IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA OSA No.14 of 2001. Date of decision: 15th September, 2008. H.P.State Forest Corp. and others …..Appellants/plaintiffs -Versus- Sh.Manohar Lal . ….Respondent/Defendant Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No For the Appellants: Mr.Neel Kamal Sood, Advocate. For the respondent: None Deepak Gupta, J.(oral) This Original Side Appeal is directed against the judgment and decree of the learned Single Judge of this Court dated 15.9.2000 whereby he has dismissed the suit filed by the H.P. State Forest Corporation (hereinafter referred to as the plaintiff). Briefly stated the facts of the case are that the plaintiff instituted a suit for recovery of Rs.40,25,406/- from the respondent Manohar Lal (hereinafter referred to as the defendant). The plaintiff is a Forest Corporation duly incorporated under the Indian Companies Act. According to the plaintiff it had invited tenders for floating of approximately 54000 scants of extracted timber in respect of lots No.1/83-87, 2/83-86 and 1/87-88 to be launched from Kuthal, Chhota Bambal and Kulal in Saichu Nallaha in river Chanab. This floated timber was to be caught at Bhandarkot Nonotu Kawar. Tenders were also invited for floating of 42000 scants of lot Nos.1/86-88, 2/87-89 and 3/86- 87 to be launched from Hasku Bridge, Chilkot and Luj and were also to be caught and stacked at the aforesaid places. It is not disputed that the 2 defendant was granted the work of floating of timber of lot Nos.1/86-88, 2/87-89 and 3/86-87 and an agreement in this behalf was executed by the defendant on 2.8.1988. According to the terms of the agreement the work of floating and catching the timber was to be completed by 1.4.1989. The defendant was to float and handover the entire timber at the destination point to the plaintiff Corporation. Under the terms of the agreement 5% loss of timber was permitted during transit. In case of loss over and above 5% the defendant was liable to pay the costs of the timber. Similarly contract for floating of timber in respect of lot Nos.1/86-88, 2/87-89 and 3/86-87 was also awarded to the defendant who entered into a similar agreement in respect of floating of the timber. It is not disputed that this work was started by the defendant and according to the plaintiffs 30830 scants of various types of timber were delivered to the plaintiff by the defendant. Here the disputes start. The plaintiffs allege that the defendant delayed the launching of the timber since he wanted to save money in launching the Ghals of both the agreements together. According to the plaintiffs, the defendant also failed to engage sufficient number of employees to float the timber (Ghal). According to the plaintiffs the work was completed on 17.10.88 and it was found that against 30830 scants relating to the second agreement only 15804 scants were delivered. After giving allowance of 5% in terms of the agreement the loss was assessed at Rs.40,25,406/-. On these grounds an amount of Rs.40,25,406/- was claimed. In addition thereto interest on this amount and costs were also claimed. The defendant contested the suit. The execution of the agreements was not denied. However, the defendant firstly took a preliminary objection that the suit was barred by limitation. Other objections were also raised and according to the defendant he had employed sufficient number of labour to conduct the work of floating of the timber but due to heavy cloudburst some 3 of the scants were washed away in the floods. This according to the defendant was an Act of God (vis-major) and therefore he was not liable to pay any damages. On the pleadings of the parties the following issues were framed: “1.Whether the suit is within limitation? OPP 2.Whether the suit has been filed by a competent person? If not, its effect? OPP. 3.Whether the losses suffered by the plaintiffs are due to the negligence on the part of the defendant, as alleged?...OPP 4.Whether the losses suffered by the plaintiffs were due to the act of God as alleged by the defendant?...OPD 5.In case Issue No.3 is proved in the affirmative, whether the plaintiffs are entitled for any amount, if so, how much?...OPP. 6.Whether the plaintiffs are entitled for future interest at the rate of 18% as claimed?..OPP. 7.Relief.” The learned Single Judge held that the suit was not within limitation. In respect of issue No.2 it was held that the suit was filed by a duly competent person. Issues No.3&4 were decided against the plaintiff and in favour of the defendant and consequently it was held that the plaintiffs were not entitled to any amount. Aggrieved against the judgment and decree of learned Single Judge, the plaintiffs have filed the present appeal. We have heard Sh.Neel Kamal Sood, learned counsel for the appellants. As far as the issue of limitation is concerned it is not disputed before us that the suit is governed by Article 55 of the Schedule to the Limitation Act. The starting point of the limitation will be the date when the contract was broken and in case of successive breaches from the date of breach in respect of which the suit is instituted. Admittedly the work was to commence 4 on 5.9.1988 and was to be completed by 1.4.1989. According to the plaintiffs this work was not completed by 1.4.1989. No material has been placed on record to show that in terms of Clause 12 of the agreement time was extended by the Corporation. Therefore, according to the learned Single Judge time has to be reckoned from 1.4.1989 and the limitation for filing of suit expired on 1.4.1992. The case of the plaintiff was that since the work of counting the timber and preparing the afloat account was completed on 30.9.1989 and the final bill was prepared on 14.7.1990 the limitation should run from these dates and therefore the suit which was filed on 15th July, 1992 is within limitation. The unilateral act of the plaintiff will not extend the period of limitation. Once there was a breach of the terms of the contract limitation started to run. The inaction of the plaintiff will not extend the period of limitation. The plaintiffs could have prepared the afloat account immediately after 1.4.1989 when the contract was to be completed. It is not disputed before us that in fact the timber which had been floated reached before 1.4.1989 but the delay has been occasioned due to the fact that the Corporation did not prepare the accounts. The learned Single Judge rightly held that the plaintiffs could not take benefit of their own delay in preparation of the accounts. The suit as such was not within limitation. Therefore, we uphold the finding of the learned Single Judge on this issue. In respect of Issues 3&4 we are also in agreement with the finding of the learned Single Judge. No evidence has been led by the plaintiffs to show that the timber of both the agreements was mixed up to be sent by a common Ghal. The learned Single Judge has referred to the statements of the witnesses PW-2 and PW-3 produced by the plaintiffs and the communications Ext.PW-2/A to PW-2/J. In the witness box PW-2 stated that delay in execution of the work for Ghal took place since labour were short. According to him 180 labourers were to be deployed at the time of launching whereas 5 the defendant had only engaged 80 labourers. This statement has been disbelieved because according to the contents of the launching schedule prepared by the Forest Corporation itself 150 labourers were required at the time of launching of the Ghal. PW-3 in his cross examination states that 100 labourers were to be employed but the Contractor had only employed 50 labourers. This part of the statement is contrary to the launching schedule. It is important to note that PW-3 admits that after the Ghal had been launched and before it should reach its destination the flood took place. The defendant contractor informed the plaintiffs to take appropriate steps to save the timber still lying at the spot. However, admittedly the Corporation did not take over the work of floating of the timber nor penalized the Contractor. This belies the case of the plaintiff that sufficient number of labourers were not employed. The evidence produced by the plaintiff itself proves the fact that a flood had taken place and some of the timber was washed away in the flood. This fact has not been disputed even before us. Therefore, the learned Single Judge was right in holding that the timber was washed away in flash floods and not due to the fault of the defendant. The flood was an act of God beyond the control of the defendant. The findings on this issue are based on evidence and in fact the plaintiff’s evidence itself has supported the stand of the defendant. The evidence led by the plaintiff itself demolishes its own case. The evidence led by the plaintiff proves that adequate labour had been deployed by the defendant. The launching took place on time. It was only due to the floods that some timber was washed away. This was for reasons much beyond the control of the defendant. Therefore, learned Single Judge rightly held that the plaintiffs were not entitled to any amount on account of damages from the defendant. 6 In view of the aforesaid discussion, we find no merit in the appeal which is accordingly dismissed. ( Deepak Gupta ), Judge September 15, 2008. ( V.K. Ahuja ) PV Judge