Orissa High Court
Afr M/S.Tasty Food Products vs Secretary on 20 August, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.207 of 2016
[In the matter of an appeal under Section 100 of CPC from
the judgment dated 17.02.2016 and decree passed by Addl.
District Judge-cum-Special Judge, CBI-II, Bhubaneswar in
RFA No. 4/636 of 2015/2014 arising out of the judgment
and decree dated 04.09.2014 passed by the 2nd Addl. Senior
Civil Judge, Bhubaneswar in M.S. No. 157/1907 of
2012/2010.
AFR M/s.Tasty Food Products .... Appellant
-Versus-
Secretary, Orissa State Council
for Child Welfare and another .... Respondents
Advocate(s) appeared in this case:
For the Appellant : Mr. P.K. Rath, Sr. Advocate
with M/s.R.N. Parija, A.K. Rout,
S.K. Singh, S.K. Pattnaik, A. Behera,
P.K. Sahoo, A.K. Behera,
S.K. Behera & B.K. Dash, Advocates.
For Respondents :M/s. Dayananda Mohapatra, Sr. Adv.
with Mr. G.R. Mahapatra, J.M. Barik
P.K. Singh Deo & S. Rout, Advocates
[For R-1]
Mr. S.N. Pattnaik
Addl. Government Advocate
[For R-2]
CORAM:
JUSTICE SASHIKANTA MISHRA
Page 1 of 24
JUDGMENT
th
20 August, 2025
SASHIKANTA MISHRA, J.
This is a plaintiffs’ appeal against a reversing
judgment. The suit of the plaintiff for realization of
Rs.2,32,426/- from the defendant No.2 was decreed by the
trial Court and reversed in appeal.
2. For convenience, the parties are referred to as
per their respective status before the Trial Court.
3. The case of the plaintiff, briefly stated, is that it
is a proprietary concern engaged in manufacturing and
supply of bread (bun) having its factory at Rasulgarh in
Bhubaneswar. Defendant No.2 is a registered society working
under the administrative control of the Government in
Department of Women and Child Development (defendant
No.1). The plaintiff offered to supply bread to defendant no.2
meant for distribution among the street children and
accordingly submitted quotation on 25.01.2001. Defendant
no.2 accepted the quotation and requested for supply of
Page 2 of 24
bread to different centers with effect from 01.02.2001. The
plaintiff also used to supply bread earlier till the end of
December, 2000. The plaintiff, pursuant to the order,
supplied bread daily and submitted bills on different dates
between 07.03.2001 to 14.12.2001 in all, amounting to
Rs.2,67,426/-. Out of the said amount, defendant No.2 paid
Rs.10,000/- in cash, Rs.20,000 by cheque dated 13.06.2001
and again cash of Rs.5000/- on 15.03.2002. Thus, the
plaintiff received a sum of Rs.35,000/- from defendant No.2
but the balance amount of Rs.2,32,426/- was not paid
despite several requests. On 07.06.2003, the plaintiff wrote
to defendant No.2 requesting for realization of payment.
Since no action was taken, the plaintiff approached this
Court in W.P.(C) No. 6993 of 2004. During pendency of the
writ application, the petitioner also approached the Lokpal,
who by order dated 22.06.2006, held that the Secretary of
the Society had failed to discharge his duty. Further, this
Court disposed of the writ application on 18.09.2007
directing defendant No.2 to consider the representation of the
plaintiff within two months. Copy of said order being
Page 3 of 24
submitted by the plaintiff on 26.09.2007, the plaintiff was
asked to submit the relevant papers as the file was missing.
The plaintiff submitted all the attested copies of documents
on 12.10.2007. But by letter dated 22.11.2007, the claim of
plaintiff was rejected by defendant No.2. The plaintiff
thereafter served notice under Section 80 of CPC on the
defendants on 09.08.2010. Since there was no response, he
filed the suit.
4. Defendant No.1-State filed written statement
stating that defendant No.2 being an autonomous and
independent body, it has no administrative control over the
same. The grievance of the plaintiff relating to arrear claim
being received on 22.07.2003, the same was forwarded to
defendant No.2 for consideration and payment of the
admissible dues. There is no contractual relationship
between the plaintiff and defendant No.1 and therefore, no
liability could be saddled on it.
5. Defendant No.2 filed written statement
questioning the genuineness of the receipts/bill submitted.
Page 4 of 24
The payment of Rs.35,000/- made by it was stated to have
been made for the supply made in the year 2000 but not
against the supply made in 2001. Pursuant to the order of
this Court, the plaintiff’s case was thoroughly verified but as
the claim was found to be illegal, forged and fabricated, the
same was rejected.
6. Basing on the rival pleadings, the trial Court
framed the following issues for determination.
“1. Whether the suit is maintainable?
2. Whether there is any cause of action to file
the suit?
3. Whether the suit is barred by limitation?
4. Whether the plaintiff is entitled to a decree as
sought for?
5. To what other relief, the plaintiff is entitled?”
7. The trial Court took up issue No.4 for
determination at the outset. The oral and documentary
evidence adduced were analyzed in detail. It was found that
there was contract between the plaintiff and defendant No.2
for which it was regularly supplying bread to street children
as per order placed by defendant No.2. Thus, on the strength
of valid order of defendant No.2 dated 03.02.2001 (Ext.2), the
plaintiff supplied bread from 01.02.2001 to the six street
Page 5 of 24
children centers. The plaintiff was also paid Rs.35,000/- on
different dates pursuant to such supply. The defendant No.2,
though alleged that the documents relied upon by the
plaintiff were forged, yet it could not successfully discharge
the onus by examining the relevant persons to show that the
supply had not been made. According to trial Court, the best
evidence available to defendant No.2 was withheld, for which
the allegation of fraud was held to be not substantiated. The
trial Court accepted 11 numbers of carbon copies of the bills
as raised by the plaintiff vide Ext.3 series. As regards the
plea of loss of file, the trial Court held that the same cannot
give advantage to defendant No.2 to overcome its liability.
The trial Court further took note of the fact that the
representation of the plaintiff was rejected by defendant No.2
without assigning any reason. Ultimately it was held that the
plaintiff had proved his case by preponderance of
probabilities. On the remaining issues, the trial Court held
that the suit is in time since it attracts Section 14 of the
Limitation Act. The plaintiff’s approach to this Court as well
as the Lokpal was in relation to the case and therefore, the
Page 6 of 24
suit must be held to be within time. On such findings, the
suit was decreed by directing the defendant No.2 to pay the
decretal dues of Rs.2,32,426/- with P.I. and F.I. @ 6% per
annum.
8. Being aggrieved, defendant No.2 carried appeal
to the district Court. After considering the rival contentions
and the grounds raised, the First Appellate Court framed the
following points for determination.
“1. Whether plaintiff has supplied the bread to the
defendant No.2 under any contract in the year 2001?
2. Whether the suit is barred by limitation?”
9. On point No.1, the First Appellate Court, after
re-appreciating the oral and documentary evidence on record
held that the actual supply of bread was not proved. There is
also no evidence that the payment of Rs.35,000/- was a part-
payment towards claim for the year 2001. Holding that the
trial Court had not considered the infirmities in the evidence,
the First Appellate Court held that the money claim of the
plaintiff towards the price of bread supplied was not proved.
Page 7 of 24
On point No.2, the First Appellate Court relying
upon some judgments to hold that the claim was due on
14.12.2001, for which the suit ought to have been filed by
13.12.2004. The same having been filed on 12.11.2010 is
barred by limitation and exclusion of time due to pendency of
the writ petition under Section 14 of the Limitation Act does
not save the limitation. The suit was thus held to be barred
by limitation. On the above findings, the appeal was allowed
by setting aside the judgment and decree passed by the trial
Court.
10. Being aggrieved, the plaintiff has filed the
present appeal, which was admitted on the following
substantial questions of law.
“(i) Whether the learned Lower Appellate Court is
correct in reversing the judgment and decree passed
by the learned Trial Court basing upon one
particular bill, particularly when there are other bills
available on record in support of supply which have
not been taken into consideration.
(ii) Whether the learned Lower Appellate Court is
correct in law dismissing plaintiff’s suit on the
ground of limitation in view of the order passed by
the Defendant on 22.11.2007 acknowledging the
claim under Section18 of the Limitation Act giving
rise to the cause of action and the suit for realization
of money and the suit was filed within the limitation
period of three years from the said date.”
Page 8 of 24
11. Heard Mr. P.K. Rath, learned Senior Counsel
along with Ms. S. Das, learned counsel for the plaintiff-
appellant and Mr. D. Mohapatra, learned Senior Counsel
along with Mr. S. Rout, learned counsel for the defendant
No.2-respondent. Mr. S.N. Pattnaik, learned Addl.
Government Advocate appeared for the State-defendant No.1-
respondent.
12. Mr. Rath would argue that the First Appellate
Court committed manifest illegality in framing points for
determination regarding supply of bread, which was never an
issue in the First Appeal. There is no evidence on record to
support the finding that the plaintiff had not supplied bread
as claimed. Even assuming there was discrepancy in two
bills, the same could have been ignored but the other nine
bills could have been allowed. There was no justification in
rejecting all the eleven bills only because two of them were
found to be discrepant.
Mr. Rath further argues that the plaintiff having
been paid Rs.35,000/- implies part acknowledgement of his
Page 9 of 24
dues. That apart, the evidence of D.W.-1 could not have been
accepted because he admitted to have joined much after the
transaction and also of having no personal knowledge about
it. In any case, defendant No.1 admitted that the dues might
not have been paid because of non-receipt of grant-in-aid
from the Government. On the question of limitation, Mr.
Rath, would argue that the writ petition was filed within the
period of limitation for the suit i.e. on 06.07.2004, which
remained pending till 18.09.2007. The writ petition was
disposed of with a direction to defendant No.2 to consider the
representation of the petitioner, whereupon the claim of the
petitioner was finally rejected on 22.11.2007. This gives rise
to a fresh cause of action and the suit having admittedly
been filed within three years thereafter i.e., 12.11.2010
cannot be treated as barred by limitation.
13. Per contra, Mr. D. Mohapata would argue that if
the copies of the bills exhibited by the plaintiff with objection
by defendant No.2 are looked at, it would clearly reveal that
the same were forged and created only for the purpose of the
claim. The original bills were never produced. It was never
Page 10 of 24
proved as to who received the bills. The copies being in the
nature of secondary evidence could not have been accepted
or relied upon by the trial Court for non-compliance of the
conditions laid in Section 65 of the Indian Evidence Act. No
other corroborative evidence like the challans/register etc.
was adduced. The plaintiff also did not produce the daily
supply register.
On the question of limitation, Mr. Mohapatra
would argue that it is well settled that the issue of limitation
has to be considered with reference to the original cause of
action, which cannot be extended. Even assuming that
Section 14 would be applicable then also the suit would be
barred by limitation. Mr. Mohapatra amplifies his argument
by submitting that the last bill having been submitted on
14.12.2001, the suit should have been filed by 14.12.2004.
The plaintiff filed writ petition on 06.07.2004, which was
disposed of on 18.09.2007. As between the date of arising of
the cause of action i.e., 14.12.2001 and filing of the writ
petition, the total period elapsed is 936 days. If the date of
Page 11 of 24
filing of the suit i.e., 12.11.2010 is considered, a further
period of 1087 days is found to have been consumed. Thus,
the total period consumed comes to 2023 days, which was
never explained.
In support of his contention, Mr. Mohapatra has
relied upon the judgments of the Supreme Court in the case
of Union of India vs. M.K. Sarkar1 and Simplex
Infrastructure Ltd. vs. Union of India2,
14. Having regard to the rival contentions, this
Court deems it proper to consider substantial question No.2
relating to limitation at the outset since the same goes to the
root of the matter. The other question would be relevant only
if the plaintiff succeeds on the first point, i.e., limitation.
15. It is claimed that the plaintiff supplied bread
(bun) as per the letter dated 03.02.2001(Ext.2) beginning
from 07.03.2001 to 14.12.2001. The plaintiff claims that he
had raised eleven bills amounting to Rs.2,67,426/-, the last
of which being submitted on 14.12.2001. It is not disputed
1
(2010) 2 SCC59
2
(2019) 2 SCC455
Page 12 of 24
that the limitation for filing suit for realisation of money due
is three years. As such, the suit ordinarily should have been
filed by 14.12.2004. However, it is borne out from the
materials on record that before expiry of the period of
limitation, the plaintiff filed a writ petition on 06.07.2004.
Said writ petition remained pending till 18.09.2007. The
question is, whether Section 14 of the Limitation Act would
come into play. For immediate reference, Section 14 is
reproduced below:
“14. Exclusion of time of proceeding bona fide
in court without jurisdiction.–(1) In computing
the period of limitation for any suit the time during
which the plaintiff has been prosecuting with due
diligence another civil proceeding, whether in a court
of first instance or of appeal or revision, against the
defendant shall be excluded, where the proceeding
relates to the same matter in issue and is
prosecuted in good faith in a court which, from
defect of jurisdiction or other cause of a like nature,
is unable to entertain it.
(2) In computing the period of limitation for any
application, the time during which the applicant has
been prosecuting with due diligence another civil
proceeding, whether in a court of first instance or of
appeal or revision, against the same party for the
same relief shall be excluded, where such
proceeding is prosecuted in good faith in a court
which, from defect of jurisdiction or other cause of a
like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of
Order XXIII of the Code of Civil Procedure, 1908 (5 ofPage 13 of 24
1908), the provisions of sub-section (1) shall apply in
relation to a fresh suit instituted on permission
granted by the court under rule 1 of that Order,
where such permission is granted on the ground
that the first suit must fail by reason of a defect in
the jurisdiction of the court or other cause of a like
nature.”
16. Having regard to the facts of the case and the
language of Section 14, this Court is of the considered view
that Section 14 would have no application for the reason that
approach to the High Court by the plaintiff cannot be treated
as approach to a wrong forum or forum having no
jurisdiction. The defendants being instrumentalities of State
within the meaning of Article 12 of the Constitution of India,
the writ petition was maintainable. In fact, the writ petition
was entertained and disposed of with a positive direction to
defendant No.2 to consider the representation of the
petitioner.
17. In the case of M.K. Sarkar (supra), the Supreme
Court has observed as follows:
“15. When a belated representation in regard to a
“stale” or “dead” issue/dispute is considered and
decided, in compliance with a direction by the
court/tribunal to do so, the date of such decision
cannot be considered as furnishing a fresh cause of
action for reviving the “dead” issue or time-barred
dispute. The issue of limitation or delay and lachesPage 14 of 24
should be considered with reference to the original
cause of action and not with reference to the date on
which an order is passed in compliance with a
court’s direction. Neither a court’s direction to
consider a representation issued without examining
the merits, nor a decision given in compliance with
such direction, will extend the limitation, or erase
the delay and laches.
16. A court or tribunal, before directing
“consideration” of a claim or representation should
examine whether the claim or representation is with
reference to a “live” issue or whether it is with
reference to a “dead” or “stale” issue. If it is with
reference to a “dead” or “stale” issue or dispute, the
court/tribunal should put an end to the matter and
should not direct consideration or reconsideration. If
the court or tribunal deciding to direct
“consideration” without itself examining the merits,
it should make it clear that such consideration will
be without prejudice to any contention relating to
limitation or delay and laches. Even if the court does
not expressly say so, that would be the legal
position and effect.”
18. Said case was one in which the petitioner had
raised a claim 22 years after his retirement, for which it was
held to be a ‘stale’ or ‘dead’ issue/dispute. What was clarified
in the cited judgment is that directing consideration of a
claim is to be examined whether it relates to a live or dead
issue. If it is with reference to a dead or stale issue no such
direction for consideration should be issued. Such is not the
fact situation obtaining in the present case. The plaintiff
approached the High Court when the period of limitation for
Page 15 of 24
filing the suit had not expired. It was therefore, a live and not
a stale claim. The judgment in M.K. Sarkar (supra) can
therefore, be distinguished on facts.
19. As regards the judgment in Simplex
Infrastructure Ltd. (supra) the matter relates to filing of an
application under Section 34 of the Arbitration and
Conciliation Act before a Court having no territorial
jurisdiction for which Section 14 was invoked. As already
stated, the present case is one in which Section 14 has no
application. The cited judgment is therefore, distinguishable
of facts.
20. Undisputedly the writ petition, filed by the
plaintiff at a time when the limitation had not expired,
remained pending from 06.07.2004 to 18.09.2007. This
Court while disposing of the writ application did not say
anything with regard to limitation nor directed the plaintiff to
approach the civil court but issued a positive direction to the
defendant No.2 to consider the case of the plaintiff. Under
such circumstances, limitation must be held to have been
Page 16 of 24
saved because of pendency of the writ application for more
than three years.
21. The question is, whether the period of limitation
would start running upon disposal of the writ application.
This can be answered with reference to the order passed by
this Court, the relevant portion of which has been quoted by
the First Appellate Court in pargraph-9 of its judgment. It
cannot be said that this Court was not aware that the cause
of action had arisen on 14.12.2001 while issuing the
aforesaid direction. Regardless of the date of arising of the
cause of action, this Court still directed defendant No.2 to
consider the case of the plaintiff. This amounts to giving rise
to a fresh cause of action. Admittedly, the claim of the
plaintiff was considered and rejected on 22.11.2007 without
citing any reason and the suit was filed on 12.11.2010, i.e.
within three years from the date on which the cause of action
arose i.e. 22.11.2007. This Court having entertained the writ
application and issued a particular direction, the same
cannot be ignored to hold that the original cause of action
Page 17 of 24
had revived and along with it the period of limitation that had
begun to run since 14.12.2001. It would be an absurd
proposition as it would set at naught the order of this Court.
The cause of action as on 14.12.2001 related to non-payment
of the plaintiff’s dues but the cause of action on 22.11.2007
was rejection of the petitioner’s claim upon consideration of
the documents supplied by him as directed by this Court.
Both cannot be equated with each order. The matter would
have been different had the plaintiff not approached this
Court within the period of limitation, but having done so, he
cannot be denied the benefit of saving of limitation firstly,
because of pendency of the writ application for more than
three years and secondly, for arising of a new cause of action
basing on the order passed by this Court. It is stated at the
cost of repetition that if the interpretation made by the First
Appellate Court were to be accepted, it would wipe out the
order passed by this Court in the writ application in its
entirety. Such a position obviously cannot be countenanced
in law. It is reiterated that while the original cause of action
related to non-payment of dues simplicitor, which is an
Page 18 of 24
inaction or omission, fresh cause of action related to rejection
of claim of the plaintiff upon consideration of documents in
obedience to order passed by this Court, which is a positive
action or commission
22. This Court is therefore, unable to persuade itself
to agree with the reasoning adopted by the First Appellate
Court and therefore, holds that the suit was not barred by
limitation and was rightly entertained by the trial Court.
23. Coming to the substantial question No.1 which
relates to the correctness of the First Appellate Court’s order
in reversing the judgment of the trial Court, this Court would
first keep in perspective the legal principle that civil cases are
to be decided on the basis of preponderance of probabilities
and not on the anvil of beyond reasonable doubt as is applied
to criminal cases. The trial Court has done precisely that.
After weighing the evidence adduced by both sides the trial
Court deemed it reasonable to accept the evidence adduced
by the plaintiff than the defendant No.2. This Court has also
scanned the evidence independently vis-à-vis the findings
Page 19 of 24
based thereon of the trial Court and finds no reason to differ
from it. As held by the trial Court, an order was placed for
supply of bread to 6 street children centers vide Ext.2. All the
exhibits were marked with objection yet the same were never
disproved by the contesting defendant. It has been argued
that the so-called part payment was not actually a part
payment but payment made for supply of bread for the
previous period i.e. till the end of December, 2000. If such
was the case then, the following admission made under
paragraph-9 of the written statement is rendered
incomprehensible. Paragraph-9 is quoted below.
9. That in reply to the averment made in Para 7 of the
plaint it is again humbly submitted that the Plaintiff
approached the Hon’ble High Court in writ petition of
WP (C) 6993/2004 where in the Hon’ble High Court
has directed the defendant No.2 to dispose of the
representation of the Plaintiff as expeditiously as
possible preferably within 2 months from the date of
receipt of the certified copy of the order and
accordingly this defendant taking into consideration of
the fact on record and it was concluded that the
plaintiff was not entitled for the claim amount as does
not justify the claim of getting Rs.2,32,426/- for
alleged supply of bread (Bun) and the same was
intimated to the plaintiff on 22.11.2007 vide office
letter no.737/CW dated 22.11.2007. However this
defendant in consideration of the situation has
released Rs.35000/- in different spells treating it to be
the final payment of the dues. It may not be out of
place to mention here that this defendant has received
the dues/grant for the year 1999-2000 till the month of
Page 20 of 24
December 2000 and the said scheme of the central
government is not functioning and the dues for the
year 2001 onwards has not yet been released by the
central government. This defendant was simply to
implement the scheme of the central government
having its no financial control or authority to release
money from any other source without the sanction of
the central government. Since the street children
project was central government grant based and the
plaintiff was aware about the modality of release of
grant by the Government of India and was agreed to
receive the grant by OSCCW after it is sanctioned by
the Government of India. Hence during the past supply
of bread, payment was made after receipt of the grant
from Government of India and interest has never been
claimed by the plaintiff and as such neither the alleged
supply nor payment of or interest
thereon is acceptable.”
[Emphasis added]
24. This Court fails to understand that if the plaintiff
was not entitled to the claim amount, then where was the
question of releasing any amount in his favour much less
Rs.35,000/-. Further where was the question of ‘in
consideration of the situation’ to justify payment of
Rs.35,000/-. This only goes to fortify the claim of the plaintiff
that it was indeed a part payment of the dues.
25. A plea of loss of file has been taken. An FIR was
lodged in this connection, vide Ext.D. Now, the FIR itself was
lodged on 30.05.2007. The FIR firstly does not whisper as to
when it came to light that the file was missing and secondly,
Page 21 of 24
such plea was never taken earlier. The FIR was lodged during
pendency of the writ application. This Court is therefore,
unable to place any reliance on the FIR as the same would
not absolve defendant No.2 of its liability. The trial Court has
not placed much reliance on the evidence of D.W.-1, and
according to this Court rightly so, for the simple reason that
he joined in the organization in the year 2014 and therefore,
had no personal knowledge about the transaction.
26. Much has been argued as regards acceptability
of the bills submitted by the plaintiff. In this context, the
provision of Section 65 has been referred to. This Court is
unable to accept the arguments as above for the reason that
the originals of the bills having been submitted to defendant
No.2, would obviously not be available with the plaintiff any
more but only copies thereof would be retained. The originals
are supposed to be available in the office of defendant No.2
but a convenient plea was taken that the file had been lost.
Faced with such situation, there is nothing wrong in
accepting the carbon copies of the bills submitted by the
plaintiff as evidence.
Page 22 of 24
27. It has been argued that the bills were forged and
fabricated for the purpose of the suit. Some discrepancies in
the bills have been referred to in this context. Nothing has
been said as regards the remaining bills. Obviously only
because two bills were found to be discrepant, cannot render
all the remaining bills as such. This Court therefore, finds
that the trial Court rightly appreciated the evidence on record
and applying the principle of preponderance of probability,
rightly held that the plaintiff had proved its case. The suit
must therefore, be treated as being correctly decided.
28. On the other hand, the first Appellate Court
ignoring the admission in the written statement referred
above has refused to accept the same as part payment and
placed undue importance on the so called discrepancies in
one of the bills.
29. For the reasons stated above, this Court is
unable to concur with the findings.
30. The substantial question of law No.1 is answered
accordingly.
Page 23 of 24
31. In the result, the appeal is allowed in part. The
judgment passed by the first appellate Court is set aside. The
decree passed by the trial Court is confirmed subject to the
modification that the plaintiff is entitled to the dues as
quantified by the trial Court minus the amount covered
under bill dated 14.12.2001.
…………………………
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack
The 20th August, 2025/ A.K. Rana, P.A.
Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA
Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Aug-2025 18:52:37
Page 24 of 24