IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 234 of 1997 with Cross- objection No. 268 of 1998. Judgement reserved on: 18.6.2008 Date of decision: 20.6.2008. M/s Sharma Brothers & ors. ….. Appellants. Vs. Bhawani Dutt & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. K.D. Sood, Advocate. For the Respondent : Mr. Romesh Verma, Advocate. Kuldip Singh, Judge. This appeal has been directed against the judgement, decree dated 5.7.1997 passed by learned District Judge, Solan in Civil Appeal No. 51-S/13 of 1995 reversing the judgement and decree dated 22.6.1995 passed by the learned Senior Sub Judge, Solan in case No. 81/1 of 1991. 2. The facts in brief are that respondent No. 1 filed a suit for specific performance of agreement dated 1.5.1990 and in the alternative suit for recovery of Rs.25,000/-. The suit was filed against the firm M/s Sharma Brothers and its partners namely, Leela Dutt, Whether the reporters of the local papers may be allowed to see the Judgment? …2… Dharam Dutt, Ishwar Dutt. Inder Dutt, Ramesh Dutt and Smt. Dropti were impleaded as proforma defendants in the suit. The pleaded case of the plaintiff in the plaint is that firm and its partners took on lease some land from Ram Kishan of village Sheel as well as from other persons in order to extract sand. The firm and its partners during the process of extraction of sand caused damage to the land of respondent No. 1 comprised in khasra No. 382. In anticipation of damage, which was likely to be caused, the firm and its partners had agreed to compensate respondent No.1, thereafter damage resulted on the spot and they agreed to pay an amount of Rs.60,000/- to respondent No.1 in three instalments. A writing to this effect was executed on 1.5.1990. The firm and its partners were to make the payment of Rs.10,000/- i.e. first instalment in June 1990, which was paid by them to respondent No. 1. The second instalment of Rs.25,000/- was to be paid in October 1990, which was not paid. The last instalment of Rs.25,000/- was agreed to be paid by them to respondent No. 1 in May 1991. The firm and its partners failed to make the payment of second instalment and therefore, respondent No.1 filed the suit for recovery of Rs.25,000/- against the firm and its partners alongwith interest at the rate of 15% per annum from 1.11.1990 till the date of payment. 3. The firm and its partners have contested the suit by filing written statement in which preliminary objections of maintainability and valuation have been taken. It has been pleaded that agreement is not enforceable being uncertain and vague. On merits, it has been pleaded that the agreement was connected with operation of mine …3… and it was to take place after the demarcation. The mine could not be operated and remained closed. The demarcation was not carried out. The Mining Department had stopped the work of mine as per letter dated 1.9.1990. An amount of Rs.10,000/- was paid in anticipation but no work of mine had taken place and no damage was caused to the land of respondent No.1, therefore, the amount of Rs.10,000/- paid was liable to be refunded. The contract was contingent and had become impossible to be performed. The object had frustrated and therefore, contract came into an end in June 1990 itself. The writing being uncertain and unspecified and, therefore, was incapable of being enforced, no damage as such had taken place. The firm and its partners have denied the claim of respondent No. 1, who filed replication to the written statement of the firm and its partners and reiterated his stand put forward in the plaint. 4. The learned Senior Sub Judge dismissed the suit on 22.6.1995, but in appeal the learned District Judge has allowed the appeal and set-aside the judgement and decree dated 22.6.1995 of the trial court and decreed the suit of respondent for Rs.25,000/-. The firm and its two partners Leela Dutt and Dharam Dutt filed the appeal against the impugned judgement and decree. The respondent No.1 has filed the cross-objections praying therein interest at the rate of 15% per annum from 1.11.1990 till the payment. The appellant Leela Dutt and proforma respondent Ishwar Dutt died during the pendency of appeal and cross objections, and their legal representatives were brought on record. …4… 5. The appeal has been admitted on the following substantial questions of law:- 1. Whether the suit of the plaintiff could be decreed in the absence of loss or damage being proved with respect to his property? 2. Whether the oral and documentary evidence especially statement of PW 1 Bhawani Dutt, DW 2 Ishwar Dutt, agreement Ext. PW 1/A (sic) and misconstrued and findings are not warranted on record. 3. Whether the agreement to sale (sic) was not a valid one being for consideration and unregistered and was a contingent one and was not enforceable. 6. I have heard Mr. K.D. Sood, learned counsel for the appellants and Mr. Roemsh Verma, learned counsel for respondent No.1 and gone through the record. On behalf of the appellants, it has been submitted that learned District Judge has misconstrued the statement of PW 1 Bhawani Dutt, DW 2 Ishwar Dutt and the agreement Ex. PW 2/A. The respondent No.1 has failed to prove any loss or damage to his property, therefore, in absence of such loss or damage the learned District Judge has erred in decreeing the suit. The agreement was contingent and therefore, was not enforceable. Mr. Romesh Verma, learned counsel for respondent No. 1 has supported the impugned judgement, decree and has also submitted for grant of interest at the rate of 15% on the decretal amount w.e.f. 1.11.1990, as submitted in the cross-objections. …5… Substantial questions of law No. 1 to 3: 7. The substantial questions of law No. 1 to 3 are interconnected and therefore, the same are being taken up collectively for disposal. Ex. PW 2/A is the writing on the basis of which the respondent No.1 has filed the suit. It is clear from the writing that the affected land of respondent No. 1 was demarcated, identified and was found to be six biswas on the spot. It is the case of respondent No.1 that firm and its partners had agreed to compensate the respondentNo.1 for the damage which in fact resulted at the spot and the amount was quantified at Rs.60,000/-, which was incorporated in the writing Ex. PW 2/A. The learned counsel for the appellants has submitted that respondent No. 1 has admitted in his statement that the writing was to come into force only after the demarcation of the affected land which was not done. He has also submitted that in the writing damage at the rate of Rs.10,000/- per biswa has been mentioned which also proves that only that much amount by way of compensation was to be given to respondent No. 1 which was found to be damaged on getting demarcation and since no demarcation was done, therefore, respondent No.1 is not entitled to any compensation. 8. Both these contentions of the learned counsel for the appellants have no force. Para-2 of the writing is very clear to the effect that the affected land was demarcated and was found to be six biswas on the spot. The writing Ex. PW 2/A has not been written by an expert, therefore, much importance cannot be given to the fact that in the said writing the rate of compensation has been mentioned at …6… Rs.10,000/- per biswa. The land measuring six biswas of respondent No.1 was damaged by the acts of firm and its partners, therefore, an amount of Rs.60,000/- as compensation was quantified in the writing itself which the firm and its partners agreed to pay to respondent No.1. In fact, the firm and its partners had actually paid Rs.10,000/- as per writing to respondent No.1. In case there was no damage to the land of respondent No.1 at the time of execution of writing Ex. PW 2/A then why Rs.10,000/- were paid by the firm and its partners to respondent No.1 that has not been explained satisfactorily. The innocuous statement of respondent No.1 that agreement was to come into force only after demarcation cannot be stretched to much. This part of his statement is to be read alongwith para-2 of writing Ex. PW 2/A wherein it has been clearly mentioned that six biswas land of respondent No.1 has been demarcated on the spot and pucca points have been fixed. The respondent No. 1 has nowhere stated that six biswas land was to be demarcated again even though it was demarcated earlier. Therefore, appellants cannot take advantage from the statement of respondent No. 1 regarding demarcation of land and then coming into force the agreement. The payment of first instalment of Rs.10,000/- as per writing proves that in fact the firm and its partners had agreed to pay the consolidated amount of Rs.60,000/- to respondent No.1 as compensation for damaging the land of respondent No.1, which was to be paid in instalments. 9. It has been submitted on behalf of the appellants that Rs.10,000/- was erroneously paid in anticipation of damage to respondent No.1 but it is not recoded in the writing Ex. PW 2/A that …7… Rs.10,000/- has been paid in advance. The damage to the land of respondent No.1 was admitted by the firm and its partners by way of writing Ex. PW 2/A, which has been duly proved on record. The learned counsel for the appellants has failed to point out how the learned District Judge has misconstrued the statements of PW 1 Bhawani Dutt, DW 2 Ishwar Dutt and the writing Ex. PW 2/A. The contract between respondent No.1 on one hand and firm and its partners on the other hand by way of writing Ex. PW 2/A is a concluded contract and it does not require registration, as the writing is nothing but an admission/ acknowledgement of the fact that six biswas of land of respondent No. 1 was damaged by the firm and its partners for which an amount of Rs.60,000/- as compensation was agreed to be paid by the firm and its partners. The writing does not create any interest in the land and it was not contingent. The writing is very much enforceable. The appellants have failed to make out a case for interference. The substantial questions of law No. 1 to 3 are decided against the appellants and in favour of respondent No.1. 10. So far as the cross-objections of respondent No.1 are concerned, these are also without any merit. In the writing, payment of interest by the firm and its partners was never agreed. In the plaint also no foundation for interest has been laid except claiming interest at the rate of 15% per annum from the date of default. But it has not been pleaded in the plaint that on what basis the respondent No. 1 is entitled to interest at the rate of 15% per annum. In these circumstances, respondent No.1 is not entitled to any interest on the amount decreed by the learned District Judge. …8… 11. No other point was urged. 12. As result of the above discussion, the appeal and the cross objections are dismissed with no orders as to costs. June 20, 2008. ( Kuldip Singh ) (Hem) Judge.