FIRM KESHRI DAL AND OIL MILL Vs. RAJASTHAN STATE INDUSTRIAL DEVELOPMENT & INVESTMENT CORPORATION, JAIPUR & ORS.

JUDGEMENT

(1.) The first appeal has been filed by the appellant-plaintiff under Sec. 96 of the CPC, challenging the judgment and decree dated 29/3/1993 passed by the Additional District and Sessions Judge No.3, Jaipur City, Jaipur (hereinafter referred as 'the Trial Court') in Civil Suit No.111/90 (532/84), whereby the Trial Court, while dismissing the suit of the appellant-plaintiff, has held that the plaintiff would be entitled to the balance amount if any remaining, after the adjustment of all the outstanding dues of the respondent-defendant Corporation, out of the auction sale consideration received by the Corporation, subject to payment of Court Fees by the plaintiff.

(2.) The short facts, giving rise to the present appeal, are that the plaintiff had initially filed the suit seeking declaration and injunction challenging the auction proceedings conducted by the respondent Corporation on 23/6/84 in respect of the plot bearing No.F-424, situated in Vishwakarma Industrial Estate, Jaipur. The original plaint of the appellant-plaintiff was amended, and the plaintiff as per the amended plaint confined the prayer as regards the declaration to the effect that the plaintiff was not liable to pay any charges after 3/3/1981 to the respondent defendant Corporation, and that the auction proceedings held by the defendant Corporation on 23/6/84 was illegal and unauthorised. The plaintiff had also sought the permanent injunction for restraining the defendant corporation from accepting the bid of any bidder in respect of the plot in question and from proceedings further with the auction proceedings, and also seeking direction to hand over the goods/articles lying in the factory by appointing the Commissioner. It was also alleged in the plaint by the plaintiff inter-alia that the plaintiff was a registered partnership firm whose partners were Ram Chandra Goyal and Smt. Kanta Goyal. The defendant No.1-Corporation, on the application made by the plaintiff had allotted one plot bearing No.F-424, admeasuring 1932 square metres with the shed admeasuring 80'x40' situated at Vishwakarama Industrial Estate, Jaipur on 23/1/1979. According to the plaintiff, it had made the payment of Rs.13,000.00 towards the cost of plot and shed, and the plaintiff had to make payment of the balance amount, however due to initial financial crunches in the industry of Dal Mill, some delay had occurred in making said payment of balance amount. According to the plaintiff, the respondent Corporation on the basis of the agreement of hire purchase, which was got signed from the partner of the plaintiff firm on cyclostyle form, took illegal possession of the said plot and shed. It is also case of the plaintiff that there were plants and machineries and other equipments lying in the said factory premises of the plaintiff, which were taken away by the respondent Corporation without following the due process of law. Though the plaintiff had requested to give back the possession of the said factory, and give re-schedulement of payment of loan, the respondent Corporation without considering the said request, had put to auction the entire plot and the factory premises of the plaintiff on 23/6/1984 pursuant to the advertisement published in the local daily Rajasthan Patrika on 20/6/1984. It was further alleged that one Doongarmal Sharma of Doongarmal & Company, the defendant No.2 had participated in the said auction and his bid was accepted for an amount of Rs.4,45,000.00, though the value of the said property was more than Rs.6 lakhs. The appellant plaintiff therefore had filed the suit challenging the auction proceedings and sought declaration and injunction as stated herein-above.

(3.) The said suit was resisted by the respondent No.1-defendant No.1 Corporation by filing the written statement denying the allegations made in the plaint and further contending interalia that the plaintiff had failed to make payment of the dues of the defendant since March, 1976, despite number of notices having been given to it, and therefore, by way of last resort, the defendant had cancelled the allotment on 26/11/1979 and taken over the possession of the plot and shed, under the provisions contained in Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (hereinafter referred to as 'the said Act'), and that the plaintiff had not challenged the said proceedings by preferring appeal under the said Act. According to the said defendant, the plaintiff therefore could not have challenged the said proceedings by way of suit. It was also contended that the plaintiff had mortgaged the shed constructed by it on the plot in question with the Rajasthan Finance Corporation by taking loan, however the defendant corporation had the first charge over the entire property, and therefore, the Financial Corporation would be entitled to the balance amount after the adjustment of defendant corporation's dues from the amount realized by auctioning the said property, and not the plaintiff. It was also contended that the auction proceedings were conducted after following the due process of law and the bid of the highest bidder was also accepted. The defendant Corporation had also raised the preliminary objection by contending that the suit was under valued, and the plaintiff had not paid the proper Court fees as even according to the plaintiff the value of the property was more than Rs.6 lakhs.