IN THE COURT OF MS. VIJETA SINGH RAWAT, LD.

ADDITIONAL
DISTRICT JUDGE – 01, PATIALA HOUSE COURTS,
NEW DELHI
CIVIL SUIT NO. 216 OF 2021

IN THE MATTER OF: -

THE STATE TRADING CORPORATION OF INDIA LTD. … Plaintiff

Vs.

SH. KULDEEP KUMAR … Defendant

INDEX

S.NO PARTICULARS PAGE NO

1. Written Statement on Behalf of Defendant along with

supporting Affidavit.

Sarad Kumar Sunny & Rohan Dua

Advocates for the Defendant
266 (Ground Floor), S-Block,
Date: .10.2022 Greater Kailash –
I,
Place: New Delhi New Delhi -
110048
 IN THE COURT OF MS. VIJETA SINGH RAWAT, LD. ADDITIONAL
DISTRICT JUDGE – 01, PATIALA HOUSE COURTS,
NEW DELHI
CIVIL SUIT NO. 216 OF 2021

IN THE MATTER OF: -

THE STATE TRADING CORPORATION OF INDIA LTD. … Plaintiff

Vs.

SH. KULDEEP KUMAR … Defendant

WRITTEN STATEMENT ON BEHALF OF THE DEFENDANT

Most Respectfully Sheweth

PRELIMINARY OBJECTIONS

A. That the present suit is barred under The Limitation Act, 1963. Same is

evident from Plaintiff’s own pleaded case which is as follows: -

(i) That the Plaintiff’s has initiated the instant suit for recovery of

payments made by it in excess of 50% of basic pay of the

Defendant. The Plaintiff has pleaded that such excess payments are

not permissible under clause 10 of the Office Memorandum

bearing reference number 2 (70)/08-DPE (WC), dated 26.11.2008

 (hereinafter referred to as “DPE Guidelines” for the facility of

reference).

(ii) That the purported excess payments in contravention of DPE

Guidelines were made by the Plaintiff to the Defendant between

the period of 14.05.2013 to 13.05.2016 when the Defendant

worked as Chief Vigilance Officer with the Defendant.

Thus, the Plaintiff’s right to sue for recovery of payments in excess of

50% of Defendant’s basic pay, accrued between the period of 14.05.2013

to 13.05.2016 itself (i.e. when the Defendant worked with the Plaintiff

and when the purported excess payments were made by the Plaintiff to

the Defendant) since the DPE Guidelines which purportedly barred

payments in excess of 50% of basic pay under its clause 10 were in

existence during the period of 14.05.2013 to 13.05.2016 (i.e. when the

purported excess payments were made by the Plaintiff to the Defendant

when the Defendant worked with it as its Chief Vigilance Officer).

Accordingly, under The Limitation Act, 1963, Plaintiff’s right to initiate

the instant suit expired on 13.05.2019 (i.e. three years from 13.05.2016

till when the Defendant worked with the Plaintiff and consequently last

purported excess payment was made by the Plaintiff to the Defendant),

whereas the instant suit has been initiated in April, 2021 (i.e.
 approximately after 2 years from the expiry of limitation period to initiate

the instant suit).

B. That the instant suit is also barred in terms of Hon’ble Apex Court’s

Judgment titled as “State of Punjab & Ors. Vs. Rafiq Malik (White

Washer)” Civil Appeal No. 11527 of 2014. In this regard, following is

stated: -

(i) That the Hon’ble Apex Court in its judgment of “State of Punjab &

Ors. Vs. Rafiq Malik (White Washer)” as held that recovery of

payments made in excess of entitlements from retired employees or

employees who are due to retire within one (1) year from the order

of recovery is impermissible.

(ii) It is Plaintiff’s own case that the Defendant retired on 31.12.2017.

Thus, the present suit for recovery initiated in April, 2021 (i.e. after

approximately three and half years of the retirement of the

Defendant) is not maintainable. Even, otherwise the first show-

cause notice issued by the Plaintiff to the Defendant seeking

recovery of purportedly excess sum paid to the Defendant was

issued on 11.07.2017 which is within 1 year of the retirement of

the Defendant i.e. on 31.12.2017.

 Thus, the instant plaint is barred even as per Hon’ble Apex Court’s

judgment as cited hereinabove.

It is stated that the contents of paragraph A and the present paragraph are

without prejudice to Defendant’s contention that the Plaintiff has not

made any excess payment to the Defendant herein.

PARAWISE REPLY
1. That the contents of the corresponding paragraph 1 are matters of record.

Anything contrary thereto is incorrect and denied.

2. In reply to the corresponding paragraph 2 it is stated that the instant suit is

not maintainable same being barred under the provisions of The

Limitation Act, 1963. Reliance in this regard is placed upon the contents

of the Preliminary Objections hereinabove. In reply to the corresponding

paragraph it is further stated that no excess payments have been made by

the Plaintiff to the Defendant herein. In this regard, it is stated that the

monies paid by the Plaintiff (recovery of which is being sought in the

instant suit) is an reimbursement of expenses already incurred by the

Defendant and not an allowance or perk. The monies paid by the Plaintiff

(recovery of which is being sought in the instant suit) are booked as

business expenses in the books of accounts of the Plaintiff and not as

allowance or perks. The Defendant had already incurred the expenses and
 the Plaintiff had merely reimbursed the Defendant vis-à-vis such

expenses of the Defendant. It is a matter of record that the Defendant has

not made any income from the monies paid by the Plaintiff (recovery of

which is being sought in the instant suit) and the recovery of such monies

would lead to extreme hardship to the Defendant and thus barred on this

count also under the Hon’ble Apex Court’s Judgment cited hereinabove

[i.e. State of Punjab & Ors. Vs. Rafiq Malik (White Washer)].

3. That the contents of the corresponding paragraph 3 are matters of record.

Anything contrary thereto is incorrect and denied.

4. In reply to the contents of corresponding paragraph 4 it is stated that the

said contents make it evident that the present suit is not maintainable

same being time barred and contrary to the mandate of Hon’ble Apex

Court as contained in the judgment of “State of Punjab & Ors. Vs. Rafiq

Malik (White Washer)”. Reliance in this regard is placed on the contents

of Preliminary Objections hereinabove. In reply to the corresponding

paragraph it is further stated that since it is the admitted case of the

Plaintiff that the Defendant worked with Plaintiff only till 13.05.2016 so

any purported excess payment has to be on or before 13.05.2016 thus, the

limitation period to initiate the instant suit (i.e. 3 years) has expired on
 13.05.2019 thereby making the present suit (initiated in April, 2021)

time-barred. Additionally, the instant suit is also not maintainable on

account of Hon’ble Apex Court’s judgment titled as “State of Punjab &

Ors. Vs. Rafiq Malik (White Washer)”. The contents of corresponding

paragraph are without prejudice to the fact that no excess payment

whatsoever has been made by the Plaintiff to the Defendant herein.

5. The contents of corresponding paragraph 5 are incorrect and denied. It is

denied that any excess payment has been made by the Plaintiff to the

Defendant. The reference to purported routine inspection in the

corresponding paragraph is fallacious. In this regard, it is stated that the

Plaintiff itself has stated in its plaint that the present proceedings have

been initiated only pursuant to the directions of the Ministry of

Commerce & Industry. There has been no routine inspection by the

Plaintiff as is also evidenced by the Documents placed on record in the

present suit.

6. The contents of the corresponding paragraph 6 are matters of record.

Anything contrary thereto is incorrect and denied.

7. In reply to the contents of the corresponding paragraph 7, it is stated that

the letter dated 09.05.2017 issued by Ministry of Commerce & Industry

itself makes reference to DPE Guidelines and further states that

purportedly excess payments have been made by the Plaintiff in

contravention of DPE Guidelines (which is dated 26.11.2008). Thus, the

right to sue has accrued to the Plaintiff between 14.05.2013 to 13.05.2016

(when the purported excess payments were made by the Plaintiff while

the Defendant worked with the Plaintiff) since the DPE Guidelines

(which is dated 26.11.2008) were in existence at the contemporaneous

time of 14.05.2013 to 13.05.2016. Even, the Ministry of Commerce &

Industry was aware that excess payments (if any) made to the employees

including that of the Plaintiff has to be recovered since 06.02.2014 and

the same is evident from its office memorandums dated 06.02.2014.

Accordingly, the said Ministry could not have directed the Plaintiff to

recover the purported excess payments from the Defendant by way of a

belated letter (i.e. the said Ministry’s letter dated 09.05.2017). The said

Ministry’s letter dated 09.05.2017 cannot have any effect on the reliefs

sought in the present suit.

In reply to the corresponding paragraph 7, it is further stated that Ministry

of Commerce & Industry’s letter dated 09.05.2017 relies on said

Ministry’s office memorandum dated 02.03.2016. In its office

 memorandum dated 02.03.2016, the said ministry has itself

acknowledged that as per Hon’ble Apex Court’s judgment of “State of

Punjab & Ors. Vs. Rafiq Malik (White Washer” no proceeding for

recovery can be initiated against employees who have already retired or

who are due to retire within one year of the order of recovery. Thus, once

the said ministry in its own office memorandum has acknowledged that

proceedings against retired employees or employees who are due to retire

within one year of the order of recovery, cannot be initiated (as is the case

with the Defendant herein), thus the said ministry’s letter dated

09.05.2017 cannot be any effect and is non-est.

8. In reply to the contents of the corresponding paragraph 8, it is stated in its

show-cause notice dated 11.07.2017, the Plaintiff has admitted that it

continued with the payment of monies (recovery of which is sought in the

present proceedings and which as per the Defendant is merely an

reimbursement for the expenses that were already incurred by the

Defendant herein) despite its knowledge of the DPE Guidelines in

November, 2008 which barred payments in excess of 50% of Defendant’s

basic pay towards allowances and perks. Accordingly, it is stated that the

Plaintiff has expressly admitted that its right to sue had accrued and the

Plaintiff had express knowledge of its such rights. The foregoing is

 without prejudice to Defendant’s contention that no excess payment

whatsoever has been made by the Plaintiff to the Defendant.

9. The contents of the corresponding paragraph 9 are matters of record.

Anything contrary thereto is incorrect and denied. However, in reply to

the corresponding paragraph 9, it is stated that the referred letter of

06.03.2018 is without any effect vis-a-vis the reliefs sought in the present

suit as the payments (recovery of which is sought in the present

proceedings) that are in purportedly in contravention of DPE Guidelines

26.11.2008 had to be necessarily recovered within 3 years from

13.05.2016 (i.e. when the Defendant lastly worked with the Plaintiff) as

the Plaintiff’s right to sue had accrued simultaneously with the purported

excess payments made by it since the DPE Guidelines were already in

effect at the contemporaneous time of 14.05.2013 to 13.05.2016.

10. The contents of the corresponding paragraph 10 also make it abundantly

clear that the instant suit is not maintainable in terms of Hon’ble Apex

Court’s judgment passed in State of Punjab & Ors. Vs. Rafiq Malik

(White Washer) since the said judgment prohibits the Plaintiff from

recovering any monies from its employees subsequent to their retirement.

It is a matter of record that the Plaintiff’s demand notice dated 25.04.2018

 (which is its first demand notice addressed to Defendant seeking recovery

of monies as claimed in the present suit) has been issued much later than

the retirement date of the Defendant which as per the Plaintiff’s own

pleaded case is 31.12.2017.

11. The contents of corresponding paragraph as far as the same relate to

Defendant’s reply to Plaintiff’s demand notice dated 25.04.2018 are

matters of record and not denied. In reply to the rest of the contents of the

corresponding paragraph it is stated that the referred decision dated

19.03.2020 of Ministry of Commerce and Industry is inconsequential and

irrelevant for the purposes of the present suit moreso when the said

ministry is not even a party in the present suit. Even otherwise, the

decision dated 19.03.2020 of the said ministry does not have any effect

on the time barred claims of the Plaintiff herein.

12. That the contents of the corresponding paragraph 12 are incorrect and

denied. It is denied that the Plaintiff could have issued any demand notice

on the Defendant as contended in the corresponding paragraph or

otherwise. The demand notice dated 01.04.2020 raised by the Plaintiff

itself is barred in terms of the judgment of the Hon’ble Apex Court titled

as State of Punjab & Ors. Vs. Rafiq Malik (White Washer). It is stated
 that the Defendant is under no liability to refund the purported excess

payment as demanded by the Plaintiff vide its notice dated 01.04.2020 let

alone within 15 (fifteen) days. It is further stated that the Defendant has

rightly not refunded the demanded amount by Plaintiff since no sum is

due and payable to the Plaintiff by the Defendant.

13. That the contents of corresponding paragraph 13 are incorrect and denied.

It is denied that the Defendant has caused wrongful gains to himself or

wrongful loss to the Plaintiff. It is denied that any loss has been caused to

the Plaintiff. Even the contention of losses caused to the Plaintiff is

without any specifics and has to be ignored for the purposes of the

present suit.

14. That the contents of corresponding paragraph 14 are incorrect and denied.

It is denied that the Defendant failed in its duties. There is not a single

document of contemporaneous times which reflects that the Defendant

failed in its duties. There is no sum that is payable by the Defendant to

the Plaintiff let alone the purported excess amount of Rs. 5,11,669/- with

interest or otherwise. In this regard, it is also relevant to state herein that

in its demand notices the Plaintiff has referred to the purported excess

amount as Rs. 4,98,709/- whereas suddenly in the present suit the

 purported excess amount has been mentioned as Rs. 5,11,669/- which

evidences that the Plaintiff is not only seeking recovery of monies that are

not only due and payable to it but also has been seeking to wrongfully

inflate its demands.

15. That the contents of corresponding paragraph 15 are incorrect and denied.

It is denied that any cause of action arose in favour of the Plaintiff by way

of letter dated 09.05.2017 issued by Ministry of Commerce & Industry. It

is denied that any cause of action arose in favour of the Plaintiff by way

of its show cause notice dated 11.07.2017. It is further denied that cause

of action arose in favour of the Plaintiff by way of letter dated

17.10.2017. It is denied that cause action arose in favour of the Plaintiff

on 25.04.2018 or by way of Plaintiff’s demand notice dated 01.04.2020.

It is denied that the Plaintiff has continuing cause of action against the

Defendant. It is further denied that any sum is due and payable to the

Plaintiff let alone a sum of Rs. 5,11,669/-.

In reply to the contents of the corresponding paragraph it is also stated

that the Plaintiff has deliberately not mentioned the DPE Guidelines

(dated 26.11.2008) as giving to a rise of action in favour of the Plaintiff

so as to camouflage the fact that the Plaintiff’s suit is time-barred and not

maintainable.
16-17. The contents of the corresponding paragraphs 16 and 17 are

matters of record. Anything contrary thereto is incorrect and denied.

18. The contents of the corresponding paragraph 18 are incorrect and denied.

It is denied that the Plaintiff has balance of convenience in its favour. It is

denied that the Plaintiff has any cause of action in its favour to file the

present suit.

PRAYERS

In view of the fact and circumstances mentioned hereinabove, the

Respondent most humbly prays that this Hon’ble Court may

graciously be pleased to: -

(A) Dismiss the present Suit qua every relief that have been

sought against the Defendant;

(B) Pass any other or further order(s) as this Hon’ble Court may

deem fit and proper in the facts and circumstances of the present case

and in the interest of justice.

DEFENDANT

Through

Place: New Delhi.
9958178853.
Date: 06.10.2022.
saradksunny@gmail.com
Sarad Kumar Sunny & Rohan Dua,
(Advocates for Defendant),
S-266, Greater Kailash 1,
New Delhi – 110048,
Mobile No. –
E-Mail ID –

VERIFICATION

Verified at New Delhi on this ____ day of October, 2022 that the contents of

paragraphs 1 to ___ and _______ of the Written Statement are true to my

knowledge and belief and nothing material nor relevant has been concealed

there from and those of paragraph ___ and ___ to ___ are based on legal

counsel received by me and believed to be true. Paragraph ___ is the prayer

before this Hon’ble Court.

DEFENDANT