IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA OSA No.22 of 2001. Judgment reserved on: 3.3.2008. Date of decision: 17th March, 2008. H.P.State Forest Corp. and others …..Appellants/plaintiffs -Versus- Sh.Achhar Singh and others. ….Respondents/Defendants Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for reporting? No For the Appellants: Mr.Neel Kamal Sood, Advocate. For respondents: Mr.Bimal Gupta, Advocate. Deepak Gupta, J. The appellants (hereinafter referred to as the plaintiffs) have filed this Original Side Appeal against the judgment and decree dated August 3, 2000 passed by a learned Single Judge of this Court in Civil Suit No.142 of 1992 whereby the suit filed by the plaintiffs was dismissed. The plaintiff-Corporation awarded the work of floating of timber in respect of lots No.1/83-87, 2/83-88 and 1/84-87 to the respondents (hereinafter referred to as the defendants) vide agreement dated 28.5.1986. In terms of this agreement the timber which was launched in the river was to be caught at Bhandarkot (near Kistwar) and then to be delivered and stacked at road side depot of the plaintiffs. As per the terms of the agreement the entire work of launching, floating, carriage and stacking was to be completed by 31st May, 1987. The plaintiffs alleged that they delivered 90,093 scants of timber equivalent to 8300.095 cubic meters in volume in respect of three lots to the defendants for the purpose of launching and floating. This entire timber was 2 to be caught and delivered by the defendants at the road sides depot at Bhandarkot by 31.5.1987. In terms of the agreement the maximum permissible loss was to the extent of 5% and thereafter further loss, if any, was to be made good by the defendants @ Rs.2500/-, Rs.2400/- and Rs.2100/- per cubic meter for Deodar, Kail and Fir/Spruce respectively. According to the plaintiffs as against the 90,093 scants the defendants only delivered 59,120 scants measuring 5019.247 cubic meters. Thus there was a shortfall to the extent of 30,973 scants equivalent to 3280.848 cubic meters in volume. After deducting the permissible loss of 5% the plaintiffs claimed Rs.66,48,604/- as the cost of timber. Another sum of Rs. 37,768/- was claimed on account to the amount allegedly spent by the plaintiffs on behalf of the defendants and another sum of Rs.1,20,000/- was claimed as the amount paid by the plaintiffs on behalf of the defendants under an award made under the Workmen’s Compensation Act. After adjusting the amount payable to the defendants the plaintiffs claimed an amount of Rs.68,64,303/-. Hence the suit. The defendants resisted the suit. They admitted the execution of the agreement. However, according to them 90093 scants were not handed over to them for floating. As per the defendants, scants of timber were handed over to them from various depots for the purpose of launching and floating without actual counting. They denied the correctness of the number of scants and the volume of timbers. It was also alleged that the loss of timber, if any, was not on account of the negligence on the part of the defendants but due to the natural calamities. The defendants also filed a counter claim. On the pleadings of the parties the following issues were framed: “1.Whether the suit has been filed by a legally competent person? If not, its effect? OP Parties. 2.Whether the suit is within limitation? OPP 3.Whether the clause of permitted loss in the agreement is the result of mistaken facts, as alleged? If so, its effect? OPD. 3 4.Whether the plaintiff-Corporation is entitled to the losses due to less delivery of timber as alleged? If so, to what extent? OPP 5.Whether the Corporation is entitled to recovery of an amount of Rs.37,768/-, spent by it on behalf of the defendant, as alleged? OPP 6.Whether the plaintiff-Corporation is entitled to amount paid/payable under the Workmen’s Compensation Act to the labourers from the defendants, as alleged? OPP 7.Whether the plaintiff-Corporation is estopped by its own acts and conducts to claim the damages, as alleged? OPD 8.Whether the defendants are entitled to counter claim of Rs.7,07,209.82, as alleged? OPD 9.Whether the parties are entitled to interest, as claimed by them? OP Parties. 10.Relief.” The learned Single Judge decided Issues No.1, 3, 7 and 8 against the defendants. Issues 2,4,5,6 were decided against the plaintiffs. The claims of both the sides were rejected and therefore against issue No.9 it was held that since neither party was held entitled to any amount the question of awarding interest does not arise. 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 and Shri Bimal Gupta, learned counsel for the respondents. We have also gone through the record of the case. The defendants have not challenged the findings on issues returned against them and therefore we are not deciding the same. We now take up the case of the plaintiffs-appellants. LIMITATION: Admittedly, the work in question was to be completed by May, 1997. It stands proved on record that the work in question was actually completed by May, 1988. Even, according to the plaintiffs the timber had been handed over to it in the depots in May, 1988. It was at this stage that the plaintiffs 4 should have counted the timber and the cause of action for recovery of damages for the alleged shortfall accrued to the plaintiffs in May, 1988. The suit was filed on 15th July, 1992 more than 4 years thereafter. The limitation provided for such a suit is 3 years. The suit was thus clearly time barred. Shri Neel Kamal Sood has urged that the suit is within limitation since the defendants received running payments upto 25.11.1989 and that the final accounts were prepared and the amount recoverable came to be ascertained only on 6.9.1991. This argument is without any force. It was for the plaintiffs to have ascertained the shortfall immediately when the supplies were made to it. The mere fact that the plaintiffs made payments to the defendants would not extend the period of limitation. There is no acknowledgment of any amount by the defendants. In fact the plaintiffs have miserably failed to prove that there was any mutuality of transaction or that there was any running account between the parties. The learned Single Judge has rightly held that the suit is not under limitation and his findings are accordingly upheld. ON MERITS: Even on merits, we find that the decision of the learned Single Judge calls for no interference. The plaintiffs have failed to prove what was the exact amount of timber handed over to the defendants. The plaintiffs have also failed to show what was the exact timber that was received by it at Bhandarkot. Furthermore, there is sufficient material on record to show that during the period in question heavy snowfall had taken place. In fact PW-2 Jai Chand Kapoor who was supervising the launching on behalf of the plaintiffs has admitted that the entire area was snow bound; there were unprecedented floods in March, 1988; in the floods huge amounts of timber belonging to the Corporation, the State of Jammu and Kashmir and private contractors were washed away in the river; there were avalanches in the snow-bound areas where the ‘ghal’ was to be floated. He has also admitted 5 that as many as 10 labourers were washed away in the floods. These facts have also been admitted by PWs 3 and 5 who appeared on behalf of the plaintiffs. Thus, it is clear that the loss, if any, was not on the part of the negligence of the defendants but due to the reasons much beyond their control. Keeping in view the aforesaid facts, we find no merit in the appeal which is accordingly dismissed. No order as to costs. ( Deepak Gupta ), Judge March 17, 2008. ( Rajiv Sharma ) PV Judge