Vijay Kumar vs Nagar Palika Parishad, Kichha, Udham Singh Nagar, Through Its Executive Officer

Rajesh Tandon, J.—Heard Sri Rajendra Dobhal, Counsel for the appellant and Sri S.S. Chauhan, Counsel for the respondent.

By the present Second Appeal filed under section 100 of the Code of Civil Procedure, appellant has prayed for setting aside the judgment and decree dated 16.12.2002 passed by the District Judge, Nainital in Civil Appeal No. 65 of 2001, Nagar Palika Parishad v. Vijay Kumar arising out of the judgment and decree dated 18.10.2001 passed by the Civil Judge (Senior Division)/7th Fast Track Court, Nainital in Civil Suit No. 143 of 1996, Nagar Palika Parishad v. Vijay Kumar.

Present second appeal has been admitted on the following substantial questions of law :

"(A) Whether the contract agreement executed without complying with the provisions of section 35 of Indian Stamp Act between the plaintiff and defendant can be termed as valid agreement?

(B) Whether the suit of recovery of auction money for the auction year 198889 has been filed in the year, 1996, which is barred by limitation under provisions of Indian Limitation Act and the suit of plaintiff/respondent ought to have not been dismissed on this ground alone?"

Briefly stated, a suit was filed by the plaintiff/respondent being Civil Suit No. 143 of 1996, Nagar Palika Parishad v. Vijay Kumar, praying to the following effect :

According to the plaint averments, Nagar Palika Kichha (plaintiff/appellant) instituted a suit No. 143 of 1996 before the learned Trial Court against Sri Vijay Kumar, defendant/respondent for recovery of Rs. 36,650.00 with the allegations that an auction for realizing of parking tax/tehbazari within the limits of Nagar Palika Parishad, Kichha was conducted on 9.3.1988 for the period from 1.4.1988 to 31.3.1989. The defendant, who made the highest bid of Rs. 1,84,000/ was accepted by the plaintiff. As per the terms of the auction the defendant deposited Rs. 97,350.00 with the plaintiff and remaining amount of Rs. 86,650.00 was required to be paid as per the terms of the auction during the year of realization. The defendant failed to pay the said amount of Rs. 86,650.00 even after being served with the demand notice. Ultimately a recovery certificate was issued against the defendant for recovery of remaining amount of Rs. 86,650. The defendant filed revision No. 190 of 198889 before the Commissioner, Kumaon Division, which was dismissed on 30.1.1990. Thereafter, again defendant made a representation to the Commissioner, Kumaon Division for stay of realization of the disputed amount, which was referred by the Commissioner to Additional District Magistrate (Nazul) for enquiry, who submitted his report on the basis of which the District Magistrate, Nainital (as Kichha was part of District Nainital earlier) vide its order dated 18.12.1992 directed the realization of the aforesaid disputed amount. Once again defendant filed a revision No. 29 of 199394 before the Commissioner, Kumaon Division, which was also dismissed on 12.5.1994. Thereafter defendant approached Board of Revenue and made another revision No. 3 of 199394. The same was dismissed too on 30.5.1994. Thereafter, the defendant filed a Writ Petition No. 20723 of 1994 before the Allahabad High Court (prior to creation of Uttaranchal), wherefrom recovery was stayed on the condition that the defendant deposits Rs. 50,000/. On 7.3.1996 Allahabad High Court finally ordered that remaining disputed amount can be realized only by adopting due process of law and not as arrears of land revenue. As such, the plaintiff has instituted the present suit for realization of the remaining amount of Rs. 36,650.00 against the defendant.

The defendant filed his written statement Paper No. 30 Kha admitting paragraphs No. 1 to 4 of the plaint, which relate to the auction for realization of tehbazari for the year 198889 and acceptance by Nagar Palika Parishad of the highest bid made by the defendant. It was also admitted that as per terms of the auction, the defendant deposited Rs. 97,350 in connection with the contract of realization of Tehbazari. Rest of the contents have been denied except the fact that revisions were filed before the learned Commissioner, Kumaon Division and were dismissed. In the additional pleas, it has been pleaded that after the highest bid of the defendant/appellant was accepted by the plaintiff, when he started realizing parking tax/tehbazari, on 5.4.1988 private bus owners under the garb of stay order from Allahabad High Court did not pay the tax to the defendant. After 15.4.1988 buses of the U.P. Roadways also did not make payment of taxes. Information were given from time to time by the defendant/respondent to the plaintiff and since the defendant suffered loss of Rs. 1,14,562/ he is not liable to make any payment to the plaintiff. Further in the additional pleas, it has been admitted by the defendant that in compliance of the orders passed in Writ Petition No. 20723 of 1994 filed by him before the Allahabad High Court, he made deposits of Rs. 50,000/ in the Government Treasury, but since the Allahabad High Court has held on 7.3.1996 that the amount due was not recoverable as arrears of land revenue, as such the plaintiff is not entitled to recover any disputed amount.

On the pleadings of the parties, the Trial Court has framed following issues:

"1. Whether the plaintiff is entitled to recover Rs. 36,650 from the defendant?

Whether the suit is barred by time?

Whether due to the negligence on the part of the employees of the plaintiff, defendant suffered any loss, if so, as alleged in para 27 of the written statement, is he not liable to pay the disputed sum to the plaintiff?

Whether the Court has no jurisdiction to try the suit as alleged in para 31 of the written statement?

Whether plaintiff is entitled to 18% interest on the disputed sum for the period of pendency of suit and for future?

To what relief, if any, the plaintiff is entitled?"

On behalf of the plaintiff, Sri Jeevan Kishore has been examined as P.W. 1.

On behalf of the defendant, Sri Vijay Kumar and Sri Kishan Singh Mehra have been examined as D.W. 1 and D.W. 2 respectively.

While deciding the issues No. 1, 3 and 5 as to whether the plaintiff is entitled to recover Rs. 36,650 from the defendant, as to whether due to the negligence on the part of the employees of the plaintiff, defendant suffered any loss, if so, as alleged in para 27 of the written statement, is he not liable to pay the disputed sum to the plaintiff and further as to whether plaintiff is entitled to 18% interest on the disputed sum for the period of pendency of suit and for future, the Trial Court has recorded a finding that the plaintiff is not entitled to recover the amount of the auction money as he has not clearly contended about the same. Relevant portion of the finding is quoted below :

While deciding the issue No. 2, the Trial Court has recorded a finding that limitation cannot be extended for alternate relief under any rule and rule of limitation applies, but since the Hon''ble Court has passed the order in the year, 1996 finalising the writ petition regarding the said dispute and the suit had been filed in the year, 1996, therefore, the suit cannot be said to be time barred. Thus, this issue has been decided accordingly.

While deciding the issue No. 4, the Trial Court has recorded a finding to the following effect:

While deciding the issue No. 6, the Trial Court has recorded a finding that the suit of the plaintiff for recovery of Rs. 36,650 is liable to be dismissed.

The suit of the plaintiff was dismissed on 18.10.2001.

Against the said judgment and decree, the plaintiff preferred an Appeal being Civil Appeal No. 65 of 2001 Nagar Palika Pari$had v. Sri Vijay Kumar. The Appellate Court has allowed the appeal of the plaintiff recording a finding that the plain'' tiff is entitled to recover the amount of auction money. The arguments raised by the appellant was that since due to the orders of the High Court, he could not realize from certain buses, as such, he is not liable to pay the disputed sum to the defendant. The Appellate Court has disbelieved the contention of the respondent/appellant as the appellant did not file copy of any stay order from the High Court, in which the appellant was restrained from realizing tehbazari/parking tax from any kind of vehicles. The Appellate Court has relied upon the Paper No. 60C (Ext. XII), Paper No. 61C and Paper No. 62C, which show that from time to time U.P. Roadways on the request of the Nagar Palika Parishad, Kichha directed their staff to pay the tehbazari tax. Paper No. 65C and Paper No. 67 show that on the request of Nagar Palika Parishad, Kichha Commissioner, Kumaon Division issued directions to U.P. Roadways to pay the required taxes while parking vehicles in the Municipal limits of Nagar Palika Parishad, Kichha. Relevant portion of the finding recorded by the Appellate Court is quoted below :

"11. In these circumstances from the evidence on record, it is clearly proved that the defendant/respondent failed to make the payment of Rs. 36,650.00 to the plaintiff/appellant. It is also clear from the evidence of the parties that admittedly that the defendant/respondent''s highest bid of Rs. 1,84,000/ for realization of tehbazari/parking tax for the year 198889 was accepted by the plaintiff/appellant and Rs. 97,350 were paid by the defendant/respondent as per the terms of the agreement.

It is also admitted that Rs. 50,000.00 were deposited by the defendant/respondent out of the remaining Rs. 86,650.00 during the pendency of his Writ Petition No. 20723 of 1994. The judgment passed on 7.3.1996 (paper No. 24 ka) in said writ petition only bars Nagar Palika Parishad from realizing the amount as arrears of land revenue and the said judgment itself permits to recover the amount due in accordance with law. As such, the plaintiff/appellant has rightly approached the Civil Court for recovery of the remaining sum. Therefore, this Court sets aside the findings of the learned Trial Court given in its judgment against the plaintiff. The suit should have been decreed for Rs. 36,650 against the defendant. However, as far as the rate of interest is concerned the claimed rate of interest @ 18% appears to be a penal one and in the facts and circumstances the defendant cannot be said to be liable to pay more than the simple interest at the rate more than 6% per annum. Accordingly the appeal deserves to be allowed."

In view of the aforesaid, both the questions of law are, therefore, decided against the appellant. However, the appellant has prayed for some time to pay the amount by way of instalments. Therefore, appellant is permitted to pay the entire decretf 1 amount in four equal quarterly instalment before the Nagar Palika Parishad. So far as the interest part is concerned, the same shall be charged from the date of decreeing the suit and not from the date of institution of the suit. The first instalment shall be payable by 31st April, 2008.

Consequently, Second Appeal is dismissed. No order as to costs.