IN THE GAUHATI HIGH COURT
( The High Court of Assam, Nagaland, Meghalaya, Manipur,
Tripura, Arunachal Pradesh and Mizoram )
AIZAWL BENCH : AIZAWL
CRP (Art. 227) No.6 of 2010
The Chief/Senior Project Manager,
Bhageeratha Engineering Limited,
2nd Floor Ngama Building,
Bawngkawn Lunglei Road, Aizawl.
….
Petitioner.
….
Respondents.
-Versus1.
Smt. Vanlaldiki,
Prop. M/s Vanlaldiki Cement Centre,
Chanmari, Ramhlun Road,
Aizawl.
2.
Shri M.H.Kapa,
R/o Republic Hmar Veng,
Aizawl, Mizoram.
BEFORE
HON’BLE MR. JUSTICE P.K. MUSAHARY
For the petitioner
…..
For the respondent
…..
Mr.Ricky Gurung,
Ms. Rashila Thapa
Mr. H.Vanlallawmzuala
None appears.
Date of hearing
……
29.3.2012
Date of judgment
……
29.3.2012
CRP (Art 227) No. 6 of 2010
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J U D G M E N T A N D O R D E R (Oral)
Heard
Mr. Ricky Gurung, learned counsel for the
applicant.
2.
None appears for the respondent Nos. 1 & 2 in spite of
notice without any steps.
3.
This petition is heard ex-parte of the respondents. The
material facts in short for the purpose of disposal of this application
are that the petitioner as a contractor, while he was executing road
construction work, purchased cement from the respondent No.1 and
he had some amounts due to respondent No.1. As the petitioner
could not pay the amount, the respondent No.1 filed a Money Suit
being MS No.34 of 2005 in the Court of Senior Civil Judge, Aizawl
for payment of Rs.11,88,122/- (Rupees eleven lakhs eighty eight
thousands one hundred twenty two) only. The Money Suit was
decreed vide judgment and order dated 17.6.2009 directing the
petitioner to deposit the decreetal amount of Rs.11,88,122/- only in
cash or by demand draft in favour of the Senior Civil Judge, Aizawl,
Mizoram for disbursement to the plaintiff/respondent No.1 within 2
(two) months from the date of the order failing which the decreetal
amount will carry an interest at the rate of 6 % per annum from the
date of issue of the dishonoured cheque dt.15.5.2005 till payment is
fully made. The applicant failed to deposit the aforesaid decreetal
amount.
CRP (Art 227) No. 6 of 2010
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4.
The plaintiff/respondent No.1 then filed the Execution
Case No. 19 of 2010. The applicant contested the said Execution
Case by filing written objection. The Execution Court directed the
Officer-in-Charge, Kulikawn Police Station
to inspect the
machineries located at Maubuang belonging to the petitioner’s
company to ascertain the type, quantity, general condition and
respective value of each of the machinery and to submit his report
and assessment on or before 11.5.2010 and
accordingly,
the
Officer-in-Charge, Kulikawn Police Station submitted his verification
and assessment report on 11.5.2010. As per the said report the
purchase value and assessment value of the (1) Tata Hitachi EX200 BEL Code No.TE 27 has been shown as Rs.57.77 lakhs and
Rs.14 Lakhs respectively, and in respect of (2) CRANE make TIL
BEL Code No.WC-001 the purchase value and assessment value
has been shown as Rs. 66.35 lakhs and 14 lakhs respectively.
5.
The learned Court below also got the value of the said
machinery assessed through the MVI. As per the MVI report the
aforesaid value of Tata Hitachi EX-200 BEL Code No.TE 27 is
Rs.10 lakhs and the value of CRANE make TIL BEL Code No.WC001 is Rs.12 lakhs.
Thereafter, NIT was issued by the learned
Senior Civil Judge, Aizawl District on 9.6.2010 (which was published
in a local newspaper, ‘ Vanglaini ‘ dated 17.6.2010) inviting sealed
tender from interested persons/firms/party for sale of the aforesaid
machineries showing the reserve price at Rs.10 Lakhs and 12 Lakhs
CRP (Art 227) No. 6 of 2010
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respectively. The aforesaid Notice Inviting Tender
is quoted
hereunder :-
“The undersigned hereby invite sealed tender from
interested persons/firms/party for sale of the following machineries :Sl. Machineries Reserve
Located At Owned By
No.
Price
1. Tata Hitachi
Bhagheeratha
EX-200
Rs. 10 Lacs Maubuang, Engineering
BEL Code
Mizoram
Ltd.
No.TE 27
2
CRANE
Bhagheeratha
make
TIL Rs. 12 Lacs Maubuang, Engineering
BEL Code Mizoram
Ltd
No.WC-001
The sealed Tender should be under single cover
system, EMD : Nil, Date & Time for submission of Tender on or
before Dt.09.07.2010, Date & Time of opening tender Dt.12.07.2010
at 12:00 noon. The undersigned reserves the right to accept or
reject any or all the tender without assigning any reason
whatsoever.
Sd/- R.VANLALCHAMI
Senior Civil Judge,
Aizawl District, Aizawl. ”
6.
Several tenders were received in response to the said NIT.
The respondent No.2 submitted tender offering Rs.6 Lakhs for Tata
Hitachi EX-200 BEL Code No.TE 27 and Rs.7 lakhs for CRANE
make TIL BEL Code No.WC-001 which are must below the reserve
price.
7.
Mr. Ricky Gurung, learned counsel for the applicant
submits that some tenderers offered the value much above the
reserve price but without considering the higher rates offered by
some tenderers, the learned Execution Court accepted the tender
CRP (Art 227) No. 6 of 2010
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offered by the respondent No.2 at a much low rates below the
reserve price which would cause financial loss to the applicant.
The acceptance of tender by the Execution Court at the lower rate
has been made in an arbitrary, unreasonable and illegal manner
and as such, the impugned order dated 21.7.2010 is liable to be
quashed and set aside.
8.
I had given my anxious consideration to the submission
made by the learned counsel for the applicant. The applicant
admittedly preferred no appeal against the judgment and order of
the learned Trial Court dated 17.6.2009 and as such the said
judgment and decree have attained finality. It appears
that the
applicant is not against the Execution of the Decree except the
impugned order by which his machineries have been ordered to be
sold out at a price lower than the reserve price in as much as it
would cause huge financial loss to him. He would be satisfied if
the
impugned order dated 21.7.2010 passed by the Execution
Court is set aside with direction to invite fresh tender for disposal of
the machineries in question as per valuation assessed by the State
Transport Department.
9.
In my considered view, the learned Execution Court has
committed serious error in settling the tender with the respondent
No.2 at a rate much
lower than the reserve price completely
ignoring the valuation report of the machineries submitted by the
CRP (Art 227) No. 6 of 2010
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MVI of
the State Transport Department and the reserve price
shown in the NIT.
10.
It is apparent that the learned Senior Civil Judge, Aizawl
District, Aizawl as Execution Court accepted the tender of the
respondent No.2 in violation of the NIT issued by her. I find sufficient
force in the submission made by the learned counsel for the
appellant. Accordingly, the impugned order dated 21.7.2010
passed by the learned Senior Civil Judge, Aizawl, Mizoram in
Execution Case No.19 of 2009 is set aside and quashed. In the
interest of justice, the Execution Court is directed to issue fresh
tender notice for disposal of the machineries in question as per the
valuation fixed by the MVI of the State Transport Department and
as per the existing established procedure. The Execution Court is
directed to issue the NIT within a period of 2 (two) weeks from the
date of the receipt of a certified copy of this order.
11.
With the above observations and directions, this application
stands disposed of.
Return the LCRs.
JUDGE
zh
CRP (Art 227) No. 6 of 2010
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