Gauhati High Court
On The Death Of Ranjit Kumar Chakraborty ... vs State Of Assam And 3 Ors on 29 November, 2019
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GAHC010013792013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RFA 63/2013
1:ON THE DEATH OF RANJIT KUMAR CHAKRABORTY HIS LEGAL HEIRS
1(a) MRS MILI CHAKRABARTY
W/O Parta Pratim Chakrabarty
D/O Late Ranjit Kumar Chakrabarty
resident of Anandalook Complex,
Das Colony, Silchar, Dist-Cachar(Assam)
pin 78805.
VERSUS
1:STATE OF ASSAM and 3 ORS.
REPRESENTED BY THE SECY. TO THE GOVT. OF ASSAM, IRRIGATION
DEPTT., DISPUR, GUWAHATI-6
2:THE CHIEF ENGINEER
DEPTT. OF IRRIGATION
GOVT. OF ASSAM
CHANDMARI
GUWAHATI-3
3:THE SUPERINTENDING ENGINEER
DEPTT. OF IRRIGATION
GOVT. OF ASSAM BARAK VALLEY ZONE
PO. SILCHAR
DIST. CACHAR
ASSAM
4:THE EXECUTIVE ENGINEER
BARAK VALLEY INVESTIGATION DIVISION
DEPARTMENT OF IRRIGATION
BADARPUR
DIST. KARIMGANJ
ASSA
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Advocate for the Appellant : MR.A K CHOUDHURY
Advocate for the Respondent : MR. N.UPADHYA(SC, IRRIGATION)
BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI JUDGMENT & ORDER (CAV) Date : 29-11-2019 This regular first appeal is directed against the judgment and decree passed by the learned Civil Judge No. 2, Silchar, Cachar in Money Suit No.5/2008, whereby, the suit filed by the plaintiff was dismissed.
2. The facts leading to the present first appeal may be stated thus : The appellant, as plaintiff filed the money suit for recovery of an amount of Rs. 6,86,161/-. The case of the plaintiff was that he was the proprietor of a business firm under the name and style "M/S Paper House" and used to supply office stationeries and other materials to various offices in Barak valley. Defendant No. 4, Executive Engineer, Barak Valley Investigation Division, Department of Irrigation having it's office at Badarpur, in the district of Karimganj, issued various work orders asking the appellant to supply office stationeries and other goods to his office during the year 2000 to 2002. Pursuant to such orders, the plaintiff supplied the office stationeries and other goods to the office of the respondent No. 4 and submitted bills for an amount of Rs.6,86,161/- on various dates w.e.f. 07-09-2000 to 10-08-2002. However, the payment against the said bills were not made. Although the plaintiff was requesting the defendant No. 4 to make payment of the bills, the payment was delayed on the pretext, that bills could not be paid for want of necessary sanction from the defendant Nos. 1, 2 and 3. In the meantime, the predecessor of the defendant No. 4 was transferred. Although the plaintiff approached the defendant No. 4 and other office staffs on several occasions for clearing his bills, they asked the plaintiff to wait by saying, that as soon as the fund would be available the payment would be made. When the defendant No. 4 failed to make the payment, plaintiff issued notice u/s 80 CPC demanding the payment. However, the defendant No. 4 in reply to the notice u/s 80 CPC denied the entire claim of the plaintiff, alleging that the claim of the plaintiff was false. Hence, the plaintiff instituted the suit for recovery of money. Defendant No. 4 by filing written statement raised various legal pleas including the Page No.# 3/8 bar of limitation, deficiency in the notice u/s 80 CPC, non-joinder of necessary party etc. The specific plea of the defendant was that there was no pending bill to be paid by the defendant No. 4 to the plaintiff, mor any supply order as alleged in the plaint was ever issued from the office of the defendant no. 4. The defendants also stated that the goods alleged to have been supplied by the plaintiff was never received in the office of the defendant no. 4. On the basis of the above pleadings, the learned trial court framed the following issues :-
1. Whether there is any cause of action for the suit ?
2. Whether the suit is maintainable in it's present form ?
3. Whether the plaintiff is entitled to seek a decree for recovery of an amount of Rs.
6,86,161/- against the pending 22 nos. of bills with interest @ 15% per annum ?
4. Whether the plaintiff is entitled to a decree as prayed for ?
5. Whether the suit is barred by limitation ?
6. To what relief/reliefs the parties is/are entitled to ?
3. The plaintiff examined two witnesses including himself and also proved some documents. Defendant examined one witness and upon hearing the parties, the learned Civil Judge No. 2, Silchar dismissed the suit of the plaintiff by the impugned judgment.
4. I have heard Mrs. R. Choudhury for the appellant and Mr. N. Upadhya, learned Standing Counsel for the Irrigation Department, Assam.
5. Learned counsel for the appellant, Ms. R. Choudhury submits that the learned trial court wrongly decided the issues against the plaintiff without considering the evidence brought on record. It was also submitted by Ms. Choudhury, that though, the plaintiff had successfully proved his claim, learned trial court dismissed the suit holding it to be barred by limitation. It was the contention of the learned counsel for the appellant that although the bills were submitted in the year 2002, plaintiff has been pursuing the defendant No. 4 for payment of the bills till 2007 and ultimately when the defendant denied the claim of the plaintiff in reply to the notice u/s 80 CPC, the plaintiff was forced to file the suit, and therefore, the suit could not be said to be barred by limitation, submits Mrs. Choudhury. It was also contended by the learned counsel that the finding of the learned trial court with regard to territorial jurisdiction of the court was also erroneous in view of Section 20 of the Code of Civil Procedure.
6. Per contra, learned Standing Counsel for the respondents submits that the suit was barred by Page No.# 4/8 limitation, inasmuch as, the alleged supply of goods and purported submission of bills was within the time period from 2000 to 2002 and suit was filed in the year 2007, beyond the period of limitation. It was also contended by the learned counsel, that the plaintiff failed to establish his claim by adducing sufficient evidence and no transaction took place within the district of Cachar so as to provide jurisdiction to the civil court at Cachar, and as such, the impugned judgment and decree did not suffer from any illegality.
7. On the basis of the submission made by the learned counsel for the parties as well as the materials on record, the following points are required to be decided for adjudication of this appeal --
i) Whether the suit was barred by limitation ?
ii) Whether the plaintiff was entitled to recover an amount of
Rs. Rs.6,86,161/- against the goods supplied by him ?
iii) Whether the court at Silchar had the territorial jurisdiction over the
subject of the suit ?
Point No. 1
8. From the pleadings and the documents, being the purported work orders and bills proved by the plaintiff as Ext.-1-series, it is evident that all the alleged work orders and the bills relate to the period from 07-09-2000 to 10-08-2002 and the latest bills and purported work order was of 10-08- 2002. Admittedly after 10-08-2002 there was neither any supply of goods, nor any work order issued by the defendants, nor any bill was submitted. The pleaded case of the plaintiff was that he supplied office stationeries and other articles to the defendant No. 4 on credit. There was neither any pleading nor any evidence to show, that there was any specific stipulation, as to when the price of the goods shall be paid. Article 14 of the Limitation Act provides, that the limitation for filing of a suit for the price of goods sold and delivered where no fixed period of credit is agreed upon, is 3 years from the date of delivery of goods. Since evidently the suit is filed for recovery of price of the goods, which was sold/delivered by the plaintiff to the defendant No. 4 on credit, and admittedly there was no fixed period of credit, the present suit will be governed by Article 14 of the Limitation Act. Admittedly the last work order was issued on 10-08-2002 and the bill was also submitted on the same date and thereafter, there was neither any supply of goods, nor submission of any bill. Therefore, the suit in the instant case ought to have been filed at least within three years from 10-08-2002. However, the suit in the instant case was filed on 24-06-2008, much beyond the period of limitation. This being the position, the present suit is palpably barred by Article 14 of the Limitation Act.
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9. Learned counsel, Mrs. R. Choudhury submits, that though the last supply of goods or submission of bill was on 10-08-2002, the plaintiff was pursuing the defendants for payment of the bills and defendant No. 4 also verbally assured, that the bills will be paid upon receiving the fund and the necessary sanction from the authority. Therefore, the cause of action for the suit continued, and as such, the suit cannot be held to be barred by limitation, submits Mrs. Choudhury. To buttress her submission, Ms. Choudhury placed reliance on the following decisions :-
1. (2011) 4 SCC 85, T.V. Venugopal -Vs. Ushodaya Enterprises Ltd. & Anr.
2. (2016) 2 SCC 705, Krishna Bhattacharjee Vs. Sarathi Choudhury & Anr.
3. (2014) 3 SCC 595, State of Bank of India -Vs.- Gracure Pharmaceuticals Ltd.
10. In Krishna Bhattacharjee -Vs.-Sarathi Choudhury & Anr (supra), the Apex Court was dealing with the concept of continuing offence and the limitation for filing a complaint in relation to an application filed u/s 12 of the Protection of Woman from Domestic Violence Act, 2005. The issue before the Apex Court was whether the retention of the stridhan by the husband or any other family members is a continuing offence ? The Apex Court having considered various earlier decisions, held that the concept of continuing offence gets attracted in case of deprivation of stridhan.
11. In T.V. Venugopal -Vs. Ushodaya Enterprises Ltd. & Anr. (supra), the Apex Court held that in a case of continuing tort, fresh period of limitation begins to run every moment of time during which, the breach of trade mark continues. This was a case, where the Apex Court was dealing with the intellectual property right and infringement of trade mark and passing-off. The question of limitation for action was raised therein, in the context of the tortuous liability because of infringement of trade mark and passing- off, which was considered to be continuing tort. The Apex Court held that delay in bringing an action will not defeat the suit, because in case of continuing tort, fresh period of limitation begins to run every moment of time during which, the breach of trade mark continues.
12. In State of Bank of India -Vs.- Gracure Pharmaceuticals Ltd.(supra), the issue was relating to the settlement of LoC (Letter of Credit) amount and consequential closure of account thereafter. The Apex Court on the facts of the said case held that settlement of LoC amount and consequential closure of account thereafter constituted one cause of action and there could be only one suit for the same.
13. Section 22 of the Limitation Act, 1963 provides, that in case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run every moment of time during which the breach or tort, as the case may be, continues. In the instant case, the claim of the Page No.# 6/8 plaintiff is neither for tortuous liability, nor for breach of contract. which was continuous in nature. It is a suit simplicitor for recovery of money for the goods sold on credit, which is governed by Article 14 of the Limitation Act and Section 22 of the Limitation Act has no application in the present case.
14. Section 18 of the Limitation Act provides that where, before the expiration period for filing a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time, when the acknowledegment was so signed. Sub-section (2) of Section 18 of the Limitation Act provides that where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872. Oral evidence of its contents shall not be received. Though it is averred in the plaint that the plaintiff was pursuing the defendant No. 4 for payment of the dues and defendant was assuring to make the payment, there is no averment in the plaint nor any evidence adduced as to, when such assurance was given by the defendant for payment of the dues. In order to get the benefit of Section 18 of the Limitation Act, so as to extend the period of limitation, two conditions are necessary. Firstly, there must be a written acknowledgment of the debt by the debtor and such acknowledgment must be within the prescribed period of limitation. In the instant case, apparently there was no acknowledgment in writing. When there was no acknowledgment in writing within the prescribed period of limitation, Section 18 of the Limitation Act also cannot be pressed into service. All the authorities cited by the learned counsel for the appellant, in my considered view has no application on the factual matrix of the present case. When the suit was evidently filed beyond the period of 3 years and there was also no acknowledgement u/s 18 of the Limitation Act, the present suit was clearly barred by Article 14 of the Limitation Act and therefore, the learned trial court rightly decided the point No. 1 against the plaintiff holding the suit to be barred by limitation. Accordingly, the point No. 1 is answered in affirmative and against the plaintiff.
Point No. 215. The pleaded case of the plaintiff was that he supplied office stationeries and other goods to the defendant No. 4 pursuant to the work orders issued by the defendant No. 4 and in support of such claim, the plaintiff produced the documentary evidence, Ext. 1 (1) to 1 (75). The plea of the defendants was that no such supply order was issued by the defendant No. 4 and the claim of the plaintiff was denied as false. The defendant No. 4 also stated in the pleadings that there was no record for issuing such supply order or receiving such goods alleged to have been supplied by the Page No.# 7/8 plaintiff. The learned trial court disbelieved the case of the plaintiff as regards the claim of the plaintiff. This being a first appeal u/s 96 of the CPC, I have carefully scrutinized all these documents, more particularly, the Ext.-1 series, being the basis of plaintiff's claim. The Exts. 1(41), 1 (72), 1 (75), 1 (69), 1 (66), 1 (63) and 1 (60) are purported work orders alleged to have been issued by the defendant No. 4 and Exts. 1(70, 71), 1 (73, 74), 1 (67, 68), 1 (64, 65), 1 (61, 62), 1 (58, 59) and 1 (39, 40) are the bills, purportedly drawn against the said work orders. From a close perusal of these exhibits, it appears that all the seven work orders were issued on the same day, i.e., 10-08-2002 purportedly from the office of the defendant No. 4 situated at Badarpur. The bills against all the alleged work orders were also prepared by the plaintiff on the same day, i.e., 10-08-2002 and the same were also received by the office of the defendant No. 4 at Badarpur on the same day. It is surprising to note, that the work orders even did not contain the list of goods required to be supplied. It is also apparent that the goods purportedly supplied pursuant to the aforementioned work orders and bills were almost identical. It is beyond comprehension as to why seven work orders were required to be issued on the same day, that too for identical goods of various quantity. It is also difficult to understand as to how all the work orders issued on 10-08-2002 was complied with by supplying the goods on the same day and the bills were also purportedly received by the office of the defendant No. 4 on the same day. Apparently, the office of the defendant No. 4 is situated at Badarpur in the district of Karimganj and the goods were supplied from Silchar, where the firm of the plaintiff was located. There was also absolutely no evidence on record to show that those purported supply of goods were received by anyone in the office of the defendant No. 4. When the defendant in the written statement clearly mentioned that the work orders were not issued by the defendant No. 4, nor the goods were supplied by the plaintiff, or received by the defendant No. 4, it was the duty of the plaintiff to prove that indeed he had supplied goods to the defendant No. 4 and the same were received by the defendants. In fact, no evidence was adduced by the plaintiff to that effect. Similar is the case with the purported work orders Exts. 1(26), 1 (29) and 1 (38) which were issued on 07-09- 2000 and the corresponding bills being 1 (24, 25), 1 (27, 28) and 1 (34, 35) were also drawn on the sane day. The plaintiff did not adduce any evidence to show, that indeed such goods were supplied to the office of the defendant No. 4 or the same were received by anyone.
16. What is palpable from the very appearance of the documentary evidence being Ext.-1 series, more particularly, Exts. 1(26), 1 (29), 1 (38), 1(41), 1 (72), 1 (75), 1 (69), 1 (66), 1 (63), 1 (60) as well as 1 (56) the supply orders and the corresponding bills is that all these were bogus and manufactured documents. These documents were also not proved in accordance with law. Therefore, having regard to the nature of documents most of which appears to be bogus and manufactured Page No.# 8/8 documents and failure of the plaintiff to adduce any evidence that indeed he had supplied the goods, the plaintiff cannot be held to have proved his case, as claimed in the plaint. Therefore, the learned trial court, in my considered view, rightly decided the point no. 2 against the plaintiff. Accordingly, the point no.2 is also answered in negative and against the plaintiff.
Point No. 317. Section 20 (C) CPC provides that subject to the limitation as provided under Sections 16, 17, 18 and 19 CPC, every suit shall be instituted in a court within the local limits of whose jurisdiction, cause of action, wholly or in part arise.
18. In the present case, as per pleadings, the purported work orders were stated to have been issued by the defendant No. 4 from his office at Badarpur, addressed to the plaintiff's firm situated at Silchar for supplying the goods. Therefore, necessarily the goods pursuant to the aforementioned purported work orders was to be supplied from Silchar, being the business establishment of the plaintiff, and as such, it cannot be said that Silchar court did not have territorial jurisdiction. Therefore, on the facts and pleadings of the parties, it appears that part of the cause of action on the purported transactions between the parties also arose at Silchar, wherefrom the plaintiff was supposed to supply the goods to the office of defendant No. 4 at Badarpur and as such, in my considered view, the point No. 3 ought to have been decided in favour of the plaintiff. Accordingly, the point No. 3 is answered in affirmative and in favour of the plaintiff.
19. The point No. 1 & 2, being the vital issues pertaining to limitation of filing the suit and the bona fide of the claim of the plaintiff, having been decided against him, the plaintiff's suit was bound to fail and therefore, the present appeal filed by the plaintiff does not appear to have any merit and deserves to be dismissed. Accordingly, the appeal filed by the plaintiff is dismissed on contest. Parties to bear their own cost.
20. Send back the LCR.
JUDGE Comparing Assistant