IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 RSA.No. 364 of 2008 ----------------------- AGAINST THE ORDER DATED 25/10/2007 IN IA. 437 /2005 IN AS.42/2005 of SUB COURT, CHERTHALA OS.535/2003 of PRL.MUNSIFF COURT, CHERTHALA .................... APPELLANTS/APPELLANTS/DEFENDANTS: --------------------------------------------- 1. STATE OF KERALA REP. BY THE DISTRICT COLLECTOR, ALAPPUZHA. 2. ADDITIONAL DIRECTOR GENERAL OF POLICE (PRISONS), PRISONS HEAD QUARTERS, POOJAPPURA P.O., THIRUVANANTHAPURAM. 3. THE SUB TREASURY OFFICER, CHERTHALA. BY GOVT PLEADER SRI L.G. SURESH BABU RESPONDENTS: RESPONDENT/PLAINTIFF: ---------------------------------------------- T.V. SIVANKUTTY, S/O. VELAYUDHAN, S.S. SADANAM, MUHAMMA P.O., ALAPPUZHA. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ----------------------------------------------------- R.S.A. No 364 of 2008 ----------------------------------------------------- Dated this the 30th May 2008 JUDGMENT The defendants in O.S. No 535 of 2003 on the file of the Munsiff's Court, Cherthala are the appellants. The first respondent filed O.S. No 535 of 2003 aforesaid for a decree for realisation of money to the tune of Rs 55,945/- with interest at the rate of 18% per annum from the appellants and their assets alleging inter alia, that he was a Jailer who retired from service on 30.09.2001, that the second defendant Additional D.G.P. (Prisons) failed to take appropriate steps to finalise the liability of the plaintiff so as to enable him to receive DCRG sanctioned to him and the plaintiff was constrained to file O.P. No 24517 of 2002 before this court and that was disposed of by this court on 29.08.2002 directing the second defendant to finalise the liability, if any, against the plaintiff within two months from the date of receipt of the judgment and thereafter within one month the entire amount due to the plaintiff should be released to him and reserving the right of the plaintiff with respect to the claim of interest to be agitated before appropriate civil court; that the second defendant has failed to comply with the direction in time and an amount of Rs 1,69,889/- was released to him on 17.01.2003 and a further amount of Rs 7,722/- was RSA 364 of 2008 2 released to him on 22.01.2003 towards his pensionary benefits, that no notice, enquiry or departmental action or judicial proceedings were pending against the plaintiff at the time of his retirement or thereafter and no loss is caused to the Government by the plaintiff and at any rate the non liability certificate should have been issued within three months after the date of retirement in view of the specific direction to the Government, but there was inordinate delay in finalising the liability by the second defendant and to issue the non liability certificate and that resulted in causing delay in releasing the pensionary benefits to the plaintiff and the plaintiff is therefore entitled to get interest for the delayed payment of pensionary benefits and despite the issuance of statutory notice under Section 80 of the Code of Civil Procedure on 08.03.2002 the relief claimed had not been granted, but the second defendant sent a reply raising unsustainable contentions and therefore a decree has to be granted to him for realisation of Rs 55,945/- with interest thereon at 18% per annum. 2. The defendants resisted the suit contending inter alia, that the suit is not maintainable and the plaintiff has no right to file such a suit, that the suit has been filed without issuing notice under Section RSA 364 of 2008 3 80 of the C.P.C, that the plaintiff retired on 30.09.2001 while working as Jailer, Central Prison, Viyyur, that papers relating to the pension, DCRG authorisation etc. were received in the office of the third defendant Sub Treasury Officer, Cherthala on 26.09.2001, that the circumstances leading to the filing of O.P. No 24517 of 2002 before this court stated in the plaint are incorrect, that the non liability certificate relating to the plaintiff was being issued after conducting internal audit of the institution where he had worked within three years prior to his date of retirement, that he had worked as Superintendent of Sub Jail, Alappuzha, as Deputy Jailer in Central Prison, Thiruvananthapuram, as Superintendent in Borstal School, Thrikkakara and as Jailer in Central Prison, viyyur during the three years prior to his retirement and hence his liability/non-liability could be fixed only after conducting internal audit, that internal audit was being conducted according to priority, that during 2001 there were more than twenty persons in the Department due for retirement in different categories and accordingly the audit was conducted on priority basis; that final report from each institution was prepared after making necessary audit enquiries, that the non liability certificate of the plaintiff was issued on 26.11.2002 to the third defendant Treasury RSA 364 of 2008 4 Officer within the time limit fixed by this court by judgment in O.P. No 24517 of 2002, that the defendants have complied with the direction of this court, that the non-liability certificate was received by the third defendant on 30.11.2002 and the DCRG paid to the plaintiff on 17.01.2003, that the delay caused in disbursement of the amounts was not purposeful or deliberate; that the plaintiff is not entitled to get interest for the alleged delayed payment of pensionary benefits and that appropriate reply was issued by the second defendant to the notice issued by the plaintiff informing him that there was no purposeful delay and therefore interest could not be paid. 3. The trial court raised necessary issues for trial on the above pleadings and considering the evidence adduced at trial which consisted of only documentary evidence of Exts A1 to A4 and B1 to B2(h) decreed the suit allowing the respondent-plaintiff to realise the amount of Rs 55,945/- with interest thereon at 18% per annum from the date of suit till realisation with costs from the defendants. Appeal was filed by the defendants as A.S. No 42 of 2005 before the Sub Court, Cherthala along with I.A. No 437 of 2005 seeking for condonation of delay of 77 days in preferring the appeal. The said application for condonation of delay was dismissed finding that the RSA 364 of 2008 5 very purpose of filing the appeal belated is to delay the execution proceedings and that the delay has not been satisfactorily explained and however that the person who has sworn the affidavit in support of the delay condonation application is a stranger to the proceeding and that it is not shown that the person who has sworn the affidavit was the person dealing with the case. Consequently the said I.A as also the appeal were dismissed. Hence this Second Appeal at the instance of the defendants who were appellants before the first appellate court. 4. It is vehemently argued before me by the learned Government Pleader that the lower appellate court went wrong in not condoning the delay of 77 days in filing the appeal and that the finding of the court that the person who had filed the affidavit in support of the delay condonation petition has no authority to file the same is unjustified and that the appeal should not have been dismissed. Government Pleader submits that he is not having a copy of I.A. No 437 of 2005 filed by the appellants in A.S. No 42 of 2005 and therefore he is not aware as to who was the person who filed the affidavit in support of I.A. No 437 of 2005. Without knowing as to who was the person who has sworn the affidavit appellants are RSA 364 of 2008 6 not entitled to assail the observations made by the lower appellate court to discard the affidavit and to disallow the application for condonation of delay. Further it is seen that the direction of this court in the judgment in O.P.No 24517 of 2002 delivered on 29.08.2002 was that the second defendant Additional D.G.P. (Prisons) shall finalise the liability, if any, against the plaintiff within two months from the date of receipt of a copy of the judgment and thereafter within one month the entire amount due to the plaintiff should be released to him. There is no pleading in the written statement of the defendants as to when the copy of the judgment was received by the second defendant. Two months from the date of judgment expired on 29.10.2002 and the entire amounts due to the plaintiff should have been released to him within a further period of one month. It is also not in dispute that this court had also reserved the right of the plaintiff to claim interest in appropriate proceedings for the delayed payment. The retirement benefits were released to the plaintiff in two instalments, viz., Rs 1,69,889/- on 17.01.2003 and Rs 7,722/- on 22.01.2003 and the defendants have miserably failed to show that such release of the amounts due to the plaintiff by way of pensionary benefits were within the time allowed by this court as per the RSA 364 of 2008 7 judgment in O.P. No 24517 of 2002. The trial court was therefore justified in decreeing the suit claiming interest. It is only when execution was in progress that an attempt was made by the appellants to file appeal with a delay condonation petition so as to obstruct the proceedings for recovery of the amount due under the trial court decree and it was that appeal that was dismissed consequent on the dismissal of the delay condonation application. Learned Government Pleader has not been able to point out any circumstance which enables this court to take the view that dismissal of delay condonation application made by the lower appellate court was improper or unjust or without any just and sufficient cause. There is no question of law and much less any substantial question of law to be decided by this court in this appeal. In the circumstances there is absolutely no merit in this appeal and this appeal deserves to be dismissed in limine refusing admission. In the result, I dismiss this R.S.A in limine refusing admission. Sd/- K.P. BALACHANDRAN Judge 30/05/2008 en [true copy]