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2023 Supreme(Jhk) 5
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Sanjay Kumar Dwivedi, J.
Bina Khanna, wife of Late Subhash Khanna and ors. - Appellants
Versus
State of Bihar (now Jharkhand), through Secretary to the Government of Jharkhand, Forest Department and ors.- Respondents
S.A. No. 55 of 2010
Decided On : 18-01-2023
Advocate Appeared:
For the Appellant :Mr. Sandeep Verma, Advocate.
For the Respondent: Mr. Praveen Akhouri, SC, Mrs. Mohini Gupta, A.C. to S.C.
Headnote:
Civil Procedure Code, 1908 – Section 80 – Forest Produce Auction Rules 1986 – Rule 16(a), 16(b) – Indian Contract Act, 1872 – Section 53 – Sales of Goods Act, 1930 – Section 20 – Second appeal – Second appeal has been filed being aggrieved and dissatisfied with judgment and decree signed, passed in Money Appeal learned District Judge, dismissing said appeal and modifying judgment and decree signed, passed in Money Suit – Held, Court has gone through judgments of trial court as well as appellate court and finds that learned appellate court has dealt with Section 20 of Sales of Goods Act and come to conclusion that where there is unconditional contract of specific goods in deliverable state of property in goods passes to buyer when contract is made and it is immaterial whether time of payment of price or time of delivery of goods, or both is postponed. Section 26 of Sales of Goods Act states principle of risk follows with property – Once property in goods has passed risk or any deterioration of it shall be on purchaser. Admittedly case in hand, appellant-plaintiff has not claimed for any compensation and pleading to that effect is not there. In that view of matter, Section 53 of Indian Contract Act is not attracted – Learned appellate court has dealt with every aspect of matter elaborately – Second appeal dismissed.
JUDGMENT :
Heard Mr. Sandeep Verma, learned counsel appearing for the appellants and Mr. Praveen Akhouri, learned S.C. (Mines)-I for the respondents-State.
2. This second appeal has been filed being aggrieved and dissatisfied with the judgment dated 26.11.2009 and the decree signed on 20.12.2009, passed in Money Appeal No. 01 of 2008, by the learned District Judge, Lohardaga, dismissing the said appeal and modifying the judgment dated 16.05.2008 and the decree signed on 21.05.2008, passed in Money Suit No. 01 of 2000, by the learned Sub-Judge-II, Lohardaga.
3. The Money Suit No. 01 of 2000 was instituted for a money decree for a sum of Rs. 2,54,531/-, as per the details given in the schedule along with cost of the suit with interest pendente lite and future.
4. The money suit was decreed on contest vide order dated 16.05.2008, for a money decree of Rs. 79,490/-along with interest pendente lite and future and cost of the suit. The defendants were directed to pay the amount within 30 days of this order and the plaintiff will be at liberty to realize the decreetal amount through machinery of the court on payment of cost. Aggrieved with the said judgment, the respondents-defendants filed an appeal before the learned District Judge, Lateher, which was registered as Money Appeal No. 01 of 2008. By the judgment dated 26.11.2009, the said money appeal was dismissed with modification of the judgment and decree passed in Money Suit No. 01 of 2000, filed on behalf of the State of Bihar (now Jharkhand). Aggrieved with that, the present second appeal has been filed by the appellants-plaintiffs.
5. In the plaint, it has been pleaded that the plaintiff’s case is that he has got his business of timber in the name and style of M/s Commercial Timber Company having its office at Kanta Toli Chowk, Purulia Road, Ranchi. He participated in the auction on 23.01.1997, 24.02.1997 and 20.03.1997 held by the Divisional Forest Officer, State Trading Division, Lohardaga and was allotted L-24, L-33, L-40R, L-46R, B-59, B-62, B-72. The plaintiff deposited the security amount of Rs. 90,309/-for the purchase of the aforementioned lot Nos. L-24 and L-23.
The first auction of lot No. L-24 and L-33 was held on 23.01.1997 for a sum of Rs. 79,490/-and the plaintiff was required to deposit 15% of the said price as the security deposit, which the plaintiff deposited on that very day. The plaintiff has deposited a sum of Rs. 73,160/-on 18.02.1997 towards the balance amount of the sale price for lifting the timber. After this the trucks were also sent by the plaintiff for receiving the delivery of timbers of lot Nos. 24 and 23, but the same was not released because in the meanwhile Lohardaga depot was seized by competent authority and the said depot remained seized for about six months. In the meantime, the sale price remained deposited with the defendant No. 4.
It is further case of the plaintiff that the second auction was held on 24.2.1997 for lot No. L-40R, L-46R and the total price was fixed at Rs. 3.16, 900/-. The plaintiff deposited Rs. 47,535/-as security deposit on 24.2.1997. Because Lohardaga depot was seized, therefore, the plaintiff was not asked to deposit the sale price nor the said sale was confirmed by competent authority within ninety days from date of auction. As such plaintiff is entitled to refund of the security deposit made on 24.2.1997.
Similar auction with respect to lot B-59, B62, B-72 was held on 20.3.1997 and the total price of said lot was fixed at Rs. 2,06,300/-. The plaintiff deposited 15% of the sale price as security deposit but the defendant did not confirm the said bid within 90 days from the date of auction. Plaintiff is not bound to deposit the balance of sale price because the timber which was auctioned lost its quality.
Since the bid was not ratified within ninety days by the defendants, therefore, plaintiff vide its letter dated 29.4.1997 and 2.7.1997 requested the defendant No. 4 to refund the security money. With res
