Varghese Vs. D.F.O. - Court Judgment

Excerpt:
- - 3. plaintiff had failed to remit the balance bid amount after the extended period of time granted to him, the forest department had to reauction of the rights that was put in auction earlier, at the risk and costs of the original bidder. 73) wherein it was held that failure to execute a formal agreement is not the criterion of a concluded contract.k.s. radhakrishnan, j. 1. this appeal has been preferred by the plaintiff in the suit. suit was instituted by the plaintiff for declaration that he is not bound by the terms and conditions of the auction notification. he has also sought for a permanent prohibitory injunction restraining state from initiating revenue recovery proceedings against him. trial court found no illegality in the auction notification or in the revenue recovery proceedings initiated against him. consequently dismissed the suit. aggrieved by the same this appeal has been preferred. 2. plaintiff was successful bidder in the auction conducted on 2.12.1981 by which he was given the right to collect usufructs from the trees in cashew plantations in wadakkancherry and machad ranges for the year 1982. auction was conducted by the first defendant according to the sale condition in notification dated 21.10.1981 published in government gazette dated 3.11.1981. as per condition no. 2 of the auction notification the highest bidders have to remit the one-third of the sale value of each plantation subject to a maximum of rs. 10,000/- at the close of auction. plaintiff had remitted rs. 30,000/- towards the one-third of the bid amount at the range office, wadakkancherry on 2.12.1981. as per condition no. 5 the successful bidders had to remit the balance value and a security deposit equal to one/tenth of the total bid amount and to execute an agreement within 15 days from the date of intimation of confirmation orders. sale dated 2.12.1981 was confirmed by the conservator of forests, thrissur as per tr. 11/82 dated 17.2.1982 and the confirmation orders were intimated to the plaintiff on 27.2.1982 by the divisional forest officer, thrissur. plaintiff did not remit the balance value and security deposit and execute the agreement within the allowable grace period which expired on 1.3.3.1982. plaintiff however, being the successful bidder had started taking usufructs from the plantations bid by him by entering into the plantations with necessary workers employed by him for the said purpose. on 11.3.1982 plaintiff had submitted an application to the divisional forest officer, thrichur for granting extension of grace period for remittance of balance value etc. and to execute the agreement for a period upto 15.4,1982. extension upto 12.4.1982 way granted for the remittance of the balance value and for executing the agreement. he again submitted a petition to the conservator of forests, trichur on 6.4.1982 for granting further extension for another 30 days from 12.4.1982 for the remittance of the dues etc. which was granted and he was informed accordingly. on inspection it was noticedthat without executing the agreement plaintiff started collecting cashew nuts from kandachira plantation and possessing 2000 kgs. of raw cashew nuts collected from the plantation. 2000 kgs. of raw cashew nuts were seized from the three workers of the plaintiff as per mahazar on 30.4.1982 and three cases were registered against him. 3. plaintiff had failed to remit the balance bid amount after the extended period of time granted to him, the forest department had to reauction of the rights that was put in auction earlier, at the risk and costs of the original bidder. auction was therefore notified to be held on 14,7.1982. in fact plaintiff tried to challenge those proceedings by filling o.p. 5053/1982 before this court. it is the case of the department that they had sustained a loss of rs. 2,65,147-90 after appropriating the amount that the plaintiff had already deposited. hence they initiated revenue recovery proceedings. hence the plaintiff had tiled the original suit. 4. in order to establish the plaintiff's case he has produced al to a12 documents and got himself examined pw1. on the side of the defendants dw1 and dw2 were examined and exts. b1 to b13 documents were produced. trial court has framed as many as 9 issues which the most important issues is issued no. 7 i.e. whether there was not a concluded contract between the plaintiff and defendants. the fact that the plaintiff had participated in the auction and that he bid in auction are not denied. contention was raised by the plaintiff that he had not entered into any agreement and therefore not bound by the terms of the contract. it has come out in evidence that auction was confirmed in the name of the plaintiff. consequently mere fact that plaintiff was reluctant to execute the agreement would not mean that there was no concluded contract. in this connection it would be appropriate to refer to the decision of this court in kunhikrishnan v. state of kerala (air 1983 ker. 73) wherein it was held that failure to execute a formal agreement is not the criterion of a concluded contract. the same is the view taken by the apex court in syed israr masood v. state of u.p. air 1981 sc 2010 (2). the very fact of depositing of earnest money participating in the auction and remitting the deposit on the same day are relevant criteria to hold that there was a concluded contract. 5. we are therefore of the opinion that there was a valid contract between the plaintiff and the defendants and therefore he cannot repudiate the terms of the sale notification ext. b3. the next question to be decided is as to who has committed the breach. we are of the view it is evident that it is the plaintiff who had committed breach. he was legally bound to execute the agreement since sale was confirmed in his favour. without executing agreement he tried to collect raw cashew nuts in the estate. counsel appearing for the appellant plaintiff submitted that he had to withdraw from the agreement since the cost has gone down. we are of the view the same is not a criterion. the breach was committed by the plaintiff himself. evidence in this case would establish the same. under the above mentioned circumstance we are of theview court below is justified in holding that the plaintiff is not entitled to get any relief prayed for. we concur with the view expressed by the court below. 6. appeal lacks merits and the same is dismissed.