Court No. - 10

Case :- FIRST APPEAL FROM ORDER No. - 2997 of 2018

Appellant :- Bainami

Respondent :- Adhishashi Adhikari Nagar Panchayat Barsana And Another

Counsel for Appellant :- Anshu Chaudhary

Counsel for Respondent :- Rama Goel Bansal

Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Sri Anshu Chaudhary, learned counsel for the appellant and Ms. Rama

Goel Bansal, learned counsel for respondents.

2. This first appeal from order filed under Order 43 Rule 1(r) of the Code of

Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") has been filed against

order dated 28.5.2018 passed by Civil Judge (Senior Division) Mathura rejecting

application being Paper No.7-C of the plaintiff-appellant for grant of temporary

injunction in Original Suit No.77 of 2018.

3. The plaintiff-appellant filed original Suit No.77 of 2018 before Civil Judge

(Senior Division) Mathura against defendants-respondents claiming relief of

permanent injunction restraining the defendants from recovering the auction

amount for the year 2016-17 and further direction that the defendants be

restrained from executing agreement. Along with the said suit, an application

under Order 39 Rule 1 C.P.C. was moved for temporary injunction. The

defendant-respondent contested the aforesaid suit and an objection was filed to

the temporary injunction application moved by the plaintiff. By the order

impugned dated 28.05.2018, application 7-C moved by the appellant was

rejected.

4. The case, in nutshell, is that for financial year 2016-17, the defendants-

respondents conducted an auction proceedings on 28.03.2016 for the collection

of parking fee. The period for collection of parking fee was between 01.04.2016

to 31.03.2017. The plaintiff-appellant being the highest bidder was given the

contract for collection of parking fee, as his bid was the highest being at

Rs.36,75,000/-. The appellant had deposited an amount of Rs.4,80,000/-,

however, he did not deposit balance amount. According to the Sharayatnama,

before starting collecting the parking fee, the plaintiff was required to deposit

half of the auction amount. He only deposited Rs.4,80,000/- and did not deposit

the balance amount of Rs.13,57,500/-. It was pursuant to the deposit of half of

the amount that an agreement was to be executed between the parties. According

to the defendant, a notice was sent on 29.07.2016 to the plaintiff but he failed to

deposit the same amount. Again a notice was sent on 19.11.2016 but the plaintiff

failed to deposit the amount and get the agreement executed. The defendant-

respondent on 25.01.2018 had sent a letter to the District Magistrate, Mathura

for issuance of recovery certificate pursuant to which the recovery certificate has

been issued against the plaintiff-appellant.

5. The plaintiff had filed a suit claiming relief that the defendants be injuncted

from recovering the amount pursuant to the auction held on 28.3.2016 for the

year 2016-17 and further sought relief of declaration for returning the amount,

which the defendant had taken from the plaintiff. In the objections filed by the

defendants to the temporary injunction application, a specific plea has been

taken that the suit was not maintainable against the recovery proceedings

initiated by the Collector against the plaintiff and also in view of Order 39 Rule

2(2) of U.P. Amendment in the C.P.C.. The Court below had rejected the

application for temporary injunction on 28.5.2018 on the ground that the suit

filed by the plaintiff-appellant is barred under Section 3(5) of the Uttar Pradesh

Public Moneys (Recovery of Dues) Act, 1972 (hereinafter referred to as "Act of

1972") and Order 39 Rule 2(2) C.P.C. (U.P. Amendment).

6. Sri Anshu Chaudhary learned counsel appearing for the plaintiff-appellant

submitted that the defendants did not permit the plaintiff to carry on the

collection of parking fee and as there was loss in collection of fee, the agreement

was not executed and th