The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.207 of 2016 [In the matter of an appeal under Section 100 of CPC from the judgment dated 17.02.2016 and decree passed by Addl. District Judge-cum-Special Judge, CBI-II, Bhubaneswar in RFA No. 4/636 of 2015/2014 arising out of the judgment and decree dated 04.09.2014 passed by the 2nd Addl. Senior in M.S. No. 157/1907 of Civil Judge, Bhubaneswar 2012/2010. AFR M/s.Tasty Food Products …. Appellant -Versus- Secretary, Orissa State Council for Child Welfare and another …. Respondents Advocate(s) appeared in this case: For the Appellant : Mr. P.K. Rath, Sr. Advocate For Respondents with M/s.R.N. Parija, A.K. Rout, S.K. Singh, S.K. Pattnaik, A. Behera, P.K. Sahoo, A.K. Behera, S.K. Behera & B.K. Dash, Advocates. :M/s. Dayananda Mohapatra, Sr. Adv. with Mr. G.R. Mahapatra, J.M. Barik P.K. Singh Deo & S. Rout, Advocates [For R-1] Mr. S.N. Pattnaik Addl. Government Advocate [For R-2] CORAM: JUSTICE SASHIKANTA MISHRA Page 1 of 24 JUDGMENT 20th August, 2025 SASHIKANTA MISHRA, J. This is a plaintiffs’ appeal against a reversing judgment. The suit of the plaintiff for realization of Rs.2,32,426/- from the defendant No.2 was decreed by the trial Court and reversed in appeal. 2. For convenience, the parties are referred to as per their respective status before the Trial Court. 3. The case of the plaintiff, briefly stated, is that it is a proprietary concern engaged in manufacturing and supply of bread (bun) having its factory at Rasulgarh in Bhubaneswar. Defendant No.2 is a registered society working under the administrative control of the Government in Department of Women and Child Development (defendant No.1). The plaintiff offered to supply bread to defendant no.2 meant for distribution among the street children and accordingly submitted quotation on 25.01.2001. Defendant no.2 accepted the quotation and requested for supply of Page 2 of 24 bread to different centers with effect from 01.02.2001. The
Legal Reasoning
plaintiff also used to supply bread earlier till the end of December, 2000. The plaintiff, pursuant to the order, supplied bread daily and submitted bills on different dates between 07.03.2001 to 14.12.2001 in all, amounting to Rs.2,67,426/-. Out of the said amount, defendant No.2 paid Rs.10,000/- in cash, Rs.20,000 by cheque dated 13.06.2001 and again cash of Rs.5000/- on 15.03.2002. Thus, the plaintiff received a sum of Rs.35,000/- from defendant No.2 but the balance amount of Rs.2,32,426/- was not paid despite several requests. On 07.06.2003, the plaintiff wrote to defendant No.2 requesting for realization of payment. Since no action was taken, the plaintiff approached this Court in W.P.(C) No. 6993 of 2004. During pendency of the writ application, the petitioner also approached the Lokpal, who by order dated 22.06.2006, held that the Secretary of the Society had failed to discharge his duty. Further, this Court disposed of the writ application on 18.09.2007 directing defendant No.2 to consider the representation of the plaintiff within two months. Copy of said order being Page 3 of 24 submitted by the plaintiff on 26.09.2007, the plaintiff was asked to submit the relevant papers as the file was missing. The plaintiff submitted all the attested copies of documents on 12.10.2007. But by letter dated 22.11.2007, the claim of plaintiff was rejected by defendant No.2. The plaintiff thereafter served notice under Section 80 of CPC on the defendants on 09.08.2010. Since there was no response, he filed the suit. 4. Defendant No.1-State filed written statement stating that defendant No.2 being an autonomous and independent body, it has no administrative control over the same. The grievance of the plaintiff relating to arrear claim being received on 22.07.2003, the same was forwarded to defendant No.2 for consideration and payment of the admissible dues. There is no contractual relationship between the plaintiff and defendant No.1 and therefore, no liability could be saddled on it. 5. Defendant No.2 filed written statement questioning the genuineness of the receipts/bill submitted. Page 4 of 24 The payment of Rs.35,000/- made by it was stated to have been made for the supply made in the year 2000 but not against the supply made in 2001. Pursuant to the order of this Court, the plaintiff’s case was thoroughly verified but as the claim was found to be illegal, forged and fabricated, the same was rejected. 6. Basing on the rival pleadings, the trial Court framed the following issues for determination. “1. Whether the suit is maintainable? 2. Whether there is any cause of action to file the suit? 3. Whether the suit is barred by limitation? 4. Whether the plaintiff is entitled to a decree as sought for? To what other relief, the plaintiff is entitled?” 5. 7. The trial Court took up issue No.4 for determination at the outset. The oral and documentary evidence adduced were analyzed in detail. It was found that there was contract between the plaintiff and defendant No.2 for which it was regularly supplying bread to street children as per order placed by defendant No.2. Thus, on the strength of valid order of defendant No.2 dated 03.02.2001 (Ext.2), the plaintiff supplied bread from 01.02.2001 to the six street Page 5 of 24 children centers. The plaintiff was also paid Rs.35,000/- on different dates pursuant to such supply. The defendant No.2, though alleged that the documents relied upon by the plaintiff were forged, yet it could not successfully discharge the onus by examining the relevant persons to show that the supply had not been made. According to trial Court, the best evidence available to defendant No.2 was withheld, for which the allegation of fraud was held to be not substantiated. The trial Court accepted 11 numbers of carbon copies of the bills as raised by the plaintiff vide Ext.3 series. As regards the plea of loss of file, the trial Court held that the same cannot give advantage to defendant No.2 to overcome its liability. The trial Court further took note of the fact that the representation of the plaintiff was rejected by defendant No.2 without assigning any reason. Ultimately it was held that the plaintiff had proved his case by preponderance of probabilities. On the remaining issues, the trial Court held that the suit is in time since it attracts Section 14 of the Limitation Act. The plaintiff’s approach to this Court as well as the Lokpal was in relation to the case and therefore, the Page 6 of 24 suit must be held to be within time. On such findings, the suit was decreed by directing the defendant No.2 to pay the decretal dues of Rs.2,32,426/- with P.I. and F.I. @ 6% per annum. 8. Being aggrieved, defendant No.2 carried appeal to the district Court. After considering the rival contentions and the grounds raised, the First Appellate Court framed the following points for determination. “1. Whether plaintiff has supplied the bread to the defendant No.2 under any contract in the year 2001? 2. Whether the suit is barred by limitation?” 9. On point No.1, the First Appellate Court, after re-appreciating the oral and documentary evidence on record held that the actual supply of bread was not proved. There is also no evidence that the payment of Rs.35,000/- was a part- payment towards claim for the year 2001. Holding that the trial Court had not considered the infirmities in the evidence, the First Appellate Court held that the money claim of the plaintiff towards the price of bread supplied was not proved. Page 7 of 24 On point No.2, the First Appellate Court relying upon some judgments to hold that the claim was due on 14.12.2001, for which the suit ought to have been filed by 13.12.2004. The same having been filed on 12.11.2010 is barred by limitation and exclusion of time due to pendency of
Decision
the writ petition under Section 14 of the Limitation Act does not save the limitation. The suit was thus held to be barred by limitation. On the above findings, the appeal was allowed by setting aside the judgment and decree passed by the trial Court. 10. Being aggrieved, the plaintiff has filed the present appeal, which was admitted on the following substantial questions of law. the “(i) Whether the learned Lower Appellate Court is correct in reversing the judgment and decree passed learned Trial Court basing upon one by particular bill, particularly when there are other bills available on record in support of supply which have not been taken into consideration. (ii) Whether the learned Lower Appellate Court is correct in law dismissing plaintiff’s suit on the ground of limitation in view of the order passed by the Defendant on 22.11.2007 acknowledging the claim under Section18 of the Limitation Act giving rise to the cause of action and the suit for realization of money and the suit was filed within the limitation period of three years from the said date.” Page 8 of 24 11. Heard Mr. P.K. Rath, learned Senior Counsel along with Ms. S. Das, learned counsel for the plaintiff- appellant and Mr. D. Mohapatra, learned Senior Counsel along with Mr. S. Rout, learned counsel for the defendant No.2-respondent. Mr. S.N. Pattnaik, learned Addl. Government Advocate appeared for the State-defendant No.1- respondent. 12. Mr. Rath would argue that the First Appellate Court committed manifest illegality in framing points for determination regarding supply of bread, which was never an issue in the First Appeal. There is no evidence on record to support the finding that the plaintiff had not supplied bread as claimed. Even assuming there was discrepancy in two bills, the same could have been ignored but the other nine bills could have been allowed. There was no justification in rejecting all the eleven bills only because two of them were found to be discrepant. Mr. Rath further argues that the plaintiff having been paid Rs.35,000/- implies part acknowledgement of his Page 9 of 24 dues. That apart, the evidence of D.W.-1 could not have been accepted because he admitted to have joined much after the transaction and also of having no personal knowledge about it. In any case, defendant No.1 admitted that the dues might not have been paid because of non-receipt of grant-in-aid from the Government. On the question of limitation, Mr. Rath, would argue that the writ petition was filed within the period of limitation for the suit i.e. on 06.07.2004, which remained pending till 18.09.2007. The writ petition was disposed of with a direction to defendant No.2 to consider the representation of the petitioner, whereupon the claim of the petitioner was finally rejected on 22.11.2007. This gives rise to a fresh cause of action and the suit having admittedly been filed within three years thereafter i.e., 12.11.2010 cannot be treated as barred by limitation. 13. Per contra, Mr. D. Mohapata would argue that if the copies of the bills exhibited by the plaintiff with objection by defendant No.2 are looked at, it would clearly reveal that the same were forged and created only for the purpose of the claim. The original bills were never produced. It was never Page 10 of 24 proved as to who received the bills. The copies being in the nature of secondary evidence could not have been accepted or relied upon by the trial Court for non-compliance of the conditions laid in Section 65 of the Indian Evidence Act. No other corroborative evidence like the challans/register etc. was adduced. The plaintiff also did not produce the daily supply register. On the question of limitation, Mr. Mohapatra would argue that it is well settled that the issue of limitation has to be considered with reference to the original cause of action, which cannot be extended. Even assuming that Section 14 would be applicable then also the suit would be barred by limitation. Mr. Mohapatra amplifies his argument by submitting that the last bill having been submitted on 14.12.2001, the suit should have been filed by 14.12.2004. The plaintiff filed writ petition on 06.07.2004, which was disposed of on 18.09.2007. As between the date of arising of the cause of action i.e., 14.12.2001 and filing of the writ petition, the total period elapsed is 936 days. If the date of Page 11 of 24 filing of the suit i.e., 12.11.2010 is considered, a further period of 1087 days is found to have been consumed. Thus, the total period consumed comes to 2023 days, which was never explained. In support of his contention, Mr. Mohapatra has relied upon the judgments of the Supreme Court in the case of Union of India vs. M.K. Sarkar1 and Simplex Infrastructure Ltd. vs. Union of India2, 14. Having regard to the rival contentions, this Court deems it proper to consider substantial question No.2 relating to limitation at the outset since the same goes to the root of the matter. The other question would be relevant only if the plaintiff succeeds on the first point, i.e., limitation. 15. It is claimed that the plaintiff supplied bread (bun) as per the letter dated 03.02.2001(Ext.2) beginning from 07.03.2001 to 14.12.2001. The plaintiff claims that he had raised eleven bills amounting to Rs.2,67,426/-, the last of which being submitted on 14.12.2001. It is not disputed 1 (2010) 2 SCC59 2 (2019) 2 SCC455 Page 12 of 24 that the limitation for filing suit for realisation of money due is three years. As such, the suit ordinarily should have been filed by 14.12.2004. However, it is borne out from the materials on record that before expiry of the period of limitation, the plaintiff filed a writ petition on 06.07.2004. Said writ petition remained pending till 18.09.2007. The question is, whether Section 14 of the Limitation Act would come into play. For immediate reference, Section 14 is reproduced below: “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 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. the same matter issue and in to (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, whether 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 (5 of Page 13 of 24 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 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.” 16. Having regard to the facts of the case and the language of Section 14, this Court is of the considered view that Section 14 would have no application for the reason that approach to the High Court by the plaintiff cannot be treated as approach to a wrong forum or forum having no jurisdiction. The defendants being instrumentalities of State within the meaning of Article 12 of the Constitution of India, the writ petition was maintainable. In fact, the writ petition was entertained and disposed of with a positive direction to defendant No.2 to consider the representation of the petitioner. 17. In the case of M.K. Sarkar (supra), the Supreme Court has observed as follows: “15. When a belated representation in regard to a “stale” or “dead” issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the “dead” issue or time-barred dispute. The issue of limitation or delay and laches Page 14 of 24 should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court’s direction. Neither a court’s direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. or court before 16. A directing tribunal, “consideration” of a claim or representation should examine whether the claim or representation is with reference to a “live” issue or whether it is with reference to a “dead” or “stale” issue. If it is with reference to a “dead” or “stale” issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration. If to direct the “consideration” without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect.” tribunal deciding court or 18. Said case was one in which the petitioner had raised a claim 22 years after his retirement, for which it was held to be a ‘stale’ or ‘dead’ issue/dispute. What was clarified in the cited judgment is that directing consideration of a claim is to be examined whether it relates to a live or dead issue. If it is with reference to a dead or stale issue no such direction for consideration should be issued. Such is not the fact situation obtaining in the present case. The plaintiff approached the High Court when the period of limitation for Page 15 of 24 filing the suit had not expired. It was therefore, a live and not a stale claim. The judgment in M.K. Sarkar (supra) can therefore, be distinguished on facts. 19. As regards the judgment in Simplex Infrastructure Ltd. (supra) the matter relates to filing of an application under Section 34 of the Arbitration and Conciliation Act before a Court having no territorial jurisdiction for which Section 14 was invoked. As already stated, the present case is one in which Section 14 has no application. The cited judgment is therefore, distinguishable of facts. 20. Undisputedly the writ petition, filed by the plaintiff at a time when the limitation had not expired, remained pending from 06.07.2004 to 18.09.2007. This Court while disposing of the writ application did not say anything with regard to limitation nor directed the plaintiff to approach the civil court but issued a positive direction to the defendant No.2 to consider the case of the plaintiff. Under such circumstances, limitation must be held to have been Page 16 of 24 saved because of pendency of the writ application for more than three years. 21. The question is, whether the period of limitation would start running upon disposal of the writ application. This can be answered with reference to the order passed by this Court, the relevant portion of which has been quoted by the First Appellate Court in pargraph-9 of its judgment. It cannot be said that this Court was not aware that the cause of action had arisen on 14.12.2001 while issuing the aforesaid direction. Regardless of the date of arising of the cause of action, this Court still directed defendant No.2 to consider the case of the plaintiff. This amounts to giving rise to a fresh cause of action. Admittedly, the claim of the plaintiff was considered and rejected on 22.11.2007 without citing any reason and the suit was filed on 12.11.2010, i.e. within three years from the date on which the cause of action arose i.e. 22.11.2007. This Court having entertained the writ application and issued a particular direction, the same cannot be ignored to hold that the original cause of action Page 17 of 24 had revived and along with it the period of limitation that had begun to run since 14.12.2001. It would be an absurd proposition as it would set at naught the order of this Court. The cause of action as on 14.12.2001 related to non-payment of the plaintiff’s dues but the cause of action on 22.11.2007 was rejection of the petitioner’s claim upon consideration of the documents supplied by him as directed by this Court. Both cannot be equated with each order. The matter would have been different had the plaintiff not approached this Court within the period of limitation, but having done so, he cannot be denied the benefit of saving of limitation firstly, because of pendency of the writ application for more than three years and secondly, for arising of a new cause of action basing on the order passed by this Court. It is stated at the cost of repetition that if the interpretation made by the First Appellate Court were to be accepted, it would wipe out the order passed by this Court in the writ application in its entirety. Such a position obviously cannot be countenanced in law. It is reiterated that while the original cause of action related to non-payment of dues simplicitor, which is an Page 18 of 24 inaction or omission, fresh cause of action related to rejection of claim of the plaintiff upon consideration of documents in obedience to order passed by this Court, which is a positive action or commission 22. This Court is therefore, unable to persuade itself to agree with the reasoning adopted by the First Appellate Court and therefore, holds that the suit was not barred by limitation and was rightly entertained by the trial Court. 23. Coming to the substantial question No.1 which relates to the correctness of the First Appellate Court’s order in reversing the judgment of the trial Court, this Court would first keep in perspective the legal principle that civil cases are to be decided on the basis of preponderance of probabilities and not on the anvil of beyond reasonable doubt as is applied to criminal cases. The trial Court has done precisely that. After weighing the evidence adduced by both sides the trial Court deemed it reasonable to accept the evidence adduced by the plaintiff than the defendant No.2. This Court has also scanned the evidence independently vis-(cid:224)-vis the findings Page 19 of 24 based thereon of the trial Court and finds no reason to differ from it. As held by the trial Court, an order was placed for supply of bread to 6 street children centers vide Ext.2. All the exhibits were marked with objection yet the same were never disproved by the contesting defendant. It has been argued that the so-called part payment was not actually a part payment but payment made for supply of bread for the previous period i.e. till the end of December, 2000. If such was the case then, the following admission made under paragraph-9 of the written statement is rendered incomprehensible. Paragraph-9 is quoted below. the certified copy of 9. That in reply to the averment made in Para 7 of the plaint it is again humbly submitted that the Plaintiff approached the Hon’ble High Court in writ petition of WP (C) 6993/2004 where in the Hon’ble High Court has directed the defendant No.2 to dispose of the representation of the Plaintiff as expeditiously as possible preferably within 2 months from the date of receipt of the order and accordingly this defendant taking into consideration of the fact on record and it was concluded that the plaintiff was not entitled for the claim amount as does not justify the claim of getting Rs.2,32,426/- for alleged supply of bread (Bun) and the same was intimated to the plaintiff on 22.11.2007 vide office letter no.737/CW dated 22.11.2007. However this the situation has defendant released Rs.35000/- in different spells treating it to be the final payment of the dues. It may not be out of place to mention here that this defendant has received the dues/grant for the year 1999-2000 till the month of in consideration of Page 20 of 24 December 2000 and the said scheme of the central government is not functioning and the dues for the year 2001 onwards has not yet been released by the central government. This defendant was simply to implement the scheme of the central government having its no financial control or authority to release money from any other source without the sanction of the central government. Since the street children project was central government grant based and the plaintiff was aware about the modality of release of grant by the Government of India and was agreed to receive the grant by OSCCW after it is sanctioned by the Government of India. Hence during the past supply of bread, payment was made after receipt of the grant from Government of India and interest has never been claimed by the plaintiff and as such neither the alleged supply interest thereon is acceptable.” payment nor or of [Emphasis added] 24. This Court fails to understand that if the plaintiff was not entitled to the claim amount, then where was the question of releasing any amount in his favour much less Rs.35,000/-. Further where was the question of ‘in consideration of the situation’ to justify payment of Rs.35,000/-. This only goes to fortify the claim of the plaintiff that it was indeed a part payment of the dues. 25. A plea of loss of file has been taken. An FIR was lodged in this connection, vide Ext.D. Now, the FIR itself was lodged on 30.05.2007. The FIR firstly does not whisper as to when it came to light that the file was missing and secondly, Page 21 of 24 such plea was never taken earlier. The FIR was lodged during pendency of the writ application. This Court is therefore, unable to place any reliance on the FIR as the same would not absolve defendant No.2 of its liability. The trial Court has not placed much reliance on the evidence of D.W.-1, and according to this Court rightly so, for the simple reason that he joined in the organization in the year 2014 and therefore, had no personal knowledge about the transaction. 26. Much has been argued as regards acceptability of the bills submitted by the plaintiff. In this context, the provision of Section 65 has been referred to. This Court is unable to accept the arguments as above for the reason that the originals of the bills having been submitted to defendant No.2, would obviously not be available with the plaintiff any more but only copies thereof would be retained. The originals are supposed to be available in the office of defendant No.2 but a convenient plea was taken that the file had been lost. Faced with such situation, there is nothing wrong in accepting the carbon copies of the bills submitted by the plaintiff as evidence. Page 22 of 24 27. It has been argued that the bills were forged and fabricated for the purpose of the suit. Some discrepancies in the bills have been referred to in this context. Nothing has been said as regards the remaining bills. Obviously only because two bills were found to be discrepant, cannot render all the remaining bills as such. This Court therefore, finds that the trial Court rightly appreciated the evidence on record and applying the principle of preponderance of probability, rightly held that the plaintiff had proved its case. The suit must therefore, be treated as being correctly decided. 28. On the other hand, the first Appellate Court ignoring the admission in the written statement referred above has refused to accept the same as part payment and placed undue importance on the so called discrepancies in one of the bills. 29. For the reasons stated above, this Court is unable to concur with the findings. 30. The substantial question of law No.1 is answered accordingly. Page 23 of 24 31. In the result, the appeal is allowed in part. The judgment passed by the first appellate Court is set aside. The decree passed by the trial Court is confirmed subject to the modification that the plaintiff is entitled to the dues as quantified by the trial Court minus the amount covered under bill dated 14.12.2001. ………….…………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack The 20th August, 2025/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: P.A. Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Aug-2025 18:52:37 Page 24 of 24