Nand Kumar Vs. Sheela Devi - Court Judgment

Excerpt:
- administrative law - government contract: [vijender jain, c.j., rajive bhalla & sury kant, jj] government contract rejection of highest bid challenge as to held, state has no dominus status to dictate unilateral terms and conditions when it enters into contract. its actions must be reasonable, fair and just in consonance with rule of law. as a necessary corollary thereto, state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. the state is free to enter into a contract just like any other individual and the contract shall not change its legal character merely because other party to contract is state. though no citizen possesses a legal right to compel state to enter into a contract, yet latter can neither pick and choose any person arbitrarily for entering into such agreement nor can it discriminate between persons similarly circumstanced. similarly, where breach of contract at hands of state violates fundamental rights of a citizen or its refusal to enter into a contract is contrary to statutory provisions or public duty, judicial review of such state action is inevitable. likewise, if state enters into a contract in consonance with article 299 rights of the parties shall be determined by terms of such contract irrespective of fact that one of the parties to it is a state or a statutory authority. for these precise reasons the equitable doctrine of promissory estoppel has been made applicable against the government, as against any other private individual, even in cases where no valid contract in terms of article 299 was entered into between the parties. hence, if government makes a representation or a promise and an individual alters his position by acting upon such promise, the government may be required to make good that promise and shall not be allowed to fall back upon the formal defect in the contract, though subject to well known limitations like larger public interest. the state, thus, has no dominus status to dictate unilateral terms and conditions when it enters into contract and its actions must be reasonable, fair and just and in consonance with rule of law. as a necessary corollary thereto state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. -- consumer protection act, 1986 [c.a. no. 68/1986]. articles 14 & 300a: government contract noon-acceptance of highest bid held, it does not result in taking away right to property of highest bidder highest bid, per se, unless it is accepted by competent authority, and consequential sale certificate is issued, does not grant the highest bidder right to property of type which is protected under article 300a right to property is limited to confer highest bidder the right to challenge action of appropriate authority in refusing to accept highest or other bids. [air 1984 p&h 282 (fb) explained] articles 14 & 226: government contract rejection of highest bid held, highest bidder has locus standi to maintain writ petition and assail action of state government or its authorities by contending that his bid has been turned down for arbitrary, illegal or perverse reasons however in such matters, heavy onus would like on petitioner bidder to establish his allegations as state action shall always be presumed to be in accordance with law - since he failed to appear in the lower court within 10 days of the date of service, which was 6/9-12-1995 and he appeared only on january 3, 1996, he is not entitled to be granted leave to defend. it was also contended that service was properly effected on the defendant and as he failed to put in appearance within 10 days of the service of summons, the plaintiff is not required to serve on the defendant a summons for judgment in form-4-a of appendix-b cpc.sarojnei saksena, j. 1. defendant-petitioner has assailed the trial court's judgment and decree dated march 21, 1996, whereby his petition to condone the delay was rejected and he was refused leave to defend the suit filed by the plaintiff-respondent and the suit was decreed under order 37 cpc.2. brief facts of the case are that the plaintiff-respondent filed a suit under order 37 cpc for recovery of rs. 46,848/- (rs. 30,000/- as principal amount and rs. 16,848/- as interest) against the defendant-petitioiner. on the institution of the suit summons of the suit was sent in form-b of appendix 'b' cpc to the defendant-petitioner along with copy of the plain. defendant-petitioner is working as senior laboratory assistant, geography department, government ripudaman college, nabha. summons was served on the defendant-petitioner on december 6, 1995, at his college address and on december 9, 1995, at his village address. the next date of hearing was january 3, 1996. on january 3, 1996, the defendant-petitioner appeared in the lower court and the case was adjourned to january 16, 1996. on january 16, 1996, the defendant-petitioner filed a petition praying that he be granted leave to defend the suit. he also explained why he could not appear before the court within 10 days of the service of summons. according to him, as the date of appearance in the summons was shown to be january 3, 1996, he appeared in the court on this date. he also raised a legal objection that along with the plaint copies of annexures were not sent to him, therefore, it does not amount to a valid service.3. the petition was contested by the plaintiff-respondent. it was averred that in the summons it was specifically mentioned that within 10 days of the service of summons the defendant is required to appear in the court. since he failed to appear in the lower court within 10 days of the date of service, which was 6/9-12-1995 and he appeared only on january 3, 1996, he is not entitled to be granted leave to defend. it was also contended that service was properly effected on the defendant and as he failed to put in appearance within 10 days of the service of summons, the plaintiff is not required to serve on the defendant a summons for judgment in form-4-a of appendix-b cpc.4. by the impugned order the lower court dismissed the defendant-petitioner's petition and the suit filed by the plaintiff-respondent under order 37 cpc was decreed on that very day holding that the plaintiff has based his claim on pronote and receipt dated november 26, 1992, which is duly signed by the defendant and attested by two witnesses. the suit is within limitation. the defendant did not put in appearance within 10 days and hence the suit was decreed for rs. 46,848/- with costs and interest at the rate of 12 percent per annum with effect from the filing of the suit till realisation of the decretal amount.5. defendant-petitioner's learned counsel contended that the lower court has fallen into an error in rejecting his petition wherein he had sought leave to defend alleging that the delay in his appearance be condoned as he was misled by the date of hearing mentioned in the summons and, secondly, as he raised a legal objection that along with the plaint as copies of annexures were not sent to him, it is not a valid service of summons. according to the defendant-petitioner's learned counsel the lower court was required to enquire into this legal objection and on that count it should have given leave to defend to the defendant-petitioner. in supnort of this contention, he has relied onshivalik poultry farm v. indian bank, (1985-1)78 p.l.r. 746. he also submitted that the lower court should have considered the defendant's is prayer for condonation of delay as he alleged in his petition that he was misled by the summons wherein date of hearing was shown as january 3. 1996.6. plaintiff-respondents learned counsel contended that in risaldur pakhar singh v. bhajan singh and ors., (1987-1)91 p.l.r. 146 the court has gone to the extent of holding that even if the summons is served without copy of the plaint, it only amounts to an irregularity, which is curable.7. so far as the first legal objection raised by the defendant-petitioner is concerned, no doubt, from the perusal of the plaint it is evident that it does not refer to any annexures, but from the lower court's record it is evident that the pronote was filed along with the suit on november 24, 1995. this document is the basis of the civil suit filed under order 37 cpc and on the basis of this document plaintiffs suit was decreed. no doubt, in the impugned judgment the trial court has also mentioned about a receipt dated november 26, 1992, but no such receipt is available in the lower court's record. hence it is obvious that this pronote was the basis of the suit.in the plaint there is no mention that this document is annexed with the plaint, but that will not make any difference because the suit is based on this pronote. hence under order 37 rule 3 cpc the plaintiff respondent was legally bound to send copy of this pronote also along with the plaint to the defendant-petitiner.8. in babu ram v. satish kumar rawal, 1991 plj 447 a division bench of this court has held that attachment of a copy of plaint or a concise statement thereof along with the summons is mandatory. no summons can be regarded to have been duly served unless accompanied by a copy of plaint. due service means service of summons along with the plaint. compliance of the provisions of order 5 rule 2 cpc is not directory. rather this provision is mandatory.9. the provision of order 37 cpc provides a summary procedure for disposal of case, and, therefore, under its rule 3 the plaintiff is duty bound to send a copy of the plaint and annexures thereto to the defendant under rule 2. the summons is to be sent in form-4 of appendix-b cpc. without copy of pronote it cannot be said that the provision of coder 37 rule 3 cpc was complied with.10. the purpose of annexing the documents along with the plaint is obvious. by considering the copies of documents annexed with the plaint the defendant is given a right to consider whether he wants to contest the suit or not. without looking into the annexures, it is just possible that the defendant may not be in a position to decide whether to contest the suit or not. hence a mandatory provision is made in order 37 rule 3 c.p.c. that the plaintiff shall together with the summons under rule 2 serve on the defendant a copy of the plaint and annexures thereto. in this case as, the annexure i.e. pronote was not sent to the defendant-petitioner along with the copy of the plaint, it was not due service under order 37 rule 3 c.p.c. the trial court fell into an error in not considering this legal objection of the defendant petitioner.11. so far as the point of delay is concerned, no doubt, the defendant-petitioner appeared before the court on january 3, 1996, but on this date the case was adjourned to january 16, 1996, and on january 16, 1996, defendant-petitioner filed the said petition supported by an affidavit wherein he has explained the cause of delay. the plaintiff-respondent has not filed any counter affidavit. hence, the trial court had no reason to disbelieve the oath of defendant-petitioner. this point is of little significance that defendant-petitioner is an educated person, and was in a position to read the summons wherein specifically it is mentioned that he is required to put in appearance within 10 days of the service of summons. a glance of the said summons reveals that in bold litters it is written 'fixed for 3.1.1996.' in the printed matter words '10 days' are mentioned. it is underlined in the original summons, but from the copy of summons which was served on the defendant-petitioner, which was also shown to me during arguments, it is not apparent that these words '10 days' were underlined. since in a routine way when summons is served on a party his attention is drawn to the date fixed mentioned therein. hence on these counts also defendant-petitioner's petition should have been accepted by the lower court and the delay in putting in appearance should also have been condoned. since the defendant-petitioner raised a legal point mentioned above, he should have been granted leave to defend. he has also denied all the plaint-allegations in the said petition.12. in the totality of the circumstances mentioned above, the revision is hereby allowed, impugned judgment and decree are set aside. the petition filed by the defendant-petitioner is allowed. delay is condoned and he is granted leave to defend the suit. parties are directed to appear before the lower court on 17.10.1996.