IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA OSA No.26 of 2001 Date of decision: 12.3.2008. M/s.Asia Resorts Ltd. …Appellant -Versus- State of H.P. and another ….Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for reporting? No For the Appellant: Mr.K.D.Sood, Advocate. For the respondents: Mr.R.M.Bisht, Dy.A.G. for R-1. Mr.Ravinder Thakur, CGSC for R-2. Deepak Gupta, J(oral) The appellant (hereinafter referred to as the defendant) is a Company duly incorporated under the Companies Act, 1956. It runs a Hotel at Parwanoo under the name and style of “Timber Trail”. For the purposes of its business and to attract tourists the defendant has installed a rope way to take cable cars from its hotel premises at Parwanoo to a place known as Banasar. Defendant admittedly charges money from the tourists to carry them on the cable car. On 13.10.1992, an accident took place on this rope way. The haulage rope of the cable car snapped. Resultantly one cable car got struck mid-way. The ropeway traverses a deep gorge and the cable car was left hanging over this gorge. Two persons including one attendant of the cable car jumped out of the cable car in panic. The other persons remained stranded in the cable car which was hanging in midair. On coming to know about the accident the District authorities rushed to the spot. Rescue operations were carried on and 2 the help of the Indian Air Force was taken. Helicopters of the Ministry of Defence were deployed and the passengers stranded in the cable car were winched on to the Helicopter and saved with great struggle and determination on the part of the Air Force personnel and authorities. The State of Himachal Pradesh (hereinafter referred to as the plaintiff) incurred an expenditure of Rs.7,98,353/- on such rescue operation. The plaintiff filed a suit for recovery of Rs.7,98,353/- on the ground that it had incurred this expenditure on behalf of the defendant and that the defendant had undertaken vide letter dated 13.10.1992 to pay the amount spent on the rescue operations. The defendant contested the suit. The factum of the accident and rescue operations was not denied. The case set up by the defendant was that it was not allowed to carry on rescue operations and the District administration deployed the helicopters and carried on rescue operations on its own accord. It was further submitted that the undertaking was obtained from the Managing Director of defendant under threat and force. It was also averred that the cable car was insured with the National Insurance Company which is therefore a necessary party. The following issues were framed: “1.Whether the defendant No.1 undertook to bear the cost rescue operation, as alleged? OPP 2.If Issue No.1 is proved in affirmative, to what amount the plaintiff is entitled and from whom? ..OPP 3.Whether there is no privity of contract between the plaintiff and defendant No.1, as alleged? OPD 1. 4.If issue No.3 is not proved, whether the contract is neither legal nor enforceable being hit by Art.299 of Constitution of India, if so, its effect? OPD 1. 5.Whether the undertaking of defendant No.1 has been procured under threats, if so, its effect? OPD 1 6.Whether the suit is bad for non-joinder of National Insurance Company, if so, its effect? OPD 1 3 7.Whether defendant No.1, has not been sued properly, as alleged, if so, its effect? OPD 1. 8.Whether the plaintiff is estopped to file the suit on account of its acts, deeds, conduct and acquiescence, if so, its effect? OPD 1. 9.Whether the suit is bad for want of notice under Section 80 of the Code of Civil Procedure, if so, to what effect? OPD 1. 10.Relief.” The learned Single Judge decided the issues in favour of the plaintiff and against the defendant and decreed the suit for an amount of Rs.7,98,353/- alongwith interest @ 6% p.a. from the date of filing of the suit. Hence, this appeal by the defendant. We have heard Sh.K.D.Sood, learned counsel for the appellant and Sh.R.M.Bisht, learned Deputy Advocate General on behalf of the State. Admittedly, letter dated 13.10.1992 was written by the Managing Director of the defendant to the S.D.M. Solan. The letter is Ext.PW-2/A and reads as follows: “The S.D.M. Solan District,Solan. Sub:-Accident of Cable Car. Dear Sir, At 4 PM my technician reported me that the haulage rope of the Cable Car has snapped and one of the Cable Car hanging on track rope about 500 meter’s from the lower station. There were 12 persons in Cable Car, but the one attendant and one person jumped down from the Cable Car while coming out as the Cable Car reached the upper station. The exact reason of the accident is no none at present. For rescue of the passengers, we are in touch with the State Government as well as Air Force Station Chandigarh. We hope that the passengers will be rescued with the help of the Helicopter. We hereby undertake that the cost of the rescue operation if any charged by the Air Force or any other department will be borne by us. Yours faithfully For ASIA RESORTS LTD., Sd/- (R.K.GARG) MANAGING DIRECTOR.” 4 A perusal of this letter clearly shows that Sh.R.K.Garg, Managing Director of the appellant had undertaken to pay the costs of the rescue operations. The execution of this letter is not denied. The stand taken by the appellant is that a criminal case had been registered against the Company and its Managing Director and during the course of investigation of such case the Station House Officer, Police Station, Parwanoo brought the letter Ext.PW- 2/A and asked Sh.R.K.Garg (DW-3) to sign it. Sh.Garg allegedly refused to sign the same but was threatened by the Station House Officer who told him that in case he did not sign the letter there would be serious consequences. Therefore, he signed the letter under duress. DW-1 Sh.D.P. Kainth, Vice President of the defendant has also given a similar version. In the evidence both DW-1 and DW-3 have stated that they were threatened by the Station House Officer. In para 4 of the written statement the stand taken by the defendant was as follows: “……However, the Sub Divisional Magistrate, Solan, Deputy Superintendent of Police Parwanoo and some other police officials inquired about the steps being taken by the Defendant No.1 to bring cable car on the lower platform, the officials of M/s Asia Resorts Limited informed the said officials that the management is trying to rescue the passengers either through emergency trolley or fix haulage rope from upper station to the cable car, so that the cable car can be brought on the lower platform. The Sub Divisional Magistrate and police officials started terrorizing, threatening and humiliating Sh.R.K. Garg and other members of the management of M/s.Asia Resorts Ltd., so much so threat to arrest and put majority of management behind the bars was given. The officers of District Administration and Police were further prompted by certain person, who were having strained relations with Sh.R.K. Garg due to political differences or other factors, to terrorize and humiliate the entire management of M/s.Asia Resorts Limited. After manipulating facts, men and circumstances, Sh.R.K. Garg, the then Managing Director of M/s.Asia Resorts Limited was made to sign writing dated 13.10.1992 by Sub Divisional 5 Magistrate and Police Officials. The said writing is result of undue influence and as such has no force in the eyes of law.” In the statement made in Court there is no allegation against the Sub Divisional Magistrate. The only allegations are about the SHO. It is not even stated that the SDM was present at such time. It is obvious that the evidence led by the defendant is contrary to the stand taken by it in its written statement. In the evidence there is not even a whisper that the Sub Divisional Magistrate threatened the Managing Director of the defendant. Sh.Bhag Singh, Station House Officer, Police Station, Parwanoo has been examined by the defendants as DW-2. He states that the letter was got signed by him from Sh.Garg. He does not say a word that he ever held out any threat to Sh.Garg. The story of the defendants even otherwise does not inspire confidence. If the letter had already been prepared by the police officials or the SDM the same could not have been on the letter-head of the defendant. The said letter is admittedly on the letter-head of the defendant bearing reference number etc. No evidence has been led by the defendant to show where and how the letter Ext.PW-2/A was got typed. No complaint was ever made by Sh.R.K.Garg to the police or any other authority that he had been made to sign the said letter under threat or coercion. In fact Sh.R.K. Garg sent another letter to the Deputy Commissioner, Solan on 19.10.1992 thanking her for the valuable help rendered during the rescue operations. In case any threat had been held out to Sh.Garg on 13.10.1992 he would not have sent this letter of thanks. A combined reading of letters Ext.PW-2/A and PW-3/A leaves no manner of doubt that the rescue operations were carried out at the instance of the defendant and the defendant had undertaken to pay the costs thereof. It has also been argued that the undertaking Ext.PW-2/A is not legal or enforceable being hit by Article 299 of the Constitution of India. This argument is totally without merit. Rescue operations were carried out in an 6 emergent situation at the asking and instance of the defendant. Even if that were not so, the State carried out operations to rescue the people struck in the ropeway due to some mechanical failure. The responsibility to pay this amount is of the defendant and the State has only acted on behalf of the defendant. The defendant having obtained benefit of the undertaking cannot now get out of the same by arguing that it is not enforceable. Lastly it is contended that the ropeway at the relevant time was covered by the Insurance policy and therefore Insurance Company is a necessary party. There is no privity of contract between the plaintiff and the Insurance Company. In case there is any insurance policy the defendant may enforce his rights under the policy in accordance with law. The suit cannot be held to be bad for non-joinder of parties. No other point has been urged. In view of the above discussion, there is no merit in the appeal which is dismissed with costs. Vide order dated 27th March, 2002 execution of the impugned judgment and decree was stayed subject to the appellant depositing a sum of Rs.five lakhs. This amount alongwith interest accrued thereupon has already been released in favour of the State vide order dated 8.4.2003. The appellant is directed to deposit the balance amount in the Registry of this Court alongwith interest within 8 weeks from today. ( Deepak Gupta ), Judge March 12, 2008. ( Rajiv Sharma ), PV Judge