Mr. Justice A. Venkatarami Reddy, President—The A.P. State Financial Corporation, Opposite party in CDC 202/94, District Forum, Chittoor on 27.1.94 published in the newspaper calling for tenders from the public for sale of M/s. Deep Krishna Oil Mills, evidently for the arrears due to it from the said Oil Mills. In the advertisement Ex. Al one 20 H.P. Electric Motor was mentioned as item No. 3 and is one of the items of M/s. Deep Krishna Oil Mills is the subject matter of tender. Basing on the said advertisement, the complainant on 10.2.94 submitted a tender for Rs. 1,30,000/- on instalment payment basis and according to the terms of the tender, deposited Rs. 61,500/- in four instalments and the opposite party sanctioned loan of Rs. 68,500/- to the complainant. According to the complainant at the time of taking delivery of all the accessories of the oil mill, he found that 20 H.P. motor was not available and, therefore, demanded the opposite party to deliver 20 H.P. motor as mentioned in the publication of the newspaper. But the opposite party informed the complainant that the inclusion of 20 H.P. motor in the list of items to be sold was due to a mistake committed by the clerk and asked the complainant to reduce Rs. 13,000/- from out of the tender amount. But as it was not acceptable to the complainant, he filed a complaint claiming that the opposite parties should deliver the 20 H.P. Electric Motor or refund the amount of Rs. 61,500/- together with interest.

2. In the objections and additional objections filed, the opposite party pleaded that the paper publication contained all the machinery owned by the previous owner including 20 H.P. motor and the tenders were called for those items for which the complainant submitted the tender. But it is their case that by mistake in the publication 20 H.P. motor was included and it was made clear to the complainant at the time of opening of the tenders and at the time of the entering into agreement that the sale does not include 20 H.P. motor. Therefore, the complainant was fully aware that the 20 H.P. motor was not included in the sale and also entered into agreement and executed hypothecation deed wherein 20 H.P. motor was not mentioned as one of the items. It is, therefore, their case that the complainant is not entitled to any relief.

3. On a consideration of Exs. Al to A6 and Bl to B3, the District Forum came to the conclusion that as the paper publication contained that 20 H.P. motor was also one of the items to be sold, the complainant submitted tender on the basis of such publication, that is, the amount tendered is also for 20 H.P. motor. It accordingly directed the opposite party to refund a sum of Rs. 61,500/- paid by the complainant together with interest at the rate of 18% per annum from 1.4.94 till the date of realisation.

4. In this appeal preferred by the A.P State Financial Corporation, that is, opposite parties 1 and 2, it is submitted that as subsequent agreement and hypothecation deed do not include 20 H.P. motor, the complainant is not entitled to any relief. But it must be remembered that the complainant submitted tender of the amount on the basis of the publication made in the paper. In the said publication, the 20 H.P. motor was mentioned as one of the items, that is, item No. 3 to be the subject matter of sale. Hence, when the complainant submitted a tender, he did it on the basis that the items for sale include the 20 H.P. motor when the opposite parties did not deliver 20 H.P. motor even assuming it is due to mistake that item was included in the publication, there is deficiency of service on the part of the opposite parties. But in such event, the District Forum ought to have directed deduction of the value of the motor from the tender amount and should not have directed refund of the entire amount of consideration of Rs. 61,500/- paid by the complainant resulting in setting aside the sale.

5. The learned Counsel for the appellant submitted that according to