1 FA.2021.2008.doc ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION FIRST APPEAL NO. 2021 OF 2008 The Secretary, The State of Maharashtra, Mantralaya, Mumbai and others. ... Appellants Versus Shivajirao Balwantrao Takawane. ... Respondent ----- Mr. A.R.Patil, AGP for the Appellants / State. Mr. Kiran Bapat i/b Mr. Avinash Fatangare for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 14 th October, 2011. JUDGMENT: 1 The Respondent who worked as District Government Pleader and the Public Prosecutor of District Pune for more than six years was forced to file a suit for recovery of the amount payable under the outstanding bills. The suit has been partly decreed by the trial Court. The State Government has preferred this appeal for challenging the decree. This Court had called for record and proceedings. Earlier, a suggestion was given by this Court for 2 FA.2021.2008.doc amicable settlement. However, the settlement could not be materialized and therefore, I have heard the submissions of the learned counsel appearing for the parties. 2 The case made out by the Respondent – Plaintiff is that on 24 th April, 1986, he was appointed as the District Government Pleader and the Public Prosecutor of the Pune District. He held the post up to October 1992. The conditions of service of Law Officers are governed by the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984. The case of the Respondent – Plaintiff is that as the District Government Pleader of the District, he appeared for the State Government in various civil cases including the land acquisitions references. He also appeared for the Union of India in many civil cases. Some of the cases were conducted by him till the judgment and some of the cases were carried on further by his successor. In the suit there were three categories of claims. The first claim was of a sum of Rs.6,37,309/- set out in the Annexure A to the plaint. The said claim was in respect of the fees payable in the land 3 FA.2021.2008.doc acquisition references under the Land Acquisition Act, 1894 conducted by the Respondent on behalf of the State Government. The second claim was in the sum of Rs.64,624/- being the bills payable in other civil cases conducted by the Respondent on behalf of the State Government. The details of said bills have been described in Annexure – B. The third claim was in the sum of Rs.93,346/- which is the amount claimed towards the fees and expenses payable in the cases conducted by the Respondent on behalf of the Union of India. The Appellants were impleaded as the Defendants in the suit. In addition to the above claims, there was a claim of Rs.3,500/- towards the Advocates’ notice fees. The total claim was of Rs.7,99,779/- together with interest. The interest was claimed at the rate of 12% per annum from the date of the respective bills till the date of realisation. The suit was filed after the service of notice under Section 80 of the Code of Civil Procedure, 1908. 3 The written statement was filed only by the Appellant No.2 (Defendant No.2). The Appellant No.2 is the Remembrance of Legal 4 FA.2021.2008.doc Affairs and Secretary to the Government, Law and Judiciary Department, Government of Maharashtra. The case made out in short is that the Respondent has not given details of the bills due and payable and adequate information was not supplied. It was contended that the proper bills were not submitted. It was contended that as far as the amounts claimed towards fees on account of bills payable in the matters of the Union of India are concerned, the Union of India was necessary and proper party. 4 By the impugned judgment and decree, the claim made by the Respondent was partly decreed in respect of the bills described in the Annexures – A and B of the plaint. The decree was passed in respect of the amounts payable under the said bills after deducting the amounts already paid the details of which were set out in the pursis filed by the Appellant at Exhibit – 286. The said amount already paid is in the sum of Rs.94,206.82. However, the trial Court rejected the claim as far as the bills in respect of the matters conducted on behalf of the Union of India was concerned. 5 FA.2021.2008.doc 5 It must be stated here that now the dispute remains only in respect of the bills mentioned in the Annexure – A and the State has accepted the other part of the impugned decree as far as the amounts payable as per the Annexure – B are concerned. The learned counsel appearing for the Respondent on instructions stated that the Respondent does not desire to challenge the decree of the trial Court to the extent to which the claim in respect of the bills in respect of the matter of the Union of India are concerned. 6 I have heard the learned AGP appearing for the Appellants and the learned counsel appearing for the Respondent. I have perused the record of the case. The learned AGP has taken the Court through the pleadings and the evidence. His submission is that the proper bills were not submitted by the Respondent in time. He submitted that after his term expired, the Respondent did not properly handover the charge of the post to his successor and did not handover all the records to his successor. He submitted that he did not furnish information to his successor and therefore, the bills could not be 6 FA.2021.2008.doc forwarded. He submitted that in many bills, the Respondent has not stated the stage up to which he conducted the cases. He submitted that the trial Court has erroneously shifted the burden on the Appellant No.2 to prove that the Plaintiff did not submit the proper documents and proper bills. He submitted that the burden should have been put on the Respondent – Plaintiff. He submitted that the trial Court has completely ignored the oral evidence of the successors of the Respondent namely Mr.D.D.Shinde and Mr. Vijay Sawant. The learned AGP lastly submitted that the interest granted at the rate 12% per annum is exorbitant and in any event, interest could not have exceeded to 6% per annum. The learned counsel appearing for the Respondent invited attention of the Court to the depositions of the successors of the Respondent and the documents on record. He submitted that no interference is called for. He submitted that there was no reply to the notice under Section 80 of the said Code and considering the stand taken in the written statement, interest at the rate of 12% per annum deserved to be granted. 7 FA.2021.2008.doc 7 In the written statement of the 2nd Appellant it is contended that the successor of the Respondent by letter dated 18th January 1994 requested the respondent to submit certain documents which were admittedly in his custody. However, he did not produce the said documents. It is alleged that while leaving the charge of the post, the Respondent kept the documents with himself. In short, the contention is that proper documents and proper bills were not submitted and therefore, the bills could not be processed. 8 I have carefully perused the oral evidence and documents on record. The perusal of the record shows that Shri D.D.Shinde, the then District Government Pleader, Pune wrote 24 separate letters in September 2002 to 24 different Land Acquisition Officers pointing out that the bills of the fees payable to the Respondent were pending in their respective offices. He called upon the Land Acquisition Officers to convey reasons for not processing the bills. The said letters are at exhibits 48 to 69. The voluminous correspondence made between the office of the District Government Pleader and the Ministry of Law of 8 FA.2021.2008.doc the State Government is on record of the suit. There are letters sent by the office of the District Government Pleader to the concerned Special Acquisition Officers in the Year 2000 incorporating all the particulars of the Bills of the Respondent in respect of the land acquisition references. The said letters are at Exhibits 103 to 120. There are similar letters issued by the office of the District Government Pleader to the concerned special acquisition officers which are at exhibits 123 to 185. Even the said letters contain all the particulars of the bills of the Respondent in relation to land acquisition references. It is true that one of the successors of the Respondent who was examined as a witness, tried to come out with the case that the Respondent did not co-operate by submitting the documents. It will be necessary to make a reference to the affidavit- in- lieu of examination in chief of Shri V.M.Patil, Under Secretary to the State Government in Law and Judiciary Department. In the examination in chief, he stated that the State Government is always ready and willing to give all the dues. He stated that the Respondent failed to submit necessary 9 FA.2021.2008.doc particulars and documents to prepare the bills. He stated that the Respondent did not give details about the stages up to which he had appeared in land acquisition references. As pointed out earlier, the office of the District Government Pleader had submitted the bills to the offices of the concerned Special Land Acquisition Officers. In the voluminous correspondence referred to above, all the particulars of the bills of the Respondent were submitted. In the cross-examination, he came out with the case that the Appellants had no control over the acquiring bodies as far as payment of bills is concerned. He stated that the bills in land acquisition references are to be paid by the acquisition authorities. He admitted that though the notice issued by the Respondent under Section 80 of the Code of Civil Procedure, 1908 was received by the state government, it was not replied. He stated that in the year 2003, the then District Government Pleader informed the state government that the Respondent was not providing necessary documents. He admitted the aforesaid letters sent by the office of the District Government Pleader to the Land Acquisition 10 FA.2021.2008.doc Officers calling for their explanation for the delay in clearing the bills. He stated that even after recording of the examination in chief of the Respondent, the District Government Pleader had sent a letter to the District Collector for making payment. Importantly, he stated that "It Is true that it is not our statement that the bills were not paid to the plaintiff for want of documents from plaintiff as far as the cases of land reference cases.” In the cross-examination he admitted that letters and reminders were issued to the offices of Special Land Acquisition Officers regarding the bills of the Respondent. There is a categorical admission by the said officer that "then DGP Shri. Vijay Sawant informed the Joint Secretary that the provisions of Section 32 of Maharashtra Low Officers Rules are complied. The compliance of 32 is made means, the plaintiff has handed over the entire charge to successor and the matter of charge has been settled." He admitted that in the written statement it is not stated that the bills in land requisition cases were to be paid by the acquiring bodies. Thus, the record shows that all the bills set out in Annexure A to the plaint were 11 FA.2021.2008.doc submitted to the respective Special Land Acquisition Officers. Moreover, all the documents were in the custody of the successor of the Respondent. From the record, every bill could have been verified and checked. It is pertinent to note that it is not at all the case made out by the Appellants that the particulars incorporated in any of the bills were incorrect or inaccurate or false. No case is made out that the cases set out in the bills were not conducted by the Respondent. From the record of the land acquisition cases, the bills could have been easily scrutinised. Therefore, the trial court has accepted the claim of the Respondent in respect of the bills set out in Annexure A to the plaint. No fault can be found with the decree passed by the trial court as regards the said claim. 9 As far as grant of interest at the rate of 12% per annum is concerned, admittedly statutory notice issued by the Respondent was duly served to the appellant. There was no reply to the said statutory notice by the appellants. The Respondent had to run from pillar to post. He was required to file a complaint before the Lok-Ayukta. The 12 FA.2021.2008.doc bills were not cleared for several years after his retirement. The suit remained pending for a period of 5 years. In the statutory notice, the Respondent has stated that some of the bills were not prepared for a period of 12 years. It is pertinent to note that under the impugned decree, the interest is made payable at the rate of 12% per annum only from the date of institution of the suit till the realisation of the amount. Therefore, considering the aforesaid facts, exercise of discretion by the trial court under section 34 of the Code of Civil Procedure, 1908 cannot be faulted with. It is pertinent to note that even the present appeal has been pending from the year 2008. 10 Hence, I pass the following order: i. The appeal is dismissed with no order as to costs. ii. Civil Application No.4332 of 2008 does not survive and the same is disposed of. [ A.S.OKA, J ]