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Bibhuti Bhusan Chakravarti and anr. Vs. Tarun Gupta - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberSuit No. 218 of 1977
Judge
Reported inAIR1978Cal302
ActsLimitation Act, 1963 - Schedule - Article 74; ;Constitution of India - Article 136
AppellantBibhuti Bhusan Chakravarti and anr.
RespondentTarun Gupta
Appellant AdvocateAnindya Mitra, Adv.
Respondent AdvocateSankardas Banerji and ;Ahin Chowdhury, Advs.
Cases ReferredKulasekara Chetty v. Tholasingam Chetty
Excerpt:
- .....case no. 2486 of 1973rs. 12,609.10(iii)expenses incurred in the hon'ble supreme court in special leave application no. 903 of 1976rs. 20,275.20(iv)loss and damages resulting from the plaintiff no.1 being prevented from attending to his work by reason of thecriminal proceedingsrs. 25,000.00(v)damages for injury to reputation and humiliationrs. 50,000.00 totalrs. 1,16,304.20 after obtaining leave under clause 12 of the letters patent the plaintiffs have instituted this suit. 2. this application has been made by the defendant for revocation of leave under clause 12 of the letters patent on the ground of balance of convenience and secondly for dismissal of the suit on the ground of limitation. it is indisputable that the summons of the criminal proceedings was served on the plaintiff no. 1.....
Judgment:
ORDER

Sabyasachi Mukharji, J.

1. Bibhuti Bhusan Chakravati as Managing Director of the Superintendence Company of India Pvt. Ltd. and the Superintendence Company of India Pvt. Ltd. have instituted Suit No. 218 of 1977 on or about 1st April, 1977 in this Court against one Tarun Gupta residing at Mitralaya near Dhaneswar Temple P.O. & Dist. Dhanbad in the State of Bihar. The plaintiffs have alleged that the plaintiff No. 1 was the Managing Director of the plaintiff No. 2 and the defendant was an employee of the plaintiff No. 2. In January, 1970, the defendant was employed by the plaintiff as the Manager of Dhanbad Division of the plaintiff No. 2 at a total remuneration of Rs. 795 per month and a service agreement was executed between the plaintiff No. 2 and defendant on 9th Jan., 1970 at Calcutta. It is stated that the principal object of the agreement was to prevent the defendant from utilising the trade secrets to the advantage of the rivals of the plaintiffs to the detriment of the plaintiffs during the currency of the agreement. It is, further, alleged that on 13th Aug., 1972 the defendant maliciously and without reasonable or probable cause lodged a false complaint before the Sub-divisional Magistrate, Dhanbad against plaintiff No. 1. Bibhuti Bhusan Chakrabarty alleging offences under Sections 506 and 420 of the I.P.C. in the said complaint it had been alleged that the plaintiff No. 1 had cheated the defendant by dishonestly inducing him to sign the aforesaid agreement dated 9th Jan., 1970. The summons of the said criminal proceedings initiated by the defendant, as aforesaid, was served on the plaintiff No. 1 at 46/C, Chowringhee Road, Calcutta within the jurisdiction of this High Court. The plaintiff No. 1 thereafter in pursuance ofthe summons appeared before the Sub-divisional Magistrate, Dhanbad on or about 7th Sept., 1972 and thereafter on various dates when the case was taken up and heard and when witnesses on behalf of the prosecution and defence were examined. After hearing the witnesses, the trying Magistrate framed charges against the plaintiff No. 1 for an offence under Section 420 of the Indian Penal Code. Against the said proceedings, the plaintiff No. 1 moved the Patna High Court for revision. By an order dated 22nd Feb., 1975 the High Court at Patna was pleased to quash the criminal proceedings. Against the said order of the Patna High Court, the defendant, the petitioner herein, sought to move the Hon'ble Supreme Court of India on or about 25th Feb., 1976 for leave to prefer an appeal from the said order and judgment of the Hon'ble High Court at Patna. The plaintiff had entered caveat under the Supreme Court Rules and the plaintiff No. 1 was served with the notice of application for leave to appeal on 14th Sept., 1976. On or about 6th December, 1976 the Supreme Court dismissed the application for leave to appeal to Supreme Court against the order of the Hon'ble High Court at Patna. The present suit was instituted on 1st April. 1977 for damages for malicious prosecution. The plaintiffs have claimed compensation for damages for Rupees 1,16,304.20 as per particulars below:

(i)Expenses incurred in connection, with the criminal proceedings in Dhanbad Court case no. MP-83/72

Rs. 8,419.90(ii)Expenses incurred in Patna High Court Criminal Miscellaneous Case No. 2486 of 1973

Rs. 12,609.10(iii)Expenses incurred in the Hon'ble Supreme Court in Special Leave Application No. 903 of 1976

Rs. 20,275.20(iv)Loss and damages resulting from the plaintiff No.1 being prevented from attending to his work by reason of thecriminal proceedings

Rs. 25,000.00(v)Damages for injury to reputation and humiliation

Rs. 50,000.00

TotalRs. 1,16,304.20

After obtaining leave under Clause 12 of the Letters Patent the plaintiffs have instituted this suit.

2. This application has been made by the defendant for revocation of leave under Clause 12 of the Letters Patent on the ground of balance of convenience and secondly for dismissal of the suit on the ground of limitation. It is indisputable that the summons of the criminal proceedings was served on the plaintiff No. 1 at Calcutta within the jurisdiction of this Court. Therefore, in a suit for damages for malicious prosecution undoubtedly a part of the cause of action had arisen within the jurisdiction of this Court. The first question that was argued on behalf of the petitioner was that on the face of the plaint, the claim of the plaintiffs' had become barred by lapse of time. Article 74 of the Limitation Act, 1963 provides that for a suit for compensation for malicious prosecution the limitation would be one year from 'when the plaintiff is acquitted or the prosecution is otherwise terminated'. In this case, as I have noticed before, the Hon'ble Patna High Court quashed the charges against plaintiff No. 1 on or about 22nd Feb., 1975. So, from one point of view, it is apparent that the prosecution sought to be lodged against the plaintiff No. 1 had terminated on 22nd Feb., 1975. If that is the starting point of limitation then this suit must be held to have become barred by lapse of time.

3. In the case of Purshottam v. Raoji, AIR 1922 Bom 209, the suit was for malicious prosecution and it was held that a suit for malicious prosecution must be brought within one year of the date of discharge of the plaintiff. The cause of action would not be suspended merely on the ground that the proceedings might be taken either by the government or by the complainant in order to get the order of discharge set aside. In the case of S. R. Goel v. Municipal Board, Kanpur, : [1959]1SCR1148 , the Supreme Court was concerned with a case where the plaintiff a Municipal overseer, was dismissed by a resolution of the Municipal Board on the 5th March, 1951. On the 19th March, 1951 the order of dismissal was communicated to the plaintiff. The plaintiff appealed to the government against the order on 7th April, 1951. The Government dismissed his appeal on 7th April, 1952 and this order was communicated to the plaintiff on the 8th April, 1952. On 8th December, 1952 the plaintiff filed a suit for compensation for wrongful dismissal. It was held that the suit was barred by limitation. Prima facie the period of six months provided by Section 326(3) of the U. P. Municipalities Act, 1916 would commence to run after the accrual of the cause of action and the cause of action for the suit of the plaintiff was his wrongful dismissal. The resolution dismissing him from service was passed on 5th March, 1951 and communicated to him on 19th March, 1951 and even extending the period of limitation by the period of notice required under Sub-section (1) of Section 326, his suit filed on 8th Dec., 1952 was hopelessly beyond time. The suit would, therefore, be barred unless it could be said that the cause of action accrued on 8th April, 1952 when the order dismissing his appeal was communicated to him. The right of appeal given to him did not however, involve the consequence that the order of dismissal would not be operative by its own force but would continue to be in abeyance until the decision of the appeal, once an appeal was filed by him so that it could be said that the cause of action arose on the communication of the disposal of the appeal. In the case of Bhaskar v. Kisanlal, : AIR1968Bom21 , construing Article 74 of the Limitation Act when the plaintiff was acquitted the Division Bench held, in a case where a complaint by A against B was made under Sections 147, 323 and 451 of the I.P.C. and there was acquittal of B by the trial Court on the 18th May, 1959, there was an appeal by A under Section 417(3) of the Cr. P. C. and it was dismissed on 3rd Feb., 1960 and B's suit for damages for malicious prosecution was filed on 3rd Feb., 1961 that the suit was not within time and it must be dismissed. According to the Court, the time began to run from the date of the acquittal in the trial Court. Mere filing of an appeal could not suspend the period of limitation. On the other hand, in the case of Madan Mohan v. Ram Sunder, AIR 1930 All 326 it was held that as soon as the order of discharge was passed, the prosecution in a Magistrate's Court terminated. If no further proceedings were taken, the prosecution must be deemed to have terminated on that date. But if, as a matter of fact, the matter was taken up in revision to a higher authority which had the power of interference and proceedings sanctioned by the Criminal Procedure Code were being pursued under Section 436 of the Cr. P. C., the prosecution could no longer be said to have finally terminated. Its final termination would be only if the proceedings in revision had come to an end in favour of the discharged person. In such a case the prosecution for the purpose of Article 23 of the Limitation Act terminated only when the application for revision was dismissed. In that case before the period of one year contemplated by the Article had expired, the revision petition was pending against the acquittal. In the case of Kulasekara Chetty v. Tholasingam Chetty, AIR 1938 Mad 349 (FB), construing the expression, 'when the plaintiff is acquitted' in Article 31 of the Limitation Act, 1908, the Full Bench of the Madras High Court held that the said words could not be divorced from the words, 'or the prosecution is otherwise terminated'. Where, therefore, a person who was prosecuted was either discharged or acquitted and the revision petition filed by the complainant against the discharge or acquittal was dismissed, the prosecution proceeding terminated only when the revision petition was dismissed and not on the discharge or acquittal. The limitation for a suit for malicious prosecution, therefore began to run from the dismissal of the revision petition and not from the discharge or acquittal. In that case also there was a revision petition pending before the time for institution of the suit had expired on acquittal.

4. In the instant case, the Patna High Court had quashed the order in revision on 22nd Feb., 1975. The plaintiff No. 1 was acquitted and his prosecution otherwise was terminated. It is true that a leave application had been filed. But as the Article 136 of the Constitution enjoins, there is no right of appeal as such directly but the right is upon grant of such leave by the Supreme Court. Filing of an application does not make the appeal pending in the Supreme Court because the appeal would be pending only on the grant of the leave to appeal and indeed in this case the plaintiff had notice of such filing of the application after the period of limitation had expired, that is to say, after one year. In such a circumstance, in my opinion, such a leave application which was filed on 25th Feb., 1976 cannot be taken advantage of by the plaintiff for extending the period of limitation. In that view of the matter, on the pleading as such it must be held that the suit has become barred by lapse of time.

5. This view is sufficient to dispose of this application but it was urged that on the balance of convenience leave under Clause 12 of the Letters Patent should be revoked. Part of the cause of action arose within the jurisdiction of this Court because the summons for the criminal prosecution was served at Calcutta within the jurisdiction of this Court. On behalf of the petitioner it was urged that the plaintiff had an office at Dhanbad and the plaintiff visited Dhanbad. The defendant was at Dhanbad. The criminal proceedings had taken place at Dhanbad and Patna and the lawyers had been briefed from there and their evidence would be available at Dhanbad. On the other hand, it was contended that the agreement of service, out of which this prosecution arose, was entered into at Calcutta and service records of the petitioner were at the office of the plaintiff at Calcutta. It has been alleged in particular that the defendant has also a place of residence at Calcutta. It is further submitted that certified copies of the records could be made available at Calcutta and the general damage that the plaintiff has suffered has to be proved by evidence at Calcutta.

6. On examination of the case, in my opinion, balance of convenience is not so preponderous in favour of the defendant as to deprive the plaintiff of his right to choose his forum. If I had not taken the view that the suit was not barred by limitation I would not have revoked the leave under Clause 12 of the Letters Patent in this application on this ground.

7. For the reasons mentioned hereinbefore, there will be an order in terms of prayer (a) of the petition.

8. Each party is to pay and bear its own costs.


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