High Court Punjab-Haryana High Court

M/S Surinder & Company vs State Of Haryana And Others on 15 October, 2008

Punjab-Haryana High Court
M/S Surinder & Company vs State Of Haryana And Others on 15 October, 2008
Regular Second Appeal No. 1788 of 2008 (O&M)                        1




     In the High Court of Punjab and Haryana, at Chandigarh.


          Regular Second Appeal No. 1788 of 2008 (O&M)

                    Date of Decision: 15.10.2008



M/s Surinder & Company
                                                           ...Appellant
                               Versus
State of Haryana and Others
                                                       ...Respondents


CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.


Present: Mr. Mohan Jain, Senior Advocate
         with Mr. Vikram Jain, Advocate
         for the appellant.


Kanwaljit Singh Ahluwalia, J. (Oral)

The present appeal has been filed by M/s Surinder &

Company aggrieved against the judgments & decrees passed by two

Courts below.

Appellant-plaintiff had instituted a suit with a prayer of

permanent (prohibitory and mandatory) injunction to the effect that

State of Haryana, Excise & Taxation Commissioner, Haryana, Deputy

Excise & Taxation Commissioner, Hisar, and Excise & Taxation Officer,

Hisar with the powers of the Assistant Collector, Hisar, respondents-

defendants, be restrained from recovering or cause to recover any

amount from the plaintiff-appellant by resorting to coercive methods. A

further prayer for mandatory injunction was made that the defendants be
Regular Second Appeal No. 1788 of 2008 (O&M) 2

ordered to refund the amount of 5% of bid money deposited by

appellant-plaintiff.

The facts which can be gathered from the judgments of

learned two Courts below are that on 8.3.1991 auction of L2 Vends of

various groups including L2 Hansi Group was conducted at Hisar. It has

been averred that it was the duty of the officer holding auction to

demand immediate deposit equivalent to 1/3rd share of the whole

amount of bid by the successive and higher bidder. As per Excise Policy

prevailing in the year 1991-92, bid was subject to sanction and the

approval of the Excise & Taxation Commissioner, Hisar, within ten days

from the date of auction. It is stated that plaintiff being higher and

successful bidder, deposited Rs.6,61,000/- as 5% of bid money but the

remaining amount i.e. 1/3rd of the bid could not be deposited as the

atmosphere at the time of auction was not congenial. A further case of

the plaintiff was that as the bid was excessive and very high due to

illegality and irregularity committed by the officer holding auction,

therefore, bid was withdrawn by the plaintiff on 13.3.1991. A letter under

a postal certificate to this effect was posted on 13.3.1991. It was further

stated that since the bid was not accepted by the Financial

Commissioner as per condition No.2 of the Excise Policy for the year

1991-92, therefore, plaintiff was well within his rights to withdraw the bid.

Therefore, various notices issued by the defendants for recovery of the

deficiency of the license fee due to alleged re-sale are not in

consonance with law.

Notice of the suit was given to the defendants who filed written

statement controverting the facts stated in the plaint and also raised
Regular Second Appeal No. 1788 of 2008 (O&M) 3

preliminary objections. After the pleadings of the parties had concluded,

following issues have been framed by learned trial Court:-

1. Whether the order dated 25.03.91 and notice dated

10.04.91 issued by defendants are illegal, void and

not binding upon the rights of the plaintiff as

alleged? OPP

2. Whether Civil Court has no jurisdiction? OPD

3. Whether the plaintiff has no locus standi? OPD

4. Whether the suit is pre-mature, if no its effect? OPD

5. Whether the suit is bad for want of notice u/s 80

CPC? OPD

6. Whether the plaintiff is estopped from filing the

present suit by his own act and conduct? OPD.

7. Relief.

The plaintiff examined Ram Singh as PW.1 and placed

reliance upon documents Ex.P1 to Ex.P9. The defendants examined

Surinder Kumar, Excise Inspector and relied upon documents Ex.D1 to

Ex.D6.

Contention of the plaintiff that the contract stood revoked by

posting the letter dated 13.3.1991 was not accepted by learned trial

Court. Learned trial Court relied upon the testimony of Surinder Singh

DW.1, Excise Inspector, to hold that the letter never reached to the

Excise & Taxation Commissioner, Haryana, and further his deposition

on oath dated 24.7.2008 was noticed wherein he stated that the letter

regarding withdrawal is not in their possession till today. However, on

issue No.5, taking into consideration the fact that exemption in serving
Regular Second Appeal No. 1788 of 2008 (O&M) 4

prior notice upon the defendants under Section 80 CPC had been

granted by the Court, therefore, issue No.5 was decided in favour of the

plaintiff and other issues were decided against the plaintiff.

Learned Appellate Court below after analyzing the entire

evidence, returned the following findings and dismissed the appeal:-

“15. Thus, the perusal of this Clause makes it

clear that the bid has been accepted at a fall of the

hammer and the bid of the plaintiff was accepted. It

was only the prerogative of the Financial

Commissioner to reject it. Meaning thereby the

contract between the plaintiff and the Govt. was

complete and he was left with no chace so as to

withdraw the offer. Even if for argument sake, it can

be taken that the offer could have been withdrawn till

after communication from the Financial

Commissioner not rejecting the bid was

communicated to the plaintiff, there is no sufficient

evidence to show that the bid was successfully

withdrawn by the plaintiff. DW.1 has refuted by

saying that the withdrawal of the contract was never

received in the office of the Financial Commissioner.

Apart from that the offer of the bid was accepted by

District Excise and Taxation Commissioner so if any

revocation was to be communicated, then the same

ought to have been communicated to the District

Excise and Taxation Commissioner who has
Regular Second Appeal No. 1788 of 2008 (O&M) 5

accepted the bid of the plaintiff. Thus, by taking from

any angle, it cannot be said that the contract was

not complete”.

I have heard Mr. Mohan Jain, learned senior Advocate,

assisted by Mr. Vikram Jain, Advocate, on behalf of the plaintiff. He has

stated that the substantial question of law which this Court is required to

examine is “whether withdrawal of the offer before acceptance shall

terminate the contract or not?”

This Court need not go into this question as there is

concurrent finding of fact by the two Courts below that the letter of

withdrawal had not reached the Authorities, therefore, the acceptance is

binding. It is the case of the plaintiff that the letter withdrawing the bid

was posted on 13.3.1991, whereas letter of acceptance had been

issued on 15.3.1991. Therefore, it could not be assumed that the letter

had reached before communication of acceptance was issued. Reliance

has been placed by learned counsel on Union of India & Others v.

M/s Bhimsen Walaiti Ram AIR 1971 Supreme Court 2295 to say that

final bid which is subject to confirmation can be withdrawn. To fortify

this, further reliance has been placed upon The State of Madhya

Pradesh v. Hakim Singh and Another AIR 1973 Madhya Pradesh 24

wherein it has been held that the contract is is not complete till

confirmation and a bidder can withdraw before the confirmation. These

judgments can be of no help to the petitioner as they depend upon a

question of fact “whether letter of withdrawal had reached the Authorities

who had to grant the approval?”

Learned counsel further relied upon Om Parkash Bahal v.
Regular Second Appeal No. 1788 of 2008 (O&M) 6

A.K.Shroff AIR 1973 Delhi 39 to contend that mere postage should be

considered as presumption in favour of the appellant that the letter of

withdrawal had reached the Authorities.

A letter posted on 13.3.1991 has to take sufficient time to

reach before the concerned quarters. In the present case, on a decision

taken by the Financial Commissioner, a communication had been

issued on 15.3.1991 which is less than 48 hours, which is a fact which

has not been accepted by both the Courts below. Therefore, no

substantial question of law arise. There is no merit in the present appeal

and hence, same is dismissed.

(Kanwaljit Singh Ahluwalia)
Judge
October 15, 2008
“DK”