IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No. 254 of 2004 Date of decision:24.12.2008 _____________________________________________________ Prithi Singh Appellant Versus H.P. State Forest Corporation Ltd. Respondent Coram The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1? No. For the appellant: Mr. Subhash Sharma, Advocate. For the respondent: Mr. Rakesh Jaswal, Advocate, vice Mr. N.S. Chandel, Advocate. V.K. Ahuja, J. (Oral) : This is a Regular First Appeal filed by the appellant under Section 96 C.P.C. against the judgment and decree dated 11.5.2004 passed by the Court of learned District Judge, Chamba, decreeing the suit of the respondent/plaintiff for recovery of Rs. 2,89,499/-. Briefly stated, the facts of the case are that the respondent as plaintiff filed a suit for recovery as against the appellant, who was impleaded as a defendant. It was alleged by the plaintiff that the plaintiff is a Corporation duly registered under the Indian Companies Act, which deals in carrying out the work of felling, conversion and also carrying out the work of extraction and processing of resin and its sale. It is further the Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 case of the plaintiff/Corporation that short term tender notices were invited by the Divisional Manager vide advertisement dated 17.1.1997, for extraction of the resin and its carriage to road side depots. The defendant submitted his tender for extraction and transportation of resin of Lot No. 4/R/97 Dalhousie and his tender was accepted, in which he has quoted the rate of Rs.589/- per quintal for extraction of net pure resin and its carriage upto road side depot. An agreement was entered into in between the parties on 3.7.1997. The defendant agreed to extract minimum resin yield 232.12 Quintals by 30.11.1997. It was alleged that the performance of the defendant was not upto the mark and the plaintiff/Corporation cautioned the defendant that in case of any yield loss than the specified quantity, the defendant will be held responsible for the same. But inspite of several reminders, the defendant failed to execute the work as per the schedule. Thus, it was alleged that the defendant extracted only 144.09 Quintals of resin and there was a short all of 88.03 Quintals. It had been agreed in between the parties that in case there is any shortfall, the defendant shall be liable to pay Rs.3,300/- per quintal, which comes to Rs.2,89,499/-, for which the suit has been filed for recovery of the amount by the plaintiff/Corporation. The defendant took up various pleas in regard to cause of action, jurisdiction and estoppel. On merits, the defendant admitted that he was lowest tenderer. However, he pleaded that no agreement was executed by him nor the contents of the agreement were told to him. He pleaded that he extracted the resin as per the agreement and delay was caused due to the 3 non-cooperative attitude of the Divisional Manager. Hence, it was pleaded that the plaintiff is not entitled to any amount. On the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether the defendant failed to extract minimum resin yield 232.12 Qtls. in terms of the agreement dated 3.7.1997 as alleged? … OPP 2. If issue no.1 is proved in the affirmative, whether the plaintiff is entitled to a decree of Rs.2,89,499/- as alleged? … OPP 3. Whether there is no cause of action? … OPD 4. Whether this Court has no jurisdiction to try the suit? …OPD 5. Whether the plaintiff is estopped by its act and conduct to file the present suit? … OPD 6. Relief. Parties led evidence and the learned trial Court passed the impugned judgment by deciding Issues No. 1 to 5 in favour of the plaintiff and as against the defendant and consequently, decreed the suit of the plaintiff for recovery of whole amount with costs alongwith interest at the rate of 9% from the date of filing of the suit till realization. I have heard the learned counsel for the parties and have gone through the record. The first point considered by the learned trial Court under Issues No. 1 & 2 was as to the execution of the valid agreement in between the parties. The learned trial Court had referred to the agreement in question Ext. PW2/A and had also referred to the statement of PW-2 Sarwan Kumar and PW-3 Chuni Lal, marginal witness of the agreement and had also referred to the testimony 4 of the defendant and had accordingly concluded that a valid agreement was executed in between the parties. The defendant while appearing as DW-1 had also taken the plea that he had not entered into any agreement with the plaintiff/Corporation and his signatures were obtained on the blank papers, which plea however, did not find favour with the learned trial Court on the basis of the agreement that a valid agreement was executed by the defendant with the plaintiff/Corporation. It does not appear to common sense that the defendant who filed the tender for extraction of the resin and had agreed to the terms and conditions while signing on the certain papers and his plea cannot be accepted that the terms and conditions were not read over to him when there is specific evidence on record in this regard. Those findings have not been challenged by the learned counsel for the appellant. During the course of the arguments, the main plea taken by the learned counsel for the appellant was that due to torrential rains during the period, the appellant could not complete the work well within time as agreed to in between the parties. In this regard, reliance was placed upon the statement of DW-1, who stated that due to rain fall, he could not complete the work well in time. A perusal of the written statement filed by the defendant shows that he had not taken the plea regarding rain fall as the reason for non-completion of the work. However, he had specifically pleaded in Para-6 of the written statement that the delay was caused due to non–cooperative attitude of the Divisional Manager. Thus, the evidence led by the defendant is not in conformity with the assertions made in the written statement and could not be looked into. It follows that the 5 defendant had not completed the work of extraction of resin within time as agreed to in between the parties. No such plea has been taken by the appellant in the grounds of appeal that the amount granted in favour of the plaintiff was not agreed to in between the parties or is excess in any manner. Therefore, the final findings recorded by the learned trial Court holding that the plaintiff is entitled to the recovery of the amount on account of the shortfall in extraction of resin, call for no interference by this Court. The learned trial Court had given reasons for coming to this conclusion and those reasons are valid in accordance with the agreement entered into between the parties. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly with costs. December 24, 2008 ( V.K. Ahuja ) (BSS) Judge