Punjab State vs Thakur Mohinder Singh, Amar Nath

V.K. Bali, J.—By this judgment, I propose to decide two connected Regular First Appeal bearing Nos. 742/79 and 1369 of 1979 as both these appeals have been filed against the same judgment and decree passed by the learned Senior Sub Judge, Jalandhar. In the judgment and decree dated 5.1.1979 impugned in both the appeals, the Senior Sub Judge decreed the suit for recovery of Rs. 1,50,500/- in favour of plaintiff - M/s Thakur Mohinder Singh Amar Nath against the State of Punjab but the claim of the plaintiff with regard to other matters i.e. damage that the plaintiff had suffered for which it had separately claimed about Rs. 45000/-, was declined. Obviously, whereas, the State of Punjab had filed RFA No. 742/79 against the judgment and decree passed by the Senior Sub Judge Jalandhar for the recovery of Rs. 1,50,500/-, the plaintiff being aggrieved by the part of the judgment for which his claim for damages has been declined, has filed RFA No.1369 of 1979.

Brief facts of the case which have been incorporated in the plaint reveal that plaintiff is a fish contractor and doing business of fishing contractors for the last several years. The Collector Jalandhar on 3.5.1977 auctioned the notified waters of Fishery Districts of Kapurthala and Amritsar from 1.9.1977 to 31.8.1978. The plaintiff gave highest bid of Rs. 4,50,500/- and as per auction conditions paid a sum of Rs. 1,50,500/- at the spot against receipt No. 972724 dated 5.9.1977. Despite the fact that the he was the highest bidder and paid a sum of Rs. 1,50,500/- the defendant state of Punjab did not deliver the possession of the waters from which fish was to be caught and also failed to issue licence for catching fish in the notified waters of Fishery Districts of Kapurthala and Amritsar. The plaintiff made several representations requesting the defendant to issue licence for catching the fish, but the defendant kept silent over the issue. As season for catching the fish was passing, the plaintiff served notice calling upon the defendants to deliver possession of waters of Fishery of the Districts mentioned above, On 14.10.1977, the plaintiff vide telegram cancelled the agreement and demanded the refund of the amount deposited alongwith interest and losses suffered from the defendant. The plaintiff stated that he had suffered a loss of Rs. 3000/- per day and on that count he claimed Rs. 44500/- by, way of damages and losses. He filed a suit for the recovery of Rs. 1,95,000/- after issuing notice u/s 80 of the Civil Procedure Code.

The claim of the plaintiff was contested and in the written statement that was filed on behalf of the defendant, it was inter alia pleaded that in addition to the deposit of Rs. 1,50,500/- at the spot, the bid being less than the average of last three years revenue, the same had to be approved by the Government. The plaintiff agreed to this and signed the bid statement in which this condition was mentioned as a token of its acceptance, he plaintiff also failed to deposit the cash security of 2% as required under Rule 5(1) of the Punjab Fisheries Rules 1966 in spite of the fact that they were asked to deposit the same. The fact that the plaintiff has deposited 1/3rd amount of the bid at the fall of hammer, was admitted. It was further pleaded that the plaintiff having failed to deposit 2% cash security at the same time which was pre-requisite for the issuance of the licence had disentitled it to the issue of licence and mere acceptance of the bid tentatively subject to the approval of the Government conferred no right on the plaintiff. Pleadings of the parties gave rise to the following issues: -

Is the suit barred by principles of res judicata? OPD.

Is the suit barred in view of the provisions contained in Sections 158, 78, 98 of the Punjab Revenue Act? OPD.

Is the suit not maintainable? OPD

Whether the plaintiff is not entitled to the refund of Rs. 1,50,500/- as alleged in the written statement? OPD

Whether the plaintiff has suffered any damages, if so to what extent and to what effect ? OPP

Whether the plaintiff is a registered partnership concern duly registered with the Registrar of firms and Thakur Mohinder Singh is one of its partners ? OPP

Relief.

After the resultant trial, issue Nos.1 to 3 were determined against the defendant. Issue No.5 was determined against the plaintiff. The state of Punjab has challenged the findings on issue No.4 alone before this Court.

I have heard the learned counsel for the parties and have gone through the records of this case. This Court is of the view that both the appeals have no merit and deserve to be dismissed. Assailing the findings on issue No.4, Deputy Advocate General, Punjab states that the plaintiff was not entitled to refund l/3rd of the auction amount paid by him at the fall of hammer as it was necessary to deposit 2% cash security at the same time which was pre-requisite for the issuance of licence and mere acceptance of the bid tentatively subject to the approval of the Government conferred no right on the plaintiff as the bid was less than the average of last three years revenue. There is no substance in the submission made by the learned Deputy Advocate General, Punjab.

Admitted facts of the case reveal that auction took place on 5.5.1977.Concededly, the plaintiff had deposited Rs. 1,50,500/-. From the pleadings and findings recorded by the learned trial Court, and which findings are based upon evidence, it emerges that the Rules provided that in case of a bid which is of less amount than the average of last three years revenue, sanction of the Government is required to be taken and if it was the case of defendant-State that bid was of lesser amount than the average of last three years revenue, the bid ought to have been cancelled straight away or within a reasonable time. However, nothing was intimated to the respondent and meanwhile peak season for catching the fish was running fast. It could not be disputed during the course of arguments that peak season for catching the fish had actually passed and the Government did not permit the respondent to catch the fish. The plaintiff had not earned anything for which he had paid an amount of Rs. 1,50,500/-. Considering the fact that he got nothing out of fish contract, he cancelled the contract vide telegram dated 14.10.1977, followed by number of reminders. On 30.11.1977 the Government granted sanction to the contract entered into by the plaintiff and informed him about the approval of the Government on 2.12.1977.

In the situation as fully detailed above, the plaintiff, in view of this Court, was absolutely justified to cancel the contract. The trial Court decided the matter against the Government on many other points but their is no need to go into the same as the point referred to above is enough to reject the appeal of the State of Punjab.

Insofar as appeal filed by the plaintiff is concerned, the same is devoid, of any merit. If the plaintiff had himself cancelled the contract on 14.10.1977 i.e. just within a month and a half, it was he who has to show that he had suffered some loss. He was unable to prove any such loss.

For the reasons mentioned above, this Court is of the view that there is no infirmity in the findings recorded by the trial Court. Accordingly, both the appeals are dismissed. Judgment and decree passed by the trial Court is affirmed. Parties are left to bear their own costs.