JUDGMENT ( 1. ) S.A.No.183 of 2006:- The Appellant/Defendant has filed the instant Second Appeal as against the Judgment and Decree dated 19/8/2005 in A.S.No.119 of 2004 passed by the Learned Additional Sub-Judge, Tenkasi in confirming the Judgment and Decree dated 8/9/2004 in O.S.No.150 of 2004 passed by the Learned District Munsif, Tenkasi. ( 2. ) S.A.(MD) No.184 of 2006:- The Appellant/Plaintiff has filed the present Second Appeal as against the Judgment and Decree dated 19/8/2005 in A.S.No.120 of 2004 passed by the Learned Additional Sub-Judge, Tenkasi, in confirming the Judgment and Decree dated 8/9/2004 in O.S.No.53 of 2004 passed by the Learned Principal District Munsif, Tenkasi. The PLAINT FACTS IN O.S.No.150 OF 2004 (Earlier filed as O.S.No.184 of 2001 on the file of the Sub-Court, Tenkasi - A.S.No.119 of 2004):- The Respondent/Municipality in respect of its newly constructed weekly shanday has put in auction, the right of collecting fee from persons, who occupy 56 shops for the period from 1/4/1999 till 31/3/2000. The public auction has been adjourned. Later, on 10/3/1999, a pubic auction has been conducted and the Appellant/Defendant has been the successful bidder for Rs.1,70,000/- and has taken the right of collecting the fee from the shop keepers who run the business. ( 3. ) THE 56 shops have been built for the benefit of persons who have been already doing the business in the weekly shanday. Previously, persons have been doing business in the weekly shanday without shops being divided for the benefit and enjoyment of the shop keepers, who are doing business in weekly shanday place, 56 shops have been constructed for the conduct of the business. THE Municipality Revolution Nos.1 and 2 dated 21/1/1999 has sanctioned the conduct an auction in regard to the shops and in this regard, the same has been published in daily newspapers. Only after satisfying with the construction of nature of shops, its physical features, etc., the persons participated in the auction have inspected and subsequently, they have taken part in the auction. THE Appellant/Defendant for participating in the auction has deposited a sum of Rs.40,000/- on 10/3/1999 as an advance. THE auction of the Appellant/Defendant has been confirmed in Resolution No.57/99 of the Plaintiff/Municipality and the permission/sanction order has been issued to the Appellant/Defendant on 26/3/1999. THE Appellant/Defendant for participating in the auction has deposited a sum of Rs.40,000/- on 10/3/1999 as an advance. THE auction of the Appellant/Defendant has been confirmed in Resolution No.57/99 of the Plaintiff/Municipality and the permission/sanction order has been issued to the Appellant/Defendant on 26/3/1999. After receiving the permission/sanction order, the Appellant/Defendant has accepted the auction and has deposited the auction amount and he has paid a sum of Rs.45,525/- in the office of the Municipality on 31/3/1999. ( 4. ) THE balance amount to be paid by the Appellant/Defendant has not been paid by him. THE balance amount will have to be paid per month at the rate of Rs.14,175/- for nine months and the same will have to be paid before the 10th of each month and from April 1999, it has to be paid. In case of default, the Appellant/Defendant has to pay the balance amount together with interest at the rate of 24% p.a. A notice dated 3/6/1999 and 2/7/1999 has been issued to the Appellant/Defendant by the Respondent/Plaintiff Municipality, but no reply has been sent. But the Appellant/Defendant on 13/8/1999 filed O.S.No.240 of 1999 on the file of Sub-Court, Tenkasi (later taken on file as O.S.No.53 of 2004 on the file of the District Munsif Court, Tenkasi) and I.A.No.854 of 1999 has been filed in O.S.No.150 of 2004 wherein, an interim stay has been obtained. The Respondent/Plaintiff has no responsibility to make the shop keepers to run shops. There are no conditions to that effect. The Appellant/Defendant has to pay a sum of Rs.94,803.75 to the Respondent/Municipality. As per auction conditions in the aforesaid amount, the Respondent/Municipality is entitled to collect interest at the rate of 24% p.a. However, the Respondent/Municipality extracted its claim of interest at 12% p.a. Hence, the Respondent/Plaintiff has filed a suit against the Appellant/Defendant for recovery of a sum of Rs.94,803.75 together with interest at 12% p.a., from the date of filing of the suit till date of realisation along with costs. ( 5. ) WRITTEN STATEMENT PLEAS:-The Appellant/Defendant has taken a stand that he has taken in auction the right of collecting fees from the shop keepers, who conduct business in 56 shops newly constructed at the weekly Shanday belonging to the Respondent/Plaintiff/Municipality. ( 5. ) WRITTEN STATEMENT PLEAS:-The Appellant/Defendant has taken a stand that he has taken in auction the right of collecting fees from the shop keepers, who conduct business in 56 shops newly constructed at the weekly Shanday belonging to the Respondent/Plaintiff/Municipality. For the period from 1/4/1999 till 31/3/2000, auction has been conducted on 7/2/1999, later adjourned and on 10/3/1999, the Appellant/Defendant being the highest bidder has been successful in the bid and has taken the right of collecting the daily fee from the shop keepers at a cost of Rs.1,70,000/- and has remitted a sum of Rs.40,000/- on the date of auction and has taken a receipt. On 31/3/1999, 1/4th collection amount of Rs.42,525 has been remitted by the Appellant/Defendant and in all, the Appellant/Defendant has remitted a sum of Rs.82,525/-. ( 6. ) THE 56 shops have been newly constructed by the Respondent/Municipality. THE business people have not come forward to run the shop and also they have not occupied their shops. THE Respondent/Plaintiff Municipality has not made arrangement and also has not made any facility for the conduct of business in the said shops in weekly shanday. For 56 shops in the shanday, no doors have been fixed. No electricity facility has been provided in the shops. THEre is no security for the shops. THE surrounding environment is not proper in the conduct of business in the said shops. No white washing has been done for the said shops. No one has come forward to conduct or run a business in the aforesaid shops. THEre are litigations as to who should be given the shops. Since the shop keepers have not come forward to run business in 56 shops, the Appellant/Defendant cannot collect the daily fee from them. THE responsibility lies on the Respondent/Municipality to make the shop keepers to conduct or run business in 56 shops. THE auction has become frustrated. THE Appellant/Defendant's auction has not been accepted legally. THEre is no concluded contract between the parties. THE auction conducted on 10/3/1999 has become infructuous. THEre is no agreement entered into between the parties as per Section 69 of the Tamil Nadu District Municipalities Act. THE Appellant/Defendant has not reaped the benefits of auction. The enjoyment of the right of 56 shops has not been given to the Appellant/Defendant. The Appellant/Defendant is not liable to pay a sum of Rs.94,803.75 to the Respondent/Plaintiff. THEre is no agreement entered into between the parties as per Section 69 of the Tamil Nadu District Municipalities Act. THE Appellant/Defendant has not reaped the benefits of auction. The enjoyment of the right of 56 shops has not been given to the Appellant/Defendant. The Appellant/Defendant is not liable to pay a sum of Rs.94,803.75 to the Respondent/Plaintiff. The Respondent/Plaintiff is not entitled to claim the suit amount and the interest. There is no cause of action for the Respondent/Municipality to file the suit. ( 7. ) THE PLAINT FACTS IN O.S.No.53 OF 2004 (Earlier filed as O.S.No.240 of 1999 on the file of the Sub-Court, Tenkasi - A.S.No.120 of 2004):- The Appellant/Plaintiff has taken the right of collecting the fee from 56 shops in the new building constructed by the Respondent/Defendant Municipality for weekly shanday, in respect of the year 1999 - 2000 (1/4/1999 till 31/3/2000) and for enjoying the said right of one year, the auction has been scheduled on 17/2/1999 and later, the same has been adjourned. On 10/3/1999, in the auction held, the Appellant/Plaintiff has been the successful bidder and has taken the rights of collecting daily fee in the weekly Shanday market and has deposited a sum of Rs.40,000/- as an auction deposit and received the receipt. On 31/3/1999, the Appellant/Plaintiff has deposited 1/4th share of Rs.42,525/- from and out of Rs.1,70,000/- and has obtained the receipt therefor. Till date, the Appellant/Plaintiff has paid a sum of Rs.82,525/-. In the building belonging to the Respondent/Defendant/Municipality, 56 shops have been newly constructed. No one has occupied the said 56 shops. The Respondent/Defendant has not made arrangements for the shop keepers to conduct business. The Respondent/Defendant has not made arrangements to conduct auction for the said right. The right of collecting the fee in the auction conditions has been mentioning as if the same has been put on auction (the right of collecting fee from those who run business in the shops), the Appellant/Plaintiff's auction bid has not been accepted by the Respondent/Defendant. The Respondent/Defendant has also not confirmed the said auction bid taken by the Appellant/Plaintiff. The Respondent/Defendant has not obtained a concluded agreement from the Appellant/Plaintiff. ( 8. ) SINCE the environment conditions surrounding the shops are not conducive to run business and also since the building has not been white washed, no one has come forward to conduct business in the said shops. The Respondent/Defendant has not obtained a concluded agreement from the Appellant/Plaintiff. ( 8. ) SINCE the environment conditions surrounding the shops are not conducive to run business and also since the building has not been white washed, no one has come forward to conduct business in the said shops. The Appellant/Plaintiff cannot collect the shop fee from 56 shops because of the reason that no one has come forward to conduct business. The Respondent/Defendant has the responsibility in making the persons to conduct the business in the said shops. The Respondent/Defendant has not made arrangements in this regard. Therefore, the auction has become frustrated. The right of collecting the fee from the persons who conduct business in the weekly Shanday at the newly constructed 56 shops belonging to the Respondent/Municipality, the auction conducted on 10/3/1999 is a void one. Hence, the Appellant/Plaintiff has filed a suit praying for a declaration that the auction conducted on 10/3/1999 in 56 shops belonging to the Respondent/Defendant's Municipality building is a void one. Also, the Appellant/Plaintiff has sought the relief of permanent injunction restraining the Respondent/Defendant from collecting any lease amount from the Appellant/Plaintiff. Further, the Appellant/Plaintiff has also sought a recovery of a sum of Rs.82,525/- together with interest from the Respondent/Defendant. Written STATEMENT PLEAS:- The averment of the Appellant/Plaintiff that nobody has commenced business in 56 shops and that the Respondent/Defendant has not made arrangements for the same are false. The Respondent/Defendant has not given any undertaking to make arrangements in regard to the auction right of doing the business in 56 stalls. Further, it has not formed part of the auction conditions published by the Respondent/Defendant. The Appellant/Plaintiff being the highest bidder has a right to collect the fees from the vendor who do business in the shops. It is not the concerned of the Respondent/Defendant to make arrangements for the vendors to occupy the shops, so as to enable the Appellant/Plaintiff to collect the fees from such vendors. The Appellant/Plaintiff's bid was accepted and confirmed by the Appellant/Plaintiff, by Resolution No.57 dated 23/3/1999. The Appellant/Plaintiff paid 1/4th amount of the total bid amount only after being intimated of the same. ( 9. ) THE Appellant/Plaintiff cannot be hard to say that the shops have no doors, no electricity, etc. If nobody is coming forward to occupy the shop, it is the concern of the Appellant/Plaintiff. The Appellant/Plaintiff paid 1/4th amount of the total bid amount only after being intimated of the same. ( 9. ) THE Appellant/Plaintiff cannot be hard to say that the shops have no doors, no electricity, etc. If nobody is coming forward to occupy the shop, it is the concern of the Appellant/Plaintiff. THE Respondent/Defendant is not responsible for it. THE Appellant/Plaintiff has to make all arrangements to make business in the shops. ( 10. ) THE averment that auction is not accepted and further, there is no Concluded Contract as the Appellant/Plaintiff has not executed any written agreement are all false. THE execution of a written agreement is only a formality. THE Appellant/Plaintiff's bid has been confirmed by the Respondent/Defendant and since he has paid 1/4th amount as part performance of his contract, he is estopped from contending that there is no Concluded Contract between the parties. Only after accepting the terms and conditions of the auction notice, the Appellant/Plaintiff has taken part in the auction. Even in the orders passed by the Respondent/Defendant, it is mentioned that the Appellant/Plaintiff should pay the instalment amount of Rs.14,175/- p.m. But the Appellant/Plaintiff failed to comply with the conditions. The Appellant/Plaintiff has committed breach of the contract. Because of the non-payment of Rs.14,175/-, every month, the Respondent/Defendant's Municipality is incurring loss. The Respondent/Defendant has got every right to collect the auction amount from the Appellant/Plaintiff. The averment that auction dated 10/3/1999 is invalid and is devoid of any merit. The Appellant/Plaintiff, after accepting the auction condition is not entitled to demand a sum of Rs.82,525/- from the Respondent/Defendant. ( 11. ) BEFORE the trial Court, O.S.Nos.150 of 2004 and 53 of 2004 have been tried jointly. In O.S.No.150 of 2004, two issues have been framed for trial. In O.S.No.53 of 2004, 1 to 4 issues have been framed for trial. A common evidence has been let in in two suits. On behalf of the Appellant/Plaintiff (in O.S.No.53 of 2004), witness P.W.1 has been examined and Exs.A.1 to A.4 have been marked. On the side of the Respondent/Defendant's Municipality, D.W.1 has been examined and Exs.B.1 to B.10 have been marked. ( 12. ) THE trial Court, on an appreciation of oral and documentary evidence has interalia come to the conclusion that the Appellant/Plaintiff in O.S.No.53 of 2005 is not entitled to get the relief of permanent injunction and dismissed the suit without costs. ( 12. ) THE trial Court, on an appreciation of oral and documentary evidence has interalia come to the conclusion that the Appellant/Plaintiff in O.S.No.53 of 2005 is not entitled to get the relief of permanent injunction and dismissed the suit without costs. However, it has decreed O.S.No. 150 of 2004 filed by the Plaintiff/Municipality holding that the Appellant/Defendant in O.S.No.150 of 2004 is liable to pay the suit amount of Rs.94,803.75 from the date of plaint till the date of decree together with interest at 12% p.a., and thereafter, to pay interest at 6% p.a., from the date of decree till the date of realization along with costs. Being dissatisfied with the Judgment and Decree made by the trial Court in O.S.No.150 of 2004 and 53 of 2004, the Appellant has filed the two Appeals in A.S.Nos.119 and 120 of 2004 before the First Appellate Court. ( 13. ) THE First Appellate Court viz., the Additional Sub-Judge, Tenkasi, while passing a common judgment in A.S.Nos.119 and 120 of 2004, on 19/8/2005 has inter alia opined that the two Appeals are not to be allowed and resultantly, dismissed both the appeals by confirmed the Judgment and Decree dated 8/9/2004 in O.S.Nos.150 of 2004 and 53 of 2004 without costs. ( 14. ) FEELING aggrieved against the Judgment and Decree dated 19/8/2005 made in A.S.Nos.119 and 120 of 2004, the Appellant/Plaintiff/Defendant has projected the two Second Appeals before this Court. At the time of admission of the Second Appeals, this Court has formulated the following substantial questions of law:- "1. Whether the lease in favour of the appellant is hit by the provisions of Sections 68 and 69 of the Tamil Nadu District Municipalities Act and therefore, it is void? 2. Whether the respondent Municipality is liable to pay back the amounts received by it from the appellant under the provisions of the Act? 3. Whether there has been frustration of the contract?" ( 15. ) THE CONTENTIONS, DISCUSSIONS AND FINDINGS ON SUBSTANTIAL QUESTIONS OF LAW:-The learned counsel for the Appellant/Defendant submits that both the Courts should have held that there is no enforceable contract between the Plaintiff and the Defendant. ( 16. 3. Whether there has been frustration of the contract?" ( 15. ) THE CONTENTIONS, DISCUSSIONS AND FINDINGS ON SUBSTANTIAL QUESTIONS OF LAW:-The learned counsel for the Appellant/Defendant submits that both the Courts should have held that there is no enforceable contract between the Plaintiff and the Defendant. ( 16. ) ACCORDING to the learned counsel for the Appellant/Defendant, the ingredients of Sections 68 and 69 of the Tamil Nadu District Municipalities Act, 1920 are mandatory in character and since the contract is void in law, there is non-compliance of the provisions of Sections 68 and 69 of the Act. Advancing his argument, the learned counsel for the Appellant/Defendant submits that no doors have been fixed in the shops and no electricity supply has been provided to 56 shops in the building belonging to the Municipality and no business man will occupy an unfurnished shop which aspect of the matter has not been adverted to by the trial Court as well as by the First Appellate Court. ( 17. ) THE learned counsel for the Appellant/Defendant urges before this Court in as much as the shops are not been occupied by the shop keepers/tenants because of the unfurnished nature of the building, the Appellant is not liable to pay the lease amount. ( 18. ) LASTLY, it is the contention of the learned counsel for the Appellant/Defendant that there is a total frustration of the contract and the Courts below have not adverted to the admission made by D.W.1 which has resulted in serious miscarriage of justice. Per contra, it is the contention of the learned counsel for the Respondent/Municipality that both the Courts have come to the conclusion on an analysis of oral and documentary evidence available on record to the effect that the Judgment and Decree passed by the trial Court in O.S.Nos.150 and 53 of 2004 are not liable to be interfered with and resultantly, dismissed the two appeals in A.S.Nos.119 and 120 of 2004 filed by the Appellant, which need not be interfered with by this Court. ( 19. ) THIS Court has heard the learned counsel appearing for the parties and noticed their contentions. ( 20. ) IN Ex.A.1, the Respondent/Municipality, licence/auction and tender notice for the year 1999 - 2000, it is mentioned that on 21/1/1999 Resolution Nos.1 and 2 have been accorded the approval. ( 19. ) THIS Court has heard the learned counsel appearing for the parties and noticed their contentions. ( 20. ) IN Ex.A.1, the Respondent/Municipality, licence/auction and tender notice for the year 1999 - 2000, it is mentioned that on 21/1/1999 Resolution Nos.1 and 2 have been accorded the approval. The Condition No.12 of Ex.A.1 auction/tender notice for the year 1999 - 2000 refers to the fact that within ten days, after acceptance of the auction, the lessee at his own acceptance in Rs.10/- stamp paper has to execute an agreement in respect of himself and persons claiming his property, administrators, executors, etc. The special condition No.10 relating to the Municipality weekly shanday (in respect of collection of fee from persons who conduct business in 56 shops) speaks of the fact that the lesseee can collect Rs.20/- per day per shop. It is the evidence of P.W.1 (plaintiff in O.S.No.53 of 2004) that he has not personally inspected 56 shops and in Ex.A.1 auction notice what are all the concessions offered to the highest successful bidder has not been mentioned and that auction is taken place on 10/3/1999 and further, as per Ex.B.1 deposit receipt, he has remitted a sum of Rs.40,000/- in which he has signed and it is not correct to state that only after inspecting 56 shops, he has taken part in the auction and also that he has paid a sum of Rs.42,525/- being 1/4th share of the auction amount. ( 21. ) D.W.1 in his evidence (Revenue Inspector of the Municipality) has deposed that that after construction of 56 shops for the first time, for one year, they have let out the shops in auction for the period from 1/4/1999 to 31/3/2000 and the Municipality has not handed over the shops for the period from 1/4/1999 till 31/3/2000 to the enjoyment of the Appellant/Defendant. D.W.1 in his evidence has categorically admitted that after the Appellant/Defendant taking 56 shops in auction, no one has conducted the business in the said shops. ( 22. D.W.1 in his evidence has categorically admitted that after the Appellant/Defendant taking 56 shops in auction, no one has conducted the business in the said shops. ( 22. ) ADDED further, it is the evidence of D.W.1 that as per auction conditions, the business has to be conducted in 56 shops and there is no condition that the shop keepers to conduct business in 56 shops will have to be brought in by the lessees and further that there is no electricity connection in 56 shops and for 56 shops they have constructed, no doors are required. At this juncture, the learned counsel for the Appellant/Defendant submits that the lease in favour of the Appellant/Defendant, he is hit by Sections 68 and 69 of the Tamil Nadu District Municipalities Act, 1920 and therefore, it is void. ( 23. ) TO lend support to the contention, the learned counsel for the Appellant/Defendant submits that a contract entered into by the Municipality and the contracting party, shall be in conformity with Section 68 (1) and (2) and Section 69 of the Tamil Nadu District Municipalities Act, 1920 and if it is otherwise, the same will not bind the parties and it is unenforceable by either contracting party or the Municipality. ( 24. ) IT cannot be gain said that though a contract is void as per Section 68 of the Madras Municipalities Act, the benefit received must be restituted as per Section 65 of the Contract Act, as per decision MADURA MUNICIPALITY Vs. K.ALAGIRISAMI NAIDU reported in AIR 1999 MADRAS - 957. It is useful to refer to section 68 of the Tamil Nadu District Municipalities Act, 1920, which runs as follows:- (1) A council of the grade specified in column (1) of the Table below may delegate to the chairman or to a committee consisting of two or more members the power of making on its behalf any contract the value or amount whereof does not exceed the sum specified in the corresponding entries in column (2) of that Table:- Grades Maximum value or amount (Rs.) (1) (2) 1. (a). Special Grade Municipalities 50,000 (b). Selection Grade Municipalities 40,000 2. (a). Special Grade Municipalities 50,000 (b). Selection Grade Municipalities 40,000 2. I Grade Municipalities 30,000 II Grade Municipalities 20,000 III Grade Municipalities and Town Panchayats 10,000 Provided that in the case of Municipalities included in Schedule IX or notified under sub-section (1) of Section 12 - C, the power of making on behalf of the council all contracts shall be exercised by a committee consisting of the chairman, the Commissioner and one member of the council elected by it; and the council shall not exercise or delegate the power of making such contracts. {Explanation was omitted by Tamil Nadu Municipal Laws (sixth Amendment) Act, 2008 (Tamil Nadu Act 38 of 2008).} Before its omission, Explanation read as follows:- Explanation - The average annual income shall, for the purpose of this Table, be calculated under General Account Ordinary for three consecutive financial years immediately preceding the financial year in which such calculation is made. In respect of a contract the value or amount whereof exceeds the sums specified in column (2) of the Table under sub-section (1), the sanction of the council for the making thereof shall be obtained before the same is made. Notwithstanding anything in the two preceding sub-sections, any person appointed by the {State Government} to carry any work into execution on behalf of a municipal council may, subject to such control as the {State Government} may prescribe, make such contracts as are necessary for the purpose of carrying such work into execution to the extent of the sum provided for such work; and the municipal council shall pay to the person so appointed such sums as may be required for the said purpose to the extent aforesaid. ( 25. ) ALSO Section 69 of the Tamil Nadu District Municipalities Act, 1920 enjoins thus:- (1) Every contract made by, or on behalf of, a council, where of the value or amount exceeds {one hundred rupees} shall be in writing and except in the case of contracts made under the provisions of sub-section (3) of Section 68 shall be signed by two municipal councilors: Provided that in the case of municipalities included in Schedule IX or notified under sub-section (1) of Section 12 - C, every such contract shall be signed by the Commissioner. A contract executed or made otherwise than {in conformity with the provisions of this section, or section 68, and of the rules referred to in Section 68 - A} shall not be binding on the municipal council." ( 26. ) THE Learned counsel for the Appellant/Defendant cites a Full Bench decision of this Court in THE CORPORATION OF MADRAS BY ITS COMMISSIONER Vs. M.KOTHANDAPANI NAIDU reported in 1954 (2) MLJ - 743, wherein it has held hereunder:- "A contract entered into between a municipality and a contractor which does not conform to the requirements and statutory formalities of Section 81 (1) and (2) of the Madras City Municipalities Act is not enforceable as such by either party, i.e., the Municipality or the other contracting party. Sub-section (3) of Section 8 (1) of the Act is merely intended to express and enforce the legal result which flows from sub-sections (1) and (2), viz., that it is not binding on the Corporation. If under the terms of sub-sections (1) and (2) of the Act which are mandatory, the contract is not binding on the other party as well, that result is not intended to be affected or varied by the provision referring to the Corporation in sub-section (3). THEre could not at the same time be a contract of which there could be breach at the instance of a municipal body, but which does not exist for the purpose of a claim against such a body for breach thereof." In the instant case, D.W.1 (Revenue Inspector of the Municipality) has candidly admitted in his evidence that the Municipality has not handed over the possession/enjoyment of 56 shops to the Appellant/Defendant in respect of the period from 1/4/1999 till 31/3/2000. ( 27. ) BETWEEN the parties, viz., the Appellant/Defendant and the Respondent/Municipality, no concluded contract has taken place. Admittedly, the Respondent/Municipality has not completed the construction of 56 shops in the weekly shanday. Even though, the Appellant/Defendant is a successful bidder in the auction, since the construction of 56 shops has not been completed, he cannot collect the fee from the shop keepers, especially when no shop keeper has come forward to conduct business in any one of the 56 shops in issue. Even though, the Appellant/Defendant is a successful bidder in the auction, since the construction of 56 shops has not been completed, he cannot collect the fee from the shop keepers, especially when no shop keeper has come forward to conduct business in any one of the 56 shops in issue. The lease in favour of the Appellant/Defendant is hit by the ingredients of Sections 68 and 69 of the Tamil Nadu Municipalities Act, 1920 because of the simple fact that even though the Appellant/Defendant is the successful bidder, he has not been given the completed construction of 56 shops for the purpose of collecting the daily fee from the shop keepers. In short, there is a frustration of contract and it has become an impossibility of performance. Further, the reason being no one has come forward to do business in the said 56 shops. The lease in favour of the appellant dated 10/3/1999 has become an infructuous one and also the auction too has become futile. When there is no concluded contract between the parties in regard to the collection of daily fee from 56 shops belonging to the Respondent/Municipality, then the Respondent/Municipality cannot withhold the amount of Rs.85,525/- received by it from the Appellant/Defendant. In the absence of the execution of Contract as per Section 69 of the Tamil Nadu District Municipalities Act, 1920, the Respondent/Municipality, cannot hold back the money received from the Appellant/Defendant. Instead, it is liable to pay to the Appellant/Defendant the amount of Rs.85,525/- received by it. Moreover, since the Respondent/Municipality has not completed the construction of shops, it cannot take a stand that the Appellant/Defendant has failed to comply with the auction conditions. As such, the claim of the Municipality that the Appellant/Defendant should pay an instalment amount of Rs.14,175/- p.m., is clearly untenable in law. In any event, the claim of the Respondent/Municipality against the Appellant/Defendant for a sum of Rs.94,903.75 with interest at 12% p.a., from the Appellant/Defendant is illegal and invalid in law. Accordingly, the substantial questions of law Nos.1 to 3 are answered in favour of the Appellant/Defendant. ( 28. ) IN the result, both the Second Appeals are allowed. In any event, the claim of the Respondent/Municipality against the Appellant/Defendant for a sum of Rs.94,903.75 with interest at 12% p.a., from the Appellant/Defendant is illegal and invalid in law. Accordingly, the substantial questions of law Nos.1 to 3 are answered in favour of the Appellant/Defendant. ( 28. ) IN the result, both the Second Appeals are allowed. The suit in O.S.No.53 of 2004 filed by the Appellant/Defendant (as plaintiff) before the Sub-Court, Tenkasi is decreed and it is held that the auction held on 10/3/1999 is a void one, besides the same not coming into force and accordingly, the relief of declaration is granted. Further, the Appellant/Defendant is entitled to recover the sum of Rs.85,525/- from the Respondent/Municipality/Defendant together with interest at the rate of 6% p.a., from 31/3/1999 till the date of realisation with costs. Resultantly, the suit filed by the Respondent/Municipality (as plaintiff in O.S.No.184 of 2000) on the file of the Sub-Court, Tenkasi (later O.S.No.150 of 2004), claiming a sum of Rs.94,803.75 from the Appellant/Defendant (plaintiff in O.S.No.53 of 2004 together with interest at 12% p.a., from the date of filing of the plaint till the date of realisation is dismissed to prevent an aberration of justice.