ABDUL SHAKUR Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) This appeal arises out of the judgment and decree passed by the Additional District Judge No. 1, Jodhpur dated 25.5.1984, dismissing the plaintiff's suit for recovery of Rs. 13,180.00 and with costs.

(2.) Facts of the case are that the plaintiff filed a suit alleging, inter alia, that the plaintiff gave the highest bid in the auction held for scrap rail of Plot No. 1 PPR, Peeper Road Station, which bid was accepted on 31.1.1967 on the terms and conditions mentioned in the auction notice. Consequent upon acceptance of the bid, necessary agreement was executed and was signed by the Auction Supervising Officer for and on behalf of the President of India. According to the plaintiff, he had deposited the entire bid money amount to Rs. 49,580.00 with the defendants vide Receipt No. 506 dated 16.8.1973 and according to Clause 4 of the agreement, in case the plaintiff failed to lift the goods within days, of receiving notice, he would be liable to pay the ground rent. The plaintiffs further case is that he gave various letters and notices, but since one Ratanlal had filed a suit, the defendant was not delivering the goods. Thereafter, on 18.8.1975, the plaintiff was sent a telegram by the defendants in response thereto. The plaintiff took delivery of the scrap rail but, at that time, a sum of Rs. 9,580.00 was illegally deducted by the defendants from the plaintiff. For refund of this amount, the plaintiff made representations, but they were turned down. Thereupon, a notice was sent by the plaintiff under Sec. 80, CPC, and getting no relief, on 19.10.1978, the present suit has been filed. The defendants contested the suit by filling written statement on 11.5.1981, inter alia, contending that the defendant would be entitled to recover from the purchaser ground rent at the rate of Rs. 2/- per day for each 1000 sq. ft. or part thereof or 2% of the value of the stores remaining underlivered for every fortnight or part thereof, whichever is higher. It was also contended that the plaintiff has suppressed material facts, inasmuch as the bid money was deposited on 16.8.1973, while auction was finalised on 31.1.67, one Ratanlal Jain had filed a suit in the Court of Second Additional Civil Judge, Agra, being Suit No. 186/73, wherein interim order was made on 12.9.1973 and appeal against that order was decided on 16.4.1974, relevant portions thereof had been quoted in the written statement. However, the matter was settled by way of compromise and it was agreed that out of the auctioned goods (134 ton), 100 ton be given to Ratanlal and remaining that be given to the plaintiff and that if any ground rent is payable, that will be paid by the respective persons in the above proportion. Accordingly, the matter was decided in the Court at Agra. It is in these circumstances that the plaintiff took delivery of the goods and the sum of Rs. 9560.80 Paise ware rightly deducted as ground rent, calculating it at the rate of 2% on the price of the goods being Rs. 12,580.00. It was thus. contended that the defendants never declined to deliver the goods and whatever delay or dispute occurred, it was on account of the plaintiff and Ratanlal, inasmuch as there has been injunction against the plaintiff and, therefore, in effecting the delivery, the order of the Court would have been disobeyed, therefore, the plaintiff did not take delivery. In para 6, it was contended that on 21.3.1975, the plaintiff himself gave his consent to the defendants to recover the sum of Rs. 9560.80 Ps. from the plaintiff and accordingly delivery was effected to the plaintiff. The contents of this consent have been reproduced in the written statement (the document about it is on record as Ex.A/1). It was contended by the defendant that the plaintiff is not entitled to go back from this consent and the suit is liable to be dismissed.

(3.) The plaintiff filed a rejoinder, inter alia, contending that the plaintiff had deposited the amount as per the terms of auction, but the defendants did not accept the bid and refunded the amount to the plaintiff. Thereupon, the plaintiff filed a writ petition in the Delhi High Court, which was accepted and the auction in favour of the plaintiff affirmed, and the amount was deposited by the plaintiff. The other pleadings that have been taken in the rejoinder are to the effect that there was no delay in taking delivery of the goods, on the part of the plaintiff, as he had taken delivery within the permissible time since receipt of notice and, therefore, no deduction could be made. Regarding undertaking also, it has simply been contended that the defendants were having an upper hand and were not prepared to effect delivery without the plaintiff giving the undertaking and after taking delivery, when he came to learn that the amount has been deducted, he made a demand, whereupon he was replied that the recovery has been rightly effected. According to the rejoinder, since the plaintiff was to despatch the goods, which was with held by the defendants, compelled under these circumstances, the plaintiff had to sign whatever papers the defendants asked him to sign, but immediately on the next day, he had sent telegram 4,5 and letter that the recovery is not justified and the amount may be refunded. Likewise, it was pleaded that the defendants were in collusion with Ratan Lal.