ILAHI BUX Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THE appellants in this first appeal are the legal representatives of the original plaintiff Hazari Mian. On 27th August, 1955, an auction of fisheries rights in respect of Baghel Tal situate in district Bahrich, took place. THE auction was proclaimed by the officers of the Fisheries Department. Hazari Mian, the original plaintiff, was the highest bidder. THE auction was for a period of three years but the basis of bidding was the amount payable for fishing rights per year. THE highest bid of the plaintiff was for Rs. 8100/- per annum. In other words, the total amount payable for the period of three years was Rs 24,300/-. Out of this amount the plaintiff deposited Rs. 4,050/- immediately, i. e., at the fall of the hammer. This was one-half of the amount of yearly bid. THE plaintiff, it seems, was contending that in terms of the conditions of auction he was required to deposit only one half of the amount payable per year inasmuch as the auction was conducted on a yearly basis. It is thus that he had deposited a sum of Rs. 4,050/- on that day. THE contention of the officers of the Fisheries Department on the other hand was that the yearly basis was only in respect of the amount of bids. THE one-half of the amount payable was however to be calcuated on the basis of the total amount due for the entire period of three years. Thus the plaintiff was required to pay the balance also on that basis. Accordingly, he deposited two further sums of he Rs. 4,650/- on 1-10-55 and 12-11-55 respectively making total of Rs. 12,150/- which represented one-half of the total amount of 24,300/- payable for the entire period of three years. THEreafter on 20-1-56 an unstamped agreement form was signed by the plaintiff. THE plaintiff was then given fisheries permit in respect of the talab in question on 9-2-56 for the period upto 30th June, 1956. On 1st August, 1956 the plaintiff was asked to furnish a general non-judicial stamp for Rs. 606/-so that a formal agreement could be executed. He submitted the requisite stamp paper and thereafter the so called agreement was signed on the same date i. e. 1-8-56. This again is unilateral document. One of the terms of this agreement was that the balance of Rs. 12,150/- was to be paid by 15-7-56. This date it is not worthy, had already been passed when the agreement dated 1-8-56 was signed by the plaintiff. He was also required under the agreement to deposit a sum of Rs. 1,215/- as security. This represented 5 percent of the total consideration money. Undisputedly the plaintiff did furnish this security. THE plaintiff deposited further sums of Rs. 5000/-, 1075/-, 700/-and 245/-on 29-3-57, 15-7-57, 17-12-57 and 30-12-57 respectively. Thus out of the balance of Rs. 12,150/- he deposited an aggregate sum of Rs. 7,020/-ieaving a balance of Rs. 5,130/- still unpaid. On 23-4-58 a letter was issued by the Government to the Director conveying its approval to the grant of permit to the plaintiff for a further period till 30-6-58 provided the plaintiff deposited the balance of Rs. 5,130/- as well. Earlier on 10-12-57 the Fish Marketing Officer had written to the plaintiff that it had been decided to determine the contract in favour of the plaintiff on account of his failure to deposit the balance of Rs. 5130/-. This letter also stated that the authorities had decided to reauction the fishery contract. THE plaintiff had however already been given a fisheries permit for a further period from 18-1-57 to 31-3-57.

(2.) THE plaintiff ultimately did not deposit Rs. 5130/- as he was insisting throughout that he was not required to deposit the balance. According to him he had already carried out his part of the bargain and was entitled to grant of fishery permit for the entire period of three years in terms of the auction. THE departmental authorities did not accept this stand. Accordingly they did not grant any further fisheries permit to him. Under the so-called agreement the departmental authorities also referred the dispute to the Director, Animal Husbandry who was the named sole arbitrator. THE plaintiff was not happy with the arbitration proceedings as they were being conducted by the Director and accordingly he filed an application in the court of the Civil Judge, Lucknow, for revocation of the so-called artbitration agreement dated 1-8-56. This was registered as Miscellaneous Case No. 22 of 1959. THE learned Civil Judge allowed the application on 23-1-61 under section 5 read with section 33 of the Arbitration Act. He held the agreement dated 1-8-56 to be not enforceable in law and accordingly he revoked the same. THE State filed an appeal against this decision in the court of the District Judge Lucknow. This was Civil Appeal No. 110 of 1961. It was decided by the Additional District Judge on 15-12-62. THE appellate court agreed with the trial court and dismissed the appeal with costs.

(3.) THE suit was contested on behalf of the State. THE learned Civil Judge, who tried the suit, held that the plaintiff himself had committed breach of contract because of his failure to deposit. THE second instalment of Rs. 12,150/- by 15-7-56 as undertaken in the agreement the court further held that the suit was barred by time. In the plaint the plaintiff had claimed the benefit of exclusion of time under section 14 of the Limitation Act. It was held by the court that section 14 was not applicable and that time could possibly be excluded only under section 37 (5), Arbitration Act. However, even after excluding the time upto the date of the order of the Civil Judge setting aside the arbitration agreement, the suit would remain time-barred. Accordingly, both, on merits and on the question of limitation, the trial court found against the plaintiff. THE suit was in consequence dismissed with costs. It may be mentioned here that the plaintiff died during the pendency of the suit and his heirs were brought on record of the trial court itself.