K. Muneeswaran vs Srirangam Municipality

A.C. Arumugaperumal Adityan, J.—This appeal has been directed against the decree and judgment in O.S. No. 218 of 1987 on the file of the Court of 1st Addl. Subordinate Judge, Trichirapalli. For the recovery of the bid amount in a public auction conducted by the plaintiff-Srirangam Municipality, the plaintiff has filed the suit. After giving credit to Rs. 11,500/-, the learned trial Judge has decreed the suit for the balance amount of Rs. 37,800/- with 6% interest, which necessitated the defendant to prefer this appeal.

The averments in the plaint in brief sans irrelevant particulars as as follows:

The plaintiff is a local body governed by the rules and regulations of the District Municipalities Act. In connection with the ''Samprokshanam'' of Rajagopuram of Srirangam Temple, which is situated within the Municipality of the plaintiff, the plaintiff thought it fit to grant permission to various persons for different nature of works with an avowed intention of augmenting their source of income, which in turn would be utilised for meeting the civic amenities benefiting the public at large. When the plaintiff had called for open public auction for various items of work permitted to be done for the period from 18.03.1987 to 31.03.1987, one among those items of works, with particular reference to the scope of the present claim, is the right to write advertisements on the Municipal walls, roads, road margin, Municipal Buildings, Municipal Schools and all other buildings belonging to the plaintiff situate within the Municipal limits and also displaying advertisements by means of banners within the said Municipal area, excluding display of ornamental arches. The auction was conducted by the plaintiff on 18.03.1987 within the municipal premises. The defendant offering solvency deposits of Rs. 2500/-, took part in the auction. The defendant is the bidder for Rs. 49,300/- and the said bid was concluded on the same day in favour of the defendant. A public notice was also issued in one issue of ''Dinakaran'' dated 23.03.1987 bringing to the notice of the public that the defendant is the licensee of the aforesaid rights. The defendant has also carried out an advertisement in "Malai Murasu" on 20.03.1987 and wanted to be conduced by persons, who are in need of service in the matter of display of advertisements. The defendant has categorically agreed to pay the entire bid amount of Rs. 49,300/- by 20.03.1987. But, he failed to pay the amount as agreed upon and after repeated demands, he made a payment of Rs. 9000/- only on 23.03.1987 and sent a letter on 23.03.1987 with a view to avoid liability. He is not entitled to any remission as claimed by him. But, on 26.03.1987 the defendant sent a letter alleging that due to information of postponement of ''Samprokshanam'', received through telecast in the Television and All India Radio broadcast, he made some false excuses for the payment of the bid amount. The plaintiff with a view to ensuring the enjoyment of the unfettered right granted to the defendant made due to publication of the right in their notice displayed at the Municipal office buildings and at all other public offices and also duly intimated to all public by means of advertisement in the newspaper. The defendant has fully enjoyed the right for the period for which he has become the licensee. The so-called sudden announcement of postponement of ''Samprokshanam'' was only for a very shortest spell but the same was ruled out within twenty four hours. Everyone was fully aware that the Samprokshanam as scheduled was going to take place on the date already fixed. The defendant is therefore totally unjustified in trying to escape his liability to pay the amount due to the plaintiff, when especially he has enjoyed the rights. Hence the suit.

The defendant in his written statement would contend that the defendant had granted some license to the plaintiff through open tender and after enjoying the said license, the plaintiff has come forward with a vexatious claim to escape from the liability of paying the bid amount. The advertisements of the plaintiff in the news paper is s vague as vagness could be. Exclusion of display of ornamental arches had not been mentioned in the said advertisement nor any of the constraints as listed out in the plaint. The auction was conducted in a post-haste by the plaintiff leaving many things pertaining to the matter at loose ends. This is evident from the fact that the auction was held only on 18.03.1987 just three days prior to the contemplated commencement of the subject mater of the auction with the important date bearing 25.03.1987, the date of Samprokshanam. No proper guide-line was given by the plaintiff-Municipality regarding the modus operandi, which it was their basic duty to do. The plaintiff was bound to in a responsible manner by taking efforts to make things conclusive for the defendant to operate the subject-matter of the auction. But, there was a total failure on the part of the plaintiff in this regard which tantamount to a breach on the part of the plaintiff. It was reasonably expected by the defendant that advertisements by mike would be permitted. But the plaintiff did not allow it even though the auction and the advertisements proceeding it did not spell out any ban against the use of mikes. Suddenly, on the night of 18.03.1987 news was flashed in an authentic manner (in media like T.V., Radio etc., ) that Samprokshanam itself was to be postponed indefinitely, thereby causing an uncertainty, and this uncertainty was dispelled only two days later, and this added further stalemate to the already uncertainty ridden transaction. The said uncertainty was not ruled out within 24 hours. The plaintiff ought to have cancelled the auction itself. Under such circumstances, the claim of the plaintiff alleging that the right of the defendant has come into effect on 18.03.1987 is totally incorrect and unacceptable. The plaintiff-Municipality miserably failed to check unauthorised display of advertisements in buildings, which they were duty bound to do. It became free for all and there were very many uncurbed unauthorised advertisements, which also prevented the defendant from operating the subject matter of the auction. Further, the Government institutions like "Avin Palagam", Amaravathi", "Chinthamani" etc., dominated the space occupation considerably, at the same time refusing to pay any fee to the defendant, which placed the defendant in a quandary. The defendant had given a representation to the plaintiff on 21.03.1987 itself about the intervention of the Government institutions like "Avin Palagam", Amaravathi", "Chinthamani" etc., after the intervention of a Sunday on 22.03.1987, the letter was sent to the Municipality made a show of a meaningless response by giving a Publication in the daily "Dinakaran" on 24.03.1987 in a specific way, Samprokshanam was slated to be held on 25.03.1987. The said publication was made on 24.03.1987. Due to sudden announcement of postponement of the Samprokshanam created its own pell-mell. The letter dated 23.03.1987 was not written by the defendant with a view to avoid liability but was a request by the defendant to the plaintiff to remove the various impediments caused by the "free for all exercise" resorted to by the Government Institutions. The plaintiff-Municipality made advertisement for auction on 18.03.1987 for the subject matter of the auction to ensure effectively upto 25.03.1987 (date of Samprokshanam). The defendant, being the highest bidder on 18.03.1987 was required to pay the amount by 20.03.1987. In the meantime, came the announcement of postponement of the Samprokshanam itself, thereby creating its own stalemate. The plaintiff by his letter dated 06.04.1987, made an appropriation of Rs. 26,250/- deposited by the defendant in respect of the above contract, towards their alleged claim under the suit auction. This reprehensible conduct on the part of the plaintiff in making an untenable appropriation of Rs,26,250/- towards their so called claim under the suit auction, at the same time, filing the present suit without even deducting the same, is unsustainable and on that sole ground, the suit is liable to be dismissed. Plaintiff has no cause of action to file the suit. The defendant reserve his right to initiate legal proceedings against the plaintiff for recovery of damages for all this. Hence, the suit is liable to be dismissed. On the above pleadings, the learned trial Judge has framed two issues for trial.

On the side of the plaintiff, P.W.1 was examined and Ex.A1 to A6 were marked. On the side of the defendant, the defendant was examined as D.W.1 and exhibited Exs. B1 to B4.

After meticulously going through the evidence both oral and documentary, the learned trial Judge after giving credit to a sum of Rs. 2,500/- paid as an advance and also subsequent payment of Rs. 9,000/- had decreed the suit for the balance amount of Rs. 37,800/- with 6% interest with proportionate costs giving four months time for the plaintiff to pay the decree amount. Aggrieved by the finding of the learned trial Judge, this appeal has been preferred by the defendant.

The Points for determination in this appeal are as follows:

Whether the announcement of postponement of ''Samprokshanam'' of the Srirangam Temple in the media will absolve the defendant from paying the auction amount?

Whether the interference of the public institutions like "Avin Palagam", Amaravathi", "Chinthamani" etc., have any impact on the license granted in favour of the defendant by the plaintiff through a public auction?

Whether the decree and judgment of the learned trial Judge in O.S. No. 218/1987 on the file of the Court of Subordinate Judge, Trichirapalli, is liable to be set aside for the reasons stated in the memorandum of appeal.?

Point No. 1:

According to the defendant D.W.1, the auction for publicity in the walls and other properties belonging to the plaintiff-Municipality was permitted to be used by way of license under a public auction conducted on 18.03.1987 by the plaintiff Municipality for a period from 18.03.1987 to 31.03.1987 and that in the said public auction, the defendant was the highest bidder for a sum of Rs. 49,300/- and that before auction he had deposited Rs. 2500/- and after action he had paid Rs. 9,000/- on 20.03.1987. Admittedly, the defendant has not paid the bid amount of Rs. 49,300/- except the payment of Rs. 9,000/- and Rs. 2500/- no amount was paid by the defendant in respect of the suit claim. According to the defendant, there was an announcement in the All India Radio and also in the Television on 18.03.1987 that the Samprokshanam for the Srirangam Temple has been indefinitely postponed by the Government. When he approached the plaintiff-Municipality in this regard, they were not in a position to give a definite answer to him, which will result in heavy loss to the defendant. But there was no material placed before the learned trial Judge that due to the said announcement in the All India Radio and the Television regarding the postponement of the Samprokshanam of the Srirangam Temple, the defendant had incurred heavy loss. On the other hand, P.W.1 would admit in the cross-examination that Samprokshanam for the Srirangam temple was conducted on the date, fixed by the Government and there was no official communication issued to him in respect of the postponement of Samprokshanam by the Government or from the Municipality. It is seen from Ex.A.4 that the Municipality on the complaint made by the defendant had issued a public notice through a vernacular daily recognizing the defendant as the licensee of the Srirangam Municipality for making any advertisement during Samprokshanam period within the Municipal limit. Ex.A.5 is also a public notice issued by the defendant in a vernacular daily stating that within the Municipal limits of Srirangam, if any advertisement is to be made by any party, they shall approach him only since he is a licensee under Srirangam Municipality. But in the said notice he has also included that he has been permitted to erect ornamental arches for which there was no license granted in favour of the defendant by the plaintiff. The learned Counsel appearing for the appellant relying on Ex.B.4, would contend that the plaintiff/respondent have admitted that the auction itself was not confirmed and there was no agreement entered into between the plaintiff and the defendant in respect of the auction conducted. But it is seen from the records that the defendant is no way connected with Ex.B4 because of a reading of Ex.B4 would go to show that it is a matter between the Commissioner of the Municipality and the Zonal Officer of the Trichirapalli Corporation informing the Commissioner for the lapses in his failure to confirm the impugned auction date 18.03.1987, and also for the failure of Commissioner to collect the auction amount from the highest bidder, the Commissioner Thiru.Ramaian is personally liable for the same. Even in Ex.B4 it has been clearly stated that apart from the payment of Rs. 11,500/- the defendant has not paid anything towards the auction amount of Rs. 49,300/-. It is pertinent to note that the defendant on the ground that due to postponement of Samprokshanam of the Srirangam Temple Tower, he had incurred a loss and he has not approached any Court to claim any damages from the Srirangam Municipality for the sudden announcement of the postponement of Samprokshanam of Srirangam Temple Tower. But on the other hand, it is evident that Samprokshanam was conducted on the date fixed for the same, i.e., on 25.03.1987 and it is further admitted that the date of Samprokshanam was not postponed as announced in the media. Under such circumstances, I hold on point No. 1 that the announcement for postponement of Samprokshanam, which had not actually happened, the defendant will not be absolved from the liability of paying the auction amount to the plaintiff.

Point No. 2:

The other limb of argument of the learned Counsel appearing for the appellant is that after confirming the auction for making public advertisement under the impugned auction, the plaintiff-Municipality has not taken any concrete steps preventing the Government organization like "Avin Palagam", Amaravathi", "Chinthamani" etc., to make their advertisements in the place owned by Srirangam Municipality. Under Ex.B1 dated 02.04.1987 the defendant would complaint that the defendant has failed to curb the unauthorized advertisements made by the other Government institutions like "Avin Palagam", Amaravathi", "Chinthamani" etc., and that specific allegation of the defendant is that the said institutions have refused to pay any fee to the defendant. If it is so, the remedy open to the defendant is to institute lis against the said Government institutions claiming his prescribed fee. The learned Counsel appearing for the appellant relying on Section 67 of the Indian Contract Act, 1872 would contend that in the case of failure of promiser to afford the reasonable facility for the purpose of his promise, the promiser is to be excused. Relying on the above provision of law, the learned Counsel appearing for the appellant would contend that he is not liable for the auction amount. But there is absolutely no material placed before the Court, that due to the advertisements made by the other Government institutions like "Avin Palagam", Amaravathi", "Chinthamani" etc., the defendant could not make any advertisement as per the auction of the said right which was concluded in his favour by Srirangam Municipality. Even under Ex.B1, notice dated 02.04.1987, the defendant has stated that the above said Government institutions have failed to pay the prescribed fee for the defendant. If it is so, the defendant has got cause of actions to claim the prescribed fee on the basis of right vested on him as a licensee of the plaintiff from the said Government institutions like "Avin Palagam", Amaravathi", "Chinthamani" etc., The defendant cannot take shelter u/s 67 of the Indian Contract Act, 1872 and to claim that he should be exempted from paying the bid amount of Rs. 49,300/- after taking part in the auction conducted by the plaintiff Srirangam Municipality for advertising in the places belonging to the Municipality for the period from 18.03.1987 to 31.03.1987. Point No. 2 is answered accordingly.

Point No. 3:-.

In view of my discussion and findings in the earlier paragraphs, I hold that the judgment and decree of the trial Court in O.S. No. 218/1987 on the file of the Court of 1st Addl. Subordinate Judge, Trichirapalli, need not be interfered with for the reasons stated in the memorandum of appeal.

In fine, the appeal is dismissed confirming the decree and judgment of the learned trial Judge in O.S. No. 218/1987 on the file of Court of 1st Addl. Subordinate Judge, Trichirapalli. Time for payment is one month from the date of receipt of a copy of this order. No costs.