M/S.Vadakannavar Bros, A Firm By ... vs The Agricultural Produce Market ...
2022 Latest Caselaw 2547 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 16TH DAY OF FEBRUARY 2022

                         BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                R.S.A.NO.100333/2014 (S.P)
BETWEEN:
M/S.VADAKANNAVAR BROS,
A FIRM BY ITS PARTNER
SHRI KOTRESHAPPA SHANTAPPA VADAKANNAVAR,
AGE: 36 YEARS, OCC: BUSINESS,
R/O: PLOT NO. 179, APMC YARD,
GADAG-582101
                                      ...APPELLANT
(BY SRI. C. S. SHETTAR, ADV., AND
SRI. G. K. HIREGOUDAR, ADV.,)

AND
1.      THE AGRICULTURAL PRODUCE
        MARKET COMMITTEE, GADAG,
        BY ITS SECRETARY.

2.      THE AGRICULTURAL PRODUCE
        MARKET COMMITTEE, GADAG,
        BY ITS CHIRMAN.

3.      THE DIRECTOR,
        AGRICULTURAL PRODUCE MARKETING,
        NO.16, 11, RAJ BHAVAN ROAD,
        BANGALORE-560001

4.      M/S.M.B.CHANNAPPAGOUDAR AND SONS,
        A FIRM BY ITS PARTNER
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      MELAGIRIGOUDA MALLIKARJUNGOUDA
      CHANNAPPAGOUDAR,
      AGE: 48 YEARS, OCC: AGRICULTURE,
      R/O. ABBIGERI-582209,
      TALUKA: RON, DIST: GADAG.
                                       ... RESPONDENTS

      THIS RSA IS FILED UNDER SECTION 100 R/W ORDER
XLII RULE 1 OF CPC, 1908, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 18.03.2014 PASSED BY THE
ADDITIONAL DISTRICT AND SESSIONS JUDGE AT GADAG IN
R.A.NO.46/2008 AND ALSO TO SET ASIDE THE JUDGMENT
AND    DECREE     DATED     13.02.2008        PASSED   BY   THE
ADDITIONAL       CIVIL     JUDGE      (SR.DN)     GADAG      IN
O.S.NO.42/1998 AND ALLOW THE PRESENT APPEAL BY
DECREEING       THE      SUIT   OF     THE      APPELLANT    IN
O.S.NO.42/1998.

      THIS REGULAR SECOND APPEAL COMING ON FOR

ADMISSION, THIS COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

The captioned regular second appeal is filed by the

unsuccessful plaintiff, who is questioning the concurrent

judgment and decree passed by the Courts below in

dismissing the suit filed by the plaintiff.

2. The parties are referred to as per their ranks

before the Trial Court.

3. The facts leading to the case are as under:

The plaintiff filed a suit seeking the relief of specific

performance of contract with a prayer to direct defendants

1 and 2 herein to execute lease-cum-sale deed as per

sanction order passed by respondent No.3-defendant No.3

dated 03.10.1994 and for consequential relief of injunction

to restrain the defendants from interfering with plaintiff's

peaceful possession and enjoyment over the suit schedule

property. The plaintiff claims that defendants 1 and 2

pursuant to sanction order passed by defendant No.3

dated 03.10.1994 have executed lease-cum-sale

agreement in favour of plaintiff. The plaintiff claims that

defendant No.1 is the owner of suit schedule property and

there are 20 shops cum godowns in 10 plots at APMC yard

Gadag. The plaintiff claimed that shop-cum-godowns were

allotted to 20 licence holders on leave and licence basis.

The present suit property was infact allotted to defendant

No.4 on leave and licence basis from 15.10.1988 till

26.05.1994. Since there was default on the part of

defendant No.4 in payment of licence fees, his licence was

cancelled with due notice and consequently defendant No.1

took possession of the suit property from defendant No.4

under Mahazar dated 26.05.1994. The plaintiff further

claimed that pursuant to cancellation of licence, as on

26.05.1994 defendant No.4 has no right, title or interest

over the suit property. The plaintiff has further pleaded

that defendant No.4 filed a false suit in O.S.No.304/1994.

The plaintiff claims that after cancellation of licence of

defendant No.4, the authorities i.e. defendants 1 and 2

have allotted the suit property in favour of plaintiff on

leave and licence basis till the execution of lease-cum-sale

agreement and also collected licence fees. The plaintiff

claims that the application filed by him was considered by

the authorities and same is accepted by defendant No.2-

committee under resolution No.3 and there is also sanction

of the said suit plot in favour of plaintiff and accordingly,

defendants 1 to 3 have fixed the market value of the suit

plot at Rs.2,20,000/- payable in installments. It is in this

background, plaintiff claims that he is ever ready and

willing to perform his part of contract. The grievance of the

plaintiff is that, defendants 1 and 2 having assured to

execute the lease-cum-sale deed immediately after

disposal of the suit and the writ petition filed by defendant

No.4. However, defendants 1 and 2 colluding with

defendant No.4 have created documents in respect of suit

property and now intending to alienate the suit property,

so as to nullify the agreement entered into between the

plaintiff and defendants 1 and 2. On these set of grounds,

the plaintiff filed a suit in O.S.No.42/1998.

4. On receipt of summons, defendants 1 and 2

contested the proceedings. Defendant No.1 filed written

statement contending that the suit shop-cum-godown

bearing plot No.179/A cannot be allotted to the plaintiff.

Defendant No.1 claimed that the plaintiff has nowhere

stated in the plaint that it is a registered firm and has not

produced any registration certificate. It was also

specifically pleaded by him that the plaintiff was never put

in possession of suit shop and defendant No.1 was waiting

for approval from higher authorities and it is in this

background, defendant No.1 claimed that the possession of

the suit shop was never delivered to the plaintiff. A specific

contention was taken by defendant No.1 in his written

statement that as per the schemes and bye-laws of APMC,

only one plot is to be allotted to each of the commission

agents or licencees. It was specifically pleaded in the

written statement that the plaintiff was already granted

with two plots bearing No.6 and 179/B and therefore, while

considering the application, it was brought to the notice of

the Committee but through oversight and mistake, the suit

property came to be allotted to the plaintiff. However,

when it came to the knowledge of the Higher Authorities,

the resolution seeking allotment of suit shop in favour of

plaintiff was cancelled. Defendant No.1 also contended that

though the allotment of suit shop in favour of defendant

No.4 was cancelled, the same was revived after defendant

No.4 paid all the dues and therefore, defendant No.1

contended that suit filed by the plaintiff seeking specific

performance of contract is not tenable. Defendant No.2

filed a memo adopting the written statement filed by

defendant No.1.

5. Defendant No.4 also filed written statement

stoutly denying the entire averments made in the plaint.

He specifically pleaded in the written statement that the

possession was never taken from him. He further pleaded

that defendants 1 and 2 having secured instructions that

the plaintiff was already allotted with two plots, have

resolved to cancel resolution No.3. Therefore, when there

is no agreement of lease-cum-sale in favour of plaintiff,

the question of readiness and willingness cannot be

considered as there is no obligation on the part of

defendants 1 and 2 to perform their part of contract.

6. The Trial Court having assessed the oral and

documentary evidence on record has recorded a finding

that the plaintiff is already granted with two plots and

when it was brought to the knowledge of the Higher

Authority, they have cancelled the earlier sanction order

i.e. Resolution No.3 dated 03.10.1994 in regard to plot

bearing No.179/A in favour of plaintiff.

7. The Trial Court having perused the evidence on

record has found that the plaintiff is already allotted two

godown i.e., plot No.6 and Plot No.179B and when it was

brought to the notice of the Director, Agricultural Produce

Marketing Committee, he has rightly cancelled resolution

made by the APMC, Gadag who had resolved to allot suit

property to the plaintiff. The Trial Court has taken judicial

note of the fact that subsequently defendant No.4 who was

defaulter has paid the entire arrears and also licence fee

and other requisite charges. In this background, the

authorities have revived the lease come sale transaction in

favour of defendant No.4 and all the transactions are

regularized. It is in this background, the Trial Court was of

the view that there is no written agreement between the

plaintiff and APMC, Gadag and therefore the present suit

for specific performance is not at all maintainable.

Accordingly, has proceeded to dismiss the suit.

8. The First Appellate Court on re-appreciation of

oral and documentary evidence has also come to

conclusion that the plaintiff is not entitled for relief of

specific performance of contract. The Appellate Court

having independently assessed the oral and documentary

evidence has taken note of clinching rebuttal evidence on

record and was of the view that as per the byelaws of

APMC, the authority can allot only one plot to the

commission agent or licencee. The First Appellate Court

has placed reliance on Ex.P.129. In terms of paragraph

No.6 of Ex.P.129, it is clearly stated that the commission

agent is entitled for allotment of only one plot and

therefore cannot claim and assert allotment of multiple

plots. Referring to Ex.P.31, which is a letter written by

MLA, the Appellate Court has found that the plaintiff is

already allotted two plots i.e., Plot No.179B and Plot No.6.

At Ex.P.31 the MLA has objected for granting plot in favour

of plaintiff. Referring to Ex.D.93, the First Appellate Court

found that respondents-authorities have resolved to revive

the earlier cancellation order passed against defendant

No.4 subject to withdrawal of suit filed by defendant No.4.

9. On perusal of Ex.D.91, the First Appellate

Court found that defendant No.4 has addressed a letter to

the Secretary to APMC stating that he has paid entire dues

on 31.03.1994 and in the very said communication

defendant No.4 has undertaken to abide by the terms and

conditions of the APMC resolutions.

10. The First Appellate Court on these set of

reasonings has come to the conclusion that the plaintiff

has not produced agreement in respect of sale of suit

property. Even otherwise, the First Appellate Court was of

the view that since plaintiff has not challenged the

resolution dated 31.03.1998, no relief can be granted to

plaintiff. The Appellate Court has also recorded a

categorical finding that defendant Nos.1 to 3 have got

every right to cancel the allotment. It is found that the

said allotment was made in gross-violation of the byelaws

and APMC Rules. There is a categorical finding recorded by

the First Appellate Court that the allotment of suit plot was

by suppressing the fact that the plaintiff was already

allotted two plots. On these set of reasonings, the First

Appellate Court has proceeded to dismiss the appeal. It is

against this concurrent finding, the plaintiff is before this

Court.

11. Heard, learned counsel appearing for the

appellant and perused the judgment under challenge.

12. The plaintiff has filed a suit for specific

performance of contract and seeking discretionary relief

and to direct the defendants-authorities to execute lease-

cum-sale deed in terms of sanction order passed by

respondent No.3-defendant No.3 on 03.10.1994. It is not

in dispute that this sanction order is already recalled by

the Director of APMC by order dated 31.03.1998.

13. Both the Courts have concurrently held that

the plaintiff is not entitled for discretionary relief of specific

performance as AMPC has already allotted two plots. Both

the Courts have taken judicial note of the fact that as per

the byelaws and APMC Rules, a commission agent or

licencee is entitled for one plot. In the present case on

hand, the plaintiff-firm was already allotted two plots. It is

in this background, the Director of APMC has proceeded to

cancel the earlier sanction order. Both the Courts have

declined to grant discretionary relief of specific

performance of contract. The said finding arrived at by

declining to grant relief of specific performance of contract

is based on the exhaustive evidence led in by defendants.

The rebuttal evidence adduced by all defendants clearly

indicate that the sanction order made in favour of plaintiff-

firm was rightly cancelled by subsequent order dated

31.03.1998. This order was passed having verified the

records and having found that plaintiff is already allotted

two plots. It is in this background, this Court is of the view

that the judgment and decree of the Courts below are in

accordance with law and do not suffer from any illegalities

and infirmities. No substantial question of law arises. The

appeal is devoid of merits and accordingly the same stands

dismissed.

14. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are disposed of accordingly.

SD/-

JUDGE YAN/EM