1 S.B.CIVIL SECOND APPEAL NO.170/2015 (U.I.T., Bhilwara versus Smt.Rekha Gaggad).Date of Order : 12.08.2015 HON'BLE Mr.JUSTICE P.K.LOHRA Mr.Sandeep Shah for the appellant.
Mr.Darshan Jain, for the respondent.
<><><><> Appellant-defendant has preferred this second appeal to assail the impugned judgment and decree dated 24.02.2015 passed by Additional District Judge No.3, Bhilwara (for short, 'learned lower appellate Court').whereby the learned lower appellate Court has affirmed the judgment and decree dated 05.05.2014 passed by Additional Civil Judge (Sr.Division) No.2, Bhilwara (for short, 'learned trial Court').The facts, necessary and germane to the matter, are that appellant published a Notification for open auction in respect of Plot No.S-68, Azad Nagar Scheme.
In the auction proceedings, besides other incumbents, respondent- plaintiff also participated and being the highest bidder, her bid was accepted on 05.06.2009.
Pursuant to the acceptance of her bid, for a sum of Rs.40,50,000/-, on the same day respondent deposited 1/4th amount of bid to the tune of Rs.10,25,000/-.
In terms of Notification, respondent 2 was required to deposit the remaining 3/4th amount within 30 days to be reckoned from 05.06.2009 and it is clearly evident that the requisite amount was deposited by respondent after expiry of 30 days, i.e., on 06.07.2009.
In such a situation, the respondent-plaintiff was exposed to action at the behest of appellant-UIT and she was asked to pay interest on the amount aforesaid to the tune of Rs.41,663/-.
In the suit filed by the respondent-plaintiff, mainly she has craved for the relief that recovery of the aforesaid amount be declared null and void and a direction be issued to the appellant-UIT to issue requisite lease deed and get it registered in her name.
The suit was contested by appellant and in the return it is specifically pleaded that the respondent-plaintiff is bound by the terms of the Notification and in view of the fact that she has not deposited the requisite amount within the stipulated period, the appellant has rightly raised the demand for interest on the outstanding amount which is a just decision in accordance with Rule 14 read with Annexure “A”.
of the Rajasthan Urban Improvement Trust (Disposal of Urban Land) Rules 1974 (for short 'Rules of 1974').On the basis of pleadings of rival parties, the learned trial Court settled two issues for determination.
The parties led their evidence and the learned trial Court, after 3 scrutinizing the evidence and material available on record, decided both the issues in favour of the respondent-plaintiff and finally decreed the suit.
While extending the benefit to the respondent of the holidays on 4th and 5th July 2009, the learned trial Court invoked powers under Section 4 of the Limitation Act of the 1963 and also applied the legal maxim “lex non cogit ad impossibilia”.Feeling desmayed with the judgment and decree of the learned trial Court, the appellant approached the learned lower appellate Court, and the learned lower appellate Court after thrashing out the matter afresh, fully concurred with the findings and conclusions of the learned trial Court.
Curiously, the learned lower appellate Court has also pressed into service Section 4 of the Limitation Act as well as the aforementioned maxim to non suit the appellant.
I have heard learned counsel for the parties and perused the impugned judgments of both the Courts below.
Upon examining the matter in its entity, and more particularly the argument of learned counsel, Mr.Shah, that auction proceedings were not legal proceedings, therefore, Section 4 of the Limitation Act, 1963 (for short, 'the Act') cannot be invoked, I feel persuaded to examine this argument.
A bare perusal of 4 Section 4 of the Act makes it abundantly clear that it relates to any suit, appeal or application, and therefore, its applicability is confined to Court proceedings only.
Reliance in this behalf can be profitably made to a decision of Hon'ble Apex Court in case of Amar Chand Inani versus Union of India (AIR1973Supreme Court 313).True it is that applicability of Section 4 of the Act is seriously questionable but then in the alternative both the Courts below have applied the maxim “lex non cogit ad impossibilia”.
which means law does not compel a person to do the impossible.
In my considered opinion, both the Courts below have not committed any error in applying the aforesaid maxim.
In Manohar Joshi versus Nitin Bhaurao Patil (AIR1996SC796, Hon'ble Apex Court has applied the aforesaid maxim in the matter of election petition wherein last day for filing the petition was holiday, i.e., Sunday, and therefore, the petition was presented on the next working day.
In yet another case of Mohammed Gazi versus State of M.P.and ORS.[(2000) 4 SCC342, Hon'ble Apex Court, in the backdrop of facts and circumstances of the case, applied the said maxim and observed:- “6.
The Division Bench, while disposing of the LPA, also found that the appellant could not be 5 held responsible for not lifting the tendu leaves and thereby had not committed breach of any condition of the tender.
Finding that the State was also not responsible for any breach, the Division Bench decided to pass the order impugned on the basis of equities.
The arguments advanced on behalf of the appellant before the Division Bench that there was no fault on his part because he had offered bid and was prepared to accept the tendu leaves which he could not lift on account of stay order were found by the Division Bench to be not erroneous.
The Division Bench held that “" the submisson of the learned counsel does not appear to be erroneous".As the State also could not be held responsible for the fault, the Division Bench directed that a sum of Rs.30,000/- be deducted from the earnest money of the appellant.
Such a direction of the High Court cannot be sustained in view of the findings on fact returned in favour of the appellant.
7.
In the facts and circumstances of the case, the maxim of equity, namely, actus curiae neminem gravabit - an act of the Court shall prejudice no man, shall be applicable.
This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law.
The other maxim is, lex non cogit ad impossibilia - the law does not compel a man to do which he cannot possibly perform.
The law itself and its administration is understood to disclaim as it does in its general aphorisMs.all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases.
The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey v.
Tarapada Dey and Gursharan Singh v.
New Delhi Municipal Committee.”
.
Therefore, in totality, the decision of both the Courts below for invoking the maxim “lex non cogit ad impossibilia”.
cannot be faulted.
There is yet another aspect of the matter that even if section 4 of the Act is not applicable then too in the given circumstances Section 10 of the General Clauses Act, 1897 can very well be pressed into service, which reads as 6 under:- “Section 10 Computation of time.
(1) Where, by any [Central Act].or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 (15 of 1877).applies.
(2)This section applies also to all Central Acts and Regulations made on or after the fourteenth day of January, 1887.”
.
Therefore, in totality, when the last day for depositing 3/4th amount expired on 4 July, which was Saturday, and the next day 5 July was Sunday, i.e., both holidays, the respondent has infact not violated the terms of the Notification in deposition of requisite 3/4th amount on the next working day, i.e., on 6.07.2009.
Infact, it was rather impossible for the respondent to deposit the requisite amount on 4th as well as 5th July 2009 being holidays.
The second limb of argument of Mr.Shah that the remaining 3/4th amount was paid by the respondent-plaintiff in part by demand draft and rest by cheque which was encashed admittedly after two days.
Mr.Shah would contend that depositing the amount by cheque is not a valid tender.
There remains no quarrel that normally a bill of exchange, viz.
pay order or demand draft, amounts to a 7 valid tender but in case of cheque the amount is received by the drawee in the form of deferred payment after encashment of the cheque.
The argument of learned counsel appears to be quite alluring but then it is an admitted fact that mode of payment was not stipulated in the auction Notification inasmuch as there was no condition prescribed in the Notification that how and in what manner the highest bidder is required to deposit remaining 3/4th amount within prescribed period of 30 days.
In order to clarify the position, I also made endeavour to examine the relevant rule governing the province of auction, i.e.Rule 14 of the Rules of 1947 in conjunction with Annexure A.
After examining the Rule, I am enable to lay my hand on any provision prescribing the mode of payment by the highest bidder after acceptance of his bid.
Mr.Shah fairly submits that as there was no condition prescribed under the Rules of 1974, the appellant- UIT has rightly not incorporated the requisite recitals about the mode of payment in the notification.
Therefore, in totality, the said argument too cannot render any assistance to the cause of the appellant.
In the instant appeal the fact remains that the amount was accepted by the appellant-UIT on next working 8 day, i.e., 6.07.2009, without any demur, now it is not in fitness of things to upset the concurrent findings of fact recorded by both the Courts below favouring the cause of respondent-plaintiff.
This is a case of concurrent finding of fact and, I am unable to lay my hand on any question of law much less substantial question of law.
It is trite that existence of substantial question of law is sine qua non for maintainability of second appeal.
On delving deep into the matter, I am unable to find any substantial question of law in the matter and the questions sought to be canvassed by the learned counsel for the appellant are also not satisfying the requirements of Section 100 CPC.
Resultantly, the appeal fails and the same is hereby dismissed.
(P.K.LOHRA).J.
Kshama Dixit