Andhra Pradesh High Court - Amravati
S.Abdul Rasool vs The Proddatur Municipality Rep By Its ... on 6 September, 2024
APHC010410072005
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
FRIDAY ,THE SIXTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 591/2005
Between:
1. S.ABDUL RASOOL, S/O MAHABUB SAB BUSINESS R/O 23/350,
MUSLIMPURA STREET, PRODDATUR, KADAPA DISTRICT.
...APPELLANT
AND
1. THE PRODDATUR MUNICIPALITY REP BY ITS EXECUTIVE
AUTHORITY, The Commissioner, Proddatur.
...RESPONDENT
Appeal against the judgment and decree passed in O.S.No.102 of 2000
dated 28-2-2005 on the file of the Senior Civil Judge, Proddatur.
IA NO: 1 OF 2005(ASMP 1419 OF 2005
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
condone the delay of 41 days in filing the present appeal
IA NO: 2 OF 2005(ASMP 1917 OF 2005
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
grant stay of execution of decree and judgment in O.S.No.102/2000 on the file
of the Sr.Civil JugeProddatur pending disposal of the above appeal.
Counsel for the Appellant:
1. K RATHANGA PANI REDDY
Counsel for the Respondent:
1. N RANGA REDDY
The Court made the following:
Judgment:
The appeal is filed against the judgment and decree dated 28-02-2005
in O.S.No.102 of 2000 passed by the learned Senior Civil Judge, Proddatur,
Kadapa District. The suit is filed for recovery of lease amount due by the
defendant with interest amounting to Rs.2,66,400/-.
2. The case of the plaintiff/Municipality as narrated in the plaint, in brief,
is as follows:
It is pleaded that the plaintiff/Municipality conducted auction of the lease
hold rights for collection of kist from the vendors of vegetable market situated
in K.K. Street, Proddatur town in respect of certain stalls specifically
mentioned in the plaint for the year 1997-98 i.e. from 01-4-1997 to 31-3-1998
on 15-3-1997 after following due procedure in this regard including publication
of the same in the Extraordinary Gazette, Kadapa District. In the said auction
held on 15-3-1997, one S. Abdul Rasool, the defendant herein,
was the highest bidder having bid for an amount of Rs.18,75,000/-.
The plaintiff/Municipality confirmed the said bid in favour of the defendant in its
Resolution No.378, dated 22-3-1997 and issued proceedings to that effect in
Roc.No.1321/97-A, dated 22-3-1997. It is further pleaded that the defendant
fulfilled the said contract up to the period agreed upon 31-3-1998.
After completion of the said contract work, the defendant failed to pay the
amount due to the plaintiff payable under the suit contract and became
a defaulter. The defendant was due and payable to the plaintiff in an amount
of Rs.1,80,000/- including sweeper charges. The authorities of the plaintiff
demanded the defendant on several occasions for payment of the said sum
payable to the plaintiff. The defendant is liable to pay interest over the said
sum of Rs.1,80,000/- at 18% per annum from 01-4-1998. Hence, the suit.
3. Brief averments in the written statement filed by the defendant are as
follows:
It is contended that previously lease amount of the Municipal market
was only Rs.13,92,000/- i.e. for the year 1996-97, but the plaintiff auctioned
the same for Rs.18,75,000/- by enhancing Rs.4,83,000/- because the plaintiff
is going to extend the market area on the eastern side up to the Municipal
road with a measurement of 70 feet east to west. It is further contended that
the meat vendors refused to vacate the meat market and protested the action
of the Municipality by staging dharnas and agitations. They also approached
the Court of law. Hence, the plaintiff failed to hand over the entire area as
stated in the Gazette to the defendant on 01-4-1997. On the demand of the
defendant, the plaintiff handed over the entire area on 30-7-1997 to the
defendant through proceedings No.1321/1997-A1, dated 03-7-1997. It is
further contended that the plaintiff failed to perform the contract on his part as
stated in the Gazette. Hence, there is no cause of action for this suit. It is
prayed to dismiss the suit with costs.
4. Based upon the pleadings of both the parties, the trial Court framed
the following issues and additional issues for trial:
(1) Whether the plaintiff is entitled for the suit amount as prayed for
against the defendant ? and
(2) To what relief ?
Additional issues framed on 27-01-2005:
(1) Whether the counter claim of the defendant is barred by limitation?
and
(2) Whether the defendant is entitled to claim damages from the
plaintiff ?
5. During the course of trial, on behalf of the plaintiff/Municipality, P.W.1
is examined and Exs.A-1 to A-7 are marked. On behalf of the defendant,
D.Ws.1 to 3 are examined and Exs.B-1 and B-2 are marked.
6. After completion of the trial and hearing the arguments of both sides,
the trial Court decreed the suit with costs for Rs.2,66,400/- with future interest
at 6% per annum on Rs.1,80,000/- from the date of plaint till the date of
realisation.
7. The defendant filed a counter claim, but the trial Court dismissed the
said counter claim. For the reasons best known to the defendant, no appeal is
filed by him to challenge the findings of the trial Court in dismissing the
counter claim by the trial Court.
8. Heard Sri K. Naga Phanindra, learned counsel, representing
Sri K. Rathanga Pani Reddy, learned counsel for the appellant/defendant and
Sri V. Sai Kiran, learned counsel, representing Sri N. Ranga Reddy, learned
counsel for the respondent/plaintiff.
9. The learned counsel for appellant would contend that the judgment
and decree passed by the trial Court is contrary to law and he would further
contend that the plaintiff himself breached the contract with the defendant
without handing over the entire vegetable market as per the contract dated
01-4-1997, which was published under Kadapa District Extraordinary Gazette
publication dated 27-02-1997. Therefore, the plaintiff does not have locus
standi to file the suit for recovery of the amount. He would further contend
that the judgment and decree passed by the trial Court is contrary to law and
the same is liable to be dismissed.
10. Per contra, the learned counsel for respondent/plaintiff would
contend that on appreciation of the entire evidence on record, the learned trial
Judge rightly decreed the suit with costs and future interest and there is no
need to interfere with the finding given by the learned trial Judge.
11. Now, the points for determination in the appeal are:
(1) Whether the trial Court is justified in decreeing the suit for
an amount of Rs.2,66,400/- with interest at the rate of 6% per
annum from the date of plaint till the date of realisation ? and
(2) To what extent ?
12. Point No.1: Whether the trial Court is justified in decreeing the suit
for an amount of Rs.2,66,400/- with interest at the rate of 6% per annum from
the date of plaint till the date of realisation ?
The case of the plaintiff is that the plaintiff/Municipality conducted
auction of lease hold rights for collection of kist from the vendors of vegetable
market situated in Koneti Kalva Street, Proddatur Town, for the period from
01-4-1997 to 31-3-1998 i.e. for the year 1997-98 in respect of certain stalls
which are under the control of the plaintiff/Municipality specifically mentioned
in the plaint. The plaintiff further pleaded that after following due procedure in
this regard, a publication was made in Extraordinary Gazette, Kadapa District
and the auction was held on 15-3-1997 and one S. Abdul Rasool i.e., the
defendant was the highest bidder having bid for an amount of Rs.18,75,000/-
and the plaintiff/Municipality also confirmed the bid in favour of the defendant
in pursuance of the resolution dated 22-3-1997 vide Resolution No.378. It is
the specific case of the plaintiff that after completion of the said contract work,
the defendant failed to pay the amount due to the plaintiff under the suit
contract and became defaulter and the authorities of the plaintiff/Municipality
demanded the defendant on several occasions for payment of the sum
payable to the plaintiff, but the defendant failed to pay the suit claim.
The plaintiff further pleaded that the defendant is liable to pay interest over
a sum of Rs.1,80,000/- at 18% per annum from 01-4-1998 onwards.
13. The undisputed facts are that the plaintiff conducted the auction of
lease hold rights for collection of kist from the vendors of vegetable market for
the year 1997-98 which was published in Official Gazette, Kadapa District.
It is also not in dispute that the defendant participated in the auction held on
15-3-1997 and the said auction was conducted by following due procedure
and the defendant was the successful bidder and the same was confirmed by
the plaintiff/Municipality. It is also the specific case of the plaintiff that after
completion of the said contract work, the appellant herein failed to pay the
amount due to the plaintiff.
14. In order to prove the case of the plaintiff, the Revenue Inspector of
the plaintiff/Municipality is examined as P.W.1. As per the evidence of P.W.1,
he was authorized to give evidence in the suit and he also filed authorization
letter under Ex.A-1. As per the evidence of P.W.1, the defendant participated
in the auction and agreed to pay the bid amount of Rs.18,75,000/- per year
during the period from 01-4-1997 to 31-3-1998. It was also admitted by P.W.1
that the bid amount for the year 1997-98 was Rs.18,75,000/-, whereas the bid
amount for the year 1996-97 was Rs.13,92,000/-. As per his own admissions,
the western boundary for vegetable market was mutton market and in the year
1997, the mutton market was not included in the auction proceedings. As per
the explanation given by P.W.1 in his evidence, in the year 1996-97 the
mutton market was not included in the auction proceedings. Furthermore, the
plaintiff relied on Exs.A-3 and A-4. Exs.A-3 and A-4 are resolutions passed by
the Municipal Council accepting the auction in favour of the defendant and the
proceedings issued thereon. It is the specific case of the defendant that the
plaintiff handed over the premises with abnormal delay. It is the specific case
of the plaintiff that the premises were handed over to the defendant after a few
days from the date of beginning of the contract but not by 30-7-1997.
The same is evidenced by Exs.A-3 and A-4.
15. The defendant himself examined as D.W.1. He also deposed that
the plaintiff/Municipality has not handed over the entire area because the suits
filed by the vendors of common mutton market were pending before the Court
of law. It is the contention of D.W.1 that the area is increased from previous
year to this year and that he quoted bid amount of Rs.18,75,000/-. It is
relevant to note about the admissions made by D.W.1 in his evidence in
cross-examination viz., as per the Municipal Commissioner assessment,
he paid the amount for the partition handed over to him and he admits that
there is no mention in the Gazette that the mutton market will be included in
the vegetable market and it will be handed over to him. As per the own
admissions of D.W.1, the vegetable market premises were handed over to him
through resolution dated 22-3-1997. He also admitted about the receipt of
Ex.A-4 proceedings from the plaintiff. D.W.1 further admits about the
collection of amount for the full period up to 31-3-1998. The statement of the
defendant in his evidence is that the Municipal Commissioner orally instructed
him to pay less lease amount than the contract amount. In fact,
in order to prove the said statement, no oral or documentary evidence is
adduced by the appellant. The aforesaid statement of defendant itself clearly
proves that the defendant is admitting his liability to the plaintiff, but the
contention put-forth by the appellant is that as per the oral instructions of the
Municipal Commissioner, he paid less lease amount to the plaintiff.
16. The defendant also relied on the evidence of D.Ws.2 and 3. As per
the evidence of D.Ws.2 and 3, in the year 1997-98 mutton market area was
also included in the vegetable market area and there was a dispute in
between the plaintiff and mutton vendors and suits were also pending, the
plaintiff could not hand over the entire market area to the defendant,
as mentioned in the Gazette Notification. But, in his evidence in cross-
examination, D.W.2 admits that he has not attended the market contract
auction held in the year 1997-98, he never used to go to the Municipality at
any point of time and he does not know the details of auction about the
market.
17. The plaintiff also relied on Ex.A-7 Ledger extract. Ex.A-7 Ledger
extract is a crucial document to decide the suit claim. Though the defendant
formally denied Ex.A-7 Ledger extract, but there is no specific pleading in his
evidence that Ex.A-7 Ledger extract is a false document. Furthermore, the
defendant has not filed any documentary evidence to show that he also paid
the entire amounts other than the amounts mentioned in Ex.A-7 copy of
Ledger extract to the plaintiff. So, the oral contention of the defendant that the
contents in Ex.A-7 cannot be taken into consideration, cannot be accepted.
The defendant also admitted that he agreed to pay Rs.18,75,000/- per annum
being the highest bidder and he is claiming remission, he has to prove that
under what circumstances he is entitled to remission amount, which is the
concluded contract between himself and the plaintiff as per the orders dated
22-3-1997 under Ex.A-4.
18. The defendant also relied on Ex.B-2 copy of representation not
containing the endorsement that it was received by the plaintiff/Municipality.
As stated supra, the contention of the defendant is that he is entitled to
remission to pay the remaining amount but in order to prove the same, no oral
or documentary evidence is adduced by the plaintiff. Ex.B-1 goes to show
that as per the report of the Municipal Commissioner, open area in the
vegetable market was developed by constructing pials and directed the
defendant to occupy the said pials on 30-7-1997. There is no mention in
Ex.B-1 that the pials are constructed in mutton market area after 4 months late
of the lease hold period fixed by the plaintiff/Municipality.
19. For the aforesaid reasons, the plaintiff is certainly entitled to
an amount of Rs.1,80,000/- which is the principal amount to be paid by the
defendant.
20. It was contended by the learned counsel for appellant that the
plaintiff claimed 18% interest per annum on Rs.1,80,000/- from 01-4-1998
onwards till the date of filing of the suit, which is not sustainable under law.
Admittedly, there is no contract in between the plaintiff and the defendant
about the rate of interest.
21. The law is well settled that use of word "may" in Section 34 of CPC
confers a discretion of the Court "to award" or "not to award" interest or to
award interest at such rate as it deems fit. In a decision reported in DDA v.
Joginder S. Monga1, the Apex Court has reduced the post lite interest rate
from 18% per annum to 9% per annum. In ascertaining the rate of interest,
the Courts of Law can take judicial notice of both inflation and also fall in bank
lending rate of interest. The steep fall in bank lending rate of interest can be
considered as ground for reducing the post lite interest from 24% per annum.
This Court is of the considered view that if rate of interest is unconscionable
and usurious, the appellate Court has power to reduce the rate of interest from
what was granted by the trial Court. On considering the aforesaid case law,
I am of the considered view that since there is no contract in between the
plaintiff and the defendant with regard to the rate of interest of 18% per annum
on the principal amount of Rs.1,80,000/- from 01-4-1998 till the date of filing of
the suit, the same is not sustainable under law and the plaintiff is not at all
entitled to the interest of 18% per annum on the aforesaid amount of
Rs.1,80,000/-. For the aforesaid reasons, I am of the considered view that the
plaintiff is entitled to an amount of Rs.1,80,000/-, but the plaintiff is not entitled
to the rate of interest of 18% per annum from 01-4-1998 till the date of filing of
the suit towards interest of 18% per annum. But, the plaintiff is entitled to
interest of 6% per annum on Rs.1,80,000/- from the date of filing of the suit till
the date of realisation.
22. For the aforesaid reasons, the trial Court on appreciation of the
entire evidence on record, rightly assessed the evidence on record and
decreed the suit except the rate of interest awarded by the trial Court from
01-4-1998 till the date of filing of the suit.
23. Point No.2:- To what extent ?
In the result, the appeal suit is partly allowed, by modifying the judgment
and decree dated 28-02-2005 in O.S.No.102 of 2000 passed by the trial Court
as the plaintiff is entitled to an amount of Rs.1,80,000/- (Rupees one lakh and
eighty thousand only) from the defendant and with subsequent interest of
6% per annum on Rs.1,80,000/- from the date of suit till the date of realization.
1
(2004) 2 SCC 297
Pending applications, if any, shall stand closed. Considering the
circumstances of the case, each party do bear their own costs in the appeal.
VENUTHURUMALLI GOPALA KRISHNA RAO,J
To,
2. Two CD Copies
HIGH COURT
VGKRJ
DATED:06/09/2024
ORDER
