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therefore, bid was withdrawn by the plaintiff on 13.3.1991.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) 5accepted 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”