IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 SA.No. 228 of 1999(B) -------------------- AS.12/1995 OF DISTRICT COURT,THODUPUZHA OS.323/1990 OF SUB COURT,THODUPUZHA .................. APPELLANT / APPELLANT / PLAINTIFF : ----------------------------------------------------------- K.S. ABDUL MAJEED, KOCHUVEETTIL HOUSE, THATTAKUZHA P.O., KARIMANNOOR VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.T.I.ABDUL SALAM RESPONDENTS / RESPONDENTS / DEFENDANTS : ---------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. DIVISIONAL FOREST OFFICER, KOTTAYAM. 3. DISTRICT COLLECTOR, IDUKKI. 4. DEPUTY TAHSILDAR (RR) TALUK OFFICE, THODUPUZHA. R1 TO R4 BY GOVERNMENT PLEADER SRI. JAYAKRISHNAN P.R. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- SA.No. 228 of 1999(B) -2- ORDER ON C.M.P. NO. 766/1999 IN SA. NO. 228/1999 DISMISSED 07/02/2011 SD/- P. BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE Mn P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 228 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of February, 2011. JUDGMENT The plaintiff, who was non-suited by both the courts below is the appellant. The plaintiff participated in an auction for removal of teak wood conducted on 28.8.1986. He turned out to be the highest bidder and sale was confirmed in his favour. The sale confirmation was on 22.10.1986. The plaintiff received the communication only on 4.12.1986 and the period for payment of the balance amount commenced only from that date. The plaintiff then contended that the plaintiff has four months' period for payment without penalty. The short case put forward is that before expiry of that period, a re-auction was conducted. the plaintiff had paid a sum of Rs.20,000/- as advance sale consideration and that had to be returned in the light of re-auction conducted by the defendants. On these allegations, the plaintiff instituted the suit. S.A.228/1999. 2 2. The defendants resisted the same by pointing out that the plaintiff had defaulted in payment of the amount due from him as per the terms of the gazette notification relating to the auction. The communication of confirmation of sale was on 27.10.1986 and the period for payment begins to run from that date. The plaintiff had applied for extension of time, that was initially granted and certain amounts were paid. Again extension was sought for and that was also granted, but even within that time the entire amount was not paid. Therefore, re-auction was conduced after due notice to the plaintiff. The defendants had suffered a loss of Rs.67,885.85 in the auction and they are entitled to set off Rs.20,000/- paid as advance towards the loss sustained by them. So they contended that the suit is liable to be dismissed. 3. On the basis of the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A6 from the side of the plaintiff. Defendants had D.W.1 S.A.228/1999. 3 examined and Exts.B1 to B8 marked. The trial court did not find any substance in the contentions raised by the plaintiff and found that the loss sustained on re-auction could be computed only at Rs.44,310/- and also held that the defendants are entitled to set off Rs.20,000/- for the loss so sustained by them and after setting off Rs.20,000/-, liberty was given to the defendants to realise the balance amount. 4. Aggrieved by the judgment and decree of the trial court, the plaintiff carried the matter in appeal as A.S. 12 of 1995 before the District Court, Thodupuzha. The lower appellate court found that there is substance in the claim made by the plaintiff that he received the confirmation letter only on 4.12.1986. However, the lower appellate court found that extension of time was granted and the plaintiff had failed to make the payment within the extended time and therefore the defendants were justified in conducting re-auction and confirmed the judgment and decree of the trial court. S.A.228/1999. 4 5. Notice is seen issued on the following questions of law: “(A) Whether the postal seal in a postal cover is a relevant factor and evidence in deciding the date of receipt of a postal communication? (B) Whether a court of law can ignore a postal seal in a postal cover and place reliance on any other private document produced by a party to the suit to decide a fact of receipt of a postal communication? © Whether the grace period of 60 days guaranteed by the conditions of auction through a Gazette Notification and accrued as a statutory right can be taken away by a party by reason of a disputable fact? (D) Whether the courts below can assume or presume something ignoring the over-riding effect of a document to deny a statutory right of a party? (E) Whether the courts below are justified in relying on a re-auction held contrary to the true scope of the auction rules and justify a S.A.228/1999. 5 damage or loss arising out of such an illegal proceedings?” 6. Learned counsel appearing for the appellant in her well prepared and well presented argument drew the attention of this court to certain aspects, which according to the learned counsel, have not been gone into by the courts below. Learned counsel went on to point out that the lower appellate court has accepted the plea raised by the appellant that the sale confirmation letter was received only on 4.12.1986 and if that be so, going by the conditions of the sale notification, the plaintiff has four months' time to effect payment. The plaintiff had applied for extension of time initially and which was granted and the amount with penalty was imposed. Again extension had been sought for and that too was granted. The plaintiff was then entitled to apply for extension, but in the meanwhile re-auction was conducted and it was not in accordance with law and without issuing notice to the plaintiff. It is also contended that S.A.228/1999. 6 Ext.B8, based on which the defendants seek to sustain their claim for loss, was only a copy of the document and that was not admissible in evidence. Accordingly, it is contended that the courts below have erred in law in dismissing the suit. 7. Per contra, learned Government Pleader pointed out that there is no substance in the appeal at all. Both the courts below have considered all the contentions raised in the case and found that they are not sustainable. Learned Government Pleader pointed out that the findings are based on the facts and the evidence on record and no substantial question of law arises for consideration in this Second Appeal. 8. It is not in dispute that the plaintiff was the highest bidder for 1385 teak poles for Rs.3,53,380/-. Going by the sale notification, the plaintiff had to pay Rs.20,000/- immediately and balance amount after receiving the communication of confirmation of sale. It is admitted by both sides that Rs.20,000/-, which should ultimately go towards sale consideration, was infact paid. The defendants S.A.228/1999. 7 would maintain that they had sent the confirmation of sale notice on 27.10.1986 and it should be presumed that the plaintiff had received it within a few days. However, the plaintiff would contend that he had received the communication only on 4.12.1986. 9. It is based on the claim that the communication was received only on 4.12.1986 that the entire case is built up by the plaintiff. The lower appellate court found that even assuming that the communication was received only on 4.12.1986, still the plaintiff will have to fail, because he did not pay the balance amount within the extended period. 10. The above finding of the lower appellate court is attacked by the learned counsel for the appellant on the ground that going by Clause 6 of Ext.B2, the plaintiff had four months from the date of receipt of the communication, ie., 4.12.1986, to pay the amount. If that be so, the re-auction conduced within that time is illegal. 11. Though the argument looks attractive at the first blush, on a close scrutiny it can be found to be of no S.A.228/1999. 8 merit. The balance payment after the initial payment of Rs.20,000/- is covered by clause 4(c), (d) and (e) of the notification. Clause © stipulates that within 60 days from the date of communication regarding the confirmation of sale, the amount has to be paid and if that is not done, a grace period of 30 days could be granted. Subsequently, it is stated that if the amount is not paid within four months time, re-auction can be conducted. However, Sub clauses ©, (d) and (e) of Clause 4 of the notification is clear regarding the payments to be made by the plaintiff. The evidence on record, which has been appreciated by both the courts below indicate that the plaintiff did seek extension of time and that was granted, initially for two months and thereafter for one month. It appears that the plaintiff did not do anything thereafter even though the plaintiff had initially paid a total amount of Rs.2,29,684.60 by then. The balance amount due is Rs.1,23,696/- and that has not been paid. It was under those circumstances, the courts below found that the State was constrained to conduct re-auction after S.A.228/1999. 9 issuing notice to the plaintiff. Even going by the case of the plaintiff it can be seen that the plaintiff did receive notice of re-auction, the plaintiff did nothing in the matter. Probably he remained satisfied hoping that time will be further extended. 12. It could thus be seen that there is no merit in the first contention that the statutory period had been granted for payment of the amount. The period of four months mentioned in clause 4 is for the State to conduct re-auction and not for the plaintiff to pay the amount due as per the sale confirmation in his favour. 13. Both the courts below have fully justified in coming to the conclusion that the plaintiff had defaulted in payment of the balance amount due as per the conditions in the auction notification. There is no merit in the contention of the learned counsel for the appellant before this court that the re-auction was conducted before the expiry of the statutory period available to the plaintiff for payment. In fact a strict view of sub-clause (c) of Clause 4 would show S.A.228/1999. 10 that the period of four months begins from the date of communication and not from the date of receipt of the communication. Even assuming that he received the notice only on 4.12.1986, he was granted extension of time. It is true that he did pay substantial amount but no reasons are given as to why he did not pay the balance amount or he did not seek extension of time. There is nothing to show that the proceedings for re-auction were initiated while his application for extension of time was pending. There is nothing to indicate that it was without consideration of the application for extension of time re-auction notification was issued. There was no case for the plaintiff that his application for extension of time was still pending and before it was disposed of, re-auction was conducted. Going by the evidence on record, it is seen that re-auction was conducted after 30 days after re-notifying the auction and there is no legal infirmity in the re-auction. 14. The further contention is that at any rate State is not entitled to appropriate Rs.20,000/- towards S.A.228/1999. 11 damages and that should be adjusted towards the sale consideration. 15. This contention has no merits at all. It is made clear in the auction notification that if the plaintiff fails to remove the teal logs within the period stipulated therein, the State is entitled to conduct re-auction at the risk and cost of the plaintiff. Ext.B8 shows that re-auction was conducted and State had suffered loss of Rs.44,310/-. Here, one may notice the contention of the learned counsel for the appellant that Ext.B8 being a copy should not have been accepted in evidence. It is too late in the day to take up this contention before this court. If any such contention was available, the plaintiff should have taken objection at the time of admitting the document. Once the document is taken in evidence, its admissibility cannot be questioned. So that contention has to fail. State is entitled to set off the amount, which had already been paid by the plaintiff towards sale consideration, since auction notification clearly stated that the State is entitled to recover damages S.A.228/1999. 12 sustained in re-auction. Ext.B8 has indicated the difference in the sale price between auction and the re-auction. In fact Ext.A1(a) shows that the total claim made was over Rs.67,000/- and odd but the trial court has only accepted Rs.44,310/-, which is the difference between auction and re-auction. It could not be said that the courts below have erred in any manner in dismissing the suit. The result is that this appeal is without merits and it is liable to be dismissed. I do so. However, there will be no order as to costs. P. BHAVADASAN, JUDGE sb.