IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Suit No.33 of 1990. Date of decision: 25.11.2008. M/s.Kumar & Company …Plaintiff Versus State of H.P. & Another …Defendants Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Plaintiff: Mr.K.D. Sood, Advocate. For Defendant No.1: Mr.Tarlok Chauha, Advocate. Dev Darshan Sud,J. This suit was remanded for decision afresh on Issues No.3, 4, 5, 6, 8 and 8A by Division Bench of this Court on 11th April, 2007, pursuant to framing of issue No.8A which reads:- “8-A Whether the claim No.(ii) of the plaintiff, as stated in para-6 of the plaint is also beyond limitation, as alleged? OPD.” The plaintiff produced evidence of PW-10, Shri Inder Kumar Makkar. No evidence was led on behalf of the State. 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 The learned Single Judge had dismissed the suit of the plaintiff herein holding that the suit was barred by time. Issue No.8A: Issue No.8A is taken up for decision first. The finding on this issue would determine the fate of the other issues. PW-10, Shri Inder Kumar Makkar, appeared as his witness and stated in his evidence that he was awarded Forest lots, subject matter of the suit, for a sum of Rs.75,01,000/- and he deposited a sum of Rs.7,50,100/- as security with the Forest Department. He states in examination-in-chief that he had applied to the Secretary(Forest)for extension of time and such permission was granted from time to time i.e. on 31.12.1986 and thereafter on 15.2.1987. He has proved on record Ex.PW-10/15 to Ex.PW-10/18 and Ex.PW-10/19 to PW-10/23, letters granting and accepting the extension for working the forest lots beyond the stipulated period. Ex.PW-10/24 is the office noting recommending the case of the plaintiff. He also states on oath that he had never received any letter, notice or writing from the defendants informing him at any particular point of time that the security deposited has been or would be forfeited. No damage bill was issued by the defendants calling upon him to pay any damage/damages caused. He states that 50% of the security is initially required to be deposited in the Post Office for a period of 45 days 3 and thereafter invested in fixed deposit in Nationalize Bank. In this case no such action was taken. The only suggestion put to him in cross- examination is that the forest in which the plaintiff was working has caught fire and the forest lot was destroyed. This is the entire evidence. The crucial issue is as to whether the claim of the plaintiff is beyond limitation? This issue was raised in opposition to the claim of Rs.7,50,100/- alongwith interest pleaded by the plaintiff which according to him was worked out to Rs.15,90,820/-. It is undisputed before me that the rights of the parties are governed by agreement Ex.PW-2/A. Clause-4 of the agreement reads: “4. That after giving an opportunity to the Lessee to show cause, the Forest Officer shall be entitled to appropriate whole or part of the security money to recover any sum which may become due from the Lessee under the Indian Forest Act and the terms and conditions of this indenture including in respect of produce or part thereof, compensation, penalty price of produce seized and released. The Forest Officer may ask the Lessee by a written notice to make good within a specified time, such a amount of security money, as has been 4 appropriated. Whole or balance security amount, as the case may be, will be refunded within four months after the expiry of the lease. That the 10% security amount will be retained till the end of the lease period for the due performance of the terms and conditions of the lease. However, Conservator of Forests, may allow its adjustment towards the final dues of the lot conservator of Forest may also allow adjustment of increased security, if any; realized over and above 10% towards the other installments.” Indisputably, no action has been taken by the defendant, pursuant to clause-4 that is to say no notice of forfeiture or opportunity has been given to the plaintiff to show cause as to why the security should be forfeited and appropriated. Infact, the evidence of PW-10 has remained un-rebutted. Learned counsel appearing for the State submits that even if the evidence of PW-10 is taken as having been un-rebutted, it does not prove that the suit is within limitation. I am unable to accept this contention. PW-2/A is clear in its terms. Forfeiture is required to be preceded by an opportunity to be granted which has not been provided to the plaintiff. In-fact even notice has not been served upon the plaintiff. It would not be open to the State to 5 appropriate the amount unilaterally without following the terms of the contract PW-2/A. In the facts and circumstances, I hold that the cause of action, being continuous, cannot be held as having been barred by time. Issues No.3, 4, 5, 6 and 8: I have held that the claim of the plaintiff is within time. These issues which were decided in favour of the plaintiff on facts, relief was denied only on the prohibition of limitation. Having held in favour of the plaintiff on issue 8-A, I hold these issues in favour of the plaintiff and against the defendants. The suit of the plaintiff is accordingly decreed for a sum of Rs.7,50,100/- which shall carry simple interest at the rate of 6% per annum from the date of its deposit till payment. There shall be no order as to costs. Let a decree in terms of the judgment be drawn up. November 25, 2008. (Dev Darshan Sud) (aks) Judge.