- (1.)THIS appeal has been preferred against the Judgment and Decree, dated 11.04.1994 made in O.S.No.396 of 1989 on the file of the Court of Subordinate Judge, Namakkal.
(2.)THE appellant herein is the plaintiff before the trial court, who filed the suit for re-straining the respondent herein by a decree of permanent injunction from in any manner de-manding and recovering any damages, in-cluding the one demanded, as per order in ROC.718/84 (B), dated 19.05.1988 on the file of the Divisional Excise Officer, Namakkal.
It is not in dispute that during the year 1984, the respondent herein had made a pub-lication in ROC.K.5/432/84, dated 24.04.1984 for grant of permission to run re-tail arrack shop for selling liquor (viz arrack), as provided under Rule 5 of the Tamil Nadu Toddy and Arrack Shop (Disposal in Auc-tion) Rules 1981 (herein after be referred as the Rules). The appellant / plaintiff was one of the persons participated in the public auction held in respect of arrack shop No.1, Rasipu-ram and his bid was for a sum of Rs.50,000/-per month and made an Earnest Money De-posit as Rs.2,500/- as required in the terms and conditions of auction. The bid for Rs.50,000/- by the appellant was provision-ally accepted by the sales officers and the ap-pellant was called upon to deposit Rs.25,000/-, being half of monthly rental amount, as per Rule 15 of the arrack shop Rules. Accordingly, he deposited Rs.25,000/-towards half a month rental amount. How-ever, the plaintiff's offer amount was not ac-cepted and re-auction was ordered, as provided under Section 20 (3) of the Rules and accordingly, re-auction was held on 05.07.1984. Therefore, the respondent had to return the deposits made by the appellant. However, Rs,2,500/- paid as Earnest Money Deposit and Rs.25,000/- paid towards half month rental dues and as such a total sum of Rs.27,500/- paid by the appellant was not re-turned to the appellant.

The appellant has further submitted that though Rule 20(3) of the Rules empowers the defendant to fix the date and time of the re-auction, the said power is subject to the provisions contained in Rule 4 of the Arrack Shop Rules, which stipulates a minimum of 10 days notice. In the instant case, the respon-dent had not fixed the date of re-auction, as stiputed in Rule 4 of the Rules and therefore, re-auction held on 21.07.1984 is bad and non-est in the eye of law. With the above plead-ings, the appellant herein has prayed, seeking a decree to set aside the summary order passed by the Divisional Excise Officer, Namakkal in R.O.C.No.718/84 (B), dated 19.05.1988 and also to declare that the appel-lant was not guilty of any breach of contract and sought further relief, restraining the re-spondent, by way of permanent injunction from in any manner demanding and recover-ing any damages, including the one demanded under ROC.718/84 (B) on the ground that the plaintiff was guilty of breach of contract.

(3.)IN the written statement filed by the respondent / defendant, the public auction for retail sale of arrack shop No.1, Rasipuram and the provisional acceptance for the bid of the appellant for Rs.50,000/- have been admitted as true. According to the respondent, the said auction was held on 26.06.1984 and not on 23.05.1984. The respondent, as defendant has also admitted the fact that the appellants bid was not confirmed and resale of arrack shop No.1 was ordered by him. According to the respondent, a mistake had arisen on 05.07.1984, when auctions were held in re-spect of number of arrack shops. According to the respondent, the order passed by the Divi-sional Excise Officer, Namakkal in Proceed-ings ROC.No.718/84 (B), calling upon the appellant to pay damages is valid. Hence, the respondent herein pleaded for the dismissal of the suit.
The trial court, considering the oral and documentary evidence and also the argu-ments advanced by both sides, has declared that the order passed by the Divisional Excise Officer, Namakkal in R.O.C.No.718/84 (B), dated 19.05.1988 is void and unenforceable and also granted permanent consequential in-junction not to recover the amount specified under the impugned order. However, contrary to the relief granted, the trial court has held that there was a loss incurred by the Government, as there was violations of rules commit-ted by the appellant herein. Hence, before deciding the compensation, proper notice shall be issued to the appellant and decide the same. Aggrieved by the aforesaid Judgment and Decree, this appeal has been preferred by the plaintiff in the suit.