RFA 136/2005 BEFORE HON’BLE MR. JUSTICE A.K..GOSWAMI JUDGMENT & ORDER (CAV) This appeal has been preferred by the defendants against the jud gment and order dated 6.7.05 passed by the learned Civil Judge (Sr. Division) No . 2, Bongaigaon, in Title Suit No. 11/03 decreeing the suit of the plaintiff dir ecting the defendants to execute a Sale Deed in favour of the plaintiff in respe ct of the suit property within three months and restraining the defendants perma nently from transferring the suit land to any third party other than the plainti ff. 2. The plaintiff, who is a Carriage & Civil, Mechanical Contractor and Order Supplier, filed the suit against the defendant No. 1, North Eastern El ectric Power Corporation Ltd., for short, NEEPCO Ltd., and its functionaries, ar rayed as defendant Nos. 2 to 5, stating, inter alia, that the defendants are the owners of a plot of land measuring 10 bighas bounded by boundary wall/security fencing and steel gates in the district of Bongaigaon, hereinafter referred to a s suit land, and that over the said plot of land, the defendants had constructe d for the purpose of work of the Corporation, semi permanent Assam Type Building , with C. G. I. sheet roofing and pucca floor with water supply system consistin g of Tube Well/Deep Tube Well Pump house with overhead storage tank and electric ity supply with independent transformer. The land and the building etc. are here inafter referred to as suit property. The suit land was being used as store-yar d and colony complex by the defendants. A sale notice was issued in the 2nd Octo ber 2000 issue of a daily, viz. the Assam Tribune under the signature of the def endant No. 5 intending to dispose of the suit land and building and inviting off ers from interested parties on or before 1 P.M. of 31.10.00. The details of the property including the land and building was indicated. The plaintiff submitted his quotation for land and building on 31.10.00, within the prescribed time offe ring Rs. 1 lakh for the building and Rs.5 lakhs for land and boundary wall, in t otal, a sum of Rs. 6 lakhs, complying with the requirements as stipulated in the sale notice. Vide letter dated 12.2.01, the defendant No. 1 requested the plain tiff to attend a negotiation on 20.2.01 in connection with the aforesaid sale no tice at the Conference Hall of the defendant No. 1 at Shillong. The plaintiff ha d attended the said meeting for negotiation and in the said meeting, the plainti ff revised his offer from Rs. 1 lakh to Rs.2,60,001/- for the building and Rs. 5 ,40,000/- against the earlier quoted price of Rs. 5,00,000/- in respect of land, thus offering a total of Rs.8,00,001/- only. In the said meeting, it was decide d that if the management of the NEEPCO Ltd. agreed to the above offer of the pla intiff, the plaintiff would have to deposit the amount aforesaid within 15 days from the date of the issuance of the letter of allotment and upon such payment, the possession of the land would be passed on to the purchaser. It was also deci ded that the NEEPCO would apply for permission of registration and expenses towa rds registration and permission fees etc. would be borne by NEEPCO. On 26.8.02, Board meeting of the defendant No. 1 was held, wherein the Board approved the pr oposal for sale of the suit property at a total sum of Rs. 8,00, 001/-. Conseque nt upon such decision of the Board, the defendant no. 5, by a letter dated 18.9. 02, requested the plaintiff to deposit the amount of Rs.8,00,001/- in the form o f demand draft of any Nationalized Bank in favour of NEEPCO Ltd. within 15 days from the date of issuance of the letter. The plaintiff on receipt of the letter dated 18.9.02 deposited the sum of Rs.8,00,001/- vide demand draft dated 21.9.02 and receipt of the same was duly acknowledged by the defendant No. 5 on the bod y of the covering letter dated 25.9.02 by which the demand draft was enclosed. Though the plaintiff had performed his part of the contract and still was ready and willing to perform his contract, the defendants failed to execute and regist er the sale deed as was required under the law. In such circumstances, the plain tiff had sent a letter dated 9.1.03 to the defendant No. 5 with a copy to the d efendant No. 3, requesting the defendants to execute and register the sale deed with delivery of possession of the suit property to the plaintiff immediately. T he letter dated 9.1.03 having failed to evoke any response from the defendants, the plaintiff issued a legal notice dated 17.2.03 to be served on the defendants asking the defendants to execute and register the sale deed in respect of the s uit properties and to deliver possession thereof to the plaintiff within 15 days from the date of receipt of the legal notice. As the defendants still did not p erform their part of the contract, the suit was filed, praying for, amongst oth ers, a decree directing the defendants to deliver formal possession of the suit properties to the plaintiff and to execute and register the sale deed in questio n in favour of the plaintiff in respect of the suit property and also for a decr ee directing the defendants to execute and register the sale deed within the tim e specified by the court, failing which the deed be executed and registered acco rding to the provision of O 21 R 34(5) and 6(A) of the CPC. 3. The plaint was subsequently amended by the plaintiff as after th e defendants had appeared, a petition dated 17.4.2003 was filed by the defendant s whereby the plaintiff was informed about the suo moto decision of the defendan ts for cancellation of the negotiation for sale of suit properties made between the plaintiff and the defendants. The defendants vide letter dated 31.3.2003 had intimated the plaintiff through his engaged advocate about the suo moto decisio n of the defendants regarding cancellation of the earlier tenders and proceeding s between the plaintiff and the defendants and also about their decision to go f or re-tendering for disposal of the suit properties and that the defendants had already published the notice about cancellation of the sale notice inviting seal ed tenders dated 29.9.2000, in the 12th April, 2003 issue of the Assam Tribune. The fact of publication of the aforesaid news item came to the knowledge of the plaintiff only on 30.4.03. The defendants also published another sale notice da ted 26.5.03 in the Assam Tribune for sale of the suit properties by inviting ten ders from intending tenderers. Consequently, a prayer for a decree declaring the sale notice for sale of the suit properties as published in the Assam Tribune o n 26.5.03 as illegal and null and void and to grant permanent injunction restrai ning the defendants from transferring/disposing of the suit properties by way of re-tendering or in any other manner and to deliver possession thereof to any th ird party/parties was also made. 4. The defendants had filed a written statement contending, inter a lia, that there was neither any agreement to execute the sale deed nor there was any such sale deed which was required to be executed and registered in respect of the suit property; that the plaintiff filed the suit with an ulterior motive to take the property at a low rate and to create undue hindrance and obstacle in the way of the defendants to get fair market value of the suit property, which belongs to a Central Government Undertaking and the defendants were duty bound t o protect the public property and to ensure that the suit property is not sold a t a low rate, that it was true that the decision to dispose of the suit property to the plaintiff at a price of Rs.8,00,001/- was arrived at, but the same was d ue to mistake. Since the real and the actual value of the suit property was much higher and fraud was practised by the plaintiff in collusion with the district authorities, therefore, such a decision is not binding upon the defendants and t hat the plaintiff is not entitled to any relief. The defendants averred that the value of the suit property will be more than Rs.20,00,000/- besides the value o f the buildings standing thereon. It is further stated that the Reserved Price f or the temporary building as per report of the Internal Audit Section of the Cor poration was assessed at Rs. 2,85,600/- and the Reserved Price of the land as pe r the certificates dated 28-1-1999 and 4-5-2000 issued by the Deputy Commissione r, Bongaigaon was fixed at Rs. 6,73,333/-. It has also been pleaded that in view of the prevailing law and order situation in the area where the suit property i s located at the relevant time when the tender was issued on 2-10-2000, a very poor response was received and in fact, the plaintiff alone was the tenderer and he had also quoted price less than the Reserved Price and it is in these circum stances that negotiations were held with the plaintiff on 20-2-2001, wherein as stated by the plaintiff, the offer was revised to Rs. 8,00,001/-. The defendants also admitted the fact that the apex body of the Corporation in its meeting hel d on 26-8-2002 had approved the final offer of the plaintiff for disposal of the said land and building at a total price of Rs. 8,00,001/-. The deposit of Deman d Draft of Rs. 8,00,001/- by the plaintiff on 21-9-2002 in response to the lette r dated 8-9-2002 of the Corporation, in terms of Clause 5 of the sale notice wa s also admitted, stating, however, that as the Draft was purchased by Missionar ies of Sisters , Tezpur, the same had created some doubt which was, however, cla rified by the plaintiff vide his letter dated 15-12-2002, annexing thereto an af fidavit of the Missionaries of Sisters. Permission for sale of land was obtained from the Chairman, Bongaigaon Development Authority on 1-10-2002 and permission for sale of land was applied to the Deputy Commissioner. While granting permiss ion, the Addl. Deputy Commissioner, Bongaigaon, vide letter dated 7-10-2002 stat ed the price of land to be Rs. 2,00,000/- per Bigha, which was more than the pri ce of the land fixed at Rs. 67,333/- per Bigha as recorded in the certificates d ated 28-1-1999 and 4-5-2000 and Rs. 73,333.33/- per Bigha as fixed by the certif icate dated 9-7-2001. The sudden increase in the price of the land created a con fusion and doubt which resulted in making enquiries which revealed that actual price of the land is more than Rs. 20,00,000/- besides the value of the building . Defendants, accordingly, after appearance had filed an application before the learned trial Court with a Demand Draft of Rs. 8,00,001/- dated 16-4-2003 in fav our of the plaintiff with a prayer to allow the plaintiff to withdraw the amount either under protest or without protest. The Reserved Price for the land was fi xed at Rs. 20,00,000/- and the Reserved Price for the building and structures wa s fixed at Rs. 2,84,600/- while issuing the sale notice dated 22-05-2003. The p laintiff having asked for release of the earnest money, the respondent No.5 rele ased the money in favour of the plaintiff on 9-12-2002. It has been averred that there was merely an agreement between the plaintiff and the officials of the Co rporation to enter into a contract for the sale and purchase of the suit land an d building which cannot be specifically enforced and no formal agreement was ent ered into between the plaintiff and the Corporation as per the Memorandum of Neg otiation dated 20-2-2001. 5. On the basis of the aforesaid pleadings, the learned trial Court framed the following issues :- (1) Is there any cause of action for the suit ? (2) Whether there was any agreement to sell the suit land to the plaintiff b y the defendants ? (3) Whether the discussions and decisions to sell the suit land at Rs.8,00,0 01/- by the defendants to the plaintiff amounts to an agreement for sale ? (4) Whether the decision of the defendants to cancel the tender of the plain tiff and to call for retender is valid ? (5) Whether the plaintiff is entitled to a decree as prayed for ? (6) What relief’s parties are entitled to ? 6. In order to prove its case, the plaintiff had examined one witn ess in the form of PW1 and had also exhibited some documents. Defendants had exa mined two witnesses and had also exhibited some documents. 7. The learned trial Court on consideration of the materials availa ble on record and after hearing the parties had decided all the issues in favour of the plaintiff and accordingly decreed the suit with a direction to the defen dants to execute the Sale Deed in favour of the plaintiff in respect of the suit property within 3 (three) months and also restraining defendants from transferr ing the suit property in any way to any 3rd party other than the plaintiff. 8. The plaintiff, Shri Madan Owary had submitted evidence-in-chief under Order 18 Rule 4 CPC. The plaintiff in his deposition has stated that the d efendants who were the owners of land measuring 10 Bighas with boundary walls/se curity fencing and steel gate under Dag No.217 of P.P. No.36 in village Chapagur i No.1 under Bongaigaon Revenue Circle had constructed some semi permanent Assam Type building with CGI sheet roofing and pucca floor, installed water supply sy stem and electricity supplies with independent transformers in the said land and had been using the same as their store-yard and colony complex. The defendants, intending to dispose of the said store-yard and colony complex, as in wherein b asis, issued a sale notice in the 2nd October, 2000 issue of the Assam Tribune u nder signature of the defendant No.5, inviting offers from the interested partie s on or before 31-10-2000, wherein details of the properties were also indicated . He had submitted his quotation in response to the said notice on 02-10-2000, q uoting Rs. 1 lakh for the building and Rs. 5 lakhs for the land and boundary wal l and along with the said quotation he had also deposited 5% of the bid amount, amounting to Rs.30,000/-. The defendant No.5 had, by letter dated 12-2-2001 invi ted him to attend a negotiation at Shillong on 20-2-2001 and accordingly, he had attended the meeting wherein it was agreed by the plaintiff that he would offer for the building, a sum of Rs. 2,60,001/- against the quoted price of Rs. 1 lak h and a sum of Rs. 5,40,000/- for the land against the quoted price of Rs. 5 lak hs. He further deposed that if the management of the defendant No.1 agreed to th e above negotiated offer made on 20-2-2001, he would have to deposit the amount of Rs. 8,00,001/- within 15 days from the date of award of letter of allotment a nd upon such payment, the possession of the land and building would be passed un to him and that defendants would apply for permission for registration and the r egistration fee, if any, would be borne by the defendants. On 26-9-2002 the Boar d approved and accepted the negotiated offer and accordingly, the defendant No.5 vide his letter dated 18-9-2002 requested him to deposit the amount of Rs. 8,00 ,001/- in the form of Demand Draft from any Nationalised Bank, whereupon he had deposited an amount Rs. 8,00,001/- vide Demand Draft dated 21-9-2002 which was f orwarded by his letter dated 25-9-2002. It is also stated that he had performed his part of the contract and is still ready and willing to perform his part of t he contract, if any, but the defendants, contrary to their commitment made in th e meeting on 20-2-2001 did not deliver possession of the land to him in spite of depositing consideration money in full and had also failed to execute and regis ter the Sale Deed as required under the law. It is in such circumstances that th e plaintiff on 9-1-2003 issued a letter to the defendant No.5 with a copy to the defendant No.2, requesting them to deliver possession of the land and buildings aforesaid to him immediately and to execute and register the Sale Deed. As no r esponse was forthcoming from the defendants, he had also caused a legal notice d ated 17-2-2003 to be served on the defendants. The PW-1 in his affidavital evide nce had stated that the suo moto decision of the defendants regarding the cancel lation of the earlier tender and also their decision to go for re-tendering for disposal of the suit premises as published in the 12-4-2003 issue of the Assam T ribune is illegal and void. The PW-1 had exhibited the following documents as Ex hibits :- (1) Letter dated 12-9-2001 of the defendant No.5 inviting to attend negotiat ion on 20-2-2001 as Exhibit-1. (2) Minutes of the negotiation meeting held on 20-2-2002 as Exhibit-2. (3) Letter of acceptance dated 18-9-2002 issued by Dy.(C) of NEEPCO Ltd. As Exhibit-3. (4) Forwarding letter of payment of full consideration money of Rs. 8,00,001 /- in favour of the NEEPCO Ltd. dated 25-9-2002 as Exhibit-4. (5) Letter dated 9-10-2003 to the Dy. Manager (c), NEEPCO to execute Sale De ed and to deliver possession of the land and properties as Exhibit-5. (6) Office copy of the Legal Notice dated 17-2-2003 issued by Advocate Mr. K . Raza as Exhibit-6. (7) Registered letter dated 31-3-2003 issued by Shri U.K. Jindal, Advocate o f NEEPCO to Mr. K. Raza, received on 5-4-2003 as Exhibit-7. (8) News Edition of The Assam Tribune dated 12-4-2003 wherein cancellation of Sale Notice dated 29-9-2000, was published by the defendants as Exhibit-8. (9) News Edition of The Assam Tribune dated 26-5-2003 wherein defendants p ublished notice inviting fresh tenders for disposal of suit properties as Exhibi t-9. (10)Cancellation of sale notice dated 31-03-2003 as Exhibit - 10. (11) Order dated 22-08-2003 of the High Court in MAF No. 97/ 2003. 9. In his cross examination, the PW-1 deposed that the houses in th e suit land are about 15-20 years old and are almost in damaged condition. He ha d also deposed that he had withdrawn the earnest money amount. It also came out in his evidence that he was the lone tenderer. The amount of Rs.8,00,001/- that was paid by him to the defendants was returned back and deposited in the Court b ut he had not accepted it. He denied a suggestion that he cooperated with the de fendants while obtaining the valuation certificate from the office of the Deputy Commissioner, Bongaigaon and that he had influenced to fix lower rate of valuat ion in the suit land. According to him, after negotiation was being finalized, t he defendants had filed petition before the Deputy Commissioner, Bongaigaon for transfer in which he did not put his signature. He denied the suggestion that he was aware that the valuation of the suit land was fixed at Rs. 2 lakhs per Bigh a excluding the structure standing thereon in the suit land while issuing permis sion by the Office of the Deputy Commissioner. He also denied the suggestion tha t since there was no formal contract with the defendants with regard to the sale of land, the defendants are not bound to execute and register the Sale Deed and to deliver the possession of the land. 10. The defendants had submitted evidence under Order 18 Rule 4 CPC of one Sri Jadu Nath Bora as DW-1. However, the evidence of aforesaid Jadu Nath Bora was struck out as he had failed to present himself for cross-examination. T he Affidavit under Order 18 Rule 4 CPC filed by one Sri Lakshmi Kanta Barua was treated as the evidence of DW-1 and the Affidavit under Order 18 Rule 4 CPC subm itted by one Sri Kangkan Sarma was treated to be the evidence of DW-2. The DW-1, Lakhshmi Kanta Barua, who is Dy. Manager (C) of the defendant Corporation had t endered in the evidence, the copy of the authorization letter directing him to d epose on behalf of the defendants as Exhibit-A. In his evidence, the DW-1 had st ated that the suit was filed by the plaintiff with an ulterior motive to take pr operty at a low rate and to create obstacle in the way of the defendant getting fair market value of the suit property. He had stated that the negotiations and the decisions to dispose of the said property to the plaintiff at the price of R s. 8,00,001/- was admittedly arrived at due to mistakes as regards real and actu al value of the property as well as the fraud played by the plaintiff in collusi on with the district authority and as such the negotiations and decisions to dis pose of the property to the plaintiff at such a low price is not binding upon th e defendants inasmuch as the value of the land would be more than Rs. 20 lakhs b esides the value of the building standing thereon. He has also stated that the r eserved price of the building stood at Rs. 2,85,600/- as per the report of the I nternal Audit Section of the Corporation Office and the reserved price of land w as fixed at Rs. 6,73,333/- as per the valuation certificates dated 28-1-1999 and 4-5-2000 issued by the Deputy Commissioner, Bongaigaon and the approval of the competent authority was obtained on the basis of the Internal Audit Report of th e two certificates aforementioned. In response to the tender notice dated 2-10-2 000, only the plaintiff had submitted tender, that too quoting price less than t he reserved price. He also stated that the poor response to the said tender noti ce was due to prevailing law and order situation in the locality where the suit property is situated. The DW-1 stated that the total offer of the plaintiff at R s. 8,00,001/- made in the negotiations held on 6-2-2001 was approved by the mana gement of the Corporation and the plaintiff had also deposited the draft of Rs. 8,00,001/- in terms of Clause 5 of the tender notice. Permission of the sale of land was obtained from the Chairman, Bongaigaon Development Authority on 1-10-20 02 and necessary permission for transfer of land was sought for from the Deputy Commissioner, Bongaigaon on 7-10-2002. While granting permission of sale, the Ad ditional Deputy Commissioner, Bongaigaon stated that the price of land is Rs. 2 lakhs per Bigha. The increase of the price of land as reflected in the certifica ted dated 7-10-2002 from the price of land as indicated in the earlier valuation certificates dated 28-1-1999 and 4-5-2000 created doubt and confusion in the mi nds of the officers of the Corporation and thereafter, on personal inquiries bei ng made, it was revealed that the actual price of the land would be much more th an Rs. 20 lakhs besides the value of the building. It is in these circumstances, in order to protect the public property and money, the competent authority of t he Corporation decided to cancel the entire transaction and to go for re-tenderi ng for the sale of land and building in question. The Deputy Commissioner, Bong aigaon was also requested to assess the present value of the land on 17-2-2003 b ut the same was not done. It is also stated by him that in the sale notice issue d on