1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 355 of 2004 Reserved on : 21st October, 2009 Date of Decision: 29th October, 2009 H.P. State Forest Corporation Appellant Versus Shiv Dayal Defendant Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr.N.S.Chandel, Advocate. For the respondent: Mr.G.S.Palsra, Advocate. Sanjay Karol, J. This is the plaintiff’s first appeal filed under Section 96 of the Code of Civil Procedure, assailing the judgment and decree dated 30.6.2004 passed by District Judge, Mandi, H.P. in Civil Suit No. 8 of 2000, titled as H.P. State Forest Corporation vs. Shiv Dayal. The appellant herein is the plaintiff and respondent is the defendant and hereafter are referred to as such. The plaintiff filed a suit for recovery of Rs.4,81,378/- against the defendant. For the purposes of correct and proper appreciation of the plaintiff’s case and also adjudication of the controversy in issue, reproduction of the plaint is necessary. The plaintiff pleaded as under:- “That the H.P.F.C. Ltd. is a body corporate incorporated under corporation act having perpetual Whether the reporters of Local Papers are allowed to see the Judgment? 2 succession and comon (sic) seal with power to acquire and hold property both movable & immovable and sell by the said name sue and be sued, corporation having its registered office at Shimla and Division Office at Sunder Nagar. 2. That the plaintiff corporation deals in timber, charcoal, resin etc. which are used to be extracted from the demarcated forests and the plaintiff corporation is an independentant (sic) wing of forest department. 3. That for lot No.3/95 (W.L.K.) for the year 1995-96 regarding felling, conversion, carriage to road side depot khudan and stacking of wood, tenders were invited from the L.S.M. and the respondant (sic) has fill (sic) the tender for the above said work and same was alloted (sic) to the respondant (sic) and estimated value was fixed 7,44,915 for the said work and rate Rs.925/- was fixed per Qubic Mtrs. An agreement was executed by the both the parties in presence of the witnesses on 29th day of July 1995 on 5/- Rs. stamp paper and on the judicial paper 32 terms/ conditions were written in the said agreement as per the procedure of corporation. the same was executed out of the sweet will of the parties. As per the agreement total quantity of wood was fixed 1563.005 m3 and estimated value was calculated 7,44,915 which was duly written on the agreement. The rate Rs.925/- per m3 was fixed for felling, conversion and carriage to depot (Road Side Depot). 4. That a sum of Rs.50,000/- by way of F.D.R. were deposited by the defendant in the name of plaintiff as earnest money in Bank of India, Mandi Bank and the same was pladged (sic) in the name of plaintiff. 5. That in the above said lot a target of 1563.005 m3 was fixed and approximate value Rs.7,44,915/- was accesed (sic). 3 6. That the defendant started the work for the season 1995 in lot No. 3/95-96 (W.L.K) Wild life Kullu and necessary formalties (sic) were done by the corporation well with in time and said lot was demarcated and handed over to the defendant for felling, conversion and carrying to road side depot khudan and staking (sic) vide order HPSFC/Snr/ T-/2465-68 dt. 31.7.1995 and the same was checked and verified by the respondant (sic) and the report of the same was submitted by the respondant (sic). 7. That in the above said lot the defedant (sic) failed to achieve the target and for the short coming he is supposed to pay an amount of Rs.2,65,302/- and Rs.31430/- for the damages during the work in the above said lot and Rs.3,65,231/- for the extension of period @ 2% per month on the agreed amount of said lot as agreed in the agreement. 8. That after sawn % it was found that the extraction of the wood was less which is as under:- 1. Fixed target Spices(sic) sawing Axed Hakri Total m3 Deo 422.470 269.112 76.574 768.156 Kail 167.391 116.369 70.120 353.80 Rai 37.222 029.395 38.998 105.615 2. Actual extraction Deo 402.823 153.798 179.634 735.655 Kail 186.999 42.926 254.688 484.003 Rai 39.311 12.278 44.902 96.491 3. Difference in target Deo (-) 19.647(-) 115.314(+) 102.460(-) 32.501 Kali (+) 19.598(-) 73.443(+) 183.968(+) 130.123 Rai (+) 2.089(-) 17.117(+) 5.904(-) 9.124 9. That the defendant failed to done (sic) the work on the above said lot within stipulated period, he has been instructed by the corporation time and again in its letter but due to the neglegency (sic) of the defendant the work in the 4 above said lot could not ended (sic) well with in time and it ended in the year 1997 instead of 1996. 10. That the corporation acted as per the agreement and perform (sic) its duty as per the terms and conditions, and released the amount to the defendant whenever he demanded the amount for carrying on the above said work in lot no. 3/95 (W.L.K) but inspite of regular payment the defendant could not perform his part as per the norms, and has delayed the work for preety (sic) long period which caused a huge loss to the corporation in the tune of Rs.6,61,963/- and after deduction it is calculated Rs.4,81,378/- and a F.D.R. for Rs.50,000 is also with the plaintiff corporation which has been pledged by the defendant as security amount in the name of plaintiff. 11. That the plaintiff has issued a registered notice for recovery vide its notice No. T-269/8587 dt. 17.03.1999 and the respondsant (sic) raised objection vide its letter dt. 16.4.1999 but after going through the objection, authorties (sic) did not find the objecttion (sic) considerable and the above said shortage and delay in the complition (sic) of work was found due to neglegency (sic) and mis- management of the work. In the same area lot No.1/95 and 2/95 was also alloted (sic) to other L.S.M. They have done their work effeciently (sic) and completed the same well with in time. 12. That the cause of action occured (sic) to the plaintiff on 17.3.1999 when the defendant failed to deposit the amount and right to sue accoured (sic) on 18.12.1999 when the objection of the defendant were turn (sic) down and permission to file the suit for recovery was granted by the authorities. 13. That the plaintiff is having its office here at Sunder Nagar where the agreement was executed by the parties and the defendant is also the resident of Distt. Mandi (H.P). and cause of action has also arisen within 5 local jurisdiction of this Ld. Court, hence this Ld. Court has very much jurisdiction to entertain and decide the present suit. 14. That valuation of the suit for the purpose of court fee and jurisidicttion (sic) is accesed (sic) at Rs.4,81,378/- and upon which a court fees of Rs.7,218/- is affixed herewith. 15. That there is arbitration clause in this agreement if the Ld. Court may think this case fit for arbitration then it may kindly be reffered (sic) to the arbitrator for speedy disposal. It is therefor (sic) respectfully prayed that in view of the submission made above, the suit of the plaintiff for the recovery of Rs.4,81,378/- from the defendant alongwith the interest @ 18% p.a. may kindly be decreed in favour of the corporation and against the defendant, and any other relief may kindly be granted in favour of the plaintiff if the Ld. Court may think fit for during the proceeding of the suit and justice be done.” While admitting that the work of lot No.3/95-96 was allotted to him, the defendant inter alia opposed the suit (filed on 1.2.2000) being barred by limitation. On merits, the defendant admitted the factum of execution of agreement and allotment of work for the purposes of extraction and floating of timber from the forest upto the road side. It further pleaded that considering the unfit quality of the trees handed over to be felled and converted into scants, the yield being poor, the target could not be achieved. The area of the forest being stony, rocky and sloppy, the growth of the trees was poor in girth and height. During the process of felling of the trees some trees were broken and the size of the timber extracted from the trees had to be reduced. 6 The felling operation was supervised by the plaintiff’s staff and neither any objection with respect to the working, nor damage of any kind having been caused by the defendant was reported by the plaintiff’s staff. The defendant had launched the Khud floating of the timber in April, 1996 upto a distance of half a kilometer when the plaintiff, vide written direction dated 30.6.1996 ordered him to stack the timber in the forest till the ensuing rainy season was over. The defendant deployed his resources and manpower, firstly for stacking the timber in the forest and then launching and floating the same in the Khud after the rainy season and thereafter stacking at the road head at Sanarali. The timber was handed over to the plaintiff without seeking any extension. The plaintiff had asked the defendant to carry out additional work and as such work amounting to Rs.12,17,437/- as against the original agreement for a sum of Rs.7,44,915/- was carried out by the defendant. The plaintiff, however, released payment only to the extent of Rs.9,73,352/-. Thus a counter- claim for a sum of Rs.2,39,085/- being the balance sum due; Rs.50,000/- towards the refund of security amount deposited with the plaintiff and a sum of Rs.60,000/- incurred as additional expenses for complying with the directions was filed by the defendant. Based on the pleadings of the parties, the Court below framed the following issues:- 1. Whether the plaintiff is entitled to the amount as alleged? OPP. 2. Whether the defendant is entitled to the counter claim? If so, to what extent? OPD. 3. Whether the suit is not within time? OPD. 4. Whether the plaintiff has no locus standi to file the present suit? OPD. 7 The Court below decided issue No.1 in the negative for the reason that it could not be proved that any loss or damage was caused by the defendant to the plaintiff or that the defendant was liable to pay the extension fee as claimed in the plaint. While deciding Issue No.2, defendant’s counter-claim only to the extent of Rs.2,89,085/- was allowed. A sum of Rs.60,000/- was disallowed for want of any evidence. On merits, Issue No.3 was decided against the defendant and Issue No.4 was not pressed by the defendant. Heard learned counsel for the parties and perused the record. The defendant has not assailed the findings qua Issue Nos. 3 and 4 by filing an appeal/ cross-objections. Hence, I do not intend to touch the said issues as decided by the Court below. On the record there are two plaints filed by the plaintiff, i.e. the original plaint dated 31.12.1999 and the amended plaint 17.6.2000. How the said amended plaint came to be placed on court file is not evident from the record. Neither is there any application seeking amendment of the plaint nor is there any order passed by the Court to the said effect. This fact stands observed and mentioned by the Court below in the impugned judgment. This fact is also not disputed by the learned counsel for the plaintiff during the course of hearing and as such the original plaint filed is being considered for deciding the appeal. The plaint does not disclose the fact that additional work was allotted to the defendant. In my considered view the plaint lacks material particulars inasmuch as it does not disclose the complete nature of transaction entered into between the parties. The averments are vague, 8 unspecific and unsubstantiated. It is conspicuously silent with respect to the allotment of additional work, the exact location from where the wood was to be extracted and the basis of calculation of the damage caused to the plaintiff. It does not even plead as to how the defendant had been negligent in executing the terms of the contract. Be that at it may be, the evidence led by the plaintiff also does not substantiate the case set out in the plaint. Before the evidence is discussed the documents placed on record by the parties need to be looked into. Ext.PW-1/A is the agreement dated 29.7.1995 whereby the contract for felling, conversion and carriage of the wood to the road side depot, Khudan and stacking was allotted to the plaintiff for a sum of Rs.7,44,915/-. The contract related to the year 1995-96. In terms of clause 12(a) of the agreement, the defendant was to employ not less than 20 mazdoors (labourers) throughout the contract period. The work was to be executed on or before 31.3.1996. The contract stipulated the schedule of maximum of sizes, which were to be converted from the lot as under:- “All species Deo Kail Fur Total Sawn sizes (standard) 78.218 28.124 3.395 109.737 m3 “ “ (Others) 117.327 42.187 5.094 164.608 m3 Axeheun 128.050 51.649 7.845 187.544 m3 Roundballies Logs Hakkries 45.908 37.760 17.448 101.116 m3 Total (approximately) 369.503 159.720 33.782 563.005 m3” Ext.PW-4/B is the letter dated 31.7.1995 also conveying the decision of allotment of work to the defendant. Mark ‘Z’ and Mark ‘X’ are the letters whereby marked trees of different species were handed over to the defendant. Importantly, out of 1120 and 931 trees handed over 9 to the defendant, the officials of the plaintiff themselves have certified 122 trees to be “unfit”. Ext.PW-4/C is the letter dated 3.6.1996 asking the defendant to stock the timber in the forest and stop the floating thereof until the rainy season was over. Ext.DA is the final bill also prepared by the plaintiff, indicating the extent of the work executed by the defendant and the amount of consideration payable by the plaintiff in terms of the agreement. Bill being for a sum of Rs.12,17,437.38, indicates that since no sanction was accorded for a sum of Rs.2,39,085/-, hence only a sum of Rs.9,78,352 was paid to the defendant. There is a note indicating that the damage bill prepared by DFO (Wild Life), Kullu, be considered. Undisputedly, prior to the filing of the suit the plaintiff did not invoke any of the penalty clauses against the defendant, as stipulated under the contract. No notice with respect thereto, was ever issued to the defendant. It is also not the plaintiff’s case that number of persons were actually not employed and deployed by the defendant to carry out the work. Importantly, all the trees were not handed over to the defendant before 7.9.1995, which is evident from Mark ‘X’. Perhaps it is for this reason that the plaintiff did not invoke the penalty clause for non- completion of the work upto 31.3.1996, being the time stipulated under the contract. Felling, extraction, floating and stacking of timber of large number of trees could not have been carried out within the period of six months and that too in the remotest corner of the State, which is snow bound during the winter months. Time does not seem to be essence of the contract. 10 Be that at it may be, the plaintiff’s case as proved through its witnesses needs to be examined. In all plaintiff has examined six witnesses. The trial Court has rightly held that the statement of PW-6 alone is relevant and material for the purposes of proving the plaintiff’s case. Shri Joginder Bhardwaj, who has appeared as PW-1 and PW-3 and Shri Nand Lal Bharti (PW-5) have simply produced the summoned record. Shri S.K.Musafir (PW-2) has deposed with respect to the preparation and signing of the amended plaint. His testimony is of not much use to the plaintiff either. Shri C.R.Premi (PW-4) has only deposed that having been posted as Divisional Manager, Sundernagar he had signed the plaint in that capacity. Importantly in his cross-examination he has admitted that neither the agreement was signed by the parties in his presence nor the work was executed during his tenure as Divisional Manager. He has also not visited the spot for inspection, nor does he remember any notice having been served upon the defendant. How could he verify the contents of the plaint is also not clear as complete record has not been placed on record by the plaintiff either. He admitted that at the time of marking of the trees, the department measures the diameter/girth of standing tree from the standard height i.e. 4’6” from the ground. The standing volume of the tree is worked out by the official at the time of preparing working plan and even at the time of marking the trees the girth of the standing tree is not separately calculated for the purpose of ascertain the standing volume. This is so for the reason that the standing volume is given classwise in the working plan at the relevant working division. Most 11 importantly, he has admitted that the height and the diameter of a tree varies from place to place keeping in view the soil and nature of place. His testimony does not advance the case of the plaintiff. Statement of Shri Pardeep Kumar (PW-6) is absolutely vague and does not prove the plaintiff’s case either. While admitting his signatures on agreement Ext.PW-4/A, he has simply deposed that the defendant was to execute the work as per the terms and conditions of the agreement and due to non-completion of the work within the said period the forest Corporation suffered the loss to the tune of Rs.6,50,000/-, towards shortage of timber, damage bill and extension fees. He admitted that the amount was calculated on the basis of bills supplied by DFO (Wild Life), Kullu. Importantly, the bill prepared by DFO (Wild Life) has neither been placed nor proved on record. The figure of Rs.6,50,000/- is not even mentioned in the plaint. How and in what manner the plaintiff suffered losses has not been substantiated or proved by the plaintiff. His statement is too general and unsubstantiated and not corroborated by any documentary evidence. Importantly, he has admitted in his cross- examination that after allotment of the work the defendant had started the execution thereof well within time and that the yield of extraction of timber from trees varies from place to place. He has further admitted that the entire timber extracted from allotted trees was handed over to the plaintiff by the defendant and in the forest no wastage or any marked tree required to be felled was left out by the defendant. He could not depose with certainty as to whether he had personally inspected the forest from time to time but admitted that no damage was caused by the defendant in the allotted forest. Though in the next breath he clarified that the 12 subordinate/ field staff had found the damage, but, however, none has come forward to prove the same. Even the said damage reports have not been placed on record. From the plaintiff’s evidence, thus it is evident that even the pleaded case has not been proved. None has come forward to show the exact number of scants of different species and volume handed over by the defendant to the plaintiff. None has even come forward to prove the dates when the said scants were received by the plaintiff. Evidently, approximately 122 trees i.e. 5% of the total trees handed over were unfit. The contract as originally envisaged stipulated variation upto 10%. Thus the difference in the volume admittedly received by the plaintiff would be well within the ratio fixed under the contract. Importantly, it is the plaintiff’s own case that it has actually received more number of scants than envisaged under the contract pertaining to Lot No.3-95-96 (W.L.K) allotted to the defendant. Considering the statement of PW-4 and PW-5 there can be variation in the gross yield from place to place. The working plans and the demarcation/marketing reports have not been placed on record. Importantly, it is not the plaintiff’s case either that the defendant had not executed the work exercising due care, caution and the plaintiff’s property was damaged while executing the work. As already observed, the letter of extension stipulating the penalty of 2% per annum for extension of time has not been placed on record nor has any witness deposed with respect thereto. The Court below has rightly come to the conclusion that the entire record does not suggest that the plaintiff had received lesser quantity of wood or that the defendant had caused any type of damage in 13 the forest or had not completed the work within the stipulated period and had applied for extension of the period stipulated under the contract. The total value of timber to be extracted, species-wise is evidently not clear to the plaintiff itself. There is variation in the figures indicated in the agreement and given in the plaint. None has come to clarify the same. The volume and the number of scants handed over are in fact in excess than what was stipulated under the agreement. No one has proved that the work was completed in the year 2007. Similarly, none has shown how the other contractors had completed the work. Various orders mentioned in the plaint have also not been placed and proved on record. The matter appears to have been handled in a slip-shod manner desiring much to be said about the manner in which the case has been handled. In support of his claim, the defendant has examined himself as DW-3 and has categorically deposed that the work was completed within time and no damage was caused to the plaintiff’s property nor was any marked tree left out in the forest. It is true that the work was to be completed upto 31.3.1996 and at least till June, 2006 the same was not done. However, as has been observed earlier the plaintiff itself had allotted additional work, therefore, the said time period stood extended by the parties. Their conduct reflects the same. From the conduct of the parties it cannot be inferred that time was the essence of contract. The defendant’s case essentially is based on the final bill prepared by the plaintiff which evidences the fact that the defendant had carried out the work amounting to Rs.12,17,437/-. Why sanction with respect to Rs.2,39,085/- was withheld has not been explained by the plaintiff nor have such orders been placed on record. Importantly, the plaintiff has also not explained as to why sum of Rs.9,78,352/- stood paid 14 to the defendant if any amount, as claimed now, was due from him. It is not the plaintiff’s case either that the amount released to the defendant was towards on-account payments or that the defendant had furnished false and incorrect bills. It is also not the plaintiff’s case that before releasing the amount, the amount due from and payable to the defendant was not reconciled. Hence, the findings of the Courts below with respect to counter claim and award of the amount of Rs.2,39,085/- are borne out from the record and no interference is called for on this count. Thus, it cannot be said that the plaintiff has been able to prove that defendant had failed to achieve the target and had caused any loss entitling the plaintiff to the suit amount. There is no illegality, irregularity or perversity in the impugned judgment. The judgment, decree and findings rendered by the trial Court are upheld and the appeal is dismissed. However, there shall be no order as to costs. 29th October, 2009 (Sanjay Karol) (C) Judge.