IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 AS.No. 60 of 1998() ------------------- OS.336/1993 of SUB COURT, MUVATTUPUZHA .................... APPELLANT(S)/PLAINTIFF: -------------------------------------- M.P. HAMEED, S/O. PAREED, AGED 60 YEARS, MANGADU HOUSE, KAVUMKARA P.O., MUVATTUPUZHA. BY ADV. SRI.H.SIVARAMAN SRI.MATHEW CHERIAN RESPONDENT(S)/DEFENDANTS: -------------------------------------------- 1. DEPUTY FOREST CONSERVATOR, DIVISIONAL FOREST OFFICE, KOTHAMANGALAM. 2. FOREST RANGE OFFICER, KALIYAR. 3. STATE OF KERALA, REPRESENTED BY THE CHIER SECRETARY TO THE GOVERNMENT, TRIVANDRUM. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 60 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of August, 2011. JUDGMENT The plaintiff, who was non-suited in O.S.336 of 1993, is the appellant. 2. The plaintiff is regularly participating in the auction conducted by the forest department and in the auction conducted on 30.10.1980 he bid the teak poles for a sum of Rs.43,850.31/-. He deposited a sum of Rs.5,000/- towards the amount due from him. The allegation in the plaint is that thereafter when he went to the site, the teak poles were found missing. The said fact was duly intimated to the Range Officer. The Range Officer promised that Rs.5000/- paid will be returned. Later, on 7.2.1981 the plaintiff was served with a letter directing him to remit the balance sum of Rs.38,850.31. The plaintiff was not liable to pay the said amount as the teak poles were not available in the site and the A.S.60/1998. 2 matter was duly intimated to the Range Officer. He participated in the subsequent auctions conducted by the first defendant. In the auction conducted on 30.3.1993 he purchased timber for a sum of Rs.1,37,000/-, on 24.5.1993 he purchased timber for Rs.48,000/- and on 12.7.1993 he purchased timber for Rs.36,000/-. However, by Ext.A1(a) order dated 2.8.1993 the release of the poles was withheld on the ground that the Government has sustained loss to the tune of Rs.38,850.31 due to the re-auction of the timber purchased by the plaintiff on 30.10.1980. The plaintiff challenged the order by way of O.P.10508 of 1993 before this court. As per the communication received from the counsel, who was appearing for the plaintiff in the original petition, the plaintiff went to furnish Bank Guarantee for a sum of Rs.11,000/-. At that time it was alleged that the Range Officer insisted that the plaintiff should give blank signed stamp paper for accepting the Bank Guarantee. Therefore, he gave blank signed stamp papers to the Range Officer. The complaint of the plaintiff is that using the said A.S.60/1998. 3 stamp paper, Ext.A4 has been concocted. The plaintiff would say that he had not executed the document and it is not binding on him. It is also contended that the defendants are not entitled to recover the sum of Rs.38,850.31. On the basis of these allegations, the suit was laid. 3. The defendants resisted the suit. In the written statement, it is pointed out that none of the allegations are true and Ext.A4 was voluntarily executed by the plaintiff in order to get the timber released. They also pointed out that repeated notices were issued to the plaintiff directing him to remit the balance sum of Rs.38.850.31, he had not cared to reply or pay the amount. It is also contended that Ext.A4 was voluntarily executed by the plaintiff and it is not vitiated due to any reason. On the basis of these grounds, they prayed for a dismissal of the suit. 4. On the basis of the above pleadings issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A6 (b) from the side of the plaintiff. The defendants had D.W.1 A.S.60/1998. 4 examined and marked Exts.B1 to B3. On a consideration of the evidence in the case, the trial court came to the conclusion that the defendants had intimated the plaintiff about the default of the amount and the plaintiff did receive the same. The plea that Ext.A4 was a concocted document was found against. The result was that the trial court dismissed the suit. 5. In this appeal learned counsel appearing for the appellant raised four points for consideration. They are (i) since the timber, of which auction was conducted on 30.10.1980, was totally lost, the plaintiff was exonerated from the liability, (ii) no re-auction of the teak wood was conducted and therefore there was no occasion for sustaining any loss, (iii) In fact the teak poles sold to the plaintiff were totally lost by theft or otherwise and the plaintiff was unable to take delivery of the poles, and (iv) it is not discernible from the notice issued to the plaintiff as to how the amount of Rs.38,850.31 has been arrived at. A.S.60/1998. 5 6. Learned counsel for the appellant pointed out that it was at the instance of the Range Officer that blank signed stamp paper had been given to him since the plaintiff was in dire need to remove the poles of which he was the successful bidder. Later on, inorder to escape from the liability, the defendants concocted Ext.A4 document. It is pointed out that the theft of the poles were duly intimated to the Range Officer and he had promised that the advance amount paid will be refunded to him. These aspects have not been considered by the trial court and that had resulted in miscarriage of justice. 7. After hearing counsel on both sides and going through the materials, it is found that there is little merit in the contentions raised by the appellant before this court. 8. The conditions of tender are very clear. Before a person bids in auction he has to be satisfied regarding the articles for which the bid is being conducted. The evidence of P.W.1 is to the effect that he was aware of the fact that after bid if any subsequent loss occurs, the Government has A.S.60/1998. 6 no responsibility. Apart from the above fact, there is nothing to show that he had preferred any complaint to any authority in writing regarding the loss of poles which he had bid for. His definite case is that he had gone to the site along with the intending purchasers of the poles. If it is true, one would have expected the plaintiff to examine any one of them to establish that the poles were found missing. No such effort was made by the plaintiff. As of now, there is only the interested testimony of P.W.1 in this regard. It is also to be noticed that the plaintiff was served with notice calling upon him to pay a sum of Rs.38,850.31 which was received by him. Even thereafter he did not feel it proper to complain before any authority regarding the loss of timber. Therefore, the story that the plaintiff could not take delivery of the poles auctioned on 30.10.1980 as it was lost cannot be believed. 9. Equally without force is the contention that the plaintiff was not heard before the liability was fixed. The evidence is clear to the effect that notice has been served A.S.60/1998. 7 on him calling upon him to pay the balance amount due under the auction conducted on 30.10.1980 . At no point of time he had taken any objection to any of the notices issued to him. It is true that there was a long gap after the initial service of notice and initiation of further proceedings. Demand for the payment was made in 1981. But the order which is assailed in this suit was passed only on 2.8.1993 as would be evident from Ext.A1. But the fact remains that the plaintiff was aware of the fact that the re-auction was being conducted. The defendants had informed the plaintiff as to how the amount of Rs.38,850.31 was arrived at and the reason for demanding payment from him. Therefore, it could not be said that he was not aware of the proceedings which culminated in the demand for the balance amount. 10. Equally without force is the contention that Ext.A4 is a concocted document. It cannot be easily accepted that the plaintiff would have simply handed over signed blank stamp paper at the time of furnishing Bank Guarantee. The explanation offered by him was that the A.S.60/1998. 8 Range Officer informed that if the Bank Guarantee is to be accepted, signed blank stamp paper has to be given to him. One must remember that the plaintiff is a person who is regularly participating in the auctions. Moreover, the authorities had withheld the delivery of poles in respect of which the plaintiff was the successful bidder. Under such circumstances, it is only reasonable to presume that when it was pointed out to the plaintiff that since amounts were due from him, the poles could not be released, he would have voluntarily undertaken to pay the amount due from him in order to remove the poles. It is seen from the records that in consequence of the furnishing of Bank Gurarantee and on execution of Ext.A4, the plaintiff had removed the poles from the three auctions in which he was the successful bidder. 11. It is also significant to notice that he has not filed any complaint before any of the higher authorities about the so-called gruesome act of the Range Officer. If as a matter of fact, Ext.A4 was a concocted document, there would have been some move from the side of the plaintiff to A.S.60/1998. 9 complain before the higher authorities regarding the act of the Range Officer. The plaintiff has done nothing of that sort and he kept mum. 12. The above facts had persuaded the trial court to reject the case put forward by the plaintiff. The conclusion drawn by the lower court is based on an appreciation of the evidence available in the case and it is not shown that the findings are either perverse or unwarranted by the evidence on record. There is no reason to interfere with the judgment and decree of the trial court. The result is that this appeal is without merits and it is liable to be dismissed. I do so. However, there will be no order as to costs. P. BHAVADASAN, JUDGE sb.