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2002 DIGILAW 706 (JHR)

Bablu Singh v. Bihar State Financial Corporation

2002-07-03

M.Y.EQBAL

body2002
ORDER 1. This appeal under Clause (10) of the Letters Patent Appeal is directed against the judgment and order dated 9.4.1998 passed in CWJC. No 3663 of 1996 (R) Whereby the learned single Judge, while dismissing the writ petition filed by the petitioner-appellant, held that the petitioner is not entitled to refund of Rs. 90,000/-, which was deposited by him by way of security to the Corporation. 2. It appears that one Vidya Prakash who was impleaded as respondent No. 5, was granted loan by respondent-Bihar State Financial Corporation (in short "Corporation") in the year 1990 for purchase of a Bus under certain terms and conditions. 3. The said Vidya Prakash, subsequently defaulted in making the repayment of the loan amount. The petitioner along with one Sanjay Kumar Singh made an offer to the Corporation to purchase the said Bus at a price that may be fixed by the Corporation. In terms of the correspondence made between Corporation and the prospective purchasers, namely, the petitioner and Sanjay Kumar Singh, a sum of Rs. 90,000/- was deposited by the petitioner as security money before finalisation of the purchase of the vehicle and issuance of sale order. The petitioners case is that before sale order was issued by the Corporation on 7.8.1996, the petitioner sent two letters requesting the Corporation to refund the earnest money as he was not willing to purchase the Bus on the terms and conditions imposed by the Corporation. Despite the aforesaid letter, the sale order was issued by the Corporation on 7.8.1996 and against the said sale order the petitioner along with Sanjay Kumar Singh sent a letter dated 19th August, 1996, informing the Corporation that the conditions imposed in the sale order to make payment of arrears of tax after 1995 was not acceptable to them and, therefore, the petitioner claimed for refund of the money. Instead of refunding the security money, the corporation sent a letter informing the petitioner that if an agreement is not executed the earnest money shall be forfeited. 4. Instead of refunding the security money, the corporation sent a letter informing the petitioner that if an agreement is not executed the earnest money shall be forfeited. 4. On the other hand the case of the corporation is that after depositing the earnest money by the petitioner and his co-partner Sanjay Kumar Singh with the consent of the Vidya Prakash the custody of the vehicle was handed over to the petitioner and the latter, by the two letters, agreed to give security of landed property against the sale price of the vehicle. It was further stated that it was only after one and half year the petitioner backed out from his offer and made a request for refund of the earnest money. 5. The newly added respondent namely Vidya Sagar Singh filed a separate counter-affidavit in which he has stated that after depositing earnest money the petitioner and Sanjay Kumar Singh approached him to hand over the vehicle for its minor repairs and assured to return back the same after repair and also assured that they will be depositing the balance dues to the corporation soon after getting permission from the corporation for transfer of the name. It was further stated that since 28.9.1995 the vehicle is under the control of the petitioner and they are liable to pay road tax etc. The averments made in the counter-affidavit is supported by the letter written by the respondent No. 5 to the corporation, a copy which has been annexed as Annexure-A to the counter- affidavit. The said respondent also annexed an affidavit sworn on 29.9.1995 which was needed for filing it along with application for transfer of the vehicle. 6. From rival contentions made in the writ application and the affidavits the question, therefore, falls for consideration is whether, after the custody and possession of the vehicle was handed over to the petitioner and Sanjay Kumar Singh it continued in their custody and they plied the vehicle or not. Further question arose for consideration is whether the corporation is entitled to forfeit the security the amount when, before issuance of the sale order, the petitioner had refused to purchase the vehicle and asked for refund of the security amount. Further question arose for consideration is whether the corporation is entitled to forfeit the security the amount when, before issuance of the sale order, the petitioner had refused to purchase the vehicle and asked for refund of the security amount. One more question falls for consideration is whether there had been a concluded contract by and between corporation arid the petitioner and/or between the petitioner and respondent No. 5 in respect of the vehicle in question. In our opinion, for deciding all these questions, this Court has to go into disputed facts and evidence. Not only that, this Court will have to decide the effect of the correspondence inter se made between the parties. We have no doubt in our mind that these questions can not be adjudicated by this Court in the exercise of writ jurisdiction under Articles 226 and 227 of the Constitution of India. The learned single Judge was not correct in law in recording a finding that the petitioner was not entitled to refund of the security money without adjudicating the respective claim of the parties. Unless this Court records specific finding on all the questions referred to hereinabove, it can not be held whether the petitioner is or is not entitled to refund of the security amount. In our opinion, the question involved in the writ petition is to be decided only by the appropriate forum including the civil Court of competent jurisdiction. 7. For the reasons aforesaid, this appeal is allowed in part and that part of the order of the learned single Judge, whereby he has held that the petitioner is not entitled to refund security amount is set aside. We further hold that the relief for refund of security money can be granted only after adjudication of the respective claim of the parties. 8. Needless to say that in the event of any suit being filed, then the petitioner may get the benefit of Section 14 of the Limitation Act.