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Madhya Pradesh High Court · body

2003 DIGILAW 680 (MP)

Ravishanker Yadav v. Nagar Palika Parishad

2003-05-07

A.K.AWASTHY

body2003
Judgment ( 1. ) THE appellant/defendant has filed this appeal under Section 96 of the Code of Civil Procedure against the judgment and decree dated 29. 1. 1992 passed by the Additional District Judge, Narsinghpur in Civil Suit No. 2-B/88 wherein the appellant was directed to pay the sum of Rs. 22,203. 65 with the rate of interest of 6. 25% per annum. ( 2. ) THE admitted facts of the case are that consequent to auction bid for the contract to collect the passenger tax the respondent/municipality entered into an agreement dated 14. 5. 1985 with the appellant/defendant for the period from 15. 5. 1985 to 31. 3. 1986. That the appellant/defendant will collect the passenger tax and appellant will pay amount of Rs. 2,19,000/- in eight monthly instalments of Rs. 20,531. 25 from the month of July, 1985. It is also admitted that the respondent/municipality gave a notice Ex. P71 dated 6. 3. 87 to the appellant/defendant for recovery of balance amount of Rs. 26,125/- and this notice was replied on 25. 3. 87 by the appellant/defendant. ( 3. ) THE case of the respondent/plaintiff was that the balance of Rs. 26,125/- under the agreement dated 14. 5. 1985 was not paid by the appellant/defendant even after the service of the notice and as such the appellant/defendant be directed to pay the balance with the agreed rate of interest of 6. 25% per annum. ( 4. ) THE case of the appellant/defendant is that the room given by the Municipal Corporation adjacent to the Check Post was in dilapidated condition and defendant has spent Rs. 650/towards the repair of the room of the Corporation and this amount of Rs. 650/-should be adjusted against the balance amount. The defendant has further alleged that he has made the payment of Rs. 10,000/- in two instalments of Rs. 5000+5000 each and the amount of Rs. 10,000/- is not adjusted by the respondent/plaintiff. It is further alleged that the respondent/municipality has abruptly stopped the defendant from collecting the tax for 11 days from 21. 3. 1986 to 31. 3. 1986. That on account of this illegal stoppage to collect the tax for 11 days, the appellant/defendant had suffered the loss of Rs. 800 per day and as such the respondent/municipality is liable to pay the damages of Rs. 8,800/- and the same be adjusted against the balance of Rs. 26,125/ -. 3. 1986 to 31. 3. 1986. That on account of this illegal stoppage to collect the tax for 11 days, the appellant/defendant had suffered the loss of Rs. 800 per day and as such the respondent/municipality is liable to pay the damages of Rs. 8,800/- and the same be adjusted against the balance of Rs. 26,125/ -. ( 5. ) THE learned Trial Court has decreed the suit as above and it has held that the appellant/defendant has not proved that amount of Rs. 650/- was spent by him in the maintenance of room. Learned Trial Court has also held that Rs. 10,000/- which is alleged to have been paid by the appellant/defendant is already adjusted by the respondent/municipality. It is further held that the appellant is not entitled for Rs. 8,800/- as a loss of the passenger tax for 11 days from 21. 3. 1986 to 31. 3. 1986. ( 6. ) THE appellant has assailed the decree on the ground that the learned Trial Court has wrongly rejected the claim of the appellant. That Rs. 10,000/-was paid by him in the month of March, 1986 which was not adjusted and that the appellant is entitled to get adjust the loss incurred Rs. 8,800/- and the amount of Rs. 650/- invested in repairing the room. ( 7. ) PRADEEP Dwivedi (P. W. 1) has stated that he was posted as C. M. O. , Narsinghpur and the defendant has not paid the balance of auction amount of Rs. 26,125/- even after the demand notice Ex. P/11. Learned Counsel for the appellant has alleged that (in the memo of appeal) the plaintiff has claimed vide notice Ex. P/11 Rs. 26,125/- till second March, 1985 and the sum of Rs. 10,000/- was paid by the appellant/defendant in March, 1986 and as such the amount of Rs. 10,000/- required to be adjusted in the sum of Rs. 26,125/ -. No question was asked in cross-examination of Pradeep Dwivedi (P. W. 1) about the alleged contradiction existing in Ex. P/11 about the month of payment of Rs. 10,000/-and the month from which the amount of Rs. 26,125/- was demanded. ( 8. ) THE contention of the learned Counsel for the appellant that vide notice Ex. P/11 the plaintiff has claim the balance of Rs. 26,125/- till the second March, 1985 is factually wrong. The notice Ex. P/11 was given on 6. 3. 1987. 10,000/-and the month from which the amount of Rs. 26,125/- was demanded. ( 8. ) THE contention of the learned Counsel for the appellant that vide notice Ex. P/11 the plaintiff has claim the balance of Rs. 26,125/- till the second March, 1985 is factually wrong. The notice Ex. P/11 was given on 6. 3. 1987. The balance of Rs. 26,125/- was shown against the defendant after adjusting Rs. 10,000/- which is clear from the register of payment of instalments by the defendant produced by plaintiff. It is clear that after the adjustment of the payment of Rs. 10,000/- the remaining balance of Rs. 26,125/- is claimed from the appellant defendant. The appellant/defendant has not produced his details of payment to show that the entries in the register produced by the plaintiff is incorrect. Consequently, the learned Trial Court has rightly held the amount of Rs. 5,000/- paid by the respondent/defendant on 13. 3. 1986 and the amount of Rs. 5,000/- on 17. 3. 1986 are adjusted by the respondent/plaintiff and after adjustment the balance against the appellant/defendant is of Rs. 26,125/ -. ( 9. ) THE appellant has not produced any detail or receipts of spending Rs. 650/- in the maintenance of the room of the Municipal Council near the Check Post. No notice was given by the appellant nor the permission was taken from the respondent for investing Rs. 650/- was invested by the appellant for doing the repairs of the room. Even if it is assumed that the amount of Rs. 650/-was invested then also the appellant is not entitled for adjustment because it has not been proved that the expenses in maintaining the room was incurred with the permission of the defendant/municipal Council, ( 10. ) THE appellant has prayed for adjustment of the loss of Rs. 8,800/- on the ground that his contract was illegally terminated on 21. 3. 1986 by the respondent and as such from 21. 3. 1986 to 31. 3. 1986 for 11 days he has suffered the loss which he is entitled to get at the rate of Rs. 800/per day. It is admitted by the appellant Ravinshaker Yadav (D. W. 1) in paragraph 4 of his examination and also in the written statement that last instalment of the contract was not deposited by him before 21. 3. 1986. 1986 for 11 days he has suffered the loss which he is entitled to get at the rate of Rs. 800/per day. It is admitted by the appellant Ravinshaker Yadav (D. W. 1) in paragraph 4 of his examination and also in the written statement that last instalment of the contract was not deposited by him before 21. 3. 1986. Consequently, the respondent/municipality under the terms of the contract has rightly withdrawn from 21. 3. 1986 the right of the appellant/defendant to recover the passenger tax. Thus, the claim of the appellant/respondent for the loss of 11 days with Rs. 800/- per day is rightly rejected by the learned Trial Court. ( 11. ) THE appeal is without any merit and it is hereby dismissed. Parties to bear their own costs of the appeal.