STATE OF GUJARAT Vs. KANTILAL SHIVLAL

JUDGEMENT

(1.) This appeal by the State is directed against the judgment and decree of the learned Civil Judge Senior Division Mehsana awarding damages of Rs. 18 758 to the plaintiff in special civil suit No. 1 of 1962.

(2.) The facts giving rise to this appeal in a nut shell are as under:- The plaintiff firm was doing business in the name of Messrs. Kantilal Shivlal at Patan in Mehsana district. The firm had purchased machinery from one Mehta Shantilal Avantiram of Patan for Rs. 14 500 as per sale deed Ex. 41 dated 4-4-1955. It transpires that the said Shantilal owed about Rs. 8 0 to Government by way of sales-tax dues. In response to the notice Shantilal had given an undertaking to the State not to dispose of his property by way of sale of mortgage till he was able to pay up all the arrears and had prayed for time. Subsequently when the said Shantilal failed to pay the said amount his properties including the machinery were attached and sealed by the Mamlatdar on 16th June 1966 under the orders of the Collector. Thereafter the plaintiff approached the Collector stating that the plaintiff had purchased the said machinery from the said Shantilal Avantiram and that Shantilal had no rights title or interest in the said property. The Collector thereupon by his order released the property on condition that the plaintiff gave a solvent surety for Rs. 15 0 The plaintiff however failed to do so and thereupon the property was put to auction sale. The plaintiff then after giving a notice filed a suit being regular civil suit No. 121 of 1955 against the State for a declaration that the property attached belonged to him and for possession of the same free from attachment and for an injunction that the defendant may not auction the same. The said suit was decreed and civil appeal No. 212 of 1958 filed by the State against the said decree was dismissed by the learned District Judge Mehsana by his judgment dated 4-8-1960. In view of the above judgment of the civil Court the Mamlatdar Patan removed the said property from attachment and handed over the same to the plaintiff on 8-6-1961 after making a panchnama. It is alleged by the plaintiff that during the period the machinery remained unused and idle it was spoiled and had deteriorated as a result the plaintiff suffered great loss. According to the plaintiff he could not do business during the period and could not run the factory. He was required to pay rent of the building in which the machinery was placed. He therefore filed the suit claiming Rs. 20 693 paise in all as damages for various items as per particulars mentioned in the plaint including interest.

(3.) The State by its written statement Ex. 17 resisted the suit Or the plaintiff. The State denied that the plaintiff was the owner of the property. The State denied that Shantilal had mortgaged the said property to the plaintiff and that subsequently the plaintiff had purchased the same for Rs. 14 500 as alleged by him. According to the State all the documents were bogus and without consideration and that they were executed in order to defraud and cheat Government. The State submitted that the said documents were not binding. The State admitted that the machinery was attached on 16th June 1955. However the State had to keep possession of the machinery because the plaintiff had filed the suit and obtained a stay order. The State therefore denied its liability for any loss sustained by the plaintiff during the period the civil litigation was going on. The State denied its liability to pay any damages to the plaintiff by way of loss of his business or by way of rent which was paid by him and for deterioration of property as claimed by the plaintiff.