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Judgment
S. Talapatra, J.—1. This is an appeal under Section 100 of the CPC from the judgment and decree dated 19.09.2011 and 22.09.2011 respectively delivered in Money Appeal No. 01 of 2011 by the District Judge, North Tripura, Kailashahar.
At the time of admitting this appeal, by the order dated 15.11.2013, the following substantial question of law has been formulated:
"Whether the findings as returned by the first appellate court that after placing the bills for sanction and the bills having been sanctioned, the defendant No. 4 had ceased of authority to re-scrutinize the bills to find out any false or excess bills can be maintained?"
For purpose of appreciating the said substantial question of law, the essential facts may briefly be stated at the outset.
The respondent was the owner of a vehicle bearing No. TR-01-2125(jeep). The said vehicle was requisitioned by the appellants for performing duties at Longtharai Valley police station and Manu police station by the letter No. F.1(82) P.F./200/dated 30.10.2012. The vehicle was detained for duties for the period from 15.03.2003 to 29.09.2003 at Longtharai Valley police station and for the period from 26.12.2003 to 30.10.2004 at Manu police station. The said vehicle was under the control of the Superintendent of Police, Dhalai, Ambassa, the defendant No. 3 in the suit.
The respondent instituted the suit for realising the money, being Money Suit No. 01 of 2009 in the court of the Civil Judge, Senior Division, North Tripura, Kailashahar as the bills raised for detention and other charges amounting to Rs. 2,86,622/- were not fully honoured. He was only paid Rs. 1,39,550/- in the month of October 2006. The respondent has pleaded that on several times he requested the defendants of the suit, the appellants herein, to release the entire amount, but those did not bring any positive yield. Finally the respondent fled the suit for realising a sum of Rs. 1,47,072/-, the remainder of the amount, after deducting the amount that the respondent received from the appellants from the billed amount. In the plaint, the terms and conditions of hire has not been laid down, it only stated that:
"the rates for hiring of the vehicle of the plaintiff was decided as per the normal government rate in force in Tripura."
From a plain reading of para-5 of the plaint, it would transpire that the basis of the claim is:
"the authority being satisfied approved the said bill and accordingly the Govt. of Tripura sanctioned the said bill i.e. amounting to Rs. 2,86,622/- only vide No. F.12(2)PD/2001(L-3) dated 05.06.2006 A.D. respectively."
The defendants, the appellants herein, did not deny the fact of hiring the vehicle of the respondent and its utilisation during the periods as mentioned by the respondent. But the appellants seriously disputed the amount shown in the bill for various reasons. The plaintiff, the respondent, herein, submitted 17(seventeen) bills amounting to Rs. 2,99,600/- to the Superintendent of Police, Dhalai. When those bills were scrutinised, those were not compared with the log books of the said vehicle. It was located that Rs. 13,040/- was added without any reason. Perhaps that is the reason why there are some discrepancies in the total amount of the bill. In the plaint, the plaintiff claimed the total amount at Rs. 2,86,622 whereas the defendants, the appellants herein, showed the total amount at Rs. 2,99,600. As regards the sanction, the defendants have stated in their written statement that the Superintendent of Police, the defendant No. 3 requested the DIG(HQ) TPA to allocate an amount of Rs. 13,82,000/- to the S.P. Dhalai for payment of hiring charges of private vehicles requisitioned for the police operation. That amount included the bill amount in respect of the plaintiff''s vehicle bearing registration No. TR-01-2125.
It has been admitted that by the order under No. F.12(2)PD/2001 dated 05.06.2006, the said sanction was accorded. The defendants have stated that on scrutiny of the bills it was found that the plaintiff was entitled to Rs. 1,55,553/-. From that amount, Rs. 16,003/- was deducted as VAT @4%, income tax @2% and surcharge @10%. The remainder of the amount being Rs. 1,39,550/- was paid to the plaintiff and the plaintiff on signing the acquittance roll received the said amount without any demur. Thus, a sum of Rs. 1,39,550/- was refused. The plaintiff has sought by way of the said money suit, a sum of Rs. 1,47,072/-. The defendant No. 3 fled a separate counter-affidavit without controverting averments made by the remaining defendants, but he has stated that on scrutiny it was found that the log books in respect of the journey performed were having over-writings and K.M. per Ltr.(KMPL) was shown 20/23/26 Kilometer per Ltr. of fuel. But, as per Government order No. F.10(22)FIN(G)/2003 dated 23.04.2004, the jeep which has completed five years life span would show 10/11 K.M. per Ltr. of HSD. He has also stated that for having the over-writings in the basic records i.e. log books a sum of Rs. 1,31,069/- was refused by the defendants. In the calculation, the plaintiff was not denied any claim to which he was lawfully entitled.
On the basis of the pleadings, the following issues were framed by the trial court:
"i) Is the suit maintainable in its present form?
ii) Is there any cause of action for this suit?
iii) Is the plaint entitled to get the claimed amount from the defendants?
iv) Are the parties entitled to get any other reliefs or costs?"
The respondent as the plaintiff adduced himself as PW-1 and admitted 14(fourteen) documents or the documents in series (Exbt. 1 series to Exbt. 14 series), whereas the defendants adduced two witnesses and admitted the documents or document series (Exbt. A series to Exbt. A-1 series). Exbt. A-1 series are 17(seventeen) original log books.
Issues No. 1 and 2 were decided in favour of the plaintiff, holding that the suit is maintainable and there is cause of action for fling the suit. Issue No. 3 was the pertinent one as to the entitlement or as to the extent of money that can be allowed to be realised from the defendants. On thorough scrutiny of the documents and particulars, the trial court has observed that the defendant No. 4 being the Disbursing Officer has the jurisdiction to verify, correct and deduct the false and excess bills, submitted by the plaintiff. It has been categorically observed in para-17 of that judgment as under:
"On perusal, the sanction order No. F.12-(2) PD/2001(L-3), dated 05.06.2006, it appears that total Rs. 13,08,511/- only towards payment of hiring charges of private vehicles hired in connection with law and orders as shown in ANNEXURE, subject to the condition that the expenditure should be made strictly in accordance with the Govt. approval conveyed for hiring of each vehicle including its approved duration/period avoiding duplication in any case. Thus, the above sanction order makes it clear that amount already sanctioned is not final for making payment to the plaintiff and others against the hired vehicles. The condition laid down therein is that expenditure should be made in accordance with the approval of the Government and to avoid duplication in any case. Thus, the expenditure sanctioned in the ANNEXURE of above sanction order can not be made available to the plaintiff unless and until the bills submitted by the plaintiff is verified, corrected as per rules of Finance department in respects of hiring of private vehicles. Apart from the above, Rules 295 and 296 of Central Treasury Rules also authorize the Drawing and disbursing officer and the controlling authority to verify, correct and deduct any false or excess bills of Contingent bills before the bills presented to Treasury Officer. Therefore, I find that the defendant No. 4 being the disbursing officer has jurisdiction and also shall vest the jurisdiction to verify, correct and then to deduct any false or excess bills submitted by the plaintiff."
On the said finding, the suit had been dismissed. Being aggrieved by the said judgment dated 03.03.2011 delivered in M.S. 01 of 2009 by the Civil Judge, Senior Division, North Tripura, the respondent herein preferred an appeal under Section 96 of the CPC in the court of the District Judge, North Tripura, Kailashahar, being Money Appeal No. 01 of 2011. By the impugned judgment dated 19.09.2011, the said appeal was allowed. For purpose of deciding the appeal, two points were formulated by the first appellate court viz.:
"i) Whether the issues framed by the learned Court below are correctly decided?
ii) Whether the appeal has merit?"
On apparent re-appreciation of the facts, the first appellate court has observed as under:
"From the scrutiny of the evidences as produced, it appear that Vide Ext. 1 series Under Secretary, Home Department, Govt. Of Tripura conveyed the administrative approval of the Govt. for hiring three light vehicles to the Director General of Police. The rates of hiring of the vehicles will be as per the normal Govt. rate as in force. By Ext. 1 series Under Secretary, Home Department, Govt. of Tripura gave administrative approval for hiring total 16 numbers of private light vehicles for Dhalai and North Tripura District. Vide Ext. 2 series the Memorandum of the Govt. of Tripura signed by the Under Secretary, Home Department in respect of the ceiling of hiring and rates of the private vehicles is given. As per that Memorandum detention charge of the light commander jeep is Rs. 300/- and running charge is 2.15 per kilometer. S.P., Dhalai after using the vehicle of the plaintiff-appellant along with other vehicles submitted petition before the Director General of police vide Ext. 3 series for sanction of Rs. 3,62,929/-. Along with that letter he submitted hiring charges of the private vehicle, including the vehicle of the plaintiff-appellant bearing registration No. TR-01-A-2125 (commander jeep). In that chart it is clearly written that the claim was for Rs. 1,16,936/-. It is certified by the S.P., Dhalai that the vehicle was hired and actually engaged for law and order duty and no payment was made earlier in respect of the period of detention for which the bill was prepared. On such prayer of the S.P., Dhalai Govt. sanctioned the amount. Thereafter, S.P., Dhalai again prayed to the Director General of Police for sanction of Rs. 6,06,977/- for payment of hiring charge of private vehicles. Details of the claim statement is given vide Ext. 5 and Assistant I.G. Shri S. Kanungo requested for the sanction of Rs. 18,25,573/- and for Dhalai Rs. 13,08,511/-. Within this Rs. 13,08,511/-, Rs. 6,06,977/- was included and within this amount of Rs. 6,06,977/- claim statement of the plaintiff-appellant was shown for Rs. 1,69,691/- Vide Ext. 6 series Govt. sanctioned the amount of Rs. 18,25,573/- and for Dhalai District Rs. 13,08,511/-. Ext. 8 series is separate sanction letter for Rs. 13,08,511/-."
[Emphasis supplied]
On the basis of the aforesaid finding, the first appellate court has further observed that from the scrutiny of the evidence it is clear that the amount was sanctioned as per the claim of the plaintiff-appellant. Thereafter, the Disbursing Officer had failed to disburse the amount sanctioned in favour of the plaintiff. It has been further observed that:
"It is admitted that out of the bill amount Rs. 1,39,006/- was paid and the rest amount was not paid. Analysis was made by the S.P. Procurement. That analysis made by the S.P. Procurement is marked as Ext. A series. From the scrutiny of that document it is found that by column ''less cost of fuel'' a huge amount is deducted from the claimed amount. It is pointed out in the remarks column that fuel rate shown below the rate prevailing at that time. Sometimes 9.85 km, sometimes 10 to 12 km and sometimes 23.70 km per liter was calculated and it was unacceptable. It is also remarked that some over writing is made in the log book. But the person who signed the log book did not appear before the Court to support this kind of over writing and falsification of the log book by the appellant."
[Emphasis supplied]
In the impugned judgment it has been observed by the first appellate court that there is no documentary evidence to show how old the vehicle was, when it was produced on 31.03.1994 as would evident from the ownership book submitted by the respondent and admitted in the evidence. As such, when the vehicle was requisitioned by the order dated 30.12.2002, the vehicle was more than five years old. But, that aspect of the matter was not duly scrutinised even though that document was accepted at the instance of the plaintiff after the closure of evidence when he fled an application under Section 151 of the CPC for accepting the said document and the defendant did not raise any protest. Finally, it has been observed by the first appellate court that the defendants are under contractual obligation to pay sanctioned amount to the plaintiff and the defendants had authorisedly deducted the amount of Rs. 1,47,072/- from the bill submitted by the plaintiff after according the sanction. The bill was scrutinised, passed and sanctioned by the appropriate Government but the Drawing and Disbursing Officer had unauthorisedly decreed the amount of Rs. 1,47,072/-. Thus, the suit was deducted by the first appellate authority directing the defendants to pay a sum of Rs. 1,47,072/- with interest @6% p.a from the date of fling the said suit. The appellant was made to bear the cost of the suit. The defendants were directed to make payment within two months from the date of the judgment. The defendants have fled this appeal, to challenge the said judgment.
Mr. N. Majumder, learned counsel appearing for the appellants has submitted that the first appellate court has completely ignored the documentary evidence and shifted the entire onus on the defendants to disapprove the claim of the plaintiff in contrast to the provisions of law. The plaintiff was supposed to prove his claim by producing the necessary record. But the plaintiff has failed to show how or on the basis of what he had raised the bills. The only ground the plaintiff has resorted to is that if the billed amount is once sanctioned, the Disbursing Officer cannot re-scrutinise the bill or deduct any amount from the said bill. According to Mr. Majumder, learned counsel appearing for the appellants, this is entirely opposite to the condition of the sanction order which was issued on 30.12.2002(Exbt.-1 series). Para-2 of the said sanction order under No. F.1(82)-PD/2001 dated 30.12.2002 reads as under:
"The rates for hiring of those vehicles will be as per normal Govt. rates as in force."
Nowhere the plaintiff has stated how old was his jeep, was but from the ownership registration document as produced by him, it clearly transpires that the vehicle (jeep) was more than five years old. Hence the memorandum dated 27.01.2003 (Exbt.2 series) and the fuel charge as determined by the Government order No. F.10(22)/Fin(G)/2002, dated 23.04.2004 would be applicable, meaning 10/11 K.M. per liter of HSD shall be deduced as the fuel charge. Mr. Majumder, learned counsel therefore has submitted that the finding that has been returned by the first appellate court that once the bill is sanctioned that cannot be scrutinised or reduced is entirely fallacious. Moreover, the analysis of the claim in respect of the plaintiff''s vehicle has not been virtually questioned by the plaintiff. Any pleading in this regard has not been made, even after the document containing the said analysis was submitted in the trial court. What the first appellate court has observed as regards the deduction for fuel charge is not supported by any rule or documentary evidence.
From the other side, Mr. Somik Deb, learned counsel has submitted that the entire exercise of deduction from the bill has been done behind the back of the petitioner. Moreover, it is always presumed, when sanction is sought against any bill the said sanction is usually sought after due scrutiny. Hence, the appellate court did not commit any error in returning that finding as questioned in this appeal.
Having regard to the rival contentions, this court is really surprised when it searched for the basis of the claim from the plaint. It has that the sole basis is, that once the amount has been sanctioned that cannot be reduced on re-scrutiny or re-appreciation of the bill. Even the conditions of hiring has not been placed by way of pleading. No explanation whatsoever has been given how the petitioner had accepted that amount of Rs. 1,39,550/-. The plaintiff has only stated in the plaint that he had asked the defendant No. 3 how the billed amount has been curtailed. The mode of determining the bill as per the terms and conditions of the hire is entirely conspicuous by absence in the plaint. The defendants have categorically stated that the record of journey i.e. the log book was interpolated almost everywhere and as such that document was not wholly reliable. They had deduced the km. of the vehicle, travelled during that period, on the basis of consumption of fuel. According to this court when the basic record cannot be relied, this alternative mode cannot be questioned. That apart, the way the bills have been analysed, on scrutiny this court finds that this can hardly be objected to. Even it is not clear either from the plaintiff or from any record that the plaintiff raised any objection in respect of finalising of his bills or claiming his presence during such scrutiny when he came to know that the amount of the bills has been truncated. The submission that has been made by Mr. Deb, learned counsel appearing for the respondents is of course on the basis of the record, as there is no record about the plaintiff''s participation, rather from the pleadings it appears that the defendants had finalised the bill unilaterally and there had been no participation of the plaintiff. As the bills were finalised in terms of the approved procedure of the Government, which the plaintiff has not at all challenged, now the challenge to the analysis of the bill cannot be permitted. As stated, the age of the plaintiff''s vehicle can well be located. That apart from reading of the sanction order dated 30.12.2002, it transpires clearly that the sanction order was subject to fulfillment of para-2 where it has been categorically stated that the rate for hiring of the vehicle would be as per the normal Government rate in force. By the said clause in the sanction order dated 30.12.2002, the Disbursing Officer, the defendant No. 3, was further authorised to re-scrutinise the bill before making the payment. Therefore, the finding of the first appellate court cannot be sustained, rather the finding of the trial court in this regard is well reasoned. Even after the payment is made on the basis of the sanction order, if it is found that someone has been paid wrongly or in excess from the Government ex-chequer, the recovery of the said amount is permissible following the principle of unjust enrichment.
In the result, this appeal is allowed inasmuch as the respondent being the plaintiff in the suit has utterly failed to show that the deduction made from his bill was unreasonable, unjustified, illegal or made without the province of the terms and conditions of the hire.
In the result, the impugned judgment and decree dated 19.09.2011 and 22.09.2011 respectively are set aside. Consequently, the suit is dismissed. Prepare the decree accordingly.
Send down the LCRs. thereafter.