IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Suit No. 44 of 2004. Judgment reserved on : 21.3.2011. Date of decision: 20.04.2011. _______________________________________________________ State of Himachal Pradesh. …..Plaintiff. Versus Pankaj Bhardwaj. ….Defendant. _________________________________________________________ For the Plaintiff : Ms. Ruma Kaushik, Additional Advocate General with Mr.J.S.Rana, Assistant Advocate General. For the Defendant : Mr. Rahul Mahajan,Advocate. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No Kuldip Singh, Judge . This is a suit for recovery of ` 22, 06,900/- along with damages and direction to defendant to return equipments which were handed over to him on 10.04.2000. Interest at the rate of 18% per annum from the date of filing of the suit till actual realization of the amount has also been prayed. 2. The facts, in brief, are that on 16.03.2000, a written request was received from M/s Adventure Dream Makers to the Tourism and Civil Aviation Department of plaintiff for issuance of equipments mentioned in the application on rent basis as the defendant intended to start Paragliding Course at Dehlu near Joginder Nagar, District Mandi. Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 3. The request of the defendant dated 16.03.2000 was under process, but, in the meantime, another request dated 10.04.2000 was received by plaintiff, repeating the request made earlier by the defendant. The plaintiff accepted the request of the defendant and the contract was concluded between the parties. The plaintiff handed over two Tendam Gliders, two Wind Speed Meters, four Vario Meters and one Back Protector to the defendant vide receipt dated 10.04.2000. The equipments were handed over to defendant on hire basis. The defendant agreed to pay rent of the equipments as per rates given below:- Sr. Name of Qty Cost of Date of Rent per Total Days Total No. Item the item Issue day up to amount ` ` 31.5.04 of Rent as on 31.5.04 1. Tandem 2 Nos 2,30,000/- 10.04.2000 1000/- 1522 15,22,000/- Para Glider 2. Vario 4 Nos 52,800/- 10.04.2000 400/- 1522 6,08,800/- Meter. 3. Back 1 No. 4,200/- 10.04.2000 50/- 1522 76,100/- Protector 4. Wind 2 Nos. 4,500/- 10.04.2000 Nil Nil Nil Speed Indicator. Total. 2,91,500/- -- 1450/- 1522 22,06,900/- _____________________________________________________________ The equipments were taken by defendant for one week, but defendant neither returned the equipments to plaintiff nor paid any rent for the equipments. The defendant is liable to pay the rent of the equipments till the equipments are returned to plaintiff. 4. The plaintiff had issued several written communications dated 18.10.2000, 28.10.2000, 07.11.2000, 13.11.2000, 11.12.2000, 3 23.12.2000, telegram dated 25.10.2000 and asked the defendant for return of equipments and payment of rent, but defendant did not respond favourably. The plaintiff issued show-cause notice to defendant on 03.01.2001, but defendant did not reply. Therefore, the defendant was blacklisted on12.03.2001. 5. The plaintiff had purchased equipments by spending huge public money. The business of the plaintiff for want of return of the aforesaid equipments had also suffered adversely. The plaintiff is entitled to get the amount of damages on account of financial loss which the plaintiff has suffered due to failure of the defendant to return the equipments. It has been alleged that total outstanding amount recoverable from the defendant towards rent comes to ` 22,06,900/- and the plaintiff is also entitled to interest over this amount at the rate of 18% per annum from the date of suit till payment of same as the defendant has wrongly with-held the amount and also failed to return the equipments. 6. The suit has been contested by defendant by filing written statement in which preliminary objections of maintainability on account of acts, deeds, conduct and acquiescence of the plaintiff, have been taken. It has been pleaded that plaintiff has concealed material facts from this Court. The suit is false and frivolous and has been filed just to harass the defendant. The suit filed by the plaintiff is not competent. The suit has not been filed by competent and authorized person. The defendant has claimed costs under Section 35-A CPC. The suit is malafide in order to cause mental and physical harassment to defendant. The plaintiff has no cause of action. The story put-forward by the plaintiff is wrong, false and concocted. The 4 suit is abuse of process of the Court. The Court has no jurisdiction to try this suit. The suit is barred by limitation. 7. On merits, it has been pleaded that Managing Director- cum-Commissioner (Tourism and Civil Aviation) is not competent and authorized to file the suit. The suit is frivolous and vexatious. The defendant was privately giving paragliding joy rides to the tourists even prior to March, 2000. In the year 2000, the defendant used to give paragliding training on direction of the plaintiff as per guidelines, rates prescribed by the plaintiff. The defendant has his own paragliders. The defendant on 16.03.2000 had written a letter to the Director (Tourism and Civil Aviation), H.P., but nothing material was conveyed to the defendant and his request was not accepted. 8. On 10.04.2000, the defendant had written a letter and thereafter in April, 2004 (sic), the defendant visited the Office of the Director (Tourism and Civil Aviation). The Director made the defendant to sign blank papers. The requests made by the defendant vide letters dated 16.03.2000 and 10.04.2000 were not accepted. No paragliders or other items were supplied by the plaintiff to the defendant, so, there is no question of payment of any rent. The receipt is false, forged and concocted document. 9. The defendant does not reside at Bilaspur. He carried his business of giving joy rides in paragliding at Dharamshala. No notice or any communication was received by defendant from the plaintiff. The defendant has to recover a sum of ` 3.7 lakhs from the plaintiff on account of giving training in paragliding course i.e. two camp courses which were sponsored by Director (Tourism and Civil Aviation). The defendant demanded the outstanding amount from the 5 plaintiff, he was told to forego the amount but when defendant refused, then plaintiff as a retaliatory measure in order to settle the score, filed the suit. The defendant is not liable to pay any amount to the plaintiff. The working life of Para gliders is not more than 100 hours. The defendant never took any paraglider on hire or any other equipment from the plaintiff. The signed blank papers of the plaintiff have been forged. 10. The plaintiff filed replication and denied the case put- forward by defendant and reiterated its own case. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled to a sum of ` 22, 06,900/- along with interest @ 18% p.a. as prayed for? OPP. 2. Whether the plaintiff is entitled for the return of the items handed over to the defendant on rent as per receipt dated 10.4.2000? OPP. 3. Whether the suit has not been filed by competent and authorized person? OPD. 4. Whether the suit is neither competent nor maintainable on account of act, conduct and acquiescence of the plaintiff? OPD. 5. Whether the suit has been filed to settle scores with the defendant and is malafide, frivolous, vexatious and is abuse of the process of Court and deserves to be dismissed with costs under Section 35 A of the CPC? OPD. 6. Whether the suit is time barred? OPD. 6 7. Whether no paraglider and other items were supplied on rent to the plaintiff and the receipts to that effect are forged and concocted documents and if so its effect? OPD. 8. Relief. I have heard learned counsel for the parties and gone through the record. The issue-wise findings are as follows. Issues No. 1,2,5 & 7. 11. The issues No. 1,2,5,7 can be conveniently dealt with jointly, therefore, these issues are taken up for determination collectively. The case of the plaintiff is that defendant had written letters dated 16.03.2000 and 10.04.2000 and requested for issuance of equipments on rent basis for starting paragliding course at Dehlu near Joginder Nagar. The plaintiff accepted the request of the defendant and handed over two Tandem paragliders, two Winds Speed Meters/Indicators, four Vario Meters and one Back Protector to defendant on hire basis. The defendant issued receipt in token of receiving the equipments. 12 The rent per day of Tandem Paragliders was ` 1,000/-, Vario Meters ` 400/-, Back Protector ` 50/-. The cost of Tandem Paragliders was ` 2,30,000/-, Vario Meters ` 52,800/-, Back Protector ` 4,200/- and Wind Speed Indicator ` 4,500/-. The total rent of the equipments handed over to the defendant from 10.04.2000 to 31.05.2004 as per plaintiff comes to ` 22,06,900/- and total cost of the equipments was ` 2,91,500/-. According to the plaintiff, the defendant has neither returned the equipments nor paid any rent. The plaintiff has claimed interest at the rate of 18% per annum on the 7 suit amount from the date of filing of the suit till realization. The plaintiff has claimed rent of the equipments as well return of the equipments. 13. The defendant has denied the case of the plaintiff by taking the pleas that the suit is false, vexatious, malafide and has been filed to harass him. He denied having received any equipment from the plaintiff. He has taken the plea that he was made to sign some blank papers which were, later on, forged by the plaintiff for raising claim against the defendant. The defendant has claimed costs under Section 35 A CPC. 14. PW 1 Sanjeev Pathania was the Deputy Director, Directorate of Tourism, Himachal Pradesh, from January to July, 2000. He has stated that on receipt of letter dated 16.03.2000 Ex. P-1, Director, Tourism, had given necessary approval on 07.04.2000. He has proved copy of noting Ex. P-2. He has stated that two Tandem gliders, two Wind Speed Meters and four Vario Meters, one Back Protector were given to defendant on 10.04.2000 vide receipt dated 10.04.2000. In cross-examination, he has denied that aforesaid equipments were not given to defendant on 10.04.2000 or that defendant had not issued any receipt in this regard. He denied that signatures of defendant were obtained on blank papers and thereafter some documents prepared on those papers by using the blank papers by the plaintiff. 15. PW2 Hiru Ram, Senior Assistant, Directorate of Tourism and Civil Aviation of Himachal Pradesh has stated that letter dated 16.03.2000 Ex. P-1 was received from defendant. The file was put before Director, Tourism, as per noting Ex P-2. Another letter dated 8 10.04.2000 Ex. P-3 was received from the defendant. Deputy Director Sanjeev Pathania, passed the order on 10.04.2000 on the file that the equipments be given to defendant. The equipments were handed over to defendant and the witness obtained the receipt dated 10.04.2000 from defendant. The receipt is Ex. P-4. He identified his signatures in circle ‘A’ and signatures of defendant in circle ‘B’ on the receipt. The equipments were not returned by the defendant. The rent of Tandem gliders per day is ` 500/-, Vario Meters ` 100/- and Back Protector ` 50/-. The rent was approved by the government vide letter Ex. P-5 dated 05.07.2000. 16. PW2 continued that the department had written several letters Ex. P-6 to Ex. P-12 to defendant to return the equipments and pay the rent, but defendant has not paid the rent nor returned the equipments. The rent of the equipments was `1,450/- per day which comes to ` 22, 06,900/- from 10.04.2000 to 31.05.2004. The plaintiff is entitled to interest at the rate of 18% per annum. In cross- examination, he has stated that rates were not approved by the government on 10.04.2000, but were approved on 05.07.2000. The rates were written by the witness on 10.04.2000. He denied that signatures of defendant were obtained on blank papers and receipt Ex. P-4 was filled in later on. 17. PW3 Balram Sharma was the Director, Tourism, from May, 1999 till 26th April, 2000. In August, 2000, he was again given additional charge of Director, Tourism. He has stated that the defendant had given applications Ex. P-1 and Ex. P-3. After the application Ex. P-3 dated 10.04.2000, the department had given equipments to the defendant on rent basis. He had taken the 9 equipments only for one week. The cost of equipments was about ` 2, 91,000/- approximately. The rent of each Tandem Paraglider was ` 500/- per day, Vario Meters ` 100/- per day, Back Protector ` 50/- per day. On the date of filing of the suit, a sum of ` 22, 06,900/- was due and payable by the defendant to the department. In cross- examination, he denied that equipments were not actually handed over to the defendant. On 10.04.2000, the rates were not approved by the government, but defendant had stated that he would pay whatever rent would be approved by the government. 18. PW 2 Hiru Ram was recalled and has stated that the Director had proposed rates vide letter Ex. PW2/A which were approved by the government vide letter dated 05.07.2000, Ex. P-5. The defendant had written letter dated 20.09.2004 to the Chief Minister which was received by the plaintiff-department with covering letter dated 07.10.2004 Ex. PW2/B and the letter of the defendant Ex. PW2/B/1. In cross-examination, it has been denied that letter Ex. PW2/B/1 has been fabricated by the department. 19. DW1 Pankaj Bhardwaj has stated that he had written letter Ex. P-1 dated 16.03.2000 and letter Ex. P-3 dated 10.04.2000. The department had not given paragliders to him in terms of letters Ex. P-1 and Ex. P-3. No other material was supplied by the department. Manoj Sharma, Deputy Director, had obtained his signatures on blank papers. He had to recover ` 3, 20,000/- from the department of Tourism on behalf of ‘Adventure Dream Makers’, sole proprietorship of the witness. He is a resident of Dharamshala. Letters Ex. P-6 to P-13 were not delivered to him. In cross- examination, he has denied that he had signed Ex. P-4 at place mark 10 ‘B’. Letter Ex. PW2/B/1 is signed by him, but not written by him. On Ex. P-6 to Ex. P-13, address given is of his parents. 20. The defendant has admitted letters Ex. P-1 and Ex. P-3. On receipt of letter Ex. P-1 dated 16.03.2000 of defendant, the department processed the case, but, in the meantime, defendant addressed another letter dated 10.04.2000 Ex. P-3 requesting for giving him equipments as early as possible. Two Tandem Paragliders, four Vario Meters, two Wind Speed Meters and one Back Protector were handed over to defendant for one week from 10.04.2000 to 17.04.2000 vide receipt Ex. P-4. 21. DW1 Pankaj Bhardwaj has denied his signatures on receipt Ex. P-4, but PW2 Hiru Ram has proved signatures of defendant in circle ‘B’ on Ex. P-4. He has stated that he had issued the equipments to the defendant and he himself obtained the receipt dated 10.04.2000 from the defendant In cross-examination, a suggestion has been given to PW2 Hiru Ram which he denied that the signatures of defendant Pankaj Bhardwaj were obtained on blank papers and the receipt Ex. P-4 was filled in later on. 22. The defendant, thus, has not denied his signatures on Ex. P-4, his defence is that Manoj Sharma, Deputy Director, had obtained his signatures on blank papers which were, later on, used by the department. The defendant in his written statement has not pleaded that Manoj Sharma, Deputy Director, had obtained his signatures on the blank papers, rather, his plea is that Director had made the defendant to sign blank papers. The defendant has taken different stands in his written statement, while appearing as DW1 and while cross-examining the witnesses of the plaintiff regarding signing 11 of blank papers by him and using of those blank papers by the department, later on, to his detriment. The defendant has miserably failed to prove these allegations. The delivery of equipments to defendant is also established from letter Ex. PW2/B/1 dated 20.09.2000 of defendant. It has been proved that on 10.04.2000 the defendant had taken delivery of equipments i.e. two Tandem Paragliders, four Vario Meters, two Wind Speed Meters and one Back Protector from the plaintiff and issued receipt Ex. P-4. 23. The rates of the equipments which were given to the defendant are also mentioned in Ex. P-4. The rates according to the plaintiff were for one day for one week. The defendant while appearing as his own witness has not stated that no per day rate of equipments were settled. The rates at which the equipments were given to the defendant were ultimately approved by the government vide letter dated 05.07.2000 Ex. P-5. The letter dated 03.06.2000 mentioned in Ex. P-5 is Ex. P2/A. 24. The case of the defendant is that on 10.04.2000 rates were not approved by the government, therefore, the plaintiff is not entitled to recover the amount from the defendant at the rates claimed in the plaint. The rates of the equipments were fixed on 10.04.2000 for one week and the defendant agreed to take delivery of the equipments on payment of rent per day. It is not a case that on 05.07.2000 the government has approved the rates on lower side. On 05.07.2000 vide Ex. P-5 read with Ex. P2/A, the government approved the same rates of the equipments at which rate the equipments were given to defendant on 10.04.2000. Thus, defendant 12 cannot take help from the fact that government, later on, approved the rates on 05.07.2000. 25. It has come in evidence that equipments were given to the defendant for one week, but he did not return the equipments nor paid the rent despite communications Ex. P-6 to Ex. P-12. It has also come in evidence that cost of the equipments was ` 2, 91,500/- in all. The plaintiff is entitled to recover from defendant rent of the equipments beyond one week starting from 10.04.2000 at least at the rate of `1450/- per day. Thus, defendant is liable to pay rent of the equipments for the period 10.04.2000 to 31.05.2004 at the rate of ` 1,450/- per day total amounting to ` 22, 06,900/- and is also liable to return the equipments to the plaintiff valuing ` 2, 91,500/-. 26. The plaintiff has claimed interest at the rate of 18% per annum on ` 22,09,600/- from the date of filing of the suit till realization. The plaintiff has led no evidence that at the relevant time the rate of interest on the type of transaction which plaintiff entered with the defendant, was 18% per annum. The equipments were given by the plaintiff to defendant for the business of the defendant. Therefore, plaintiff is entitled to interest at least at the rate of 6% per annum on ` 22,06,900/- from the date of filing of this suit till realization of the amount. 27. The defendant has taken the plea that some amount was payable by the plaintiff to defendant and when this amount was demanded by the defendant from the plaintiff, then, plaintiff has filed false, vexatious, frivolous suit on the basis of forged and concocted documents. The defendant has miserably failed to prove that the suit is malafide, false, frivolous, vexatious and is based upon forged and 13 concocted documents. The defendant is not entitled to any costs, as claimed by him. 28. The result of the above discussion, the issue No.1 is held in favour of the plaintiff and against the defendant. The plaintiff is held entitled to recover a sum of ` 22, 06,900/- from the defendant along with interest at the rate of 6% per annum from the date of filing of the suit till realization. The issue No.2 is also decided in favour of the plaintiff and against the defendant. The plaintiff is held entitled to return of equipments namely two Tandem Paragliders, four Vario Meters, two Wind Speed Meters and one Back Protector from defendant which were handed over to the defendant on rent vide receipt dated 10.04.2000 Ex. P-4. The issues 5 and 7 are decided against the defendant. Issue No.3. 29 The onus of issue No.3 is on the defendant. The defendant while appearing as DW1 has nowhere stated that suit has not been filed by a competent and authorized person. In other words, the defendant has conceded and accepted the competency of the person, who has actually signed, verified the plaint and filed the suit. The issue No.3 is thus decided against the defendant. Issue No.4. 30. The onus of issue No.4 is on the defendant. He has led no evidence to establish how the suit is not competent and maintainable on account of act, conduct and acquiescence of the plaintiff. The entitlement of the suit amount along with interest and return of the equipments has already been held under issues 1 and 2 in favour of the plaintiff. The defendant in his statement has not 14 pointed out any act, conduct and acquiescence of the plaintiff so as to record a finding that suit is not maintainable. The issue No. 4 is thus decided against the defendant. Issue No.6. 31. The defendant has taken the plea of limitation. The Article 112 of the Limitation Act provides 30 years limitation for filing the suit by the State Government. In the present case, the equipments were given to defendant on 10.04.2000 on rent for one week. The defendant did not return the equipments nor paid the rent to the plaintiff. Hence, taken from any angle, the suit is within limitation. The objection of limitation is baseless. The issue No.6 is decided against the defendant. Relief. 32. In view of above discussion, the suit is decreed and a decree of ` 22, 06,900/- is passed in favour of the plaintiff and against the defendant along with interest at the rate of 6% per annum from the date of filing of the suit i.e. 21.09.2004 till the realization of the decretal amount. The defendant is also directed to immediately return the equipments namely two Tandem Paragliders, four Vario Meters, two Wind Speed Meters and one Back Protector to the plaintiff. The plaintiff is also entitled to the costs of suit. The decree sheet be prepared accordingly. April 20, 2011. (Kuldip Singh), ( krt) Judge.