High Court
Case Details
RSA 94/2002 BEFORE HON’BLE MR JUSTICE N.CHAUDHURY This second appeal has been preferred at the instance of defendant No.1 1. of the main Title Suit No. 27/98. The suit was instituted by one Dulal Khan stat ing that he received financial assistance from the defendant No.1, Assam Financi al Corporation on 10.2.1990 for certain machineries and tools of the value of Rs .48,000/- and that he received the said machineries. Thereafter on 27.2.1990 a d eed of hypothecation was executed between the plaintiff and the said defendant No.1. It was agreed to by and between the parties that the borrower(plaintiff h erein) would repay the value of the goods received by him in 20 quarterly inst alments commencing from January, 1991 and the date of payment of last instalme nt fell due on October, 1995. The plaintiff further stated that even after entering into such hypothecation ag reement with the plaintiff he did not make payment of any instalment whatsoever. But the defendant No. 1 by its conduct allowed the loan to become ’time barred’ . But all on a sudden defendant No.3(Bakijai Officer) issued notice to him to re fund Rs.74,747.10 on account of said loan to the Bongaigaon Branch of the defend ant No.1. The plaintiff further claimed that the certificate office (defendant No.3) was required u/s 6 of the Bengal Public Demands Recovery Act, 1913 to be satisfied that the claim was not barred by any law. But without being so sati sfied the defendant No.3 issued notice to the plaintiff to refund a sum of R s.74,747.10 on account of loan advance to the plaintiff by the Bongaigaon Branc h of the defendant No.1 vide BakiJai case No. 10/1997-98 . According to the pla intiff, the said bakijai case was illegal and notice issued by the defendant No. 3 was also illegal and void. The cause of action of the suit was claimed to hav e been arisen on 10.11.1997 when the defendant No.3 registered a bakijai case b earing Bakijai Case No. 10/1997-98. Ultimately it was prayed that the loan of Rs .48,000/- advanced by the defendant No.1 alongwith interest thereon being time barred was not recoverable from the plaintiff and as such a prayer for injunct ion both permanent and temporary was prayed for. By paragraph 10(iii) of the p laint, a prayer was specifically made for declaration that certificate issued on barred debt of Rs.74,747.10 is void.
Legal Reasoning
2. It appears that two sets of written statement were filed by the defendan t. While defendant Nos.2 and 3 filed a joint written statement claiming that th e bakijai case No. 10/97-98 was not illegal in law and that notice was issued to defendant No.2 lawfully. In paragraph 5 of the written statement of the defe ndant Nos.2 and 3 it was specifically pleaded that the loan advanced to the plai ntiff was not time bared and was recoverable. The defendant No.1 on the other hand submitted a separate written statem 3. ent. It was claimed by the paragraph 3 of the said written statement that the su it of the plaintiff was barred by limitation.In paragraph 6 and 7 of written s tatement , stand taken by the plaintiff vide paragraph 4 of the plaint was re plied . It was pleaded in paragraph 6 that the payment of loan was subject to the condition that repayment would be made by 20 quarterly instalments spread u p to October, 1995. A mention was made in paragraph 7 of the written statement about the judgment of this Court passed on 16.7.1998 in Civil Rule No. 237/1990 indicating that there would be no period of limitation for realisation of the mo ney by defendant No.1, Financial Institution. It was stated that defendant No.1 is not a profit making institution and its object is to cause development of ind ustries in the North Eastern region. 4. ial Court framed as many as five issues . The said issues are quoted below: On the basis of the aforesaid pleadings of the parties, the learned tr (cid:28)1. Whether there is cause of action for the suit ? 2. Whether the suit is maintainable. 3. Whether the loan amount is time barred, whole loan or any part ? 4. Whether the plaintiff is entitled to get relieves from the payment of loan to the defendant? 5. To what relieves the parties are entitled to ? (cid:29) It would appear from the above that issue No.3 is one of the vital issu 5. e in the suit and it involves the question as to whether loan amount was barr ed. But strangely although a specific stand was taken in paragraph 3 of the written statement of the defendant No.1 that the suit was barred by limitation y et there was no issue framed on the said contention of the defendant No.1. 6. The plaintiff examined himself as PW 1 while defendant No.1 examined on e Gopal Prasad Gupta its Regional Manager as DW 1. Plaintiff did not exhibit any document. The defendant No.1 exhibited 3 documents, namely, Ext.A(Deed of hypot hecation),Ext.B(D.P.Note dated 27.2.1990) and Ext.C(An application dated 20.5.90 signed by the Plaintiff) all in original. While deciding issue No.3 the learned trial Court observed that no certi 7. ficate was issued in Bakijai Case No. 10/97-98 to start the case. The learned tr ial Court quoted contents of orders dated 10.11.97,11.12.97 and 2.7.98 passed by the Bakijai Officer. It is not clear from where the said dates were collected i nasmuch as neither the proceedings of Bakijai Case No. 10/97-98 was exhibited by either of the parties nor there is any order on record to arrive at a specific finding that the learned Trial Court took recourse to Section 30 of the Code o f Civil Procedure for calling for the said records. The pleadings of the parti es it is clear that crux of the case lies in the legality and validity of the s aid Bakijai proceeding. The learned trial Court having observed that no certific ate was issued arrived at inference that cognisance of the Bakijai proceeding has taken by the Bakijai Officer on 10.11.97 on an application dated 6.8.94 fi led by defendant No.1 understandably u/s 5 of the Bengal Public Demands Recovery Act, 1913(hereinafter referred to as ’the BPDR Act’) and that the claim of r ecovery was beyond three years and thus time barred. On this finding the learned trial Court decreed the suit in part by judgment and decree dated 11.9.2000 hol ding that the last instalment payable in October, 1995 was, however, was not tim e barred being within the period of three years. 8. The defendant No.1 challenged the said judgment and decree dated 11.9.20 00 before the learned Civil Judge, Sr.Division, Goalpara in Title Appeal No. 25/ 2000. The learned Appellate Court dismissed the appeal by judgment dated 22.10.2 001 observing, interalia, that the debt is partly time barred, that no certifica te was signed by the certificate officer in Bakijai Case No. 10/97-08 and tha t the defendant No.1 without issuing certificate rather tried to arrest the pla intiff for default of the payment of amount. The learned First Appellate Court also does not appear to have considered as to whether the suit of the plaintiff was time barred. It is this judgment and decree dated 22.10.2001, which the defe ndant No.1 has challenged in the present second appeal. While admitting the second appeal on 26.11.2002 this Court framed four s 9. ubstantial questions of law, which are quoted below: 1. Whether the suit of the plaintiff was barred by limitation in view of the pr ovisions of S.34 of the Bengal Public Demands Recovery Act ? 2. Whether the suit itself was maintainable in view of the provisions of sectio ns 34 and 35 of the Bengal Public Demands Recovery Act and whether the learned C ourts below had jurisdiction to decide the suit ? 3. Whether the learned Courts below were justified in holding that the Bakijai case in question was instituted in 1977-98, though from the record of the case i tself it appears that the case was filed by the appellant on 6.8.94 ? 4. Whether the findings of the learned Courts below that a suit to recover the dues of the plaintiff to the defendant No.1 Assam Financial Corporation Act, wa s barred by Limitation are correct ?
Legal Reasoning
10. I have heard Mr P.K.Kalita learned counsel and Ms.T.Goswami learned coun sel for the appellant and Mr.B.Banerjee,learned counsel assisted by Mr DFA Ahmed , learned counsel appearing on behalf of respondent. None appears for proforma respondent Nos.2 and 3. 11. The first and second substantial questions of law in regard to the main tainability of the suit on the ground of limitation as well as on merit are bas ed on the question as to whether there was any certificate as contemplated u/s 6 of the Bengal Public Demands Recovery Act, 1913( hereinafter referred to as the BPDR Act). Section 5 of the BPDR Act provides that when any public demand p ayable to any person other than collector is due, such person may send to the Certificate Office a written requisition in the prescribed form. On receipt o f such requisition, the Certificate Officer is to satisfy himself as to whether the demand is recoverable and that the recovery by suit is not barred by law. If the Certificate Office is so satisfied, then he may sign a certificate in presc ribed form. Thereafter the Certificate Officer would cause the same to be serve d upon the certificate debtor in prescribed manner u/s 7 of the Act. Upon such a notice being served u/s 7 it would be open to the certificate debtor u/s 9 of the BPDR Act to deny liability within thirty days from the service of such noti ce or within thirty days of execution of any process for enforcement of the ce rtificate. Upon such petition denying liability being filed there shall be hear ing and determination of the said information u/s 10 of the BPDR Act. It appears from the averments made in the plaint that the plaintiff really wanted a decla ration under para 10(iii) that the certificate issued on him is time barred. Pa ragraph 6 of the plaint contains allegation that notice issued by the Bakijai Of ficer is illegal, void in law and as such an injunction has been prayed agains t the recovery of the amount demanded by the defendant No.3 on behalf of defenda nt No.1.It does not appear from the evidence led by the parties that the said no tice said to have been illegally issued by the defendant no.3 was at all place d on record by the plaintiff. Even the order sheet does not point out as to whet her the Bakijai proceedings were called for from the defendant No.3 and whether such records were at all available before the learned trial Court. Unless record s were produced by the learned trial Court it was not possible to arrive at a fi nding as to whether there was any certificate issued or not. The finding of the learned Courts below that the Certificate Officer(Defendant No.3) did not sign a certificate is not based on materials on record. Be that as it may there being specific pleading on the part of the plain 12. tiff in regard to existence of demand by the defendant No.3 and there being a prayer for declaration of the certificate being time barred, the learned trial C ourt appears to have been gone beyond the pleadings in arriving at a finding th at no certificate was at all issued . The orders quoted in the learned trial C ourt judgment shows that there was a warrant of arrest against the plaintiff. It appears that the plaintiff instituted the suit only after being served with the warrant of arrest which contained also the demand of Rs.74,747.10 being public demand payable to the defendant No.1. True , there is a prescribe Form being For m No.1 in the BPDR Act and the said Form is described to have been prepared as per Section 4 and 6 of the BPDR Act. A perusal of the said Form shows that the only information to be made available in the said certificate is nothing but th e amount to be paid by the certificate debtor and that the said amount is recov erable and suit is not barred by law. Section 4 or Section 6 does not contain a ny default clause as to whether a certificate becomes invalid in law if the cert ificate is not drawn in the prescribed Form. The language used in Section 6 is r ather ’ & & &.may sign a certificate’. On the other hand it is provided in the ne xt clause of the said Section that the certificate ’shall cause the certificate to be filled in his office ’. Thus existence of the words, ’ may’ as well as ’sh all’ in the same Section indicates that first part of the clause 6 signing of c ertificate in prescribed form is directory in nature. Had the same been mandato ry there would have been a corresponding default clause in express terms. In tha t view of the matter what ever demand has been made on the plaintiff by the defe ndant No.3 asking for payment of Rs.74,747.10 is to be construed as a certifica te within the meaning of Section 6 of the BPDR Act. Of Course, the plaintif must have filed the suit understanding the notice to be a one under Section 6 and th at is why there is prayer for adjudging the certificate bad. 13. Once communication made to the plaintiff to the defendant No.3 asking fo r payment of Rs.74,747.10 is construed to be a one as certificate under Sectio n 6 of the BPDR Act, automatically the consequences of Sections 34 and 35 of t he Act is bound to follow. Section 34 of the BPDR Act comes under Part IV of the Act and it prescribes a period of limitation for institution of suit for cha llenging validity of Section 6 certificate. 14. Mr Banerjee, learned counsel for the respondent points out at this stage that what was communicated to the plaintiff, asking for money, was in the natur e of notice served on him u/s 7 of the BPDR Act. Section 7 of BPDR Act comes int o play only after a certificate has been signed. Even if the contention of the l earned counsel for the respondent is accepted that the same was a notice u/s 7, even then the provision of Section 34(1) of BPDR Act will come into play. Sectio n 34 (1) of BPDR Act requires that a suit has to be filed within a period of six months from the service upon him of notice required u/s 7. Obviously the suit w as filed on 26.8.1998 whereas the learned trial Court’s judgment shows that the plaintiff (certificate debtor) filed application on 11.12.97 praying for time t o file objection. In that view of the matter notice definitely was served on the plaintiff prior to 11.12.97 and in that case also suit filed on 26.8.98 is beyond the period of six months from the date of the notice and consequently th e suit is time barred u/s 34(1) BPDR Act. Moreover the recital made in the plai nt shows that the only ground of the challenge of the plaintiff was in regard to bar of limitation of the claim of the defendant No.1. It was not the case of th e plaintiff that the amount stated in the plaint was actually paid or that the a mount was not due by the certificate debtor to the certificate holder. Section 3 5 of the BPDR Act has restricted the scope of civil suit in regard to certificat e issued u/s 6 of the BPDR Act. Normally civil suit lies in any claim and for th at no statute is required to maintain suit. But a statute may bar institution of a suit. In the case in hand BPDR Act has narrowed over the scope of civil suit though has not ousted jurisdiction of civil court entirely. It is provided in Se ction 35 that suit shall lie only on the grounds mentioned therein which nece ssarily means that no suit shall lie on grounds other than the ones mentio ned in Section 35. So, a civil suit based on grounds beyond the parameters fix ed by Section 35 is not maintainable . The recital made in the plaint does not bring the suit within any of the provisions mentioned in Section 35 of the Act a nd thus the suit of the plaintiff cannot be said to be maintainable . Having f ound such, the substantial question Nos 1 and 2 are to be decided in favour of t he appellants holding that the suit of the plaintiff is not maintained and is ba rred by limitation u/s 34 BPDR Act. 15. Once the first two substantial questions of law are decided in favour of the appellant the impugned judgments and decrees passed by the learned Courts b elow have to be set aside and in that place the decision in regard to subsequent two substantial questions of law may not be necessary. 16. Be that as it may, the learned trial Court has arrived at the finding th at the Bakijai proceeding was instituted in the year 1997-98. While deciding iss ue No.3 the same learned Court has recorded some of the orders of the Bakijai pr oceedings. First order recorded by the learned Trial Court is the order dated 10 .11.97. The said order shows that the Branch Manager of defendant No.1 made writ ten requisition vide letter dated 6.8.94. May be that the Bakijai Officer did no t act on it, but once step was taken by defendant No.1 on 6.8.94, failure on the part of Bakijai Officer (defendant No. 3) cannot endanger the claim of defendan t No.1 who had made requisition in time. If it is found that the step was taken on 6.8.94 it is well within three years from third quarter, October 1991 and in that view, the claim of the defendant No.1 w.e.f. October, 1991 cannot be held t o be time barred by any stretch of imagination. In this connection, the learned counsel for the appellant Mr.P.K.Kalita 17. has drawn my attention to Section 22 of Limitation Act claiming that in case of continuing breach of torts fresh period of limitation begins to run from every m oment of time and as such the claim of the defendant would not be otherwise time barred. Per contra Mr.Banerjee, learned counsel for respondent submits that Sec tion 22 is totally inapplicable to the case in hand inasmuch as there is no cont inuing wrong involved in the transaction between the parties. Mr.Banerjee h as relied on a judgment of the Supreme Court in Balakrishna Savalram Pujari Wagh mare and others reported in AIR 1959 SC 798 and contended that it is the very e ssence of continuing wrong that creates a continuing source of injury and render s the doer of the act responsible and liable for consequence of the said injury. If the wrongful act causes an injury which is complete there is no continuing w rong even though the damage resulting from the act may continue. According to M r.Banerjee default in making payment of the first instalment or that any other instalments if at all are injuries complete by themselves and there is nothing to continue from the said defaults. In that view of the matter there is force in the submission of Mr.Banerjee that Section 22 of Limitation Act does not ha ve any application in the present case. 18. Be that as it may, the step having been taken by defendant No.1 on 6.8.9 4 for realisation of money, the finding of learned Court below that the Bakijai case was instituted in the year 1997-98 is neither correct nor based on record s and accordingly, the finding that the claim of the defendant no.1 was time b arred is also not acceptable . Having observed thus, the substantial question No s.3 and 4 are also to be held in favour of the appellant. 19. In view of above, the second appeal succeeds. The judgment and decree pa ssed by the learned Civil Judge, Senior Division, Goalpara on 22.10.2001 in Titl e Appeal No. 25/2000 as well as the judgment and decree passed by the learned Mu nsiff No.1, Goalpara in Title Suit No. 27/1998 are set aside. The defendant No.1 , consequently, shall be at liberty to proceed for recovery of dues in accordanc e with law.