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2003 DIGILAW 249 (RAJ)

Prakash Chand v. State of Rajasthan

2003-02-17

PRAKASH TATIA

body2003
JUDGMENT 1. - Heard learned counsel for the parties. 2. Learned counsel for the petitioners frankly admitted that petitioners, with three other persons, in total 11, are liquor licensee. 3. Learned counsel for the petitioners further frankly admitted that the s liability under the above license is joint & several and the entire amount can be recovered from any of the licensee in case any liability is incurred in terms of the licence. 4. According to learned counsel for the petitioners, petitioners calculated their share towards the liability against the recovery raised by the o respondents in pursuance of license Annx. 1 and deposited rupees 2 Crore 43 Lacs and odd and the Department adjusted certain amount, which the Department received from the Income-tax Department. Net result is that now, according to learned counsel for the petitioners, at the time of filing present writ petition, there were about rupees 40 Lacs due of the respondents 5 against above license Annex. 1 This amount of rupees 40 Lacs is the amount of share of liability of one of co-licensee Trilok Chand Tak, who is not contributing towards his liability and therefore, respondents can not recover this amount of rupees 40 Lacs from the petitioners and they may proceed to recover said amount from Trilok Chand. 5. It is also submitted by learned counsel for the petitioners that said Trilok Chand preferred a writ petition No. 4317/2001 wherein this Court has granted stay order against recovery by the Department and therefore, in this petition also, the petitioners may be granted relief of stay order against recovery raised by the respondent-Department. 6. The matter was. taken up on 03rd February, 2003 and the Court directed the petitioners on that day to show how the present writ petition is maintainable. 7. Learned counsel for the petitioners, as mentioned above, already submitted that the their liability under the license is joint & several, that too arising from the same contract and learned counsel for the petitioners also admitted that except on equitable ground, petitioners can not resist the recovery of this amount from the petitioners by the respondents and compel the respondents to recover the deficit amount from said Trilok Chand Tak. Learned counsel for the petitioners also submits that petitioners gave a letter, copy of which is placed on record as Annx. 3, wherein petitioners specifically mentioned that they are submitting cheques of Rs. Learned counsel for the petitioners also submits that petitioners gave a letter, copy of which is placed on record as Annx. 3, wherein petitioners specifically mentioned that they are submitting cheques of Rs. 2,43,00,000/- and odd, with condition that in case the respondents receive any amount from the Income-tax Department then cheques of recovered amount may be returned to the petitioners. 8. Learned counsel for the petitioners submits that by this letter the petitioners made it clear that the partners are not depositing amount of Rs. 40 Lacs, which is share of liability of Trilok Chand Tak and the respondents accepted the cheques along with letter Annex. 3 then they accepted that rest of the amount i.e. liability of Trilok Chand will not be recovered from the petitioners. Therefore, respondents can not recover the amount of Rs. 40 Lacs from petitioners, which is liability share of Trilok Chand Tak. 9. After perusal of the facts of the case, it is clear that the defaulter Trilok Chand is not party in the present writ petition. It is not in dispute that entire matter is contractual matter. The liability under the contract is indisputably of all the licensees including petitioners. It is not in dispute that the liability is joint & several, which means that the amount of liability can be recovered from any one of the person who is party to the contract. Therefore, so far as legal liability of the petitioners to make payment is undisputed. 10. Whether any right accrue to the petitioners by giving this letter Annx. 3, by which petitioners can claim any legal right to restrain the respondents from recovering any amount which is due under the contract, is only to be seen. A bare perusal of letter Annx. 3 clearly shows that petitioners alleged that there is some dispute with Trilok Chand Tak, who was one of the co-licensee along with petitioners and by this latter, they submitted that they are not. making payment of alleged liability, which according to the petitioners, is share of liability of Trilok Chand Tak. They requested that the Department may initiate proceedings for recovery against Trilok Chand and may recover it from immovable properties of Trilok Chand mentioned in said notice. The petitioners only submitted that in case respondents receive any refund amount from the Income-tax Department then cheques for such amount may be refunded back to the petitioners. They requested that the Department may initiate proceedings for recovery against Trilok Chand and may recover it from immovable properties of Trilok Chand mentioned in said notice. The petitioners only submitted that in case respondents receive any refund amount from the Income-tax Department then cheques for such amount may be refunded back to the petitioners. 11. It appears that there was no condition that the petitioners are submitting cheques with condition that these cheques may be encashed only if respondent-Department accepts that liability of the rest of amount will be of Trilok Chand alone. Assuming for the sake of arguments, even if it was a condition even then petitioners can not enforce the said condition by filing writ petition. Writ Petition for enforcement of contract is not entertainable and there appears to be no reason for entertaining such type of writ petition where liability of petitioner is not in dispute. The writ jurisdiction can not be made available to settle private disputes between partners of the contract, co-promisers or co-licensees. Therefore, writ petition of the petitioners deserves to be dismissed. 12. There are further reasons to dismiss the writ petition of the petitioners. Equitable relief is available to the persons who themselves come with clean hands and equitable relief can not be made to deprive other parties from their legitimate claim. The making of payment of Rs. 2,43,00000/- and odd by the petitioners can not be said to be an act of grace by them. The petitioners discharged their liability by making payment and there may be several reasons for making payment of this amount, one of which may be to avoid further liability of interest and other coercive measures for recovery proceedings. 13. In these circumstances, pendency of the writ petition filed by Trilok Chand, who is not party in the present writ petition, can not be ground to entertain this writ petition, particularly in view of fact that by order dated 02nd February, 2003, it was specifically pointed out to learned counsel for the petitioners to show how the present petition is maintainable. It is also clear from the facts mentioned in the present writ petition that petitioners are not challenging liability itself, which is against the petitioners under the contract and therefore, when there is a liability then they should first make payment thereof and then can proceed to recover that amount from their partner. It is also clear from the facts mentioned in the present writ petition that petitioners are not challenging liability itself, which is against the petitioners under the contract and therefore, when there is a liability then they should first make payment thereof and then can proceed to recover that amount from their partner. On that account, State revenue can not be withheld by the petitioners.The writ petition of the petitioners is, therefore dismissed as having no force.Writ Petition Dismissed. *******