RSA No.3903 of 2009 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3903 of 2009 (O & M) Date of Decision: 08.02.2011 Municipal Committee and another ……Appellants Versus Ramesh Kumar …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Sanjay Chauhan, Advocate for the appellants. Mr. Vivek Suri, Advocate for the respondent. L.N. MITTAL, J (ORAL) Defendants-Municipal Committee, Mandi Dabwali and its Secretary, having failed in both the Courts below, are in second appeal. On 16.01.2002, defendants held auction of some shops (yet to be constructed) for lease for three years. Plaintiff-respondent Ramesh Kumar was successful bidder at the said auction for shop No.5. As per terms and condition of the auction, the plaintiff deposited Rs.25000/- as security and Rs.24000/- as advance rent for one year on 16.01.2002 itself. The shop was to be constructed and possession was to be delivered to the plaintiff within two months of the auction. However, defendants admittedly failed to construct the shop within the stipulated period of two months. Accordingly, plaintiff filed suit for mandatory injunction seeking refund of his security RSA No.3903 of 2009 (O & M) - 2 - amount of Rs.25000/- and advance rent amount of Rs.24000/- along with interest thereon at the rate of 18% per annum. The defendants while admitting the aforesaid factual position, contested the suit by pleading that there was no condition in the agreement or the auction that on failure of the defendants to complete the construction of the shop within two months, the amount of security and advance rent would be refunded. The defendants also alleged that after completion of the shop, possession thereof was offered to the plaintiff on 01.06.2002 along with other successful bidders of other shops. On refusal of the plaintiff, notice under postal certificate was sent to the plaintiff on 03.06.2002 and possession of the shop was actually delivered to him on 06.06.2002. No loss has occurred to the plaintiff on account of the aforesaid delay. Construction of the shop could not be completed within stipulated period due to unavoidable circumstances beyond the control of the defendants. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Dabwali vide judgment and decree dated 02.08.2006 decreed the plaintiff’s suit for mandatory injunction directing the defendants to refund the security amount of Rs.25000/- and advance rent amount of Rs.24000/- along with interest thereon at the rate of 6% per annum from the date of deposit till recovery. First appeal preferred by the defendants has been dismissed by learned District Judge, Sirsa vide judgment and decree dated 24.02.2009. Feeling aggrieved, defendants have preferred the instant second appeal I have heard learned counsel for the parties and perused the case file. RSA No.3903 of 2009 (O & M) - 3 - It is established from oral as well as documentary evidence of both sides that auction was held on 16.01.2002 and as per condition No.7 of auction notice Ex.D-7, the shop was to be handedover to the successful bidder after completing its construction within two months i.e upto 16.03.2002. This condition is also incorporated in agreement Ex.D-6 vide Clause 4(1) of the Agreement. Admittedly, the defendants failed to complete the construction of the shop and handover its possession to the plaintiff within the stipulated period of two months. It is defendants’ own evidence that the shopping complex was inaugurated on 27.05.2002. It is also pleaded in the written statement that possession of the shop was offered to the plaintiff on 01.06.2002 i.e after delay of 2 ½ months in addition to the stipulated period of two months. However, the plaintiff had already filed the instant suit on 24.04.2002 and perusal of the suit file reveals that the defendants had been served with summonses in the suit on 29.04.2002. Consequently, alleged offer of possession thereafter on 01.06.2002 is meaningless. Even otherwise, the said offer is not proved. Defendants’ sole witness Krishan Kumar DW-1 proved notice EX.D-5. However, this notice is dated 28.05.2002 whereas according to the written statement, possession was offered to the plaintiff on 01.06.2002. This notice purports to bear report of refusal of the plaintiff, but the said report has not been proved. The defendants alleged that after plaintiff’s refusal, the notice was sent under postal certificate to the plaintiff. However, there is not even an iota of evidence on record to substantiate this plea of the defendant. The defendants also alleged that possession was actually delivered to the plaintiff on 06.06.2002. Again there is no evidence to substantiate the said plea. No RSA No.3903 of 2009 (O & M) - 4 - document of delivery of possession of the shop to the plaintiff has been produced. Even otherwise, during pendency of the instant suit, the plaintiff would not have accepted the possession of the shop without settling the matter with the defendants as the suit had already been instituted. Thus the defendants’ plea that possession was delivered to the plaintiff on 06.06.2002 is patently false and remains completely unsubstantiated. As noticed hereinbefore, possession of the shop was to be delivered to the plaintiff within two months of the auction i.e upto 16.03.2002. However, the defendants themselves pleaded that possession was offer to the plaintiff on 01.06.2002. Consequently, there was breach of terms and condition of the auction as well as the agreement on the part of the defendants and, therefore, the plaintiff became entitled to seek refund of his amount of security and advance rent of one year from the defendants. Moreover, when the suit was instituted on 24.04.2002 and the defendants were served with summonses on 29.04.2002, the defendants had ample time even before completion of construction of the shopping complex, to reauction the shop. There is, therefore, no infirmity in the judgments of the Courts below in decreeing the suit of the plaintiff. The defendants themselves committed breach of terms and condition of the auction and the agreement. The plaintiff inspite thereof has not claimed any damages from the defendants and has simply sought refund of the amount paid by him to the defendants. Obviously, defendants have no right to retain the said money of the plaintiff. Learned counsel for the appellants contended that the matter was required to be referred to arbitrator. The contention RSA No.3903 of 2009 (O & M) - 5 - cannot be accepted. Defendants filed written statement to the suit and, therefore, the plea of arbitration became redundant. Secondly, no such plea was raised at the time of arguments before both the Courts below. Thirdly, even in the grounds of appeal in the instant second appeal, no such question of law has been raised by the appellants. Accordingly, the aforesaid contention is negatived. Learned counsel for the appellants next contended that suit for mandatory injunction is not maintainable and the plaintiff should have filed suit for recovery of the amount in question. However, learned counsel for the plaintiff-respondent countered this contention by relying on judgment of this Court in the case of P. C. Wadhwa versus State Bank of Patiala 2001(3) Civil Court Cases 317 (P & H) and contended that suit for mandatory injunction is also maintainable. I have carefully considered the aforesaid contentions. In the case of P.C. Wadhwa (supra), plaintiff had taken loan. He filed suit for declaration that he is liable to pay simple interest at the rate of 10.5% per annum. He also sought mandatory injunction directing the defendant-Bank to recast the loan amount after charging interest at the said rate and to return the excess amount, if any. It was held by this Court that suit for declaration and mandatory injunction was maintainable and it was not necessary to file suit for recovery. In view of judgment of this Court in the case of P.C. Wadhwa (supra), in the instant case also, suit for mandatory injunction is maintainable. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question RSA No.3903 of 2009 (O & M) - 6 - of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed. (L. N. MITTAL) JUDGE 08.02.2011 A.kaundal