IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 182 of 2003 with RFA No.113 of 2003 Date of Decision : October 8, 2009 RFA No. 182 of 2003 H.P. State Forest Corporation …Appellant. Versus: Sukhdev Singh …Respondent. RFA No. 113 of 2003 Sukhdev Singh …Appellant. Versus: H.P. State Forest Corporation …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No RFA No. 182 of 2003 For the appellant: Mr. N. S. Chandel, Advocate For the respondent. Mr. Ajay Sharma, Advocate. RFA No. 113 of 2003 For the appellant: Mr. Ajay Sharma, Advocate For the respondent. Mr. N. S. Chandel, Advocate. Sanjay Karol, J. (Oral). These appeals arise out of judgment and decree dated 15.5.2003 passed by the District Judge, Una, District Una H.P., in 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Civil Suit No.3 of 1999, titled as Himachal Pradesh State Forest Corporation vs. Sukhdev Singh. The plaintiff’s suit stands partly decreed for a sum of Rs.2,67,210/- along with interest @ 6% per annum. Both the plaintiff and the defendant have assailed the same for different reasons. For the purpose of deciding the present appeals M/s. Himachal Pradesh State Forest Corporation is referred to as the ‘plaintiff’ and Sukhdev Singh is referred to as the ‘defendant’. The plaintiff filed a suit for recovery of Rs.3,35,949/- along with interest with respect to the work allotted to the defendant in terms of letter No.HPFSC/FWD/Lot No.29/R/96- 609- 11 dated 24.4.1996. The terms of the contract not having been fulfilled by the defendant, he was requested to make payment for the losses caused to the plaintiff. In terms of the written agreement dated 24.4.1996, entered into in pursuance to the letter of allotment of work, the defendant was to extract and supply 231.60 quintals of pure resin from 5790 marked blazes in Lot No.29/R/96 of the forest belonging to the State. As consideration, the plaintiff was to pay certain charges to the defendant. The defendant supplied only 111.49 quintals of pure resin leaving a short fall of 120.11 quintals of resin, the value of which according to the plaintiff comes to Rs.3,24,297/-. In the absence of any response by the defendant to the plaintiff’s claim for payment of damages, the plaintiff was constrained to file the suit for a recovery of Rs.3,35,949/- along with interest @ 18% per annum in the Court of District Judge, 3 Una. The defendant contested the suit, inter alia on the ground that the suit was not maintainable having been filed through the Divisional Manager, who was not authorized to institute the same. Based on the pleadings of the parties, the trial Court framed the following issues:- 1) Whether the defendant on 24.4.1996 agreed to extract and supply minimum 231.60 quintals of pure resin as alleged? ….OPP 2) Whether the defendant supplied less quantity of resin by violating the agreement dated 24.4.1996, if so its effect? …OPP 3) Whether the defendant caused net loss of Rs.3,24,297/- to the plaintiff by supply of less resin as alleged? ….OPP 4) Whether the plaintiff is entitled to the suit amount from the defendant? ….OPP 5) Whether the suit is not maintainable as the Divisional Manager is not authorized to institute the suit as alleged? …OPD 6) Relief. Opportunity to lead evidence was afforded to the parties and on appreciation of material on record the Court below partly decreed the suit. Issues No.1, 2 & 3 were decided in the affirmative and the plaintiff was held entitled to a sum of Rs.2,67,210/- on account of the damage caused for supply of less quantity of resin. Issue No.4 was decided by awarding interest on the decretal amount @ 6% per annum instead of plaintiff’s claim of 18% per annum. 4 Issue No.5 was decided by the Court and the findings are reproduced in entirety as under:- “Shri Vijay Krishan Advocate, learned counsel appearing on behalf of the defendant argued that suit in the present form is not legally maintainable as plaintiff is legally competent to institute the suit where the suit amount is upto Rs.1,50,000/-. Since the present suit is admittedly filed for an amount of Rs.3,35,949/-, therefore, the suit filed by the plaintiff in the present form is not legally maintainable. On the other hand Shri P. C. Sharma, Advocate, learned counsel appearing on behalf of the plaintiff urged that the suit filed by the plaintiff in the present form is very much legally maintainable as the Divisional Manager through whom the suit has been filed is legally competent to sign and file the suit. During the course of arguments a notification was also shown to the Court which shows that the Divisional Manager is competent to institute the suit upto the amount of Rs.5,00,000/-. A copy of the notice/annexure has been taken on record. Since the suit has been filed admittedly through Divisional Manager of H.P. State Forest Corporation of Una Divisional the Court is of the opinion that the said Divisional Manager being head of the institute is legally competent to file the suit against the defendant. The learned counsel for the defendant could not bring to the notice of the Court any authority wherein it has been held that the suit filed by the Divisional Manager cannot be held to be legally maintainable. Moreover, corporation is a corporate body i.e. a legal entity which can sue or be sued through the head of the institution, therefore, the suit filed by the plaintiff in the present form is held to be legally maintainable. Issue No.1 (sic) is decided against the defendant.” (Emphasis supplied) 5 Both the plaintiff and the defendant have filed their respective appeals assailing the findings, judgment and decree passed by the Court below. Learned counsel for the parties are in agreement that the findings returned by the Court below on issue No.5 be considered and decided first. If it is found that the suit was not instituted by a duly competent and authorized person, the question of deciding the other issues would not arise. Record reveals that the plaint was signed by the Divisional Manager posted at the plaintiff’s office at Una. Along with the plaint no documents/resolution/authority was filed authorizing the said Divisional Manager to sign and verify the plaint. Even in the plaint, it is no where stated that the person signing and verifying the plaint has been authorized or is competent to institute the suit. Inspite of a specific objection taken by the defendant in the written statement, in the replication, the plaintiff has merely denied the same. Further, no steps were taken to place on record and prove, in accordance with law, any authorization during trial. Office Order dated 29.9.1992 (Mark ‘X’) was placed on record. Even the said document does not empower the Divisional Manager to institute a suit of a value of more than 1.5 lacs. It was only during the course of the final arguments that a circular, purportedly authorizing the Divisional Manager to institute the suit and file the plaint, shown to the Court. Even 6 though it is so recorded in the judgment but admittedly no such circular is on the record. In my view, the Court below ought not to have adopted the approach as has been done so while deciding the said issue. The parties had to prove their pleaded case, in accordance with law. There is nothing on record to even show that the Divisional Manager was the head of the institution and by virtue of his office competent to sign the plaint and institute the suit. The Court has presumed it to be so. The plaintiff is a company registered under the Companies Act. The suit had to be instituted and the pleadings signed and verified on behalf of the plaintiff either by the Secretary, Director or other Principal Officer, who was able to depose to the facts of the case. It is not the case of the plaintiff either that the Divisional Manager was able to depose to the facts of the case having been authorized by the Board. Further, Shri Kashmir Singh Chandel (PW-5), the person who has signed and verified the plaint and instituted the suit, in any event, has admitted that he was not posted at the concerned place at the time of the execution of the agreement between the parties. Thus, he could not have deposed with regard to the terms of the agreement and transaction entered into between the parties. For the aforesaid reasons, the findings returned by the Court below on issue No.5 are reversed being contrary to record and perverse. The plaintiff ought to have proved the factum of the authorization of the Divisional Manager, who signed and verified the plaint and instituted the suit. Issue No. 5 is thus 7 answered by holding that the suit was not maintainable as the Divisional Manager was not authorized to institute the suit and the suit was not filed by a duly competent and authorized person . No findings are required to be returned on the other issues as the suit by itself is held to be not maintainable. Hence, the appeal filed by the defendant is allowed and that of the plaintiff is dismissed. The impugned judgment and decree dated 15.5.2003 passed by the District Judge, Una, District Una H.P., is set-aside and the plaintiff’s suit is dismissed. ( Sanjay Karol ), Judge. October 8, 2009. (rana)