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2000 DIGILAW 98 (RAJ)

Abdul Shakur v. Union of India

2000-01-28

N.P.GUPTA

body2000
JUDGMENT 1. - This appeal arises out of the judgment and decree passed by the Additional District Judge No. 1, Jodhpur dated 25.5.1984, dismissing the plaintiff's suit for recovery of Rs. 13,180/- and with costs. 2. Facts of the case are that the plaintiff filed a suit alleging, inter alia, that the plaintiff gave the highest bid in the auction held for scrap rail of Plot No. 1 PPR, Peeper Road Station, which bid was accepted on 31.1.1967 on the terms and conditions mentioned in the auction notice. Consequent upon acceptance of the bid, necessary agreement was executed and was signed by the Auction Supervising Officer for and on behalf of the President of India. According to the plaintiff, he had deposited the entire bid money amount to Rs. 49,580/- with the defendants vide Receipt No. 506 dated 16.8.1973 and according to Clause 4 of the agreement, in case the plaintiff failed to lift the goods within days, of receiving notice, he would be liable to pay the ground rent. The plaintiffs further case is that he gave various letters and notices, but since one Ratanlal had filed a suit, the defendant was not delivering the goods. Thereafter, on 18.8.1975, the plaintiff was sent a telegram by the defendants in response thereto. The plaintiff took delivery of the scrap rail but, at that time, a sum of Rs. 9,580/- was illegally deducted by the defendants from the plaintiff. For refund of this amount, the plaintiff made representations, but they were turned down. Thereupon, a notice was sent by the plaintiff under Section 80, CPC, and getting no relief, on 19.10.1978, the present suit has been filed. The defendants contested the suit by filling written statement on 11.5.1981, inter alia, contending that the defendant would be entitled to recover from the purchaser ground rent at the rate of Rs. 2/- per day for each 1000 sq. ft. or part thereof or 2% of the value of the stores remaining underlivered for every fortnight or part thereof, whichever is higher. 2/- per day for each 1000 sq. ft. or part thereof or 2% of the value of the stores remaining underlivered for every fortnight or part thereof, whichever is higher. It was also contended that the plaintiff has suppressed material facts, inasmuch as the bid money was deposited on 16.8.1973, while auction was finalised on 31.1.67, one Ratanlal Jain had filed a suit in the Court of Second Additional Civil Judge, Agra, being Suit No. 186/73, wherein interim order was made on 12.9.1973 and appeal against that order was decided on 16.4.1974, relevant portions thereof had been quoted in the written statement. However, the matter was settled by way of compromise and it was agreed that out of the auctioned goods (134 ton), 100 ton be given to Ratanlal and remaining that be given to the plaintiff and that if any ground rent is payable, that will be paid by the respective persons in the above proportion. Accordingly, the matter was decided in the Court at Agra. It is in these circumstances that the plaintiff took delivery of the goods and the sum of Rs. 9560.80 Paise ware rightly deducted as ground rent, calculating it at the rate of 2% on the price of the goods being Rs. 12,580/-. It was thus. contended that the defendants never declined to deliver the goods and whatever delay or dispute occurred, it was on account of the plaintiff and Ratanlal, inasmuch as there has been injunction against the plaintiff and, therefore, in effecting the delivery, the order of the Court would have been disobeyed, therefore, the plaintiff did not take delivery. In para 6, it was contended that on 21.3.1975, the plaintiff himself gave his consent to the defendants to recover the sum of Rs. 9560.80 Ps. from the plaintiff and accordingly delivery was effected to the plaintiff. The contents of this consent have been reproduced in the written statement (the document about it is on record as Ex.A/1). It was contended by the defendant that the plaintiff is not entitled to go back from this consent and the suit is liable to be dismissed. 3. The plaintiff filed a rejoinder, inter alia, contending that the plaintiff had deposited the amount as per the terms of auction, but the defendants did not accept the bid and refunded the amount to the plaintiff. 3. The plaintiff filed a rejoinder, inter alia, contending that the plaintiff had deposited the amount as per the terms of auction, but the defendants did not accept the bid and refunded the amount to the plaintiff. Thereupon, the plaintiff filed a writ petition in the Delhi High Court, which was accepted and the auction in favour of the plaintiff affirmed, and the amount was deposited by the plaintiff. The other pleadings that have been taken in the rejoinder are to the effect that there was no delay in taking delivery of the goods, on the part of the plaintiff, as he had taken delivery within the permissible time since receipt of notice and, therefore, no deduction could be made. Regarding undertaking also, it has simply been contended that the defendants were having an upper hand and were not prepared to effect delivery without the plaintiff giving the undertaking and after taking delivery, when he came to learn that the amount has been deducted, he made a demand, whereupon he was replied that the recovery has been rightly effected. According to the rejoinder, since the plaintiff was to despatch the goods, which was with held by the defendants, compelled under these circumstances, the plaintiff had to sign whatever papers the defendants asked him to sign, but immediately on the next day, he had sent telegram 4,5 and letter that the recovery is not justified and the amount may be refunded. Likewise, it was pleaded that the defendants were in collusion with Ratan Lal. 4. On pleadings of the parties, the learned trial Court framed five issues as reproduced in the judgment of the learned trial Court. 5. After recording evidence of the parties, the learned trial Court so decided issue No. 1 in favour of the plaintiff, holding that the defendants did not give notice to the plaintiff. Issues Nos. 2 and 4 were decided by the learned trial Court together and were decided against the plaintiff, holding that the plaintiff has failed to prove that consent obtained from the plaintiff, as pleaded in para 6 of the written statement, was forcibly obtained. Consequently, the issue No. 3 was also decided against the plaintiff and the suit was dismissed. 6. I have heard the learned counsel for the parties and gone through the record. Consequently, the issue No. 3 was also decided against the plaintiff and the suit was dismissed. 6. I have heard the learned counsel for the parties and gone through the record. The main contention of the plaintiff is that in view of the findings of the learned trial Court on issue No. 1 holding that it was necessary, according to the terms of the auction, for the defendants, to give notice to the plaintiff to take delivery and that no such notice was given to the plaintiff before Ex. 1. According to the learned counsel, in this view of the matter, no liability of the plaintiff was at all attracted for payment of the ground rent and, thus, the amount has been wrongly recovered from him and the suit was required to be decreed. It may be observed here that on factual aspect, no controversy was raised even on the side of the respondents whether about giving of notice or about the correctness of the quantum of ground rent recovered from the plaintiff. The only question is, as to whether the ground rent was rightly recovered from the plaintiff and whether the plaintiff is entitled to refund thereof ? 7. But for Ex.A 11, in view of the decision of issue No. 1, perhaps the defendants would not have been entitled to recover the ground rent from the plaintiff. However, it is a different story that there was litigation after Litigation between Ratan Lal and the plaintiff and in those litigation, admittedly, the present defendants were also parties. In this view of the matter, neither the plaintiff could take the delivery of the goods, nor could the defendants make delivery of the goods but, at the same time, the fact also does remain that otherwise, the defendants were ready and in a position to make delivery of the goods and, thus, for no fault of Railway Administration, the goods remained lying with the Railway and unnecessarily occupying the space available with the Railways. 8. In this view of the matter, may be that the parties could have again litigated out on the question of entitlement or otherwise of the Railway to recover around rent and whatever might have been the outcome of the litigation, the parties would have abided by. 8. In this view of the matter, may be that the parties could have again litigated out on the question of entitlement or otherwise of the Railway to recover around rent and whatever might have been the outcome of the litigation, the parties would have abided by. But, here the circumstances are that instead, the plaintiff agreed to pay the amount and gave an unconditional authority to the defendants, to recover the ground rent, from his deposit of Rs. 49,580/- already with the Railways. 9. So far as the factual aspect of giving of this consent is concerned, the defendants in para 6 of the written statement have taken the plea about it and have reproduced the contents of the consent, while in the rejoinder, the plaintiff has not clearly denied to have given any such undertaking or consent, but has simply pleaded that it was obtained by abusing the power of the Railways and by forcing him to sign and that, immediately on the next day, the plaintiff gave telegram and letter making demand of the amount. In this view of the matter, even on the principle of non-traverse, it can safely be assumed that signing of the consent or authority being Ex.A/1 by the plaintiff is not disputed, though on the document, it has been endorsed "not admitted, original is not produced". This also shows that it has been denied only because that the original has not been produced. Likewise, a look at the statement of plaintiff PW 1 would show that therein also, all that he has so deposed is that when he started taking delivery of goods, he was stopped and was asked to pay the ground rent and was asked to take goods only after signing receipt (perhaps meaning Ex.A/1). The plaintiff has further deposed that after taking of the goods, he sent a notice and telegram to the effect that ground rent has been wrongly deducted and has deposed Exs. 5 to 7 to be the receipts in this regard, which telegrams are alleged to have not been replied. Suffice it to say that Ex.A/1 is dated 21.8.1975, while the suit has been filed on 19.10.1978 and three receipts being Exs. 5 to 7 are also of May, 1978. Thus, they appear to be the receipts for despatch of Section 80 CPC notice which is dated 29.5.1978. Suffice it to say that Ex.A/1 is dated 21.8.1975, while the suit has been filed on 19.10.1978 and three receipts being Exs. 5 to 7 are also of May, 1978. Thus, they appear to be the receipts for despatch of Section 80 CPC notice which is dated 29.5.1978. No copy of any other letter or telegram has been produced by the plaintiff which may have been sent immediately or shortly or soon after Ex.A/1. Thus, it is clear that after Ex.A/1, the plaintiff has just remained silent for about more than two-and-a-half years. 10. If what the plaintiff wants this Court to believe were to be true, the normal conduct of the plaintiff would have been to have entered into correspondence with the defendants, even if not immediately soon after Ex.A/1 and, in any case, much earlier to Ex. 9. 11. The only conclusion, therefore, is that Ex.A/1 was given by the plaintiff, it was voluntarily given and it is only after years and years that the plaintiff on a second thought, got sent notice under Section 80, CPC, and filed the present suit. 12. In these circumstances, in my opinion, the earned trial Court rightly found that the plaintiff has failed to prove the two issues, issues Nos. 2 and 4, and I hold that the plaintiff is not entitled to refund of Rs. 9560.80 Paise recovered by the defendants from the plaintiff as a ground rent. 13. Consequently, the appeal fails and is hereby dismissed with costs.Appeal dismissed. *******