9911796707
TMI Blog2000 (7) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... its favor in place of said V.K. Industries. 2. It is alleged that defendants 1 to 3 through their auctioneer - M/s. Thakur and Company held a public auction for sale of re-rollable scrap on 5th November, 1966 at Shakurbasti Track Depot, Delhi. Four conditions of auction in its supplementary clause provided as under:- (a) Only the bona fide re-rollers who wish to participate in the auction of re-rollers will send their duly authorised representatives to participate in the auction. They should carry with them a proper authority from their firm. (b) That the Re-rollers' representing bona fide bidders will produce a power of attorney and certificate from the Iron and Steel Controller, Calcutta and/or Secretary, Steel Re-rolling Mills, Association of India, Calcutta or Directors of Industries of States certifying that the respective bidders are the bona fide ones and are registered with either of the above authorities. These documents will be required to be produced before the depot auctioning authority (viz. Presiding Officer) to his entire satisfaction. (c) That the material to be auctioned should be inspected and examined before hand at the place of availability a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an attested copy of registration certificate No. D1/UP/MTC/4219 in respect of V.K. Industries Along with letter dated 3rd December, 1966 with the Track Supply Officer for taking delivery of the rails 2ft. to 12 ft. purchased in the auction. It appears that the said certificate was considered insufficient. The firm received a letter dated 9th December, 1966 from the Track Supply Officer Stating that it should produce a correct certificate in terms of the conditions of auction. The firm, Therefore, sent a reminder dated 12th January, 1967 to the Director of Industries, Kanpur in continuation of its application dated 1st October, 1966 for amendment in aforesaid SSI No. D1/UP/MTC/4219, in the name of V.K. Industries and Fabricators. The Director of Industries, Uttar Pradesh by its letter dated 24th February, 1967 informed the firm that the item of re- rolling and fabrication has been added in the registration certificate with amended name. Thereafter, the firm wrote to the Controller of Stores forwarding therewith an attested copy of the registration certificate being No. D1/UP/MTC/4219 dated 24th February, 1967. By the letter dated 11th May, 1967, the firm called upon the Controller ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It is pleaded that on 5th November, 1966, the Controller of Stores, Northern Railway held an auction for disposal of scrap steel rails etc. One of the conditions of the auction was that only such of the persons can bid at the auction was that only such of the persons can bid at the auction who were the members of Steel Re-Rolling Mills Association of India or had been certified to be the bona fide re-rollers of the Iron Steel Controller, Calcutta or the Director of Industries of the State concerned. Janki Prasad Tyagi gave bid on behalf of V.K. Industries and Fabricators and the bid was initially accepted. V.K. Industries and Fabricators deposited a sum of ₹ 1,38,000/- with the Railways. On production of a certificate purported to have been signed by Sh. V.N. Dwivedi, District Industries Officer, Ghaziabad certifying that said V.K. Industries was a registered firm as re-rollers, the delivery of part of material was given to said Janki Prasad Tyagi on 21st November, 1966. Later on, on enquiry it was revealed that the said certificate produced by Janki Prasad Tyagi was a forged one. plaintiff and three others have been challaned for the offences under Sections 420/465/471 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afe custody @ 2% of the value of the material for every fortnight or part thereof or ₹ 2/- per day or part of the date for each 1000 sq. ft. whichever is higher w.e.f. 16th November, 1967 and the answering defendants reserve their right to recover the same by filing a separate suit. It is further denied that the plaintiff is entitled to the delivery of 338.08 M. Ts. of scrap rails. Receipt of the notice under Section 80 CPC referred to in para No. 21 of the plaint is denied. 6. On the pleadings of the parties, following issues were framed:- 1. Has plaintiff got transferred in his favor the rights under the contract in dispute from the firm-V.K. Industries and Fabricators? If so, to what effect? 2. Is the suit within time? 3. If issues 1 2 are proved, is the plaintiff not entitled to specific performance of the contract? 4. Is the suit against defendants No. 2 3 maintainable? 5. Did plaintiff serve notice under Section 80 of the Code of Civil Procedure before the institution of the suit? 6. To what amount, if any, is the plaintiff entitled? 7. Relief. 7. Consequent upon the death of the plaintiff on 20th February, 1990, in is No. 4092/90 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s answered in favor of the plaintiff. ISSUE NO. 2 Photostat copies of the notice dated 30th May, 1968 and the reply thereto dated 5th December, 1968 referred to in the preceding para are placed at pages 42 to 44 and 45 respectively on part-III file of the suit. It was contended by Sh. R. K. Anand, Sr. Advocate appearing for the plaintiffs that in terms of the reply dated 5th December, 1968, the contesting defendants undertook to deliver the balance quantity of the material on superdari with sufficient surety on V.K. Industries and Fabricators obtaining release order from the Court and thereafter at no point of time the defendants refused to release the material to the plaintiff and the present suit is thus within limitation. On the contrary, it was urged by Sh. Sanjeev Khanna for the defendants that after the issue of reply dated 5th December, 1968, the plaintiff filed an application on 25th October, 1971 before the concerned Additional Chief Judicial Magistrate, Delhi and by the order dated 27th October, 1971 passed by that Court, balance quantity of material was ordered to be given on superdari of ₹ 1,50,000/- to V.K. Industries Fabricators. Application filed by Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strict Industries Officer, Ghaziabad certifying that V.K. Industries was registered as rerollers. On enquiry, this certificate was found to be forged and CBI filed challan against the plaintiff and three others for the offences under Sections 420/465/471 and 120B IPC. During the course of criminal trial, statements of the said PWs. were recorded and they were also cross-examined on behalf of the accused. Statement of Tilak Raj Sharsar, A.C.O. was recorded by a local commissioner on 4th March, 1993 and in that statement he stated that it is not possible to find out the addresses where the said PWs. are residing at present or if they are alive or not. Statements of the said PWs. are material for the just and fair decision of the case. Needless to say that the plaintiff has contested the application by filing reply. 11. Under Section 33 of the Evidence Act the previous depositions of witnesses are admissible in subsequent proceedings when the witnesses cannot be produced by reason of death, cannot be found, are incapable of giving evidence or kept out of the way by the adverse party or if their presence cannot be obtained without an amount of delay or expense which under the circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, latter firm was required to produce a proper certificate through the letter dated 9th December, 1966 issued by Track Supply Officer. According to the contesting defendants, on enquiry said registration certificate was found to be fabricated and V.K. Industries and Fabricators was neither a certified rerolled on the date of giving bid i.e. 5th November, 1966 as required by the supplementary conditions nor did it apply for release of balance quantity of material on the strength of the certificate dated 24th February, 1967. It was, however, submitted by Sh. R.K. Anand for the plaintiffs that as pleaded in para No. 6 of the plaint, the supplementary conditions had been modified by making announcement at the time of auction by the auctioneer at the instance of Presiding Officer that it was not necessary that the bidder should be a certified rerolled on the date of bid and this modified condition was also acted upon by the defendants in the matter of release of scrap material purchased by M/s. Altair Steel Rolling Mills who were not the certified rerollers on the date of auction. According to the learned counsel the defendants did not specifically traverse the said averments in their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;Rest of the allegations contained in the para under reply are denied' in para No. 6 of the written statement would mean that by implication it is not admitted by the defendants that it was not necessary that a bidder should be a re-roller on the date of giving bid. Thus, the above submission advanced on behalf of the plaintiff is repelled being without merit. 13. Onus to prove the aforesaid allegation was on the plaintiff. It is in the deposition of J.D. Jain, PW-5 that he was not present at the time the auction took place on 5th November, 1966. It is also in the deposition of Pali Ram Jain, one of the partners of M/s. Altair Steel Rolling Mills, PW-3 that no terms and conditions of auction were read out in his presence. Janki Prasad Tyagi who gave the bid on behalf of V.K. Industries and Fabricators, has not been examined by the plaintiff. In the face of said evidence, plaintiff must be held to have failed to prove that it was announced in the auction that it was not necessary that a bidder should be a rerolled on the date of bid as alleged. 14. This brings me to the objections taken by the defendants regarding V.K. Industries and Fabricators not being the certified re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued in favor of M/s. V.K. Industries, Ghaziabad No. D1/UP/MTC/4219. 15. Aforesaid letter dated 29th March, 1967 was sent by V.K. Industries and Fabricators to the Controller of Stores, Northern Railway seeking release of lot Nos. 1/100, 5/63, 6/63 and 7/63, weighing 400 M.Ts. of steel rolls in its favour. In this letter it is mentioned that Along with letter dated 18th November, 1966, the firm had sent the attested copy of the certificate of registration under small scale unit being No. D1/UP/MTC/4219 and despite deposit of ₹ 1,85,610/- with the Northern Railway in the month of November, 1966, the material of the said lots had not been delivered to the firm. It was requested that the Store Keeper at Shakurbasti, Track Depot may be advised to deliver the material to the firm without any further delay. Relevant portion of yet another letter dated 11th May, 1967 referred to above sent by V.K. Industries and Fabricators to the Controller of Stores, Northern Railway seeking release of the balance quantity of material, reads as under:- It will not be out of place to mention here that the steel has been de-controlled since 1st May, 67 and hence presently there is no restr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coupled with the said statement made in cross-examination by Ramdhan Lal, PW-4, would reveal that after the alleged purchase of the firm-V.K. Industries by Om Prakash Jain, plaintiff, firm- V.K. Industries and Fabricators proposed to install a re-rolling plant and in addition to change of name in registration certificate No. D1/UP/MTC/4219 issued in favor of V.K. Industries, Ghaziabad, the item - 'Re-Rolling and Fabrication Work (Proposed), was allowed to be added in the said certificate on 24th February, 1967. Thus, on the date of making bid neither V.K. Industries nor V.K. Industries and Fabricators were the certified re-rollers as required by aforesaid condition (b) of the auction in the supplementary clause. Furthermore, as may be seen from the said letters dated 29th March, 1967 and 11th May, 1967, they were written with reference to aforesaid certificate No. D1/UP/MTC/4219 in the name of V.K. Industries. There is no evidence to suggest that the delivery of balance material was claimed by V.K. Industries and Fabricators on the basis of above certificate dated 24th February, 1967. In my opinion, non fulfilment of said condition (b) alone which was a prerequisite of auction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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