1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.277 OF 2005 State of Goa, Through Chief Secretary, Represented by Director of Tourism, Government of Goa. …. Appellant V/s Shri Laximan Sangle son of Shri Sonu Sangle, Major, married, business, India National, R/o. Monte Villa, Sangolda, Bardez – Goa. …. Respondent Ms. Susan Linhares, Additional Government Advocate for the Appellant. Mr. Thalmann P. Pereira, Advocate for the Respondent. CORAM : F.M. REIS, J. DATE : 3rd MARCH, 2011 JUDGMENT : The above appeal challenges the judgment and decree dated 29/07/2005 passed by the learned Additional District Judge at Mapusa in Civil Suit No.348/2004. 2. The appellant filed the suit on the ground that the Tourism Department had constructed Tourist Dormitory at Britona having nine rooms and a separate restaurant/canteen in a tourist complex at Britona which was constructed in the year 1982. It is further 2 their case that they wanted to give the canteen for running in the said premises and, as such, they floated tenders by publishing a tender notice in the newspaper dated 3/12/1985. The highest tender was for Rs.88,400/- per annum and the lowest was Rs.36,600/- per annum. The highest tender was that of the defendant/respondent and, as such, the same was offered to the defendant/respondent. An agreement came to be executed between the appellant and the respondent dated 11/07/1986 for a period of three years. The terms and conditions pursuant to which the canteen was allowed to be operated were stipulated in the said agreement. The respondent was called upon to furnish the security to the tune of Rs.22,100/- and Rs.88,400/- as Bank Guarantee vide letter dated 30/05/1986. However, the respondent did not comply with the said request, but however, the respondent deposited Rs.22,100/- on 12/06/1986 towards quarterly rent and the possession of the canteen/restaurant was handed over on 12/06/1986. It is further their case that the respondent was also given articles as mentioned at para 12 of the said plaint. It is further the contention of the appellant that the respondent was called upon to pay the arrears of the rent, but however, the respondent deposited the amount towards the first quarterly on 12/06/1986 in two instalments namely Rs.13,260/- and Rs.8,840/- 3 in cash. Thereafter, on 29/12/1986, a sum of Rs.7,366/- was effected as part payment of the quarterly amount and again deposited Rs.7,366/- and other amounts from time to time as stated at para 14 of the plaint. As there was default in the payment of the amounts by the respondent, the appellant was forced to write letters on various occasions to the respondent. Accordingly, for the reasons stated in the plaint, the suit came to be filed claiming a sum of Rs.2,85,499/- from the respondent together with interest. 3. The respondent filed their written statement stating that the suit is liable to be dismissed as the same is time barred. The respondent admitted that he was successful tenderer of the contract to run the canteen. It was further their case that the appellant has failed to perform its part of the contract and, as such, they could not insist that the respondent is liable to pay the arrears of the rent. They have stated the lapses which according to them were committed by the appellant in their written statement and ultimately prayed that the suit be dismissed. 4. After issues were framed and findings were recorded, the learned Judge by the impugned judgment and decree dated 29/07/2005 dismissed the suit filed by the appellant. The learned 4 Judge has come to the conclusion that the possession of the suit premises was given to the respondent on 12/06/1986. The learned Judge further held that as far as the claim of the appellant is concerned that the amount due to the appellant was Rs.1,17,870/- besides interest at the rate of 10% per annum from 31/05/1988 up to the date of the actual payment, the learned Judge came to the conclusion that the suit was barred by law of limitation and also held that the respondent failed to establish their contention that the appellant failed to perform their part of the contract or that the appellant had no cause of action to file the suit and, as such, the suit came to be dismissed. 5. Ms. Susan Linhares, the learned Additional Government Advocate appearing for the appellant has assailed the impugned judgment and pointed out that the learned Judge ha erroneously come to the conclusion that the suit was barred by limitation. The learned Counsel has pointed out that under Article 112 of the Limitation Act, 1963, the period of limitation for filing the suit on behalf of the State Government is 30 years and, admittedly, on perusal of the plaint the suit has been filed within the time prescribed and, as such, the finding of the learned Judge that the suit is barred by law of limitation cannot be sustained. Learned 5 Counsel further submitted that the learned Judge has erroneously come to the conclusion that the amount due to the appellant was Rs.1,17,870/-, as according to her, besides the said amount the respondent was also liable to pay higher charges for the items as well as the electricity charges, which were not considered by the learned Judge. The learned Counsel further submitted that considering that the last payment was in July, 1987, the interest on account of delayed payment ought to have been granted as from the said date. The learned Counsel has taken me through the evidence on record and pointed out that the learned Judge has erroneously dismissed the suit and rejected the claim put forward by the appellant. 6. On the other hand, Shri T. Pereira, the learned Counsel appearing for the respondent has supported the impugned judgment. Learned Counsel further submitted that the provisions of Article 112 of the Limitation Act, 1963 are constitutional as it gives extra benefits to the State Government in respect of commercial transaction. Learned Counsel further pointed out that the learned Judge was justified in dismissing the suit as the suit was barred by limitation. Learned Counsel further submitted that with regard to the claim of the appellant for higher charges as well 6 as the electricity charges, no evidence has been adduced by the appellant to establish the said claim nor any documents produced with regard to such payment by the respondent. The learned Counsel further submitted that the agreement though contemplated payments of such amount no evidence has been adduced by the appellant to substantiate that any electricity charges were actually paid by the appellant. The learned Counsel, as such, submitted that no interference is called for in the impugned judgment. 7. Having heard the learned Counsel and on perusal of record, the following points for determination arise in the present appeal: POINTS FOR DETERMINATION : (i) Whether the learned Judge was justified to come to the conclusion that the suit filed by the appellant was barred by limitation. (ii) Whether the learned Judge was justified to come to the conclusion that the amount due and payable to the appellant was a sum of Rs.1,17,870/- with interest at the rate of 10% per annum from 31/05/1988 up to actual payment. 8. Dealing with the first point for determination, in view of Article 112 of the Limitation Act, 1963 there can be no dispute that the suit filed by the appellant is not barred by limitation. The time 7 prescribed under the said provisions of Limitation Act is 30 years for filing the suit by the State Government. Admittedly, the suit in the present case has been filed within a period of four years from the date of the cause of action and, as such, the suit cannot be stated to be barred by law of limitation. The finding of the learned Judge that the suit is barred by limitation cannot be sustained. The contention of the learned Counsel for the respondent that the said provisions of law give an extra benefit to the appellant cannot be accepted. The Apex Court in the judgment reported in AIR 1961 SC 1704 in the case of Nav Rattanmal & Ors. V/s. State of Rajasthan has held at paras 9 & 10 thus: 9. This however does not militate against there being a rational basis for a distinction being drawn between the claims of the State and the claims of the individual in the matter of a provision of a bar of limitation for enforcing them. In considering this matter two points have to be kept separate: (1) whether a distinction could be drawn or a classification supported between the provision of any variation in the time that should be available for enforcing claims by private individuals and claims by the State, (2) whether, if such a classification were good, the period of 60 years provided by Article 149 of the Indian Limitation Act is such a long period of time as to be unreasonable. We are drawing attention to the distinction between these two points because learned counsel laid much stress on the fact that the period of limitation fixed by Article 149 was 60 years and that this was an unreasonably long period of time. If learned counsel is right in his submission that there is no rational basis for placing private individuals and the Government in different classes while framing a legislation providing for limitation for actions he might succeed; but if he is wrong there and the correct view is that there is a rational basis of classification, then the period that should be allowed to the Government to file a suit would be a matter of legislative policy and could not be brought within the scope or purview of a challenge under Article 14 or 8 indeed of any other article in the Constitution. It is sufficient therefore if we confine ourselves to the first point viz. whether there is a rational basis for treating the Government differently as regards the period within which claims might be put in suit between the Government on the one hand and private individuals on the other. 10. First and foremost there is this feature that the Limitation Act, though a statute of repose and intended for quieting titles, and in that sense looks at the problem from the point of view of the defendant with a view to provide for him a security against stale claims, addresses itself at the same time also to the position of the plaintiff. Thus, for instance, where the plaintiff is under a legal disability to institute a suit by reason of his being a minor or being insane or an idiot, it makes provisions for the extension of the period taking into account that disability. Similarly, public interest in a claim being protected is taken into account by Section 10 of the Act by providing that there shall be no period of limitation in the case of express trusts. It is not necessary to go into the details of these provisions but it is sufficient to state that the approach here is from the point of view of protecting the enforceability of claims which, if the ordinary rules applied, would become barred by limitation. It is in great part on this principle that it is said that subject to statutory provision, while the maxim vigilantibus et non dormientibus jura Subveniunt is a rule for the subject, the maxim nullum tempus occurit regi is in general applicable to the Crown. The reason assigned was, to quote Coke, that the State ought not to suffer for the negligence of its officers or for their fraudulent collusion with the adverse party. It is with this background that the question of the special provision contained in Article 149 of the Act has to be viewed. First, we have the fact that in the case of the Government if a claim becomes barred by limitation, the loss falls on the public i.e. on the community in general and to the benefit of the private individual who derives advantage by the lapse of time. This itself would appear to indicate a sufficient ground for differentiating between the claims of an individual and the claims of the community at large. Next, it may be mentioned that in the case of governmental machinery, it is a known fact that it does not move as quickly as in the case of individuals. 9. In view of the said judgment of the Apex Court, the said contention of the learned Counsel for the respondent cannot be 9 accepted. As such, the suit filed by the appellant cannot be said to be barred by limitation. The first point for determination is answered accordingly. 10. Dealing with the second point for determination, the learned Judge while deciding the issue no.3 has found that as per the agreement the amount payable by the respondent on account of charges in running the canteen were Rs.88,400/- per annum. Considering that the respondent was occupying the said canteen from 12/06/1986 to 31/05/1988, the total amount due and payable by the respondent to the appellant was Rs.1,76,800/-. There is no dispute that the respondent had paid to the appellant a total sum of Rs.58,930/- during the said period of occupation of the said premises. After deducting the said amount paid by the respondent, the same works out to Rs.1,87,870/-. As there is no dispute about the yearly payment of the rent, the finding of the learned Judge to that effect cannot be said to be erroneous. With regard to the contention of the learned Counsel appearing for the appellant that apart from the said amount, the respondent was liable to pay higher charges for the items delivered to them as well as for the electricity charges. I find that there is no evidence on record to substantiate that any such charges were payable or claimed by the appellant. 10 There is no evidence adduced by the appellant to substantiate the said claim. The learned Additional Government Advocate was trying to rely upon the statement produced along with the plaint. On perusal of the evidence of PW1/Hanumant K. Parsekar, I find that there is no reference made with regard to any such amount having been paid by the appellant on account of the electricity charges. There is no material produced by the appellant to claim that any electricity charges were paid by the appellant during the subsistence of the said agreement. As such, the learned Judge was justified to refuse such claim put forward by the appellant. 11. With regard to the payment of interest on account of delayed payment, the agreement contemplates that the appellant was entitled to claim interest at the rate of 10% per annum from the date of the default. From the evidence on record, it appears that the amounts were effected by the respondent up to 10/07/1987. As such, considering the default had occasioned on 10/07/1987, the learned Judge was not justified to award interest from 31/05/1988. The appellant would be entitled for interest from 10/07/1987 and not from 31/05/1998 as held by the learned Judge. The second point for determination is answered accordingly. 11 12. In view of the above, I pass the following order: O R D E R (i) The appeal is allowed. (ii) The impugned judgment and decree dated 29/07/2005 is quashed and set aside. (iii) The suit filed by the appellant is partly decreed. (iv) The respondent is ordered to pay to the appellant a sum of Rs.1,17,870/- together with interest thereon, at the rate of 10% per annum from 10/07/1987 up to the actual payment. (v) The above appeal stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-