1.00. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellant - original defendant to quash and set aside the impugned judgement and decree passed by the learned Civil Judge (S.D.), Junagadh in Special Civil Suit No. 88 of 1980 dtd.24/4/1997 as well as the Judgement and Order passed by the learned Principal District Judge in Regular Civil Appeal No. 121 of 2005 dtd.10/12/2007, by which the learned appellate court has partly allowed the said appeal only to the extent of claiming interest, however, confirmed the judgement and decree passed by the learned trial court for recovery of Rs.57,336 of subsidy.
2.00. The respondent - original plaintiff instituted Special Civil Suit No. 88 of 1980 against the appellant - State of Gujarat in the court of learned Civil Judge (S.D.), Junagadh for recovery of Rs.60,000/- with running interest at the rate of 12% per annum from the date of filing of the suit till realization and also for declaration that order No.9532 dtd.9/10/1979 passed by the District Industries Center, Junagadh is illegal, ultra vires and against the principles of natural justice. It was the case on behalf of the plaintiff that it was a registered Partnership Firm and engaged in the business of groundnut, groundnut oil cake and HPA groundnut-seeds etc., having its factory at Majewadi Gate, Junagadh. That the State of Gujarat floated a Scheme known as "New Industries Scheme for Cash Subsidy for Industrial Unit in Developing Area" (hereinafter referred to as "the Act" for short), which came into force from 1/11/1977. That the plaintiff applied for registration for securing cash subsidy on 28/3/1978 and the same was registered before the Industries Officer, Junagadh. It was the case on behalf of the plaintiff that the plaintiff applied for cash subsidy on 27/11/1978. That the officers of the State visited the plaintiff's industry / office. That the plaintiff submitted valuation report and certificate issued by the Chartered Accountant - Ex.Nos.101 to 105. According to the plaintiff later on General Manager (DIC), Junagadh issued order dtd.16/7/1979 in favour of the plaintiff sanctioning subsidy of Rs.57,336 to the plaintiff and the plaintiff was called upon to execute Agreement in this regard and to issue advance stamped receipt of the said amount. According to the plaintiff, the plaintiff executed the Agreement and also issued advance stamped receipt, however, the General Manager (DIC), Junagadh by his letter dtd.9/10/1979 informed the plaintiff that the plaintiff does not entitled for cash subsidy under the Scheme and therefore, the plaintiff instituted the aforesaid suit to recover Rs.57,336/- as well as challenging the order / communication dtd.9/10/1979 issued by the General Manager (DIC), Junagadh.
2.01. That the said suit was resisted by the defendant - State by filing Written Statement at Ex.11. It was specific case on behalf of the defendant that the Scheme was floated for new industries and since the industry of the plaintiff was pre-existing and old industry, the plaintiff was not entitled to cash subsidy under the Scheme.
2.02. That the learned trial court framed necessary issues. The partners of the firm was examined at Ex.100 and on behalf of the State one witness was examined at Ex.124. The plaintiff led documentary evidence also.
2.03. That the learned trial court by judgement and order dtd.24/4/1997 decreed the suit directing the defendant to pay Rs.57,336/- towards the amount of subsidy to the plaintiff with running interest at the rate of 6% per annum from 9/10/1979 to 2/5/1980 and with interest at the rate of 9% per annum on the said principal amount from 3/5/1980 to 23/4/1997 and with interest at the rate of 15% per annum from the date of decree i.e. 24/4/1997 till realization of the aforesaid amount of Rs.57,336/-. The learned trial court also declared that order No.9532 dtd.9/10/1979 as well as letter dtd.7/3/1980 produced at Ex.64, issued by the General Manager (DIC), Junagadh as illegal, arbitrary and unconstitutional and against the principles of natural justice and not binding to the plaintiff. At this state it is required to be noted that after the communication dtd.9.10/1979, by another communication dtd.7/3/1980 - Ex.64, the plaintiff was communicated that the Scheme will not be applicable to the groundnut industries and therefore, the plaintiff is not entitled to the cash subsidy under the aforesaid Scheme. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned Civil Judge (SD) Junagadh in Special Civil Suit No. 88 of 1980 dtd.24/4/1997, appellant - original defendant preferred First Appeal No.2365 of 1997 before this Court, however, due to change of the Rules, the same was transferred to the District Court, Junagadh and the same was numbered as Regular Civil Appeal No. 121 of 2005 and the learned Principal District Judge, Junagadh, by the impugned Judgement and Order has partly allowed the said appeal to the extent awarding interest only, however, confirming the judgement and decree passed by the learned trial court directing the defendant to pay Rs.57,336/- by way of cash subsidy, however, with interest at the rate of 10% per annum from the date of filing of the suit till realization of the amount.
2.04. Being aggrieved by and dissatisfied with the Judgement and Orders passed by both the courts below, appellant - original defendant has preferred the present Second Appeal under section 100 of the Code of Civil Procedure.
3.00. Mr.Pranav Dave, learned Assistant Government Pleader appearing on behalf of the appellant has vehemently submitted that both the courts below have materially erred in holding that the plaintiff would be entitled to cash subsidy under the Scheme in question. It is submitted that the plaintiff was an existing industry i.e. old industry with old machineries and therefore, was not entitled to cash subsidy under the scheme. It is further submitted that by the impugned judgement and decree, the learned trial court has declared communication dtd. 9/10/1979 as illegal and unconstitutional and in breach of the principles of natural justice, however, the said communication is not exhibited and therefore, the learned trial court could not have declared the said communication as illegal and unconstitutional. It is further submitted that even the learned trial court has quashed and set aside the subsequent communication dtd.7/3/1980 - Ex.64, however the in the plaint / suit, the plaintiff has never prayed to quash and set aside the said communication dtd.7/3/1980 and therefore, it is submitted that when there was no prayer and/or even averments and/or even issue to quash and set aside the said communication dtd.7/3/1980, the learned trial court has materially erred in declaring the said communication dtd.7/3/1980 - Ex.64 as illegal and unconstitutional.
3.01. Mr.Pranav Dave, learned Assistant Government Pleader appearing on behalf of the appellant has further submitted that even otherwise, considering the Scheme and evidence on record, the learned trial court has materially erred in holding that the plaintiff is entitled to a sum of Rs.57,336/- as cash subsidy under the scheme. It is submitted that as such whatever the documentary evidence are produced by the plaintiff at Ex.Nos.101 to 104, all are of subsequent date and therefore, as such the plaintiff has failed to prove that it was entitled to cash subsidy under the Scheme and/or it has fulfilled all the terms and conditions of the Scheme. Therefore, it is requested to allow the present appeal.
4.00. Present appeal is opposed by Mr.Amar Mithani, learned advocate appearing on behalf of the respondent herein - original plaintiff. It is submitted that both the courts below have concurrently held that the plaintiff was entitled to cash subsidy under the Scheme and therefore, the same is not required to be interfered with by this Court in exercise of the powers under section 100 of the Code of Civil Procedure. It is further submitted that relying upon the scheme, the plaintiff invested huge amount and purchased new machineries and therefore, even on the ground of principle of promissory estopple, the plaintiff was entitled to cash subsidy. However, Mr.Mithani, learned advocate appearing on behalf of the respondent herein - original plaintiff is not in a position to dispute that the communication dtd.7/3/1980 -Ex.64 has not been challenged in the suit and even there is no prayer to declare the said communication dtd.7/3/1980 as illegal, unconstitutional and in breach of the principles of natural justice. He is also not in a position to point out that the communication dtd.9/10/1979 has not been exhibited at all.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgement and orders passed by both the courts below as well as evidence from the record and proceedings of the case, which is called for from the courts below. This Court has also considered the relevant scheme under which the plaintiff claimed cash subsidy and considering the Scheme it appears that the same will be applicable to new industry only and/or for purchase of the new machineries. In the present case it is not in dispute that the plaintiff was an old industry and old machineries and therefore, as such the plaintiff was not entitled to cash subsidy, as a new industry.
5.01. Now, to prove that the plaintiff had purchased new machineries, the plaintiff has tried to rely upon the documentary evidence produced at Ex.Nos.101 to 104. However, it is required to be noted that the documentary evidence produced at Ex.Nos.101 to 104, are all subsequent to the date of filing of the suit and after filing of the suit. Under the circumstances, as such on any ground the plaintiff was not entitled to cash subsidy under the Scheme. Under the circumstances, both the courts below have materially erred in holding that the plaintiff was entitled to cash subsidy under the Scheme on the ground of promissory estopple. Principle of promissory estopple would be applicable only in a case where the plaintiff is entitled to cash subsidy under the Scheme and thereafter it is denied. Under the circumstances, both the courts below have materially erred in holding that the plaintiff is entitled to Rs.57,336 towards cash subsidy on the ground of promissory estopple.
5.02. Even otherwise, the judgement and order passed by the learned trial court confirmed by the learned appellate court cannot sustain on merits also. It is required to be noted that by the impugned judgement and decree the learned trial court has declared communications dtd.9/10/1979 and 7/3/1980 - Ex.64 as illegal, unconstitutional and in violation of the principles of natural justice. However, it is required to be noted that so far as the communication dtd.9/10/1979 is concerned, there is even no prayer in the plaint / suit to quash and set aside the said communication. Even there are no averments in the plaint to declare the said communication dtd.7/3/1980 as illegal, unconstitutional and/or in violation of the principles of natural justice. Even no issue was framed by the learned trial court with respect to communication dtd.7/3/1980 - Ex.64. However, the learned trial court has granted the relief which is not even prayed in the plaint and therefore, the same cannot be sustained.
6.00. In view of the above and for the reasons stated above, present Second Appeal succeeds and is accordingly allowed. The impugned judgement and decree passed by the learned Civil Judge (S.D.), Junagadh in Special Civil Suit No.88 of 1980 dtd.24/4/1997 as well as the Judgement and Order passed by the learned Principal District Judge in Regular Civil Appeal No. 121 of 2005 dtd.10/12/2007 are hereby quashed and set aside. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R.
SHAH, J.] rafik Top