{"id":146322,"date":"2008-11-11T00:00:00","date_gmt":"2008-11-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-muneeswaran-defendant-vs-srirangam-municipality-on-11-november-2008"},"modified":"2018-01-16T04:01:27","modified_gmt":"2018-01-15T22:31:27","slug":"k-muneeswaran-defendant-vs-srirangam-municipality-on-11-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-muneeswaran-defendant-vs-srirangam-municipality-on-11-november-2008","title":{"rendered":"K.Muneeswaran .. Defendant\/ vs Srirangam Municipality on 11 November, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
K.Muneeswaran .. Defendant\/ vs Srirangam Municipality on 11 November, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 11\/11\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN\n\nA.S.(MD)No.1062 of 1995\n\nK.Muneeswaran \t\t\t.. Defendant\/Appellant\n\nVs.\n\nSrirangam Municipality,\nrepresented by its,\nExecutive Officer\/Commissioner,\nSrirangam,\nTiruchirapalli - 620 006. \t.. Plaintiff\/Respondent\n\nPRAYER\n\nThis Appeal filed under Section 96 of CPC, against the judgment and\ndecree dated 26.09.1994 and made in O.S.No.218 of 1987, on the file of the\nlearned 1st Additional Subordinate Judge of Tiruchirapalli.\n\n!For Appellant\t... Mr.N.Sankaravadivel, Advocate\n^For Respondent ... Mr.M.Rajarajan,\n\t\t    Addl.Government Pleader\n\n:JUDGMENT\n<\/pre>\n
 \t\tThis appeal has been directed against the decree and judgment in
\nO.S.No.218 of 1987 on the file of the Court of 1st Addl. Subordinate Judge,
\nTrichirapalli. For the recovery of the bid amount in a public auction conducted
\nby the plaintiff-Srirangam Municipality, the plaintiff has filed the suit. After
\ngiving credit to Rs.11,500\/-, the learned trial Judge has decreed the suit for
\nthe balance amount of Rs.37,800\/- with 6% interest, which necessitated the
\ndefendant to prefer this appeal.\n<\/p>\n
\t\t2.The averments in the plaint in brief sans irrelevant particulars
\nas as follows:-\n<\/p>\n
\t\tThe plaintiff is a local body governed by the rules and regulations
\nof the District Municipalities Act.  In connection with the ‘Samprokshanam’ of
\nRajagopuram of Srirangam Temple, which is situated within the Municipality of
\nthe plaintiff, the plaintiff thought it fit to grant permission to various
\npersons for different nature of works with an avowed intention of augmenting
\ntheir source of income, which in turn would be utilised for meeting the civic
\namenities benefiting the public at large. When the plaintiff had called for open
\npublic auction for various items of work permitted to be done for the period
\nfrom 18.03.1987 to 31.03.1987, one among those items of works, with particular
\nreference to the scope of the present claim, is the right to write
\nadvertisements on the Municipal walls, roads, road margin, Municipal Buildings,
\nMunicipal Schools and all other buildings belonging to the plaintiff situate
\nwithin the Municipal limits and also displaying advertisements by means of
\nbanners within the said Municipal area, excluding display of ornamental arches.
\nThe auction was conducted by the plaintiff on 18.03.1987 within the municipal
\npremises. The defendant offering solvency deposits of Rs.2500\/-, took part in
\nthe auction.  The defendant is the bidder for Rs.49,300\/- and the said bid was
\nconcluded on the same day in favour of the defendant.  A public notice was also
\nissued in one issue of ‘Dinakaran’ dated 23.03.1987 bringing to the notice of
\nthe public that the defendant is the licensee of the aforesaid rights. The
\ndefendant has also carried out an advertisement in “Malai Murasu” on 20.03.1987
\nand wanted to be conduced by persons, who are in need of service in the matter
\nof display of advertisements.  The defendant has categorically agreed to pay the
\nentire bid amount of Rs.49,300\/- by 20.03.1987.  But, he failed to pay the
\namount as agreed upon and after repeated demands, he made a payment of Rs.9000\/-
\nonly on 23.03.1987 and sent a letter on 23.03.1987 with a view to avoid
\nliability.  He is not entitled to any remission as claimed by him.  But, on
\n26.03.1987 the defendant sent a letter alleging that due to information of
\npostponement of ‘Samprokshanam’, received through telecast in the Television and
\nAll India Radio broadcast, he made some false excuses for the payment of the bid
\namount.  The plaintiff with a view to ensuring the enjoyment of the unfettered
\nright granted to the defendant made due to publication of the right in their
\nnotice displayed at the Municipal office buildings and at all other public
\noffices and also duly intimated to all public by means of advertisement in the
\nnewspaper.  The defendant has fully enjoyed the right for the period for which
\nhe has become the licensee.  The so-called sudden announcement of postponement
\nof ‘Samprokshanam’ was only for a very shortest spell but the same was ruled out
\nwithin twenty four hours. Everyone was fully aware that the Samprokshanam as
\nscheduled was going to take place on the date already fixed. The defendant is
\ntherefore totally unjustified in trying to escape his liability to pay the
\namount due to the plaintiff, when especially he has enjoyed the rights.  Hence
\nthe suit.\n<\/p>\n
\t\t3.The defendant in his written statement would contend that the
\ndefendant had granted some license to the plaintiff through open tender and
\nafter enjoying the said license, the plaintiff has come forward with a vexatious
\nclaim to escape from the liability of paying the bid amount.  The advertisements
\nof the plaintiff in the news paper is s vague as vagness could be.  Exclusion of
\ndisplay of ornamental arches had not been mentioned in the said advertisement
\nnor any of the constraints as listed out in the plaint. The auction was
\nconducted in a post-haste by the plaintiff leaving many things pertaining to the
\nmatter at loose ends.  This is evident from the fact that the auction was held
\nonly on 18.03.1987 just three days prior to the contemplated commencement of the
\nsubject mater of the auction with the important date bearing 25.03.1987, the
\ndate of Samprokshanam.  No proper guide-line was given by the plaintiff-
\nMunicipality regarding the modus operandi, which it was their basic duty to do.
\nThe plaintiff was bound to in a responsible manner by taking efforts to make
\nthings conclusive for the defendant to operate the subject-matter of the
\nauction.  But, there was a total failure on the part of the plaintiff in this
\nregard which tantamount  to a breach on the part of the plaintiff.  It was
\nreasonably expected by the defendant that advertisements by mike would be
\npermitted.  But the plaintiff did not allow it even though the auction and the
\nadvertisements proceeding it did not spell out any ban against the use of mikes.
\nSuddenly, on the night of 18.03.1987 news was flashed in an authentic manner (in
\nmedia like T.V., Radio etc., ) that Samprokshanam itself was to be postponed
\nindefinitely, thereby causing an uncertainty, and this uncertainty was dispelled
\nonly two days later, and this added further stalemate to the already uncertainty
\nridden transaction.  The said uncertainty was not ruled out within 24 hours.
\nThe plaintiff ought to have cancelled the auction itself.  Under such
\ncircumstances, the claim of the plaintiff alleging that the right of the
\ndefendant has come into effect on 18.03.1987 is totally incorrect and
\nunacceptable. The plaintiff-Municipality miserably failed to check unauthorised
\ndisplay of advertisements in buildings, which they were duty bound to do.  It
\nbecame free for all and there were very many uncurbed unauthorised
\nadvertisements, which also prevented the defendant from operating the subject
\nmatter of the auction. Further, the Government institutions like “Avin Palagam”,
\nAmaravathi”, “Chinthamani” etc., dominated the space occupation considerably, at
\nthe same time refusing to pay any fee to the defendant, which placed the
\ndefendant in a quandary. The defendant had given a representation to the
\nplaintiff on 21.03.1987 itself about the intervention of the Government
\ninstitutions like “Avin Palagam”, Amaravathi”, “Chinthamani” etc., after the
\nintervention of  a Sunday on 22.03.1987, the letter was sent to the Municipality
\nmade a show of a meaningless response by giving a Publication in the daily
\n“Dinakaran” on 24.03.1987 in a specific way,  Samprokshanam was slated to be
\nheld on 25.03.1987. The said publication was made on 24.03.1987.  Due to sudden
\nannouncement of postponement of the Samprokshanam created its own pell-mell.
\nThe letter dated 23.03.1987 was not written by the defendant with a view to
\navoid liability but was a request by the defendant to the plaintiff to remove
\nthe various impediments caused by the “free for all exercise” resorted to by the
\nGovernment Institutions. The plaintiff-Municipality made advertisement for
\nauction on 18.03.1987 for the subject matter of the auction to ensure
\neffectively upto 25.03.1987 (date of  Samprokshanam).  The defendant, being the
\nhighest bidder on 18.03.1987 was required to pay the amount by 20.03.1987.  In
\nthe meantime, came the announcement of postponement of the  Samprokshanam
\nitself, thereby creating its own stalemate.  The plaintiff by his letter dated
\n06.04.1987, made an appropriation of Rs.26,250\/- deposited by the defendant in
\nrespect of the above contract, towards their alleged claim under the suit
\nauction.  This reprehensible conduct on the part of the plaintiff in making an
\nuntenable appropriation of Rs,26,250\/- towards their so called claim under the
\nsuit auction, at the same time, filing the present suit without even deducting
\nthe same, is unsustainable and on that sole ground, the suit is liable to be
\ndismissed.  Plaintiff has no cause of action to file the suit.  The defendant
\nreserve his right to initiate legal proceedings against the plaintiff for
\nrecovery of damages for all this.  Hence, the suit is liable to be dismissed.
\nOn the above pleadings, the learned trial Judge has framed two issues for trial.\n<\/p>\n
\t\t4.On the side of the plaintiff, P.W.1 was examined and Ex.A1 to A6
\nwere marked.  On the side of the defendant, the defendant was examined as D.W.1
\nand exhibited Exs. B1 to B4.\n<\/p>\n
\t\t5.After meticulously going through the evidence both oral and
\ndocumentary, the learned trial Judge after giving credit to a sum of Rs.2,500\/-
\npaid as an advance and also subsequent payment of Rs.9,000\/- had decreed the
\nsuit for the balance amount of Rs.37,800\/- with 6% interest with proportionate
\ncosts giving four months time for the plaintiff to pay the decree amount.
\nAggrieved by the finding of the learned trial Judge, this appeal has been
\npreferred by the defendant.\n<\/p>\n
\t\t6. The Points for determination in this appeal are as follows:-\n<\/p>\n
\t\t1. Whether the announcement of postponement of  ‘Samprokshanam’ of
\nthe Srirangam Temple in the media will absolve the defendant from paying the
\nauction amount?\n<\/p>\n
\t\t2. Whether the interference of the public institutions like “Avin
\nPalagam”, Amaravathi”, “Chinthamani” etc., have any impact on the license
\ngranted in favour of the defendant by the plaintiff through a public auction?\n<\/p>\n
\t\t3.Whether the decree and judgment of the learned trial Judge in
\nO.S.No.218\/1987 on the file of the Court of Subordinate Judge, Trichirapalli, is
\nliable to be set aside for the reasons stated in the memorandum of appeal.?\n<\/p>\n
\t\t7.Point No.1:-\n<\/p>\n
\t\tAccording to the defendant D.W.1, the auction for publicity in the
\nwalls and other properties belonging to the plaintiff-Municipality was permitted
\nto be used by way of license under a public auction conducted on 18.03.1987 by
\nthe plaintiff Municipality for a period from 18.03.1987 to 31.03.1987 and that
\nin the said public auction, the defendant was the highest bidder for a sum of
\nRs.49,300\/- and that before auction he had deposited Rs.2500\/- and after action
\nhe had paid Rs.9,000\/- on 20.03.1987.  Admittedly, the defendant has not paid
\nthe bid amount of Rs.49,300\/- except the payment of Rs.9,000\/- and Rs.2500\/- no
\namount was paid by the defendant in respect of the suit claim.  According to the
\ndefendant, there was an announcement in the All India Radio and also in the
\nTelevision on 18.03.1987 that the Samprokshanam for the Srirangam Temple has
\nbeen indefinitely postponed by the Government. When he approached the plaintiff-
\nMunicipality in this regard, they were not in a position to give a definite
\nanswer to him, which will result in heavy loss to the defendant.  But there was
\nno material placed before the learned trial Judge that due to the said
\nannouncement in the All India Radio and the Television regarding the
\npostponement of the Samprokshanam of the Srirangam Temple, the defendant had
\nincurred heavy loss.  On the other hand, P.W.1 would admit in the cross-
\nexamination that Samprokshanam for the Srirangam temple was conducted on the
\ndate, fixed by the Government and there was no official communication issued to
\nhim in respect of the postponement of Samprokshanam by the Government or from
\nthe Municipality. It is seen from Ex.A.4 that the Municipality on the complaint
\nmade by the defendant had issued a public notice through a vernacular daily
\nrecognizing the defendant as the licensee of the Srirangam Municipality for
\nmaking any advertisement during Samprokshanam period within the Municipal limit.
\nEx.A.5 is also a public notice issued by the defendant in a vernacular daily
\nstating that within the Municipal limits of Srirangam, if any advertisement is
\nto be made by any party, they shall approach him only since he is a licensee
\nunder Srirangam Municipality.  But in the said notice he has also included that
\nhe has been permitted to erect ornamental arches for which there was no license
\ngranted in favour of the defendant by the plaintiff.  The learned counsel
\nappearing for the appellant relying on Ex.B.4, would contend that the
\nplaintiff\/respondent have admitted that the auction itself was not confirmed and
\nthere was no agreement entered into between the plaintiff and the defendant in
\nrespect of the auction conducted.  But it is seen from the records that the
\ndefendant is no way connected with Ex.B4 because of a reading of Ex.B4 would go
\nto show that it is a matter between the Commissioner of the Municipality and the
\nZonal Officer of the Trichirapalli Corporation informing the Commissioner for
\nthe lapses in his failure to confirm the impugned auction date 18.03.1987, and
\nalso for the failure of Commissioner to collect the auction amount from the
\nhighest bidder, the Commissioner Thiru.Ramaian is personally liable for the
\nsame.  Even in Ex.B4 it has been clearly stated that apart from the payment of
\nRs.11,500\/- the defendant has not paid anything towards the auction amount of
\nRs.49,300\/-.  It is pertinent to note that the defendant on the ground that due
\nto postponement of Samprokshanam of the Srirangam Temple Tower, he had incurred
\na loss and he has not approached any Court to claim any damages from the
\nSrirangam Municipality for the sudden announcement of the postponement of
\nSamprokshanam of Srirangam Temple Tower.  But on the other hand, it is evident
\nthat Samprokshanam was conducted on the date fixed for the same, i.e., on
\n25.03.1987 and it is further admitted that the date of Samprokshanam was not
\npostponed as announced in the media. Under such circumstances, I hold on point
\nNo.1 that the announcement for postponement of Samprokshanam, which had not
\nactually happened, the defendant will not be absolved from the liability of
\npaying the auction amount to the plaintiff.\n<\/p>\n
\t8.Point No.2:-\n<\/p>\n
\t\tThe other limb of argument of the learned counsel appearing for the
\nappellant is that after confirming the auction for making public advertisement
\nunder the impugned auction, the plaintiff-Municipality has not taken any
\nconcrete steps preventing the Government organization like “Avin Palagam”,
\nAmaravathi”, “Chinthamani” etc., to make their advertisements in the place owned
\nby Srirangam Municipality.  Under Ex.B1 dated 02.04.1987 the defendant would
\ncomplaint that the defendant has failed to curb the unauthorized advertisements
\nmade by the other Government institutions like “Avin Palagam”, Amaravathi”,
\n“Chinthamani” etc., and that specific allegation of the defendant is that the
\nsaid institutions have refused to pay any fee to the defendant.  If it is so,
\nthe remedy open to the defendant is to institute lis against the said Government
\ninstitutions claiming his prescribed fee. The learned counsel appearing for the
\nappellant relying on Section 67 of the Indian Contract Act, 1872 would contend
\nthat in the case of failure of promiser to afford the reasonable facility for
\nthe purpose of his promise, the promiser is to be excused.  Relying on the above
\nprovision of law, the learned counsel appearing for the appellant would contend
\nthat he is not liable for the auction amount.  But there is absolutely no
\nmaterial placed before the Court, that due to the advertisements made by the
\nother Government institutions like “Avin Palagam”, Amaravathi”, “Chinthamani”
\netc., the defendant could not make any advertisement as per the auction of the
\nsaid right which was concluded in his favour by Srirangam Municipality.  Even
\nunder Ex.B1, notice dated 02.04.1987, the defendant has stated that the above
\nsaid Government institutions have failed to pay the prescribed fee for the
\ndefendant.  If it is so, the defendant has got cause of actions to claim the
\nprescribed fee on the basis of right vested on him as a licensee of the
\nplaintiff from the said Government institutions like “Avin Palagam”,
\nAmaravathi”, “Chinthamani” etc., The defendant cannot take shelter under Section
\n67 of the Indian Contract Act, 1872 and to claim that he should be exempted from
\npaying the bid amount of Rs.49,300\/- after taking part in the auction conducted
\nby the plaintiff Srirangam Municipality for advertising in the places belonging
\nto the Municipality for the period from 18.03.1987 to 31.03.1987.  Point No.2 is
\nanswered accordingly.\n<\/p>\n
\t\t9.Point No.3:-.\n<\/p>\n
\t\tIn view of my discussion and findings in the earlier paragraphs, I
\nhold that the judgment and decree of the trial Court in O.S.No. 218\/1987 on the
\nfile of the Court of 1st Addl. Subordinate Judge, Trichirapalli, need not be
\ninterfered with for the reasons stated in the memorandum of appeal.\n<\/p>\n
\t\t10.In fine, the appeal is dismissed confirming the decree and
\njudgment of the learned trial Judge in O.S.No. 218\/1987 on the file of Court of
\n1st Addl. Subordinate Judge, Trichirapalli.  Time for payment is one month from
\nthe date of receipt of a copy of this order. No costs.\n<\/p>\n
Mpk<\/p>\n
To<\/p>\n
The 1st Addl. Subordinate Judge,
\nTiruchirapalli.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court K.Muneeswaran .. Defendant\/ vs Srirangam Municipality on 11 November, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11\/11\/2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.(MD)No.1062 of 1995 K.Muneeswaran .. Defendant\/Appellant Vs. Srirangam Municipality, represented by its, Executive Officer\/Commissioner, Srirangam, Tiruchirapalli – 620 006. .. Plaintiff\/Respondent PRAYER This Appeal filed under […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-146322","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nK.Muneeswaran .. 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