Calcutta High Court
Food Corporation Of India vs Randhir Sing Bhutoria & Anr on 27 March, 2019
Equivalent citations: AIRONLINE 2019 CAL 185, 2019 AIR CC 2210 (CAL), (2019) 2 RENTLR 257, (2019) 3 CAL LJ 418, (2019) 4 ICC 370
Author: Ravi Krishan Kapur
Bench: Soumen Sen, Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
The Hon'ble Justice Ravi Krishan Kapur
APD No.319 of 2015
C.S. No.261 of 1999
Food Corporation of India
Versus
Randhir Sing Bhutoria & Anr.
For the Appellant : Mr. P.S. Bose, Sr. Adv.
Mr. Kamal Kumar Chattopadhyay, Adv.
For the Respondents : Mr. Sakya Sen, Adv.
Ms. Sorni Dutta, Adv.
Mr. C.K. Saha, Adv.
Hearing concluded on : 13.03.2019
Judgment on : 27.03.2019
Ravi Krishan Kapur, J.:
1. The instant appeal arises from a judgment and decree dated 2 February, 2015 passed in CS No.261 of 1999 in a suit to recover rental arrears from the defendant.
2. The plaintiffs are the trustees of the Chandmal Religious Trust. The defendant by advertisements invited offers from persons for construction of godowns upon pieces of land owned by them, for the purposes of storing food grains/sugar/ fertilizers and other materials. In terms of the advertisement, the plaintiffs submitted a quotation for 2 construction of a godown according to specifications provided by the defendant. The defendant ultimately accepted such offer. Thereafter, two separate lease agreements were entered into between the defendant and the then Trustees on 12.11.1976 and 04.06.1979 respectively. Subsequently, the Trust constructed eight separate godowns and gave them on lease to the defendant. The defendant took possession of such godowns.
3. By virtue of the lease agreements, the Trust became liable to pay municipal taxes. However, in view of amendments in the Bengal Municipal Act, the defendant also became liable to pay 50 per cent of the municipal taxes and 100 per cent of the surcharge. The defendant contended that it was not liable to pay municipal taxes. The plaintiffs/trustees were therefore compelled to file two separate writ petitions before this Hon'ble Court. Both the writ petitions were disposed of by a common judgment and order dated 24.06.1996.
4. Being aggrieved by the said judgment in the writ application, the Trustees filed two separate appeals being FMAT No.1977 of 1996 and FMAT No.1978 of 1996 respectively. These appeals were disposed of by a common judgment and order dated 24.04.1998 [since been reported in (1999) 1 CHN 178] whereby, the Appellate Court held, inter alia, that the defendant/appellant was liable to pay the occupiers share of taxes and surcharge. Consequent upon such decision, the plaintiffs filed the instant suit to recover a sum of Rs.27,77,866.20/- along with interest from the defendant.
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5. The defendant contested the said suit by filing its written statement. In the written statement the defendant primarily contended, that this Hon'ble Court had no territorial jurisdiction to entertain, try and determine the instant suit. The defendant further claimed that the instant suit had not been properly instituted. The defendant also contended that the suit was barred by limitation. Furthermore, the defendant denied that the plaintiff was entitled to recover any sum of money from the plaintiff.
6. The issues framed by the Trial Court were as follows:
i.) Has this Court jurisdiction to try the suit in view of the arbitral provisions in the agreement?
ii.) Have the plaintiffs any cause of action to the suit?
iii.) Is the suit barred by limitation?
iv.) Is the suit barred by non-joinder of necessary parties?
v.) Is the lease agreement dated 04.06.1979 still subsisting and binding upon the parties?
vi.) Is the defendant liable to pay the Municipal taxes and commercial surcharges?
vii.) Are the plaintiffs entitled to recover the claim of Rs.29,89,979.43/- from the defendant?
viii.) To what relief or reliefs are the plaintiffs entitled?
ix.) Does this Court have jurisdiction to try and entertain the suit?4
x.) Does the suit disclose any cause of action to have arisen outside the district of Burdwan?
7. By the impugned judgment and decree the learned Single Judge has, inter alia, held that this Hon'ble Court had jurisdiction to entertain, try and determine the instant suit. On the aspect of limitation, the learned Single Judge held that in view of the order of the Hon'ble Division Bench passed in the writ petition which was marked Exhibit- F, the defendant had in its application for clarification, inter alia, admitted that a sum of Rs.27,77,866.20/- was payable by the defendant to the plaintiff. Moreover, in view of the provisions under Sections 14 and 15 of the Limitation Act, 1963 the period taken from the date of filing the writ petition till the judgment of the Appellate Court was pronounced would stand excluded. Accordingly, the claim of the plaintiff was within the period of limitation. In the circumstances, the learned Single Judge granted a decree in favour of the plaintiff for a sum of Rs.27,77,866.20/- inclusive of interest.
8. Counsel appearing on behalf of the appellant contended that, the learned Trial Judge in passing the impugned decree erred in facts and in law. He argued that the suit was hopelessly barred by limitation and the learned Trial Court has erred on the aspect of limitation both on facts and in law. He further contended that the observations of the Hon'ble Division Bench in Budheswar Mahato & Ors. vs. The State of West Bengal reported at 1991(1) CHN 178, that clause 12 of the lease 5 agreement did not override the statutory obligation was obiter as the Hon'ble Division Bench was not called upon to decide the said issue inasmuch as no direction could have been passed for the realisation of any further amount. It was also submitted that the observations in the judgment of the Hon'ble Division Bench that the statutory obligation of the occupier to pay its share of taxes as also surcharges could not be given a go bye and the same should prevail over any private arrangement was also obiter. In any event, even if it was assumed, that the plaintiffs could make any claim the same was barred by limitation.
9. Counsel appearing on behalf of the plaintiffs/respondents supported the impugned judgment and decree. He contended that the aspect of limitation was correctly and appropriately addressed by the learned Single Judge. He further contended that as far as the decision of the Hon'ble Division Bench in Budeswar Mahato (supra) is concerned, the same was squarely applicable and the learned Judge had justifiably placed reliance on the said decision.
10. We have heard and considered the arguments made on behalf of the parties. Though the aspect of the jurisdiction was seriously argued before the learned Single Judge, at the Appellate stage counsel on behalf of the appellant did not contest the aspect of the jurisdiction. Accordingly, issue numbers (i), (ix) and (x) that pertain to the jurisdiction of the Court are decided in favour of the plaintiffs. Consequently, I am in agreement with the findings of the learned 6 Single Judge on the aspect of jurisdiction of this Hon'ble Court in entertaining the instant suit.
11. On the aspect of limitation, counsel on behalf of the appellant argued, that on a combined reading of paragraphs 11, 12 and 13 of the judgment in Budeswar Mahato (supra) the period of limitation did not stand extended, and the claim in the plaint for Rs.27,77,868.20/- arose on account of Municipal Taxes payable for the period April 1984 to April 1995 so the suit filed in 1999 was beyond the period of limitation.
12. On the aspect of limitation, reference is made to Section 14 of the Limitation Act, 1963 which reads as follows:-
"14. Exclusion of time of proceeding bona fide in Court without jurisdiction. - (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, where in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding, anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908, the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under rule 1 of that Order, where such permission is granted on the 7 ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature.
The object of this section is to afford protection against the bar of limitation to a person honestly and in good faith doing his best to get his case tried on merits, but failing because the Court is unable to give him such a trial. This section is of wide amplitude and provides that the time spent in prior proceedings is liable to be excluded, provided the proceedings relate to the same matter which was in issue and was prosecuted in good faith.
13. It is the case of the plaintiffs that the Bengal Municipal Act was amended in 1982. By the amendment introduced in 1982, the appellant became liable to pay a portion of the municipal taxes and 100 per cent of the surcharge. Since the appellant had failed to comply with its statutory obligations, the then trustees had filed two separate writ petitions before the Hon'ble High Court at Calcutta. These writ petitions ultimately culminated in the judgment and order dated 24.04.1998 being Exhibit-F to the proceeding. By the judgment and order dated 24.04.1998, the liability of the defendant to pay the plaintiffs became crystallised. Accordingly, the Hon'ble Division Bench permitted the Trustees to realise the amount payable by the defendant. This resulted in the filing of the instant suit.
14. The appellant had also filed an application for clarification being Exhibit-F, wherein it was alleged that an amount of Rs.27,77,866.20/- was due and payable on account of Municipal rates and taxes. The 8 order passed by the Hon'ble Division Bench in the application for clarification was passed 04.04.2000 and was marked as Exhibit-H.
15. In this connection, it is relevant to reproduce paragraph 6 of the clarification application filed on behalf of the appellant before the Hon'ble Division Bench in the earlier writ petition "6) The applicant states that after obtaining the certified copy of the said order, it has come to the notice of the applicant that due to inadvertence some discrepancies appear in the said order regarding the quantum of amount mentioned as deposited by the Food Corporation of India as well as some statements recorded in the name of Food Corporation of India. It appears from page 7 of the said order that an amount of Rs.7,00,000/- has been mentioned in place and stead of Rs.27,77,866.20/- regarding the payment made by the Food Corporation of India to the Municipality as payment of tax. In that regard the applicant categorically states that in compliance with the Honourable Trial Court's order the applicant herein has actually deposited an amount of Rs.27,77,866.20/- which is evident from the statements submitted by the Chairman, Burdwan Municipality, dated the 8th February, 1996 being a part of the document at page 113 of the Paper Book in connection with F.M.A.T. No.1978 of 1997." (emphasis supplied)
16. It was also contended on behalf of the appellant, that the plaintiffs are not entitled to protection under Section 14 of the Limitation Act, 1963. I do not agree with such submission, I am in agreement with the findings of the Trial Court that on a combine reading of Exhibits-F, G and H, the defendant had quantified and crystallised the amount of Rs.27,77,866.20/- on account of Municipal taxes which became due and payable and which the appellant had been directed to pay. I am of the view that it is too late in the day for 9 the appellant to go behind the judgment and order dated 24.04.1999 and the order dated 4.04.2000 passed by the Hon'ble Division Bench in the writ petitions and assail the same in the present suit. The order of the Hon'ble Division Bench in the earlier writ petition had permitted the plaintiffs to recover the amount due from the defendant. The instant suit was filed in accordance with such permission. Accordingly, the period of time consumed from the date of filing of the writ petition till the judgment of the Hon'ble Appeal Court and marked Exhibit-F should stand excluded. I am of the view that after having excluded the time which the plaintiff had bona fide spent before the Writ Court the claim of the plaintiffs filed in the instant suit is well within the period of limitation.
17. The instant suit has been filed in 1999 and is accordingly within the period of limitation. Accordingly, I find no merit in the argument of the appellant that the suit or any portion thereof of the claim is barred by limitation. Hence, issue no.(iii) is also decided in favour of the plaintiff.
18. In this context, it is also pertinent to mention that the Hon'ble Division Bench in Sampatmal & Anr. (supra) at paragraph 5 formulated the issue to be decided in the appeal. The said paragraph reads:-
"5.The only questions which, therefore, remain for consideration are (1) whether in view of the order passed by this Court, the amount payable by the Food Corporation 10 of India could be held to be payable on its own account or on account of the appellant. (2)Whether if the aforementioned question is answered in favour of the appellant, the Food Corporation of India would be also liable to pay interest and deposit the excess amount on their own share."
19. It, therefore, becomes clear that the question as to who would be liable to pay the municipal rates and taxes was very much at issue in the earlier writ petitions and the Appellate Court had decided that very issue in favour of the plaintiff. The relevant observations are to be found in paragraphs 11 and 12 of the said judgment which read as follows:-
"11. So far as Clause 12 of the agreement is concerned, we are of the opinion that by reason of such provision, statutory liability of the occupiers could not have been given a go-bye. The occupiers'' liability to pay its share of taxes as also surcharges being under a statute, the same shall prevail over any private arrangement made by and between the parties.
12. In this view of the matter, it would be open to the appellants to realise such amount or any further amount which might have become payable by the Food Corporation of India to the appellants irrespective of the fact that any rent receipt had been granted upon taking into 11 consideration the amount of taxes already paid by the respondent no. 2 to the respondent no. 1."
20. In view of the aforesaid, it cannot be said that the direction passed by the Division Bench with regard to the realisation of the amount deducted by the appellant from the rent of the plaintiff is obiter.
21. Mr. Bose has also relied upon the decision of Supreme Court in Chandigarh Administration v. Laxman Roller Flour Mills Pvt. Ltd. reported at [(1998)8 SCC 326] for the proposition that it is settled law that unless the allegations made in the writ petition and the relief to that effect is also prayed for in the writ petition the High Court would not be justified in issuing any order beyond the relief prayed for in the writ petition. That judgment has no application in the facts of the present case and is not relevant. Firstly, as a Coordinate Bench we do not deem it fit or proper go into the correctness and/or legality of an order passed by another Division Bench. Moreover, as stated hereinbefore, the appellant has unequivocally accepted the said order, and in fact, the issue with regard to the liability of the occupier's share of the municipal rates and taxes had clearly fallen for consideration in the earlier proceeding. Moreover, in the application filed by the appellant for clarification of the order dated 24th April, 1998 at paragraph 1, the appellant had stated:
"1. The appellants/petitioners herein moved two writ applications before this Hon'ble Court, inter alia, praying 12 for a direction upon the Burdwan Municipality to forbear from giving any effect or any other effects to the decision of the Review Committee dated the 12th March 1984 and the assessment of valuation and the illegal deduction for consolidated rates which further prayer to command the Food Corporation of India the applicant herein from making any deduction from the rent to be paid to the Appellants by the Food Corporation of India."
Paragraph 6 of the said application has already been reproduced hereinbefore. In the said paragraph, the appellant had categorically confirmed that a sum of Rs.27,77,866.20 had been deposited on account of municipal taxes.
22. In fact, the appellant in the writ proceeding, by an order dated 13th April, 1996, the appellant was directed to pay Rs.20,000 per month to the Burdwan Municipal Corporation out of the rent payable for the godown until further orders. The right to realise the portion of the rent was finally resolved by the Division Bench and soon thereafter the suit was filed for recovery of the amount wrongfully deducted. In view thereof, it is no longer open for the appellant to contend before us that the appellant is not liable to pay the amount decreed as the appellant had wrongfully deducted the said amount from the rent component and paid it towards its liability on account of occupiers' share of rates and taxes. Accordingly, issue nos.(ii) and (vii) are also decided in favour of the plaintiff.
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23. In the circumstances, I find no merit in this appeal and I uphold the impugned judgment and decree dated 2 February, 2015 passed in C.S. No.261 of 1999.
24. It is pertinent to mention that public corporations like the appellant often ill-advisedly waste public money on agitating and pursuing unmeritorious and misconceived claims at the expense of the public exchequer. This is not to be encouraged. There must be a line which needs to be drawn. The appeal is dismissed with costs assessed at Rs.10,000/- payable to the respondent within a period of two months from the passing of this judgment.
25. APD No.319 of 2015 stands disposed off.
I agree.
(Soumen Sen, J.) (Ravi Krishan Kapur, J.)