Full Judgment Text
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PETITIONER:
UNION OF INDIA & ORS.
Vs.
RESPONDENT:
M/S. BHIM SEN WALAITI RAM
DATE OF JUDGMENT:
29/09/1969
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SHAH, J.C.
GROVER, A.N.
CITATION:
1971 AIR 2295 1970 SCR (2) 594
ACT:
Delhi Liquor Licence Rules framed under Punjab Excise
Act 1 1914 Clause 21 Rule 5.34 requiring purchase at
auction of license to deposit one-sixth of annual fee within
seven days of auction--Payment not made by
purchaser--Commissioner refusing license under cls. 31 and
33 of conditions of sale--Resale of licence by Collector at
lesser price-Original purchaser whether liable to pay
deficency in price.
HEADNOTE:
The respondent gave the highest bid at an auction for
the sale of license for a country liquor shop in Delhi for
the year 1949-50. Under cl. 31 of the conditions of sale
for that year, the Chief Commissioner was under no
obligation to grant a license until he was assured of the
financial status of the bidder. Under el. 33 all final bids
were made subject to confirmation by the Chief Commissioner
who could reject any bid assigning any reasons. However
under cl. 21 of r. 5.34 of the Delhi Liquor License Rules a
person to whom a shop had been sold had to pay one-sixth of
the annual fee within seven days of the auction. The
respondent not having paid one-sixth of the annual fee as
required by the said cl. 21, the Chief Commissioner did not
confirm his bid. Resale of the excise shop was ordered. At
the new auction it was sold at a lower price. The Collector
Delhi thereupon held the respondent liable to pay the
difference between his bid and the bid for which the shop
was later sold, and commenced proceedings for the recovery
of the sum. The respondent filed a suit in the Court of the
Senior Subordinate Judge, Delhi praying for a permanent
injunction restraining the appellants (Union of India &
Ors.) from taking any proceedings for the recovery of the
amount. The trial judge decreed the suit. The decree was
upheld by the first appellate court. In second appeal the
Single Judge decided against the respondent. The Division
Bench decided in his favour. The appellants came to this
Court with certificate. It was contended on behalf of the
appellants that the respondent was under a legal
obligation to pay one-sixth of the annual fee within seven
days of the auction under el. 21 of r. 5.34; it was due to
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his default that a resale of the excise shop was ordered;
and under cl. 22 of r. 5.34 the respondent was liable for
the deficiency in price and all expenses of such resale
which was caused by his default.
HELD: (i) An acceptance of an offer may be either
absolute or conditional. If the acceptance is conditional
the offer can be withdrawn at any moment until absolute
acceptance has taken place. [H 597]
From cl. 33 of the conditions of sale it is clear that
the contract of sale is not complete till it is confirmed by
the Chief Commissioner and till such confirmation the person
whose bid has been provisionally accepted is entitled to
withdraw his bid. If the bid is so withdrawn before the
confirmslion of the Chief Commissioner the bidder will not
be liable for damages on account of any breach of contract
or for the shortfall on resale. [G-H 597]
Hussers v. Horne Payne, [1878] 8 Ch. D. 670, 676, referred
to.
595
(ii) The phrase "person to whom a shop has been sold" in
el. 21 r. 5.34 cannot be accepted to mean a "person whose
bid has bern provisionally accepted". The first part of
el.; 21 deals with a completed sale and the second part with
a situation where the auction is conducted by an officer
lower in rank than the Collector. In the latter case the
rule makes it clear that if any person whose bid has been
accepted by the officer presiding at the auction fails to
make the deposit of one-sixth of the annual fee, or if he
refuses to accept the licence. the Collector may resell the
licence either by public auction or by private contract and
any deficiency in price and all expenses of such resale
shall be recoverable from the defaulting bidder. [F-G 598]
In the present case the first part of d. 21 was
applicable. If the Chief Commissioner had not disapproved
the bid offered by the respondent under el. 33 of the
conditions of sale, the auction sale in favour of the
respondent would have been a completed transaction and he
would have been liable for any shortfall on the resale. As
the essential prerequisites of a completed sale were lacking
in this case there was no liability imposed on the
respondent for payment of the deficiency in the price. [598
H; 599 A-B]
JUDGMENT:
CIVIl, APPELLATE JURISDICTION: Civil Appeal No. 1613 of
1966.
Appeal from the judgment and decree dated August 19,
1963 of the Punjab High Court, Circuit Bench at Delhi in
Letters Patent Appeal No. 50-D of 1960.
V.A. Seyid Muhammad, S.P. Nayar and B.D. Sharma’, for
the appellants.
S.T. Desai, K.L.Arora, Bishambar Lal and H.K. Puri, for
the respondent.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought by certificate
from the judgment of the Division Bench of the Punjab High
Court dated August 19, 1963 in Letters Patent Appeal No. 50-
D of 1960.
An auction was held for the sale of licence of country
liquor shop in Bela Road for the year 1949-50 on March 23,
1949. The auction took place in pursuance of the conditions
of "Auction of Excise Shops in Delhi for the year 1949-50"
Ex. D-28. Clauses 31 and 33 of the conditions were to the
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following effect:
"31. The Chief Commissioner is under no
obligation to grant any license until he is
assured of financial status of the bidder. At
the conclusion of the auction an enquiry will
be made into the financial position of any
bidder not known to the excise staff and any
such bidder shall if necessary be called upon
to furnish security for the observance of the
terms of his licence as required by sub-
section (2) of section 34 of the Punjab Excise
Act 1 of 1914, as extended to Delhi Province.
596
33. All final bids will be made subject
to the confirmation by the Chief Commissioner
who may reject any bid without assigning any
reasons. If no bid is accepted for any shop,_
the Chief Commissioner reserves the right to
dispose. it off by tender or otherwise as he
thinks
The respondent offered the highest bid of Rs. 4,01,000/- for
the shop. Under the Excise Rules the bidder had to deposit
one-sixth of the purchase price within seven days of the
auction but the deposit was not made by the respondent. In
these circumstances the Chief Commissioner did not confirm
the bid of the respondent and resale of the Excise Shop was
ordered. On May 3, 1949 the shop was again auctioned when
Messrs Daulat Ram Amar Singh offered the highest bid of Rs.
2,20,000/- which was confirmed by the Chief Commissioner, on
July 7, 1949. Holding the respondent liable for the loss of
Rs. 1,81,000 being the difference between the bid of the
respondent and of Messrs Daulat Ram Amar Snigh the Collector
of Delhi started proceedings for the recovery of Rs.
1,81,000,./. On July 22, 1949 the respondent filed a suit
in the court of Senior Subordinate Judge, Delhi praying for
a permanent injunction restraining the appellants from
taking any proceedings to recover the amount. The trial
judge decreed the suit holding that the sale was subject to
confirmation by the Chief Commissioner under cl. 33 and
since the auction in favour of the respondent was not
accepted by him there was no binding obligation between the
parties. The decree of the trial court was upheld by the
lower appellate court. In second appeal False, J., took the
view that cl. 3 3 was not in consonance with the statutory
rules and the contract came into existence when the bidding
was closed in favour of the respondent on March 23, 1949.
The respondent was therefore held liable to make good the
loss which the Government sustained in resorting to the
resale of the excise shop. The resportdent preferred an
appeal under Letters Patent. The Division Bench allowed the
appeal reversing the decision of the single Judge and
restored that of the trial court.
Clause 21 of rule 5.34 states:
"A person to whom a shop has been sold shall
pay one-sixth of the annual fee within seven
days of the auction (any deposits already made
shall be credited to this sum, and any excess
shall be either returned to him or credited to
future payments). By the 7th of the month in
which he begins his business under his license
and by the 7th of every subsequent month the
licensee shall pay one-twelfth of the annual
fee till the whole fee is paid. But he may
at any time pay the whole amount due if he
wishes. If the total amount due is less than
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Rs. 100 it shall be payable in one sum unless
the Collector for
597
special reasons, allows payment to be made in
instalments. If any person whose bid has been
accepted by the officer presiding at the
auction fails to make the deposit of one-sixth
of the annual fee, or if he refuses to accept
the license, the Collector may resell the
license, either by public auction or by
private contract, and any deficiency in price
and all expenses of such resale or attempted
resale shall be recoverable from the
defaulting bidder in the manner laid down in
section 60 of the Punjab Excise Act, 1 of
1914, as applied to the Delhi Province.
Rule 22 states:
"When a license has been cancelled, the
Collector may resell it by public auction or
by private contract and any deficiency in
price and all expenses of such resale or
attempted resale shall be recoverable from the
defaulting licensee in the manner laid down in
section 60 of the Excise Act as applied .to
the Delhi Province."
On behalf of the appellants it was contended by Dr. Seyid
Muhammad that the respondent was under a legal obligation to
pay one-sixth of the annual fee within seven days of the
auction under cl. 21 of r. 5.34 and it. was due to his
default that a resale of the excise shep was ordered. Under
cl. 22 of r. 5.34 the respondent was liable for the
deficiency in price and all expenses of such resale* which
was caused by his default. We are unable to accept this
argument. The first portion of cl. 21 requires the "person
to whom the shop has been sold" to deposit one-sixth of the
total annual fee within seven days. But the sale is deemed
to have been made in favour of the highest bidder only on
the completion of the formalities before the conclusion of
the sale. Clause 16 of r. 5.34 states that "all sales are
open to revision by the Chief Commissioner". Under cl. 18,
the Collector has to make a report to the Chief Commissioner
where in his discretion he is accepting a lower bid. Clause
33 of the Conditions, Ex. D-28, states that "all final bids
will be made subject to the confirmation by the Chief
Commissioner who may reject any bid without assigning any
reasons." It is, therefore, clear that the contract of sale
was not complete till the bid was confirmed by the Chief
Commissioner and till such confirmation the person whose bid
has been provisionally accepted is entitled to withdraw his
bid. When the bid is so withdrawn before the confirmation
of the Chief Commissioner the bidder will not be liable for
damages on account of any breach of contract or for the
shortfall on the resale. An acceptance of an offer may be
either absolute or conditional. If the acceptance is
conditional the offer can be withdrawn at any moment until
absolute acceptance has taken place. This view is borne out
by the
598
decision of the Court of Appeal in Hussey v. HornePayne(1).
In that case V offered land to P and P accepted ’subject to
the title being approved by my solicitors’. V later refused
to go on with the contract and the Court of Appeal held that
the acceptance was conditional and there was no binding
contract and that V could withdraw at any time Until P’s
solicitors had approved the title. Jessel, M.R. observed at
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p. 626 of the report as follows:
"The offer made to the Plaintiff of the
estate at that price was a simple offer
containing no reference whatever to title.
The alleged acceptance was an acceptance of
the offer, so far as price was concerned,
’subject to the title being approved by our
solicitors’. There was no acceptance of that
additional term, and the only question which
we are called upon to decide is, whether that
additional term so expressed amounts in law to
an additional term or whether it amounts, as
was very fairly admitted by the counsel for
the Respondents, to nothing at that is,
whether it merely expresses what the law would
otherwise have implied. The expression
’subject to the title being approved by our
solicitors’ appears to me to be plainly an
additional term. The law does not give a
right to the purchaser to say that the title
shall be approved by any one, either by his
solicitor or his conveyancing counsel, or any
one else. All that he is entitled to require
is what is called a marketable title, or, as
it is sometimes called, a good title.
Therefore, when he puts in ’subject to the
title being approved by our solicitors’, he
must be taken to mean what he says, that is,
to make a condition that solicitors of his own
selection shall approve of the title."
It was submitted on behalf of the appellant that the phrase
"person to whom a shop has been sold" in cl. 21 of r. 5.34
means a "’person whose bid has been provisionally accepted".
It is not possible to accept this argument. As we have
already shown the first part of cl. 21 deals with a
completed sale and the second part deals with a situation
where the auction is conducted by an officer lower in rank
than the Collector. In the latter case the rule makes it
clear that if any person whose bid has been accepted by the
officer presiding at the auction fails to make the deposit
of one-sixth of the annual fee, or if he refuses to accept
the licence, the Collector may resell the licenee, either by
public auction or by private contract and any deficiency in
price and all expenses of such resale shall be recoverable
from the defaulting bidder. In the present case the first
part of cl. 21 applies. It is not disputed that the
(1) [1878] 8 Ch. D. 670 at 676.
599
Chief Commissioner has disapproved the bid offered by the
respondent. If the Chief Commissioner had granted sanction
under cl. 33 of Ex. D-23 the auction sale in favour of the
respondent would have been a completed transaction and he
would have been liable for any shortfall on the resale. As
the essential pre-requisites of a completed sale are missing
in this case there is no liability imposed on the respondent
for payment of the deficiency in the price.
For these reasons we hold that the judgment of the Punjab
High Court dated August 19, 1963 in L.P.A. No. 50-D of 1960
is correct and this appeal must be dismissed with costs.
G.C. Appeal dismissed.
600