IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 109/1999 Reserved on: 9.3.2009 Decided on: 16.3.2009 Himachal Pradesh State Forest Corporation Limited. …Petitioner. Versus Karam Chand. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the petitioner : Mr. Neel Kamal Sood, Advocate. For the Respondent : Nemo. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 27.4.1998 passed by the learned District Judge, Solan in Civil Appeal No. 33-S/13 of 1997. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for recovery of Rs. 25,610/- in the court of learned Sub Judge 1st Class, Solan. The case of the plaintiff precisely was that the Divisional Manager, Solan fixed an open auction on 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 2.3.1990. The auction was attended by various contractors including the respondent-defendant (hereinafter referred to as ‘the defendant’ for convenience sake). Lot No. 2/90 of Solan Forest Division was also included in the said auction. The terms and conditions of the auction held on 2.3.1990 were duly announced before holding the auction and the intending bidders had signed the terms and conditions of the auction before the start of the auction. The defendant gave a bid in respect of resin extraction work from lot No.2/90 and his rates being the lowest were accepted. The work of resin extraction was sanctioned in favour of the defendant vide letter dated 24.3.1990. However, the defendant did not sign the agreement deed despite repeated requests. The defendant was required to maintain records and account of every such container entering the forest and in case of any shortage of tin container passed and supplied by the plaintiff to the defendant, the defendant was to be held liable to pay compensation @ Rs. 150/- for per missing tin container. The plaintiff was entitled to recover compensation from the defendant @ Rs. 1000/- for per such quintal of resin removed un-authorizedly. It was found that from lot No. 2/90, the labourers of the defendant were carrying resin filled tins from the forest to the road side. The labourers ran away from the site when the Assistant Manager reached the spot. They left behind 24 resin filled tins. The Assistant Manager personally went and verified the stock on 8.6.1990. The suit was filed for breach of the terms and conditions of the auction dated 2.3.1990 and causing loss to the tune of Rs. 56,107/-. The defendant contested the suit. He raised various preliminary objections. The trial court decreed the suit on 30.4.1997. The defendant preferred an appeal before the learned District Judge, Solan. He 3 accepted the appeal on 27.4.1998. This Regular Second Appeal was admitted on the following substantial question of law: “Whether Ex. PW-1/B was sufficient contract in between the parties and contained all the conditions required under section 2-E of the Indian Contract Act?” Mr. Neel Kamal Sood, Advocate has strenuously argued that the judgment and decree dated 27.4.1998 passed by the learned District Judge, Solan is not sustainable. He has supported the judgment and decree passed by the learned trial court. The defendant though served has not chosen to appear. I have heard Mr. Neel Kamal Sood, Advocate and gone through the record carefully. The suit of the plaintiff is primarily for the breach of auction which has been termed by the plaintiff as a valid agreement. The case of the defendant as projected before the courts below was that there was no agreement executed between the parties and thus the plaintiff could not sue the defendant. The date of auction was 2.3.1990. The terms and conditions of the auction Ex.PW-1/B were announced. There were 42 conditions appended with the auction notice as contained in Ex.PW-1/B. It is only for the breach of conditions No.16 and 32 that the defendant was sued for the recovery of the suit amount. The auction was conducted by PW-1 R.S. Rana. The Court is of the considered opinion that the terms and conditions contained in Ex.PW-1/B cannot be interpreted to be a valid agreement. It is evident from conditions No. 38 and 39 that a separate agreement was required to be entered into between the parties. The conditions enumerated in the auction notice cannot be termed as an agreement between the parties. The same was to be done within 15 days of the expectance of the bid. Mr. Neel Kamal Sood has failed to draw the attention of the Court that any agreement was entered into between the 4 parties as per conditions No. 38 and 39 respectively. In fact, the case of the plaintiff is that the defendant has not signed the agreement despite his repeated requests. Accordingly, the findings recorded by the learned first appellate court that no separate agreement was entered into between the parties within 15 days as stipulated under conditions No. 38 and 39 are liable to be upheld. The execution of the work undertaken by the defendant was to be regulated under the agreement which admittedly has not been signed by the parties Consequently, there is no merit in the Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 16.3. 2009 (Rajiv Sharma ), J. *awasthi*