Mutallib Vs Sunil Jain - Court Judgment

Excerpt:
absence of any express stipulation in the instructions to bidders / what in the absence of any mention of the consequence of rejection of the offer? / whether a condition is essential or collateral could be ascertained by reference to the consequence of non-compliance thereto -- in the absence of any express stipulation in the instructions to bidders or the special terms and conditions or in the prescribed price schedule prohibiting the tenderer from quoting a discount on the price offered by him, the high court could not have come to the conclusion that by offering a discount of 1% on the quoted price ion exchange has committed a breach of the essential terms of the tender notification or the tender format.[para 16] in the absence of any mention of the consequence of rejection of the offer for not indicating the total excise duty amount in rupees included in the price of plants and equipments in the tender documents, the high court could not have held that ion exchange had committed breach of an essential term or condition of the tender notification or the tender format. for this conclusion, we are again supported by the decision inkanhaiya lal agrawal v. union of india and others (supra) in which this court relying on g.j. fernandez v. state of karnataka [(1990) 2 scc 488[para 18] "whether a condition is essential or collateral could be ascertained by reference to the consequence of non-compliance thereto. if non- fulfillment of the requirement results in rejection of the tender, then it would be an essential part of the tender otherwise it is only a collateral term." hence, if on the recommendation of the tender committee, the accepting authority did not find the deviation from clause (ii) of the note by ion exchange very material and has accepted the offer of ion exchange, the division bench of the high court could not have held that ion exchange committed a breach of an essential term by not mentioning the excise duty amount in rupees in its offer.[para 18] by reversing the decision of the accepting authority of the irctc, the division bench of the high court, in our considered opinion, acted as an appellate court and exceeded its power of judicial review in a matter relating to award of contract contrary to the law laid down by this court in the leading case of tata cellular (supra). held: in the result, we set aside the impugned judgment and order of the division bench of the high court and allow the appeals of irctc and ion exchange and dismiss the appeal of doshion. there shall be no order as to costs.[para 19,20]1. whether the reporters of local papers may be allowed to see the judgment? yes2. to be referred to reporter or not? yes3. whether the judgment should be reported in the digest? yesorder1.present revision petition has been filed by petitioner against order dated 13th july, 2010 passed by civil judge, delhi. 2. brief facts of this case are that petitioner is a tenant under the respondent in premises h.no. 3577, band gali, near jain mandir, dharampura, gandhi nagar, delhi.3. petitioner filed suit for permanent and mandatory injunction against respondent on the ground that respondent should not get the premises vacated without due process of law. in those proceedings, respondent filed an application under order 39 rule 10 of code of civil procedure (for short as code).4. vide impugned order, trial court held that the rate of rent of premises is rs.19,000/- p.m. and rent has been paid till 9th august, 2009. petitioner was directed to make payment of rs.1,14,000/- as rent from september, 2009 till the filing of application.5. it is contended by learned counsel for petitioner that respondent has not filed any documentary proof in support of his claim as to how the rent of the premises comes to rs.19,000/- p.m. petitioners case is that rent of the premises is rs.2,800/- p.m. only. trial court passed the impugned order on the basis of some amount calculated or entries made on a plain paper which is void ab initio. the said entries have not yet been proved in the court and as such impugned order is liable to be set aside.6. petitioner admits that he is a tenant under the respondent but the rate of rent is rs.2,800/- p.m., whereas case of respondent is that rent is rs.19,000/- p.m. as far as the alleged piece of writing is concerned, therein rate of rent has been mentioned as rs.19,000/- p.m. as per findings of the trial court, this document has not been denied by the petitioner. relevant findings of the trial court in this regard read as under:- "admittedly, the plaintiff is in possession of two floors of the suit property. the defendant has placed on record a writing on which it is mentioned that till 24.11.08 the account settled as per reading. the plaintiff has not denied his signatures on the writing. it is also mentioned that rs.18,000/- has been paid on 17.02.09. there are signatures of the daughter of the plaintiff. it is also mentioned that rs.10,000/- for the month of march received and balance rs.9,000/- was received on 29.03.09. further there is a writing that rs.15,000/- was given on 05.04.09 and rs.13,000/- on 21.04.09. rs.8,000/- was given on 29.05.09 and rs.9,000/- on 09.06.09, rs.15,000/- on 17.06.09, rs.25,000/- on 10.07.09 and rs.20,000/- was paid on 09.08.09. there are signatures of the daughter of the plaintiff on this writing. it is also mentioned in this writing that from 01.12.08, the rent is at the rate of rs.19,000/- per month. there are signatures of the plaintiff underneath this writing. the writing suggests that the rent of the premises is rs.19,000/- per month. admittedly, the plaintiff is also doing commercial activities at the suit property. from the writing, it can be inferred that the rent of the premises is rs.19,000/- per month and the rent is paid till 09.08.09. though this writing also shows that some payment has already been made on account of electricity charges. thus, this application in respect of the rent is allowed and the plaintiff is directed to make the payment of rs.1,14,000/- for the rent from september 2009 till the filing of the application. the plaintiff is also directed to make the payment of future rent on or before the 7th day of each succeeding month."7. order xxxix rule 10 of the code read as under: "10. deposit of money, etc., in court. where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the court may order the same to be deposited in court or delivered to such last-named party, with or without security, subject to the further direction of the court."8. according to this provision, where rent is payable and liability to pay is admitted, the court can order deposit of arrears of rent in the court.9. petitioner has taken a contradictory stand with regard to the rate of rent. in the grounds for challenging the impugned order, it is stated that rate of rent is rs.2,800/- p.m. and it was never fixed at rs.19,000/- p.m. however, in the synopsis (page d and e of the paper book) case of petitioner is that in september, 2009, respondent started raising demand of rs.5,000/- p.m. as rent. this is nobodys case that respondent demanded rent at the rate of rs.5,000/- p.m.10. petitioner has not denied his signatures on the writings and it has been clearly mentioned in these writings that from 1.12.2008 the rate of rent is rs.19,000/- p.m. so, trial court rightly inferred, that the rate of rent of the premises is rs.19,000/- p.m. and the same has been paid only till 9.8.2009.11. it is apparent from the record that petitioner who is residing as a tenant in the premises in question wishes to continue to enjoy the use and benefit of the premises without having to pay for the same at the agreed rent.12. under these circumstances, the impugned order is fully justified and do not want any interference in the exercise of the revisional jurisdiction.13. present revision petition being bogus and frivolous one having no merit is hereby dismissed with costs of rs.25,000/- (twenty five thousand).14. petitioner is directed to deposit the costs with registrar general of this court by way of cross cheque, within four weeks from today. cm no. 17880/2010 (stay)15. dismissed.16. list for compliance on 9th november, 2010.

Judgment:
1. Whether the Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

ORDER

1.Present revision petition has been filed by petitioner against order dated 13th July, 2010 passed by Civil Judge, Delhi.

2. Brief facts of this case are that petitioner is a tenant under the respondent in premises H.No. 3577, Band Gali, Near Jain Mandir, Dharampura, Gandhi Nagar, Delhi.

3. Petitioner filed suit for permanent and mandatory injunction against respondent on the ground that respondent should not get the premises vacated without due process of law. In those proceedings, respondent filed an application under Order 39 Rule 10 of Code of Civil Procedure (for short as Code).

4. Vide impugned order, trial court held that the rate of rent of premises is Rs.19,000/- p.m. and rent has been paid till 9th August, 2009. Petitioner was directed to make payment of Rs.1,14,000/- as rent from September, 2009 till the filing of application.

5. It is contended by learned counsel for petitioner that respondent has not filed any documentary proof in support of his claim as to how the rent of the premises comes to Rs.19,000/- p.m. Petitioners case is that rent of the premises is Rs.2,800/- p.m. only. Trial court passed the impugned order on the basis of some amount calculated or entries made on a plain paper which is void ab initio. The said entries have not yet been proved in the court and as such impugned order is liable to be set aside.

6. Petitioner admits that he is a tenant under the respondent but the rate of rent is Rs.2,800/- p.m., whereas case of respondent is that rent is Rs.19,000/- p.m. As far as the alleged piece of writing is concerned, therein rate of rent has been mentioned as Rs.19,000/- p.m. As per findings of the trial court, this document has not been denied by the petitioner. Relevant findings of the trial court in this regard read as under:- "Admittedly, the plaintiff is in possession of two floors of the suit property. The defendant has placed on record a writing on which it is mentioned that till 24.11.08 the account settled as per reading. The plaintiff has not denied his signatures on the writing. It is also mentioned that Rs.18,000/- has been paid on 17.02.09. There are signatures of the daughter of the plaintiff. It is also mentioned that Rs.10,000/- for the month of March received and balance Rs.9,000/- was received on 29.03.09. Further there is a writing that Rs.15,000/- was given on 05.04.09 and Rs.13,000/- on 21.04.09. Rs.8,000/- was given on 29.05.09 and Rs.9,000/- on 09.06.09, Rs.15,000/- on 17.06.09, Rs.25,000/- on 10.07.09 and Rs.20,000/- was paid on 09.08.09. There are signatures of the daughter of the plaintiff on this writing. It is also mentioned in this writing that from 01.12.08, the rent is at the rate of Rs.19,000/- per month. There are signatures of the plaintiff underneath this writing. The writing suggests that the rent of the premises is Rs.19,000/- per month. Admittedly, the plaintiff is also doing commercial activities at the suit property. From the writing, it can be inferred that the rent of the premises is Rs.19,000/- per month and the rent is paid till 09.08.09. Though this writing also shows that some payment has already been made on account of electricity charges. Thus, this application in respect of the rent is allowed and the plaintiff is directed to make the payment of Rs.1,14,000/- for the rent from September 2009 till the filing of the application. The plaintiff is also directed to make the payment of future rent on or before the 7th day of each succeeding month."

7. Order XXXIX Rule 10 of the Code read as under:

"10. Deposit of money, etc., in Court. Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court."

8. According to this provision, where rent is payable and liability to pay is admitted, the court can order deposit of arrears of rent in the court.

9. Petitioner has taken a contradictory stand with regard to the rate of rent. In the grounds for challenging the impugned order, it is stated that rate of rent is Rs.2,800/- p.m. and it was never fixed at Rs.19,000/- p.m. However, in the synopsis (page D and E of the paper book) case of petitioner is that in September, 2009, respondent started raising demand of Rs.5,000/- p.m. as rent. This is nobodys case that respondent demanded rent at the rate of Rs.5,000/- p.m.

10. Petitioner has not denied his signatures on the writings and it has been clearly mentioned in these writings that from 1.12.2008 the rate of rent is Rs.19,000/- p.m. So, trial court rightly inferred, that the rate of rent of the premises is Rs.19,000/- p.m. and the same has been paid only till 9.8.2009.

11. It is apparent from the record that petitioner who is residing as a tenant in the premises in question wishes to continue to enjoy the use and benefit of the premises without having to pay for the same at the agreed rent.

12. Under these circumstances, the impugned order is fully justified and do not want any interference in the exercise of the revisional jurisdiction.

13. Present revision petition being bogus and frivolous one having no merit is hereby dismissed with costs of Rs.25,000/- (Twenty five thousand).

14. Petitioner is directed to deposit the costs with Registrar General of this court by way of cross cheque, within four weeks from today. CM No. 17880/2010 (stay)

15. Dismissed.

16. List for compliance on 9th November, 2010.