC. The entire focus was on the date from which the period of limitation is to be reckoned. Reliance was placed on a decision of the Calcutta High Court in Ram Nath Das and Ors. v.
Saha Chowdhury and Co. Ltd. and Ors. (AIR 1974 Cal 246) where it was held that the decree was enforceable and when cost is assessed. The ratio in the said judgment clearly runs counter to what has been stated in Dr. Chiranji Lal's case (supra).
For the reasons aforesaid, the application for execution filed on 5.4.1991 was clearly time barred having been filed beyond the period of twelve years prescribed under Article 136 of the Limitation Act. Accordingly the High Court as well as the Executing Court committed illegality in coming to a ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 24 conclusion that it was not barred by limitation. Therefore, the inevitable result is that the order passed by the High Court and .
the Executing Court cannot be maintained and are set aside. The appeal is allowed. The application for execution stands rejected. No costs.
(PP.449-450) of
26. Mr.Thakur, learned Additional Advocate General, in support of his contention, placed reliance upon the judgment passed by the Hon'ble Apex Court in Deepak rt Bhandari vs. Himachal Pradesh State Industrial Development Corporation Ltd. Civil Appeal No.1018/2014 arising out of Special leave Petition (Civil) No.30825 of 2010.
27. Perusal of the aforesaid judgment, relied upon by learned Additional Advocate General, suggests that it is not applicable in the present facts and circumstances of the case. In the aforesaid case Hon'ble Apex Court while dealing with the Section 29 of State Financial Corporation Act held that limitation is to be counted from the date when the assets of the Company were sold and not when the recall notice was given. But in the present case where except one letter dated 7.3.1981 whereby the matter was referred to the ::: Downloaded on - 15/04/2017 20:29:00 :::HCHP 25 Collector, Lahaul & Spiti for recovery of amount to be collected as arrears of land revenue, there is no document .
available on record suggestive of the fact that any proceedings qua the recovery involved in the present case was ever taken to its logical end. Hence, in the present case respondents cannot take any benefit of the ratio laid down by the Hon'ble Apex Court in the present case.
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28. Consequently, in view of the aforesaid discussion, the present writ petition is allowed and rt Annexures P-7 and P-8 are quashed and set aside, accordingly.
29. All the interim orders are vacated. All miscellaneous applications are disposed of.
May 27, 2016 (Sandeep Sharma)
(aks) Judge
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