IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 71 of 1997()
1. N.K.MOHAMMED
... Petitioner
Vs
1. OLAVANNA PANCHAYATH
... Respondent
For Petitioner :SRI.V.V.SURENDRAN
For Respondent :SRI.P.V.KUNHIKRISHNAN
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :04/02/2009
O R D E R
P.N.Ravindran, J.
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A.S. No.71 of 1997
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Dated this the 4th day of February, 2009.
JUDGMENT
The defendant in O.S.No.861 of 1993 on the file of the Court of
the Subordinate Judge of Kozhikode is the appellant in this appeal. The
respondent is the plaintiff therein. The suit instituted by the respondent
for realisation of the sum of Rs.39,644.85 together with interest thereon
at 12% per annum on the principal sum of Rs.33,315/- from the date of
suit till realisation was decreed as prayed for. Hence this appeal.
2. The plaintiff is the Olavanna Grama Panchayat. The right to
remove sand from the Chaliyar river flowing through the Olavanna Grama
Panchayat was sold in public auction held on 29.2.1992, pursuant to
Ext.A1 auction notice dated 13.2.1992. The appellant was the successful
bidder in the auction and the right to remove sand from the Chaliyar
river for the period from 1.4.1992 to 31.3.1993 was knocked down in his
favour for the sum of Rs.50,050/-. As per the terms of Ext.A1, the
appellant deposited the sum of Rs.1000/- as security deposit on the date
of auction and Ext.B1 receipt was thereupon issued to him. Though as
per Ext.A1 notice, the successful bidder was bound to remit 1/3rd of the
bid amount immediately, the appellant remitted the same only on
14.3.1992 as is evident from Ext.B2. The appellant thereafter entered
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into Ext.A3 agreement on 16.3.1992 with the plaintiff.
3. As per the terms of Ext.A3, the appellant had to remit the
balance bid amount in 8 instalments of Rs.3,818/- during the period
from May to December, 1992 and the balance Rs.3,821/- as the last
instalment in January, 1993. The appellant did not remit the
instalments. The Panchayat thereupon issued Ext.A4 notice dated
5.5.1992 calling upon him to remit the instalments that have fallen in
arrear together with interest. The appellant did not reply to Ext.A4
notice. The Panchayat thereafter issued Ext.A5 notice dated 17.10.1992
calling upon the appellant to remit the arrears failing which he was
informed that the right to remove sand will be re-auctioned at his risk.
The appellant did not remit the arrears. Instead, he sent Ext.B3 letter
dated 24.11.1992 disputing his liability to pay the amount. He
contended that as the road to the river bed was not motorable he could
not remove sand. The Committee of the Panchayat that met on
12.1.1993 considered the reply sent by the appellant and resolved to
cancel Ext.A3 agreement and to re-auction the right to remove sand at
the risk and cost of the appellant. The resolution of the Panchayat is
evidenced by Ext.A6. The appellant was informed of Ext.A6 resolution in
Ext.A4 letter dated 13.1.1993. A re-auction was held on 29.1.1993 and
the right to remove sand during the period from 29.1.1993 to 31.3.1993
was knocked down in favour of a Society for the sum of Rs.1050/-. In the
suit, the Panchayat sought to recover the loss sustained by it in the re-
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auction conducted on 29.1.1993.
4. The appellant resisted the suit contending that he had entered
into Ext.A3 agreement on the assurance given by the Panchayat and that
the road to the river bed would be rendered motorable, that as the road
was not rendered motorable, he could not collect or remove sand from
the river bed and that he is therefore entitled to refund of the security
deposit and the advance remitted by him. He also filed a counter claim
seeking refund of the sum of Rs.16,685/- deposited by him. The trial
court on an analysis of the evidence oral and documentary available in
the case held that the case set up out the appellant that he could not
remove sand as the road to the river bed was not motorable cannot be
accepted. The suit was accordingly decreed as prayed for.
5. Sri.P.A. Harish, the learned counsel appearing for the appellant
contended that the judgment of the court below is not sustainable in law
and the evidence on record. The learned counsel for the appellant also
contended that the court below has not taken note of the testimony
tendered by PWs 2 and 3 who were former members of the Panchayat in
support of the defendant’s contention that the road to the river bed was
not motorable. The learned counsel for the appellant further contended
that as the road was not motorable, the defendant could not remove
sand and as the Panchayat did not take steps to provide access to the
river bed, the contract stood frustrated.
6. It is not in dispute that after the initial deposit of Rs.1000/- on
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the date of auction, namely, 29.2.1992 and 1/3rd of the bid amount
namely Rs.16,685/- on 4.3.1992, the appellant has not remitted the
amounts payable by him under Ext.A3 agreement. As the appellant did
not remit any of the instalments payable under Ext.A3 agreement, the
Panchayat issued Ext.A4 notice dated 5.5.1992 calling upon him to remit
the arrears of instalments due. The appellant did not reply to the said
notice. Later, Ext.A5 notice dated 17.10.1992 was issued to which he
sent Ext.B3 reply, wherein for the first time, he contended that he could
not remove sand as the road to the river bed was not motorable. The
Panchayat thereafter proceeded to consider the issue and decided in the
meeting that held on 12.1.1993 to cancel the auction in favour of the
appellant and to re-auction the right to remove sand at the risk and cost
of the appellant. In the re-auction the price fetched was only Rs.1,050/-.
Ext.A3 authorised the Panchayat to recover from the successful bidder in
the first auction the loss if any sustained by it in the re-auction. The
evidence on record proves that the appellant did not remit the
instalments payable as per Ext.A3 agreement and therefore, the
Panchayat was forced to re-auction the right to remove sand for a
nominal sum of Rs.1,050/-. The Panchayat thereby sustained a loss of
Rs.33,315/-. The only ground on which the appellant resisted the suit
was that the road to the river bed was not motorable and therefore he
could not remove sand. His contention is that as the Panchayat and its
officials had not made the road motorable as promised, the contract
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stood frustrated.
7. In my opinion, as rightly noticed by the court below, there is no
evidence in support of the said plea. Ext.A3 does not refer to any such
undertaking or condition. No material has been produced before the
court below or this Court to establish the appellant’s contention that the
road to the river bed was not motorable and that he had no access to the
river bed. In fact, there is no material before this Court to come to the
conclusion that the road leading to the river bed was not motorable as
claimed by the appellant. Therefore, the plea of the appellant that he did
not remit the instalments as he was not in a position to remove sand
does not merit acceptance. The appellant however relies on the
testimony tendered by the defence witnesses examined as DWs 2 and 3
in support of his contention that the road was not motorable. As rightly
noticed by the court below, the appellant has not taken out a
Commission to ascertain whether the road to the river bed was
motorable or not. He has not also taken steps to summon and call for
documents to prove that the road was repaired after the re-auction. The
testimony tendered by DWs 2 and 3 cannot in my opinion be relied on to
hold that the road to river bed was not motorable. In other words, there
is no cogent material before this Court to come to the conclusion that
the appellant had no access to the river bed and that he was thereby
disabled from extracting and removing sand.
I therefore agree with the court below that the appellant is liable to
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make good the loss sustained by the Panchayat in the re-auction. For the
reasons stated above, I hold that there is no merit in this appeal. The
appeal fails and is accordingly dismissed. No costs.
P.N.Ravindran,
Judge.
ess 7/2