PARAMJEET SINGH, J. - (1.) THIS second appeal is directed against the judgment and decree dated 25.04.2011 passed by learned Civil Judge (Junior Division), Sonepat whereby suit for declaration and permanent injunction filed by the appellant -plaintiff has been dismissed, as well as, against the judgment and decree dated 18.09.2012 passed by learned Additional District Judge, Sonepat whereby appeal preferred by the appellant -plaintiff against the judgment and decree dated 25.04.2011 has also been dismissed. For convenience sake, hereinafter parties will be referred to as they are arrayed in the Court of first instance i.e. appellant as plaintiff and respondents as defendants.
(2.) THE detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, brief facts relevant for disposal of this second appeal as pleaded in the plaint are that plaintiff filed a suit for declaration and permanent injunction against the defendants alleging that auction of excise outlet for selling the country made liquor on fixed price by defendant no. 2 and 3 was carried out through defendant no.3 on 17.03.2006 for two liquor vends L -14A Ganaur City No.I and II for worth Rs.50 lacs each. As per policy of State of Haryana, the person who succeeds in the auction has to deposit 5% of the auction money immediately after the auction, otherwise the earnest money of Rs.1 lac deposited with the application for participation in the auction shall stand forfeited. Accordingly, the plaintiff had deposited Rs.2,50,000/ - each for two vends on the same day. As per the policy of the Government, another 5% was to be paid within 7 days of the auction i.e. on or before 24.03.2006, otherwise the license for the liquor vend would not be issued for the concerned financial year which was to commence from 01.04.2006. Meaning thereby, the person to whom the liquor shop was allotted could not start selling liquor from the vend unless he deposited 10% license fee which was payable by 07.04.2006. It is the case of the plaintiff that license fee for the two vends was on higher side, the plaintiff being fresher in business had not deposited the second 5% installment payable on 24.03.2006 and did not accept liquor vend no.II of Ganaur City. A letter dated 31.03.2006 was written for surrender of Vend No.II and the same was surrendered and request was made to adjust 5% of the amount against vend no.I Ganaur City. It is the case of the plaintiff that defendant nos. 2 to 4 did not take action on application dated 31.03.2006 regarding surrender of vend no.II, rather 5% security amount deposited by the appellant was conveyed to be forfeited. The said vend was re -allotted on 05.07.2006. Vide subsequent letter dated 19.09.2006 which was received by the plaintiff on 17.10.2006 raised a demand of Rs.21,31,000/ - as short fall on account of re -allotment of the license. Upon notice, defendants appeared and filed their written statement taking preliminary objections regarding maintainability, cause of action and locus standi. On merit, it is averred that the auction of outlet of country liquor on the fixed price through defendant no.3 was held on 17.03.2006 for Ganaur City No.1 and the plaintiff was declared successful. It is further alleged that the said auction of vend L -14A Ganaur City II was held on 24.03.2006, rather than on 17.03.2006, as alleged. As per excise policy for the year 2006 -07, a successful allottee shall have to deposit security equivalent to 5% of the total license fee on the very day of holding of draw for allotment of shop. Since the plaintiff was declared successful allottee in respect of L -14A Vend Ganaur City No.I and Ganaur City No.II on 17.03.2006 and 24.03.2006 respectively, the plaintiff had deposited the security of 5% in respect of both the vends on 17.03.2006 and 24.03.2006. Next 5% of security amount in respect of disputed vend was to be deposited on or before 31.03.2006 and not on or before 24.03.2006. In case of non -payment of second installment of security, the proceedings for cancellation of auction were to be taken and re -allotment proceedings were to be initiated as per the provisions of law. Allotment of the disputed vend to the plaintiff was not forced, rather she herself had willingly submitted the application for allotment of L -14A Ganaur City II and deposited security of 5% on the same very day and 5% thereafter were to be deposited being mandatory condition. As per Rule 36(24) of the Haryana Liquor License Rules, 1970, if the amount is not deposited, the recovery of deficient amount is to be effected. Since the subsequently vend was re -allotted at a price almost 40% of the price fixed earlier, as a result of it deficiency accrued in license fee and the same is recoverable from the original allottee.
(3.) ON the basis of pleadings of the parties, the Court of first instance framed the following issues: - "1. Whether the demand of Rs.21,31,000/ - vide letter dated 19.09.2006 and letter no. 1497 dated 14.12.2006 is illegal, null and void and not binding on the right of the plaintiff on the grounds mentioned in the plaint? OPP 2. Whether the suit of the plaintiff is not maintainable in the present form? OPD 3. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD 4. Whether the plaintiff is stopped by her own act and conduct to file the present suit? OPD 5. Relief." ;