IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No. 279 of 2000 Reserved on:22.4.2010 Date of decision:11.05.2010 _____________________________________________________ Sat Pal Appellant Versus State of H.P. & others Respondent Coram The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1? No. For the appellant: Mr.Ajay Sharma, Advocate. For the respondent: Mr.S.S.Sood, Advocate, vice No.1. Mr. N.K.Sood, Advocate. V.K. Ahuja, J. This is an appeal filed by the appellant against the judgment and decree dated 23.6.2000 of the Court of learned Additional District Judge(1) Kangra at Dharamshala dated 23.6.2000, vide which the suit of the plaintiff for recovery of Rs.2,21,720/- has been decreed along with interest. 2. Briefly stated, the facts of the case are that defendant No.1 applied to the plaintiff-Corporation for extraction work of lot No.3/R/94, Dehra, District Kangra on 20.1.1994. He filled in tender form Ex.PW-1/A. His bid being the lowest, was accepted vide letter dated 8.2.1994 followed by allotment letter to him dated 25.3.1995. An agreement Ex. PW-1/D was also executed in between the parties. According to the terms and conditions of the Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 agreement, defendant No.1 was required to extract pure resin to the extent of 315.7 Qtls. out of 77 hundred resin blazes at the rate of 41 Qtls. per section. The defendant No.1 was to compensate the short supply at the rate of Rs.2500/- per Qtl. to the plaintiff- Corporation. However, the defendant No.1 supplied to the plaintiff- Corporation only 212.25 Qtls. resin. He supplied 103.45 Qtls. less than what was agreed to be supplied by him. Thus it was alleged that a sum of Rs.2, 58,625/- fell due against defendant No.1 in lieu of compensation of short fall. He was also liable to pay a sum of Rs.3652/- on account of damage bill and a sum of Rs.879/- in lieu of 2% income tax deduction. Thus a sum of Rs.2, 47,220/- was outstanding against the defendants and after deducting the surety amount the net recoverable amount was Rs.2, 21,720/-. Since defendants No.2 and 3 had stood sureties for defendant No.1, they were also issued notice as to why the amount was not paid; hence the suit for recovery of the amount along with interest thereon. 3. Defendants did not deny the agreement and they also did not dispute that defendant No.1 was to extract 315.70 Qtls. of pure resin out of the allotted 7,700 Qtls. resin blazes. However, they pleaded that the equipments were supplied two months late. The demarcation was done late by the Forest Department and, therefore, defendant No.1 could not extract pure resin in time. It was also pleaded that allotted forest was very old and it was not possible for defendant No.1 to extract sufficient quantity of resin from the old trees. Defendants also took up the plea that the allotted forest burnt in huge fire and therefore defendant No.1 could not extract the required quantity of resin. 3 4. On the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff-Corporation is entitled to recover the suit amount? OPP. 2. Whether the plaintiff has no cause of action? OPD 3. Whether the suit is not maintainable? OPD 4. Whether the suit has not been valued properly for the purpose of Court fee? OPD 5. Whether he suit is time barred? OPD 6. Relief. 5. Parties led their evidence and the learned trial Court vide its impugned judgment and decree, decreed the suit of the plaintiff in full. 6. I have heard the learned counsel for the parties and have gone through the record. 7. The submissions made by the learned counsel for the appellant were in support of the pleas taken in their written statement that the forest allotted was very old and that there was a fire in the forest and the equipments were supplied late as well as the demarcation was done late and therefore, the defendants are not liable for less extraction of resin. On the other hand, the learned counsel for the respondent had supported the impugned judgment for the reasons given therein. 8. The fact that defendant No.1had applied for the lot vide his application Ex.PW-1/A, gave his tender vide Ex.PW-1/B and also executed the agreement Ex.PW-1/D on 17.3.1994 and also furnished surety bond Ex.PW-1/B, have not been denied by the defendant in his written statement. Defendant also admitted as DW-1 that 3.15 Qtls. resin was to be extracted but he gave the 4 reason as the negligence on the part of the department by supplying the implements late and by not getting the forest demarcated well in time. He also took up the plea in his written statement that 5,500 blazes were burnt in fire for which he reported the matter to Assistant Manager of Forest Corporation but did not produce any documentary evidence in support of his plea. He had made a reference to the letters written by him to the Assistant Manager, H.P. Forest Corporation but these have not been proved in evidence. There is nothing on record to show that he made any complaint to the defendants about the late supply of the equipment or late giving of demarcation. There is nothing on record to show that he made any prayer for extension of time due to these reasons and he also did not allege in the written statement that 5500 blazes were burnt due to fire which plea he had taken up for the first time when he appeared in the witness box as PW-1. He admitted that he was to supply 315. 70 Qtls. Resin but he supplied only 212.25 Qtls. He denied the suggestion that when the forest caught fire, only bushes were burnt and not the trees of Biroja and the tree of Cheel etc. had not been burnt. He also admitted that thereafter the re-setting of the trees was done but again took up the plea that the details were supplied to him late. He pleaded that he had employed 14 labourers but denied that he had employed 3-4 labourers only and the department had been pressing him to employ more labourers. He did not produce any record in regard to the employment of the labourers on the job. He admitted that he did not write any letter to the department in this regard. He did not deny the amount in question due to him under the various heads and rather his own 5 statement was sufficient to prove that he had not been able to make out a case in support of his averments made in the written statement. The Statement of DW-2 Bali Mohamad is not very material which is general in nature that a fire took place and the report was lodged to the Dy. Ranger but the defendant himself does not prove any such report or complaint lodged with the plaintiff-corporation or prayed for any extension of time in this regard. 9. From the above discussion, it follows that the plaintiffs- Corporation has been able to prove that they suffered the loss as claimed by them and accordingly they are entitled to amount in question. On the other hand, the defendant has not been able to prove the pleas taken by him in written statement and as such they have not been able to make out any case that the plaintiffs are not entitled to the amount in question. The final findings recorded by the learned trial Court decreeing the suit for recovery of the amount in question along with interest @ 10% per annum from the date of the filing of the suit till realization calls for no interference by this Court. Accordingly, the appeal stands dismissed. May 11, 2010 ( V.K. Ahuja ) (sds) Judge