IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 RSA.No. 327 of 2011() --------------------- AS.30/2006 of DISTRICT COURT, PATHANAMTHITTA OS.213/2001 of SUB COURT, PATHANAMTHITTA .................... APPELLANT/APPELLANT/PLAINTIFF --------------------------------------------------- T.N.SOMARAJAN NAIR,THYTHOTTATHIL HOUSE, MADAMON.P.O,PAZHAVANGADI,RANNY. BY ADV. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) RESPONDENT(S): RESPONDENT/DEFENDANTS ------------------------------------------------------------------- 1. STATE OF KERALA,REPRESENTED BY THE DISTRICT COLLECTOR,PATHANAMTHITTA-689645. 2. THE DIVISIONAL FOREST OFFICER,OFFICE OF THE DIVISIONAL FOREST OFFICER,RANNY-689672. 3. THE RANGER,OFFICE OF THE RANGER, VADASSERIKKARA-689662. 4. THE DEPUTY TAHSILDAR(HQ),RANNY-689672. 5. THE VILLAGE OFFICER,PAZHAVANGADI-689672. BY GOVERNMENT PLEADER SMT.ANIE PAUL THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 327 OF 2011 =========================== Dated this the 19th day of July,2011 JUDGMENT Plaintiff in O.S. 213/2001 on the file of Sub Court, Pathanamthitta is the appellant. Respondents are the defendants. Appellant admittedly participated in the auction sale of teak wood conducted by the Forest Department and was a successful bidder. He deposited Rs.20,000/- as earnest money. The auction in his favour was confirmed on 25.9.1996. When appellant was directed to take delivery of the teakwood, he did not take delivery. Notice was issued to the appellant to remove the teakwood. He did not even thereafter take delivery of the teakwood. The Forest Department took steps to reauction the teakwood with notice to the appellant. Appellant then instituted O.S.276/1997 before Munsiff Court, Ranni R.S.A.327/2011 2 seeking a decree for injunction restraining the Department from reauctioning the teakwood till the teakwood allegedly substituted was made available or the earnest money of Rs.20,000/- is repaid without disqualifying him. The Department resisted the suit contending that inspite of notice served on the appellant he did not take the teakwood and as provided under the agreement, reauction was proposed to be conducted on 21.10.1997 and subsequently reauction was also conducted on the same day and therefore appellant is not entitled to the decree. Learned Munsiff as per Ext.A4 judgment dated 26.2.1999 dismissed the suit as infructuous. Though appellant challenged the decree,under Ext.A5 judgment appeal was dismissed. Appellant thereafter instituted the suit for a declaration that he is not liable to pay any amount, but did not claim a relief of return of earnest money. According to the appellant, the teakwood auctioned and purchased by the appellant was substituted by low quality teakwood and the agreement was thus violated by the R.S.A.327/2011 3 Department. Later when the difference in the amount realised under reauction and the amount which the appellant was liable to pay i.e. Rs.1,18,361/- was sought to be realised under Revenue Recovery proceedings and notice under sections 7 and 34 of Revenue Recovery Act was issued, appellant instituted O.S.213/2001 before the Sub Court, Pathanamthitta. The suit was only for permanent prohibitory injunction restraining realisation of the amount demanded under Ext.A2 and A3 notices. No declaration was sought for contending that the agreement was violated by the respondents or that the appellant is not liable to pay any amount or the amount as demanded under Ext.A2. Learned Sub Judge on the evidence of PWs 1 and 2, DW1, Exts.A1 to A6 and Ext.X1 dismissed the suit. It was challenged before the District Court, Pathanamthitta in A.S.30/2006. Learned District Judge on reappreciation of evidence confirmed the findings of the learned Sub Judge and dismissed the appeal. It is challenged in the second appeal. R.S.A.327/2011 4 2. Learned counsel appearing for the appellant was heard. 3. The argument of the learned counsel is that eventhough Ext.A1 copy of the complaint preferred by the appellant stating that teakwood was substituted and therefore he is not liable to take delivery of teakwood was produced, respondents 2 and 3 did not file a written statement controverting the said contention and hence courts below should have held that Ext.A1 was sent by the appellant. It was argued that courts below should not have relied on Ext.X1 file to hold that Ext.A1 was not submitted by the appellant. Learned counsel also argued that on the evidence it should have been found that appellant is not liable to pay the amount demanded under Ext.A2 and A3 and therefore a decree should have been granted. Learned counsel finally submitted that in any case appellant is prepared to pay the amount demanded under Exts.A2 and A3 and he may be granted time to pay the amount. R.S.A.327/2011 5 4. On hearing the counsel, I do not find any substantial question of law involved in the appeal. 5. Appellant admittedly executed the agreement undertaking to take delivery of the teakwood on deposit of the value being the successful bidder. When appellant admittedly did not take delivery of the teakwood as demanded by the department, as provided under the agreement the teakwood was reauctioned. When the reauction notice was received by the appellant he instituted O.S.276/1997, a suit for permanent prohibitory injunction restraining the department from reauctioning. Even in that suit he did not produce Ext.A1 to support his plea that he had raised a complaint before the department to the effect that teakwood was substituted. Though learned counsel argued that for the failure of respondents 2 and 3 to file a written statement, Ext.A1 should have been accepted as the copy of the original complaint preferred by the appellant before the department, Ext.X1 file was summoned and produced before court. R.S.A.327/2011 6 Ext.X1 file does not contain the original of Ext.A1 which will not be the case if it was received by the department. Though respondents 2 and 3 did not file written statement, in the nature of the relief sought for in the suit, I do not find that failure to file a written statement denying receipt of Ext.A1 is material. Being a suit only for injunction and that too restraining the recovery of the amount due under Ext.A2 and A3 notices served by the Revenue Authorities, it was not necessary for the department to justify the quantum of the amount claimed as the quantum or the liability as such was not disputed. In such circumstances, on the evidence courts below were justified in holding that appellant did not submit Ext.A1 complaint as claimed by him. On the evidence it can only be found that appellant did not raise any contention before reauction, to the effect that the teakwood was substituted and therefore he is not liable to take delivery of the teakwood. As the agreement provides for reauctioning, if appellant R.S.A.327/2011 7 fails to take delivery of the teakwood the department is definitely competent to reauction the same and realise the balance from the appellant. That exactly is the amount demanded under Ext.A2 notice. In such circumstances, I do not find any substantial question of law involved in the appeal. The appeal is dismissed. As the learned counsel appearing for the appellant submitted that appellant is prepared to pay the amount demanded under Ext.A2 and A3, respondents are directed not to proceed with the revenue recovery proceedings for two months from today to enable the appellant to pay the amount. It is made clear that if the amount is not paid by the appellant before that date, respondents are competent to proceed with the revenue recovery proceedings. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006