J. D. A. Jaipur v. Mirchoomal — 1987 DIGILAW 265 (RAJ)

I.S. ISRANI, J.—This is a revision petition under section 115 C.P.C. against the order of learned Additional Civil Judge cum Chief Judicial Magistrate, Court No. 4, Jaipur City, dated 28.2.84 in Civil Misc. Appeal No. 2/84(8/84) whereby the order of the learned Additional Munsiff (West) Jaipur City dated 15.12.1983 was reversed and temporary injunction in favour of the non-petitioner was granted. 2. I have heard Mr. S.M. Mehta, learned counsel for the petitioner and Mr. D.L. Badhdar, learned counsel for the non-petitioner. 3. Mr. Mehta slates that plot No. D-16 situated in Kalwad Scheme, Jhotwara, Jaipur was auctioned on 29.1.1973. The non-petitioner was the highest bidder and his bid for Rs. 24086.48 P. was accepted. 1/4th amount of the auction price was deposited on the spot and as per the conditions of auction, 3/4th of the amount was to be deposited by him within 30 days from the date of confirmation of auction. The auction was confirmed in favour of the non-petitioner on 5th Feb., 73, but the non-petitioner did not deposit 3/4th amount as required by the rules. Several notices were issued by the petitioners predecessor in interest, the then Urban Improvement Trust to the non-petitioner requiring him to deposit the balance amount of auction price, which however, was not deposited. Therefore, the auction also was cancelled on 15.6 73 and 1/4th amount of the sale price deposited by the non-petitioner was forfeited. In the year 1983 the petitioner took steps to auction the aforesaid commercial plot again and a notice of auction was published, whereupon the suit alongwith the application for temporary injunction was filed by the non-petitioner in the court of Additional Munsif (West) Jaipur City for restraining the petitioner from proceeding with the auction of the land in dispute. Learned Munsiff vide its order dated 5.12.83 rejected the non-petitioners application for grant of temporary injunction. Learned Addl. Civil Judge as stated above, reversed the order of the trial court and granted temporary injunction on the condition that the non-petitioner shall deposit the balance price within 15 days of the order along with interest prevalent in the petitioner-J. D.A. The plaintiff non-petitioner tendered a cheque of Rs. 25001/- alongwith an application mentioning therein that principal amount of Rs. 18093.98 and interest thereon amounting to Rs. 6907.2P is deposited. 4. 25001/- alongwith an application mentioning therein that principal amount of Rs. 18093.98 and interest thereon amounting to Rs. 6907.2P is deposited. 4. The contention of the learned counsel for the petitioner is that the first appellate court has not given any valid reasons for reversing the finding of the trial court, in which it has been clearly stated that the plaintiff non-petitioner was a defaulter and he himself had not deposited the 3/4th amount when the sale was confirmed, inspite of several notices given by the petitioner. In this way, the plaintiff non-petitioner did not observe the essential conditions of auction, which he was legally bound to do. It has also been pointed out that the prevai-lent rate of interest in J.D.A. is 18% and the amount of interests at this rate comes to Rs. 36067- However, the non-petitioner has deposited only Rs. 6907.02 P. as interest at the rate on which he himself thought fit to deposit the amount. It is also contended that if the non-petitioner had to take any action against cancellation of sale, it was open to have done so within the period of limitation when the sale was cancelled as early as on 15.6.73. It is, therefore, contended that on all counts the non-petitioner does not deserve to get equitable relief by way of issue of temporary injunction and the learned first appellate court has grossly erred in reversing the order of the trial court. 5. Learned counsel Shri D.L. Badhdar, appearing for the non-petitioner has on the other hand contended that the petitioner in several other cases has been extending time for deposit of the balance amount of the sale, but in the case of non-petitioner, this discretion has not been exercised and the learned first appellate court has rightly observed that the petitioner should have exercised this right of extending time for deposit of balance amount of sale price in favour of the plaintiff-non-petitioner. It is also contended that the learned trial court has wrongly stated that the shop in dispute has already been auctioned but in fact it has not been auctioned yet. It is further submitted that the non-petitioner is prepared to deposit any further amount of interest, which may be found to be further depositing after calculating interest @ 18% which is given out to be the prevalent rate in the office of the petitioner. It is further submitted that the non-petitioner is prepared to deposit any further amount of interest, which may be found to be further depositing after calculating interest @ 18% which is given out to be the prevalent rate in the office of the petitioner. It is also contended that an application was filed on 7.3.84 in the office of the petitioner that the possession of the shop may be given to the plaintiff-non-petitioneras he had deposited a cheque amounting to Rs. 25001/-, which covers the balance of sale amount as well as interest amount. It is then contended that an application was filed on 9.3.1984 in the trial court that he may be informed as to at what rate the interest may be deposited. 6. It is evident that the auction took place on 29.1.73 and the sale was confirmed as back as on 5.2.1973. Since the plaintiff-non-petitioner did not deposit the required 3/4th amount of the sale price within 30 days of the confirmation of sale inspite of several notices given to him, the same was cancelled on 15-6-73 i.e. after a period of more than 4 months. It is therefore, evident that the petitioner did not cancel the sale immediately and did exercise its discretion to allow the non-petitioner chance to deposit the amount within the extended period or more than 4 months. If the non-petitioner was dissatisfied with cancellation of the sale proceedings, it was open to have filed any legal proceedings against the petitioner, if he wanted to agitate his rights. 7. My attention has been drawn to the case of Manilal Mohanlal Sah vs. Sardar Saivad Mohamed (l). This was a case under Order 21 Rules 84, 85 and 86 C.P.C., which are analogous to the conditions of auction. It was held by their Lordships of the Supreme Court that if the payment of balance amount is non made within 15 days of the sale, which is mandatory, there is no sale at all and the sale is wiped out. Non-payment of the price on the part of defaulting purchaser renders the sale proceedings as a complete nullity. 8. It was held by their Lordships of the Supreme Court that if the payment of balance amount is non made within 15 days of the sale, which is mandatory, there is no sale at all and the sale is wiped out. Non-payment of the price on the part of defaulting purchaser renders the sale proceedings as a complete nullity. 8. The contention of the learned counsel for the plaintiff-non-petitioner that if the sale was cancelled, the petitioner should have immediately reauctioned the plot, has no force because the property belongs to the petitioner and it is his choice to auction the same as and when it is thought fit. From the order of learned Additional Civil Judge it is clear that 3 necessary conditions for issue of temporary injunctions i.e. prima facie cases, irreparable loss and balance of convenience have also not been discussed in the same. The order of learned trial court is in details and well reasoned and I do not find any reason to interfere with the same. 9. Apart from the fact that the plaintiff non-petitioner should have initiated appropriate proceedings soon after the sale was cancelled on 15-6-73 and should not have waited for 10 long years, it was necessary for him to have deposited the interest at the prevalent rate in the office of the petitioner, and not at the rate of his own choice. Even though an application is said to have been filed as given out by the learned counsel for the non-petitioner, regarding the rate of interest in the court, no order was passed on the same and the non-petitioner on the same day i.e. 9-3-84 on which an application is said to have been filed in the trial court, also deposited a cheque amounting to Rs. 25001/-in the office of the petitioner, which evidently does not cover the interest at the prevalent rate, which is 18% as given out by the learned counsel for the petitioner. The equitable remedy is available only to those petitioners who performed their part of the contract properly and inspite of that if they suffer then the court come to their rescue on equitable grounds. In this case, the plaintiff non-petitioner did not deposited 3/4th of the amount as per the conditions of auction and also did not take any action whatsoever after the cancellation of the sale as back as in 1973. 10. In this case, the plaintiff non-petitioner did not deposited 3/4th of the amount as per the conditions of auction and also did not take any action whatsoever after the cancellation of the sale as back as in 1973. 10. I am, therefore, of the opinion that the plaintiff-non-petitioner is not entitled to issue of any temporary injunction. 11. In the result, this revision petition is allowed. The impugned order of the learned Additional Civil Judge cum Chief Judicial Magistrate, Court No.4, Jaipur City, dated 28th February, 1984 is set-aside. In the circumstances, the parties shall bear their own costs.