K. A. SWAMI, J. ( 1 ) "this appeal is preferred against the judgment and decree dated 20-12-1978 passed in O. S. No. 50/1977 by the civil judge, sirsi. The appellant is the defendant in the suit and the respondent is the plaintiff. In this judgment the parties will be referred to as the plaintiff and the defendant. ( 2 ) THE plaintiff brought the aforesaid suit for recovery of a sum of Rs. 1,68,40/-84 p from the defendant on the ground that the said amount was wrongly collected from the plaintiff on 12033 metric tons of bamboo cut and stacked at the forest site prior to 1-2-1973, whereas the plaintiff was liable to pay only royalty on the paper or pulp manufactured out of the said bamboo; that on adjusting the royalty payable, on each quantity of paper and pulp a sum of Rs. L,68,407-84p would become excess payment; that the title of bamboo cut and stacked at the forest site prior to 1-2-1973 under the agreement dated 13-8-1955-ex. P-1 passed on to the plaintiff and the plaintiff became the owner of the same, therefore, it was not governed by the second agreement ex. P-2, which came into force with effect from 1-3-1973, ( 3 ) ON the contrary, it was the case of the defendant that under ex, p-1 what was agreed to was to extend certain concessions to the plaintiff to cut and remove the bamboo standing in the areas mentioned in the agreement for the purpose of manufacturing of paper and pulp and the royalty payable on such paper and pulp produced out of such bamboo. Therefore, the title in the bamboo did not pass when the bamboo was cut and stacked at the forest site until the bamboo was removed and used for manufacturing of pulp and paper, because the royalty was payable on the pulp and paper and not on the quantity of bamboo. ( 4 ) ON the basis of these pleadings the learned civil judge raised the following issues for determination : 1. What is the legal and proper seigniorage for the quantities of bamboos as ascertained at 12033 metric tons cut and stacked in the jungle awaiting transport prior to 1-2-1973? 2. Whether the plaintiff proves that he is entitled to the claim of refund of rs. l,68,40/-84p as sought? 3. What is the legal and proper seigniorage for the quantities of bamboos as ascertained at 12033 metric tons cut and stacked in the jungle awaiting transport prior to 1-2-1973? 2. Whether the plaintiff proves that he is entitled to the claim of refund of rs. l,68,40/-84p as sought? 3. Is statutory notice under Section 80, CPC not valid and sufficient? 4. Whether plaintiff is entitled to future interest? ( 5 ) WHAT decree or order?5. The learned civil judge has held that the ownership or title in bamboo passed to the plaintiff immediately after it was cut. Therefore, it has been further held that what was payable on 12033 metric tons of bamboo cut prior to 1-2-1973 was the royalty on the pulp or the paper which could have been produced from the bamboo and not the seigniorage on 12033 metric tons of bamboo under the agreement dated 22-3-1973 which came into force with effect from 1-2-1973. ( 6 ) THERE was no dispute before the trial court and it is not disputed before us that, if 12033 metric tons of bamboo cut and stacked at the forest site prior to 1-2-1973 were to be charged on the basis of royalty payable on the paper or pulp manufactured from the aforesaid quantity of bamboo, there is excess payment made by the plaintiff amounting to Rs. L,68,407-84p. Accordingly, the learned civil judge has decreed the suit. Hence this appeal. ( 7 ) HAVING regard to the contentions urged on both the sides the following pointarises for consideration: whether 12033 metric tons of bamboo cut and stacked at the forest site was covered by the agreement dated 22nd march, 1973 effective from 1-2-1973? Or whether the same was governed by the agreement dated 13-8-1955? ( 8 ) THE answer to the point raised for determination depends upon the interpretation of or the effect of the agreements in question dated 13-8-1955 and 22-3-1973 produced as exs. P-1 and p-2 respectively. The plaintiff is a company having its paper mill known as west coast paper mills Ltd. , Situated at dandeli. The erstwhile state of Bombay entered into an agreement as per ex. P-1 and p-2 respectively. The plaintiff is a company having its paper mill known as west coast paper mills Ltd. , Situated at dandeli. The erstwhile state of Bombay entered into an agreement as per ex. P-1 dated 13th august, 1955 extending certain concessions to the plaintiff for the purpose of manufacture of paper and pulp out of the bamboos grown in the high forest blocks 1 to 9 and 20 situated in the forest range of dandeli, kulgi, viraoli and sambrani including all unorganised range, of dandeli including block No. 6 subject to certain conditions as enumerated in the agreement. For our purpose, it is sufficient to refer to the relevant portions of the agreement which are as follows:"whereas being desirous of starting a factory at dandeli, kanara district, for the manufacture of pulp and paper, the confirming parties had applied to the government for the grant of concession for a period of thirty years for the extraction of bamboos in the areas mentioned hereinafter for the manufacturing of pulp and paper at the said factory which the government agreed to do upon certain terms and conditions. And whereas during the stage of negotiations of the said terms and conditions the confirming parties requested that the said concessions may be granted to the company which the government agreed to do. And whereas before signing this agreement the company has deposited with the divisional forest officer, kanara northern division (hereinafter called "divisional forest officer" a sum of Rs. 10,000/- rupees ten thousand) as security for the due compliance with and the performance by the company of all the terms and conditions in this agreement as far as they are to be observed and performed by the company and whereas by a Rule under Section 76, clause (d) of the Indian Forest Act, 1927 (hereinafter called 'the said act") whoever enters into any contract with any forest officer acting on behalf of the government shall if so required by such forest officer bind himself by a written instrument to perform such contract now it is hereby mutually agreed as follows: 1. The company will have a concession for thirty years from the 26th day of may, 1955, for the extraction of bamboos from the forest areas specified hereinafter for being used only for the manufacture of pulp and paper at the said factory after carrying out necessary research and experiments to the satisfaction of the chief conservator of forests, state o Bombay (hereinafter called the "chief conservator" ). Subject nevertheless to the payment of royalty at a concession rate of Rs. 3-2-0 per tonne of paper manufactured at the company's factory and to be charged at the first weighment stage for the first five years and thereafter every ten years provided that any enhancement in the rate of Rs. 3-2-0 per tonne of paper so manufactured at the company's said factory and provided further that if any bleached or unbleached pulp manufactured at the said factory is removed therefrom or sold or otherwise disposed of by or on behalf or on account of the company before conversion thereof into paper the company shall pay the government before such removal, sale or disposal royalty at the rate of Rs. 3-2-0 per tonne of air-dry, bleached or unbleached pulp during the first five years and thereafter at the revised rates as aforesaid on the quantity shall pay the government from the date of production referred to hereinafter a minimum royalty Rs. 36,000/- per annum whether any paper or pulp is manufactured at or removed from the said factory provided always that the company shall be permitted to remove subject to availability such quantity as may be required by the company for its own manufacture of pulp and paper not exceeding in all 100 tonnes per day and that the extraction of the quantity of bamboos shall be carried out in accordance with the programme prescribed by the chief conservator. ""the amount of royalty, rent or any other amount due under the agreement shall be paid to the divisional forest officer on behalf of government if and whenever any part of the rent, royalty or any other amount due under this agreement shall be in arrears, the company shall be liable to pay interest at 414% per annum from the due date to the date of payment and all sums due shall be recoverable from the company in accordance with Section 83 of the said act or as an arrear of land revenue in accordance with the sections 82 and 85 of the said act or in both ways. The said rent or royalty due under this agreement hereby reserved shall be in arrear for the space of 30 days whether the same shall be in arrear for the space of 30 days whether the same shall be legally demanded or not or if any other amount due under this agreement shall be in arrear for the space of 30 days after it shall have been legally demanded or whenever there shall be a breach of any of the covenants or conditions by the company which shall not have been rectified within a reasonable time (as to which government will be the sole judge) of their having been officially brought to the company's notice, the government will be at liberty to terminate this agreement and to forfeit the whole or any part of the deposit as it may in its absolute discretion think fit"this agreement came to be modified by another agreement dated 22nd march, 1973 marked as ex. P-2. Though this agreement was finalised on 22nd march, 1973 parties agreed to give effect to it from 1-2-1973. The relevant portions of the modified agreement dated 22nd march, 1973 are as follows: "whereas in pursuance of the discussions held on 27-1-1973 the secretary, M/s. West coast paper mills Ltd. , Dandeli (north kanara) has agreed on 5-3-1973 for revision of the royalty rates payable by the said company for paper pulp produced at the mills factory at dandeli as per the terms of the agreement dated 13-8-1955. And whereas the west coast paper mills Ltd. , Have requested for allotment of eucalyptus plantation raised by the department in dandeli division. And whereas the parties hereto have agreed to modify and alter the terms and conditions of the principal deed. And whereas the west coast paper mills Ltd. , Have requested for allotment of eucalyptus plantation raised by the department in dandeli division. And whereas the parties hereto have agreed to modify and alter the terms and conditions of the principal deed. Now this deed witnesses as follows; i. Clause I of the principal deed shall be substituted as follows: a) the company shall have concession of 30 years from the date of signing of this agreement for the extraction of bamboos and eucalyptus from the areas specified in the original agreement for being used only for the manufacture of pulp and paper at the said factory after carrying out necessary research and experiment to the satisfaction of the chief conservator of forests in mysore, Bangalore. B) the company shall pay a minimum royalty of Rs. 36,000/- per annum whether the bamboos are removed or not provided always that the company, shall be permitted to remove subject to availability such quantity as may be required by the company for its own manufacture of pulp and paper not exceeding in all 100 tonnes per day and the extraction of the required quantity of bamboos shall be carried out in accordance with the programme prescribed by the chief conservator of forests. C) that the seigniorage rate per tonne of bamboo extracted and removed by the company from the forest areas specified in clause (2) of the original agreement dated 13-8-1955 shall be Rs. 15/- (rupees fifteen) per tonne exclusive of sales tax which is also recoverable at the statutory rates, current from time to time. D) that the above rate of Rs. 15/- per tonne whether dead/flowered or green, shall be operative from 1-2-1973 and it shall be assessed and collected on the basis of the bamboo extracted by the company. E) that the rate indicated above for bamboo shall be operative for a period of 10 years from 1-2-1973 (first february, 1973) and shall be revised thereafter once in five years in such a way that the enhancement at each such revision shall not exceed 25% of the rate now applicable i. e. , Rs. 15/- per tonne for the concession area. 15/- per tonne for the concession area. F) the extent from within the concession area lost to the west coast paper mills Ltd. , By way of submersion, disforestment, raising of plantations by the forest department in dandeli division will be compensated by allotment of equi-productive area adjoining their existing concession area". ( 9 ) THUS it is clear that clause I of the agreement ex. P-1 came tobe substituted by the new agreement dated 22nd march, 1973 which came into force on 1-2-1973. It is also not in dispute that by 1-2-1973,12033 metric tons of bamboo was cut and stacked at the forest site. It was neither removed from the forest nor utilised by the plaintiff in any manner. It had not been brought to the factory. The defendant-state claimed that as the agreement ex. P-2 dated 22nd march, 1973 was effective from 1-2-1973, that as the terms of the earlier agreement were modified by the agreement dated 22nd march, 1973, that as per the modified agreement the bamboo extracted and removed by the company from the forest areas specified in the agreement dated 13-8-1955 seigniorage was to be paid at the rate of Rs. 15/- per tonne exclusive of sales tax which was to be recovered at the statutory rates, the plaintiff was liable to pay seigniorage on the bamboo cut and stacked at the forest site as on 1-3-1973, that the plaintiff though initially resisted to pay but subsequently paid the said amount. The plaintiff filed the suit after payment of seigniorage on the ground that as 12033 metric tons of bamboo in question was already cut when the agreement dated 13-8-1955 was in force as such it was governed by the agreement dated 13-8-1955 and not the modified agreement dated 22-3-1973. ( 10 ) THE learned trial judge on consideration of the terms of the agreement dated 13-8-1955 has held that the agreement dated 13-8-1955 provided for sale of bamboo to the plaintiff and as such no sooner the bamboo was cut title in the bamboo passed to the plaintiff. Therefore, it was governed by the agreement dated 13-8-1955 and not the agreement dated 22nd march, 1973. ( 11 ) WE are of the view that having regard to the terms of the agreement dated 13-8-1955 ex. P-1 it is not possible to hold that the earlier agreement ex. Therefore, it was governed by the agreement dated 13-8-1955 and not the agreement dated 22nd march, 1973. ( 11 ) WE are of the view that having regard to the terms of the agreement dated 13-8-1955 ex. P-1 it is not possible to hold that the earlier agreement ex. P-1 provided for sale of bamboo, and the title in the bamboo passed on to the plaintiff before 1-2-1973. The agreement dated 13-8-1955 ex. P-1 only extended certain concessions to the plaintiff to enable it to establish and run a paper mill at dandeli. The relevant terms of the agreement (ex. P-1) reproduced above also make it clear that the agreement (ex. P-1) granted certain concessions to the plaintiff for a period of 30 years. The royalty was fixed on the pulp and paper manufactured out of the bamboo cut and removed from the forest areas mentioned in column 2 of the agreement. The plaintiff was not entitled to sell the bamboo or utilise it as owner for any purpose. It was only permitted to cut and remove from the forest areas specified in the agreement for the purpose of manufacture of paper and pulp. The royalty was to be paid at the rate of Rs. 3-2 annas per tonne of paper manufactured at the company's factory and in case the paper was not manufactured and only pulp was manufactured it was also agreed that the royalty should be paid at the rate of rs. 3-2 annas per tonne of air-dry, bleached or unbleached pulp during the first five years and thereafter at the revised rates. A minimum royalty of Rs. 36,000/- per annum was also payable whether any paper or pulp was manufactured at, or removed from the factory subject to availability of such quantity of bamboo as may be required by the company for its own manufacture of pulp ant) paper not exceeding in all 100 tonnes per day. Therefore, it is clear that the agreement ex. P-1 did not provide for sale of bamboos. That being so, when the bamboo was cut and stacked at the forest site the same did not become the goods of the plaintiff as the title in it did not pass to the plaintiff. Under the agreement, the plaintiff could only sell the paper and pulp and not the bamboo. P-1 did not provide for sale of bamboos. That being so, when the bamboo was cut and stacked at the forest site the same did not become the goods of the plaintiff as the title in it did not pass to the plaintiff. Under the agreement, the plaintiff could only sell the paper and pulp and not the bamboo. Therefore, the plaintiff could only claim to have become the owner of paper and pulp and not the bamboo. ( 12 ) THIS reasoning of ours is further fortified by the modified agreement dated 22nd march, 1973. The relevant portions of the modified agreement have already been reproduced. Under the modified agreement ex. P-2, what was agreed was the payment of seigniorage at the rate of Rs. 15/- per tonne of bamboo extracted and removed from the areas specified in clause 2 of the agreement ex. P-1. It also provided that the plaintiff was liable to pay the seigniorage whether the bamboo was dead/flowered or green. The minimum seigniorage payable for an year was Rs. 36,000/ -. Thus the modified agreement fixed the rate per tonne of bamboo extracted and removed from the forest areas specified in the agreement ex. P-1. As the 12033 metric tons of bamboo in question though cut it had not been removed from the forest site to the factory of the plaintiff the same was governed by the modified agreement hence, we are of the view that the seigniorage claimed and recovered from the plaintiff on 12033 metric tons of bamboo cut and stacked at the forest site prior to 1-2-1973 at the rate of Rs. 15/- per tonne was valid as it was in accordance with the agreement ex. P-2 dated 22-3-1973 which governed 12033 metric tons of bamboo as it had not been removed from the forest site on 2-3-1973. ( 13 ) HOWEVER, learned counsel for the plaintiff placed reliance on a division bench decision of this court in the state of Karnataka v west coast paper mills Ltd. , Ilr 1985 (3) Karnataka 3857. In that case, the following points were considered:"1. Whether the property in bamboos passed to the company soon after they were severed or extracted from the land? 2. Whether the bamboos cut, but not transported on or before January 15, 1969, were liable to be charged at the enhanced rate of Rs. In that case, the following points were considered:"1. Whether the property in bamboos passed to the company soon after they were severed or extracted from the land? 2. Whether the bamboos cut, but not transported on or before January 15, 1969, were liable to be charged at the enhanced rate of Rs. 20/- per ton under the government order dated December 31,1968? 3. If not, whether the company was entitled to the refund of the amount recovered in excess of Rs. 10/- per ton?these questions were considered in the light of the terms contained in the agreement dated 21-3-1967 which was marked as ex. D-1, it was held that the title in the goods passed no sooner the bamboos were cut and stacked in the forest area. The relevant clauses of the agreement as referred to in paragraph 14 of the judgment were as follows: "8. From the time, the contract starts extraction and removal of green bamboos in the manner hereinbefore provided and after taking delivery of the bamboos and whether in the forests or outside, they shall be at the sole risk of the contractor who shall make his own arrangements for the protection of the same from fire, theft, wastage or damage of any kind whatsoever. 10. All bamboos to be extracted and removed by the contractor shall be removed from the said lands by 31st december, 1967. No extension to the contract period shall be given except under very special circumstances by the conservator of forests, kanara circle, dharwar. In the event of extension being sanctioned to remove the balance quantity of green bamboos, the contractor shall have to pay such extension fees as may be decided upon by the consenator of forests, k. c. , dharwar as extension fees. 11. Any bamboos in whatever form not removed from the forests belonging to the governor of Mysore on or after 1-1-1968 shall at the discretion of the divisional forest officer be forfeited and shall revert and become the absolute property of governor of Mysore and the contractor shall not by any reason of such forfeiture be entitled to any refund or abatement of the amount payable or due by him under the contract". ( 14 ) ON considering the aforesaid terms, the court held that the title in the goods passed no sooner the bamboos were cut and stacked in the forest areas. ( 14 ) ON considering the aforesaid terms, the court held that the title in the goods passed no sooner the bamboos were cut and stacked in the forest areas. After quoting the aforesaid clauses it was held as follows:"it will be seen from clause 8 that the bamboos extracted would remain at the sole risk of the company and the company had to make its own arrangement for preserving or protecting the same from accidental fire. Even if the extracted bamboos were destroyed by fire, the company would still be liable to pay the price and the sales tax in addition to fine that may be imposed by the competent authority. Since the company was required to preserve the extracted bamboos at its own risk, the intention of the parties would seem to suggest that the property in bamboos stood transferred to the company the moment it was severed and taken possession of by the company, because generally though not always, the goods sold are at the seller's risk until the property in them is transferred to the buyer and only when the property is transferred to the buyer, the goods are at the buyer's risk, whether goods are actually delivered or not". as the terms contained in the agreement ex. D-1 considered in the aforesaid case were not similar to the terms contained in agreement ex. P-1, dated 13-8-1955, the aforesaid decision cannot be of any help to the plaintiff. ( 15 ) SIMILARLY, the decision of the Supreme Court in badriprasad v The State of madhya pradesh, AIR 1970 SC 706 , relied upon by the learned counsel for the defendant-appellant cannot also be of any help because in that case there was a contract for cutting and removing the timber standing on a certain land. Before the trees could be cut in terms of the agreement the land itself came to be vested t o the state government. Therefore, the contract became impossible of performance. Before the trees could be cut in terms of the agreement the land itself came to be vested t o the state government. Therefore, the contract became impossible of performance. In these circumstances, it was held by the Supreme Court that the title in the trees, which were not cut, did not pass to the plaintiff therein as the same were not cut on the date the land came to be vested in the state government, ( 16 ) FOR the reasons stated above, the point raised for determination is answered as follows: 12033 metric tons of bamboo cut and stacked in the forest site on 30th january, 1973 was governed by the modified agreement dated 22nd march,1973 and not by the earlier agreement dated 13-8-1955 ex. P-1. Accordingly, the amount of Rs. 1,68,407-84 was rightly recovered from the plaintiff applying the agreement dated 22nd march, 1973 ex. P-2 to the 12033 metric tons of bamboo, in question, as such there was no excess recovery from the plaintiff. ( 17 ) THUS, this appeal has to succeed. It is accordingly allowed. The judgment and decree of the trial courts are reversed and the suit of the plaintiff is dismissed with costs. --- *** --- .