IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA OSA No.5 of 2004 Reserved on:14.8.2008 Date of decision: August 20,2008 ------------------------------------------------- The H.P.State Forest Corpn. Appellant Versus Shri Tilak Raj & others. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting1? No For the appellant: Mr. Rakesh Jaswal, vice counsel. For the respondents: Mr. G.D.Sharma, Advocate. Per V.K.Ahuja. This is an appeal filed by the appellant against the judgment and decree of the Court of learned Single Judge of this Court dated July 29, 2003 vide which the learned Single Judge had partly decreed the suit of the appellant for recovery of the amount and for the other part the suit was dismissed. Briefly stated, the facts of the case are that the appellant as plaintiff-Corporation, had instituted a suit for recovery of Rs.23,11,030/- on account of loss of timber and interest. It was alleged by the plaintiff that they invited tenders for felling of trees in forest lot No.1/93, 94, 2/5 of Kashyadhar forest in Seraj Forest Division and conversion thereof into different sizes of timber and for carriage upto the roadside depot etc. The number of trees to be felled was 116 having estimated volume of 693.02 cu.metre. The defendants submitted the tender, which was accepted and the Whether the reporters of Local Papers may be allowed to see the Judgment? Yes 2 work was accordingly awarded to them vide letter dated 11.8.1993 and finally an agreement was also executed in between the parties on 15.12.1993. According to the terms and conditions of the agreement, the work was to be completed by the defendant before 31.3.1994. The defendant did not start the work for which notices were issued to them and they felled only 32 trees of standing volume of 148.65 cu.m. and extracted 213 scants of the volume of 22.392 cu.m. from 11 felled trees and left the remaining 19 trees felled on the road to rot. The defendant did not complete the work leading to the cancellation of the allotment on 8.2.1995. The work was re- allocated to one Shri Dhani Ram at the risk and costs of the defendants under intimation to the defendants. The defendants filed a suit for injunction against the re-allocation of the work, obtained interim order which was vacated on 11.10.1996. Thus, it was alleged that the defendants not only failed to execute the work but also hindered the execution of the work by another person whom it was allotted and the plaintiff suffered loss and damages to the tune of Rs.16,10,475/-. The plaintiff also spent the amount on payment of royalty and extension fee to the Government. The plaintiff also claimed interest @ 18% per annum amounting to Rs.7,00,555/- and as such the plaintiffs claimed the principal amount as well as interest thereon. The defendants took up various preliminary objections and on merits, they admitted that the work was allotted to them on tender but they pleaded that the work could not be completed because of snow and they are not liable to pay the damages. The learned Single Judge framed the following issues: 1. Whether the work of felling, conversion and carriage of timber was not executed by the defendants as per agreement dated 15.12.1993 or within the extended time? OPP 3 2. Whither the contract was rightly cancelled and allotted to Shri Dhani Ram at the risk and cost of the defendants? OPP 3. Whether the plaintiff suffered huge loss of Rs.16,10,475/- due to non performance of contract by the defendants? OPP 4. Whether the defendants are liable to this amount to the plaintiff with interest at the rate of 18% with effect from 30.12.1994 and future interest at the same rate? OPP 5. Whether the defendants are liable to pay the extension fee paid by the plaintiff to the Government after 31.3.1994? OPP 6. Whether the plaintiff-Corporation is estopped from filing the present suit due to its own conduct, deeds and acquiescence? OPD 7. Whether the suit is not maintainable in the present from as it lacks material particulars? OPD 8. Whether the suit is liable to be dismissed as the plaintiff has not been verified by legally authorized person? OPD 9. Whether agreement dated 15.12.1993 was executed under coercion, influence and misrepresentation of facts and hence, not binding on the defendants? OPD 10. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD. 11. Relief. The parties led evidence and the learned Single Judge vide his Judgment dated 29.7.2003 decided issues No.1,2,3(partly), 4(partly),6,8,9 and 10 in favour of the plaintiff and against the defendants and the suit was accordingly decreed for a sum of Rs.47,029/- i.e.Rs.35,900/- on account of the proved damages sustained by the plaintiff, Rs.11,129/- as interest and the suit for remaining amount was dismissed. We have heard the learned counsel for the parties and have gone through the record of the case. 4 The submissions made by the learned counsel for the appellant were mainly that the learned trial Court had wrongly held under Issue No.5 that the plaintiff had failed to prove the deposit of any extension fee and as such those findings are liable to be reversed since the statement of PW-6 Suresh Kumar a Junior Assistant from the Office of the plaintiff-Corporation, who stated that the extension fee for extending the time for felling the trees by the defendants, was paid by the plaintiff to the Forest Corporation in the sum of Rs.60,101/-. The learned Single Judge had clearly observed that the plaintiff had failed to prove that he deposited any extension fee and therefore, he was not held entitled to this amount of extension fee. The mere fact that the witness was not specifically cross-examined on this point does not lead to the inference that this amount was in fact deposited by the plaintiff. It was a fact to be proved by the plaintiff that he had deposited this amount as extension fee and the said receipt of deposit of the amount was required to be proved by the plaintiff, which he had failed to do. It was a specific sum being claimed by the plaintiff for a specific purpose i.e. the deposit of extension fee which was required to be proved by the plaintiff in which he had failed and, therefore, the learned Single Judge had rightly held that the plaintiff failed to prove issue No.5 in this regard and therefore was not entitled to the amount claimed. From the above discussion, it follows that there is no merit in the appeal, which is dismissed accordingly. (Deepak Gupta),J August 20, 2008 (V.K.Ahuja),J. (SDS)