Regular Second Appeal No. 1788 of 2008 (O&M) 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 1788 of 2008 (O&M) Date of Decision: 15.10.2008 M/s Surinder & Company …Appellant Versus State of Haryana and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Mohan Jain, Senior Advocate with Mr. Vikram Jain, Advocate for the appellant. Kanwaljit Singh Ahluwalia, J. (Oral) The present appeal has been filed by M/s Surinder & Company aggrieved against the judgments & decrees passed by two Courts below. Appellant-plaintiff had instituted a suit with a prayer of permanent (prohibitory and mandatory) injunction to the effect that State of Haryana, Excise & Taxation Commissioner, Haryana, Deputy Excise & Taxation Commissioner, Hisar, and Excise & Taxation Officer, Hisar with the powers of the Assistant Collector, Hisar, respondents- defendants, be restrained from recovering or cause to recover any amount from the plaintiff-appellant by resorting to coercive methods. A further prayer for mandatory injunction was made that the defendants be Regular Second Appeal No. 1788 of 2008 (O&M) 2 ordered to refund the amount of 5% of bid money deposited by appellant-plaintiff. The facts which can be gathered from the judgments of learned two Courts below are that on 8.3.1991 auction of L2 Vends of various groups including L2 Hansi Group was conducted at Hisar. It has been averred that it was the duty of the officer holding auction to demand immediate deposit equivalent to 1/3rd share of the whole amount of bid by the successive and higher bidder. As per Excise Policy prevailing in the year 1991-92, bid was subject to sanction and the approval of the Excise & Taxation Commissioner, Hisar, within ten days from the date of auction. It is stated that plaintiff being higher and successful bidder, deposited Rs.6,61,000/- as 5% of bid money but the remaining amount i.e. 1/3rd of the bid could not be deposited as the atmosphere at the time of auction was not congenial. A further case of the plaintiff was that as the bid was excessive and very high due to illegality and irregularity committed by the officer holding auction, therefore, bid was withdrawn by the plaintiff on 13.3.1991. A letter under a postal certificate to this effect was posted on 13.3.1991. It was further stated that since the bid was not accepted by the Financial Commissioner as per condition No.2 of the Excise Policy for the year 1991-92, therefore, plaintiff was well within his rights to withdraw the bid. Therefore, various notices issued by the defendants for recovery of the deficiency of the license fee due to alleged re-sale are not in consonance with law. Notice of the suit was given to the defendants who filed written statement controverting the facts stated in the plaint and also raised Regular Second Appeal No. 1788 of 2008 (O&M) 3 preliminary objections. After the pleadings of the parties had concluded, following issues have been framed by learned trial Court:- 1. Whether the order dated 25.03.91 and notice dated 10.04.91 issued by defendants are illegal, void and not binding upon the rights of the plaintiff as alleged? OPP 2. Whether Civil Court has no jurisdiction? OPD 3. Whether the plaintiff has no locus standi? OPD 4. Whether the suit is pre-mature, if no its effect? OPD 5. Whether the suit is bad for want of notice u/s 80 CPC? OPD 6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD. 7. Relief. The plaintiff examined Ram Singh as PW.1 and placed reliance upon documents Ex.P1 to Ex.P9. The defendants examined Surinder Kumar, Excise Inspector and relied upon documents Ex.D1 to Ex.D6. Contention of the plaintiff that the contract stood revoked by posting the letter dated 13.3.1991 was not accepted by learned trial Court. Learned trial Court relied upon the testimony of Surinder Singh DW.1, Excise Inspector, to hold that the letter never reached to the Excise & Taxation Commissioner, Haryana, and further his deposition on oath dated 24.7.2008 was noticed wherein he stated that the letter regarding withdrawal is not in their possession till today. However, on issue No.5, taking into consideration the fact that exemption in serving Regular Second Appeal No. 1788 of 2008 (O&M) 4 prior notice upon the defendants under Section 80 CPC had been granted by the Court, therefore, issue No.5 was decided in favour of the plaintiff and other issues were decided against the plaintiff. Learned Appellate Court below after analyzing the entire evidence, returned the following findings and dismissed the appeal:- “15. Thus, the perusal of this Clause makes it clear that the bid has been accepted at a fall of the hammer and the bid of the plaintiff was accepted. It was only the prerogative of the Financial Commissioner to reject it. Meaning thereby the contract between the plaintiff and the Govt. was complete and he was left with no chace so as to withdraw the offer. Even if for argument sake, it can be taken that the offer could have been withdrawn till after communication from the Financial Commissioner not rejecting the bid was communicated to the plaintiff, there is no sufficient evidence to show that the bid was successfully withdrawn by the plaintiff. DW.1 has refuted by saying that the withdrawal of the contract was never received in the office of the Financial Commissioner. Apart from that the offer of the bid was accepted by District Excise and Taxation Commissioner so if any revocation was to be communicated, then the same ought to have been communicated to the District Excise and Taxation Commissioner who has Regular Second Appeal No. 1788 of 2008 (O&M) 5 accepted the bid of the plaintiff. Thus, by taking from any angle, it cannot be said that the contract was not complete”. I have heard Mr. Mohan Jain, learned senior Advocate, assisted by Mr. Vikram Jain, Advocate, on behalf of the plaintiff. He has stated that the substantial question of law which this Court is required to examine is “whether withdrawal of the offer before acceptance shall terminate the contract or not?” This Court need not go into this question as there is concurrent finding of fact by the two Courts below that the letter of withdrawal had not reached the Authorities, therefore, the acceptance is binding. It is the case of the plaintiff that the letter withdrawing the bid was posted on 13.3.1991, whereas letter of acceptance had been issued on 15.3.1991. Therefore, it could not be assumed that the letter had reached before communication of acceptance was issued. Reliance has been placed by learned counsel on Union of India & Others v. M/s Bhimsen Walaiti Ram AIR 1971 Supreme Court 2295 to say that final bid which is subject to confirmation can be withdrawn. To fortify this, further reliance has been placed upon The State of Madhya Pradesh v. Hakim Singh and Another AIR 1973 Madhya Pradesh 24 wherein it has been held that the contract is is not complete till confirmation and a bidder can withdraw before the confirmation. These judgments can be of no help to the petitioner as they depend upon a question of fact “whether letter of withdrawal had reached the Authorities who had to grant the approval?” Learned counsel further relied upon Om Parkash Bahal v. Regular Second Appeal No. 1788 of 2008 (O&M) 6 A.K.Shroff AIR 1973 Delhi 39 to contend that mere postage should be considered as presumption in favour of the appellant that the letter of withdrawal had reached the Authorities. A letter posted on 13.3.1991 has to take sufficient time to reach before the concerned quarters. In the present case, on a decision taken by the Financial Commissioner, a communication had been issued on 15.3.1991 which is less than 48 hours, which is a fact which has not been accepted by both the Courts below. Therefore, no substantial question of law arise. There is no merit in the present appeal and hence, same is dismissed. (Kanwaljit Singh Ahluwalia) Judge October 15, 2008 “DK”