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In Re: Kudiyala Chandrasekhara Varaprasad Minor by Mother and Guardian Swarnakumari Devi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1947Mad1; (1946)2MLJ104
AppellantIn Re: Kudiyala Chandrasekhara Varaprasad Minor by Mother and Guardian Swarnakumari Devi
Cases ReferredBalagurumurthi Chetiyar v. Muhammad Ismail
Excerpt:
- section 16 (1) (c) :[tarun chatterjee & aftab alam,jj] ready and willing to perform-concurrent findings of fact on consideration of evidence on record that appellants-buyers were not ready and willing to perform terms and conditions of agreement for sale - buyers failing to pay balance consideration before agitating matter before supreme court held, concurrent finding cannot be interfered with. section 20: [tarun chatterjee & aftab alam,jj] whether time is the essence of contract held, many instance in contract which repeatedly showed that time was to be of essence of contract were specifically mentioned. clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. .....be calculated only on the gross amount realised by the several sales held by the receiver, who sold the property in convenient lots to several purchasers at various times. the learned subordinate judge held that poundage was chargeable and he calculated it on the amount of each separate sale and not on the total of all the sales.2. in support of the first of these conclusions the learned subordinate judge relied on the decision in balagurumurthi chetiyar v. muhammad ismail : air1945mad238 and learned counsel has not pressed his objection to the levy of poundage.3. dealing with the second point, rule 200 of the civil rules of practice and circular orders lays down the procedure for the realization of poundage, and reading this with the rules framed under section 20 of the court-fees.....
Judgment:

Byers, J.

1. This petition under Section 115 of the Code of Civil Procedure relates to the levy of poundage by the learned Subordinate Judge of Tenali on the sale of numerous parcels of cloth by the receiver appointed in a partition suit. It was contended in the lower Court that no poundage was chargeable and that in any event it should be calculated only on the gross amount realised by the several sales held by the receiver, who sold the property in convenient lots to several purchasers at various times. The learned Subordinate Judge held that poundage was chargeable and he calculated it on the amount of each separate sale and not on the total of all the sales.

2. In support of the first of these conclusions the learned Subordinate Judge relied on the decision in Balagurumurthi Chetiyar v. Muhammad Ismail : AIR1945Mad238 and learned Counsel has not pressed his objection to the levy of poundage.

3. Dealing with the second point, Rule 200 of the Civil Rules of Practice and Circular Orders lays down the procedure for the realization of poundage, and reading this with the rules framed under Section 20 of the Court-Fees Act I can see no support for the argument that where property is sold in a series of lots the poundage is to be calculated only on the total proceeds of the sale, and not separately on the separate amounts realised from the sale of each lot. It must be obvious that where property is sold in one lot to one bidder there is only one sale; but where the property is sold in a series of lots to different bidders and possibly at different times, the disposal of the property consists of a series of separate sales. It is contended that the property was divided into separate lots merely to suit the convenience of the receiver although the Court had included the whole of the property in one schedule in its proceedings directing sale. The gross realizations amounted to more than Rs. 19,000, so it must be clear that if the property had been sold in only one lot the sale could have attracted only one or two bidders; whereas if the property were divided into a series of convenient lots according to size, quality and description of the goods, more bidders would be attracted and the sale would almost certainly be more productive. Although the division into lots may have been in the exercise of the receiver's own discretion, this does not in any way alter the fact that the sale consisted of a series of separate sales by the receiver to different parties for different lots. The calculation of poundage on each of the sales separately was therefore correct and there is no error of jurisdiction.

4. The petition is ordered to be dismissed.


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