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Himachal Pradesh High Court · body

2000 DIGILAW 201 (HP)

H. P. STATE FOREST CORPORATION v. ACHHAR SINGH

2000-08-03

R.L.KHURANA

body2000
JUDGMENT R.L. Khurana, J.—The plaintiffs have filed the present suit for the recovery of Rs. 68,64,303 against the three defendants on the following averments : 2. The work of floating of timber in respect of lots No. 1/83-87, 2/83-88 and 1/84-87 was allotted to the defendants vide agreement dated 28.5.1986. In terms of the agreement, the launched timber was to be caught at Bhandarkot (near Kishtwar) and to be delivered and stacked at the roadside depot of the plaintiffs. The entire work of launching, floating, carriage and stacking etc. was to be completed by 31.5.1987. 3. The plaintiffs delivered 90,093 scants equivalent to 8300.095 cubic metres in volume in respect of the three lots to the defendants for the purpose of launching and floating. All these scants were required to be delivered by the defendants at the road side depot at Bhandarkot by 31.5.1987. As per the terms of the agreement permissible loss during the course of floating and carriage was to the extent of 5%. Loss during transit and floating over and above the permissible limit of 5% was to be made good by the defendants at the rate of Rs. 2,500, Rs. 2,400 and Rs. 2,100, per cubic metre for Deodar, Kail and Fir/Spruce, respectively. 4. The defendants delivered only 59,120 scants equivalent to 5019.247 cubic metres in volume to the plaintiffs as against 90,093 scants equivalent to 8300.095 cubic metres handed over to them for floating. There was, thus, a shortfall to the extent of 30,973 scants equivalent to 3280.848 cubic metres in volume. Such shortfall works out to the extent of 39.52%. After deducting the permissible loss to the extent of 5%, the defendants are liable to make good the loss in respect of 34.52% of the total timber. Such loss, in terms of money has been assessed at Rs. 66,48,604 as under:— (i) Costs of 5773 scants equivalent to 538.574 cubic metres of Deodar at the rate of Rs. 2,500 per cubic metre. Rs. 13,46,435. (ii) Cost of 10,283 scants equivalent to 1383.015 cubic metres of Kail at the rate of Rs. 2,400 per cubic metre. Rs. 33,19,236. (iii) Cost of 10,412 scants of Fir/Spruce equivalent to 944.254 cubic metres at the rate of Rs. 2,100 per cubic metre. Rs. 19,82,933. 5. A sum of Rs. 2,500 per cubic metre. Rs. 13,46,435. (ii) Cost of 10,283 scants equivalent to 1383.015 cubic metres of Kail at the rate of Rs. 2,400 per cubic metre. Rs. 33,19,236. (iii) Cost of 10,412 scants of Fir/Spruce equivalent to 944.254 cubic metres at the rate of Rs. 2,100 per cubic metre. Rs. 19,82,933. 5. A sum of Rs. 37,768 is alleged to have been spent by the plaintiffs on behalf of the defendants as under:— (a) Lifting charges of timber at the boom-site. Rs. 27,460 (b) Ration charges supplied to the labourers. Rs.8,858 (c) Erection and dismantling charges of the boom. Rs. 600 (d) Payment made to skinman engaged at the boom. Rs. 850 6. Another sum of Rs. 1,20,000 is alleged to have been paid by the plaintiffs on behalf of the defendants to the labourers under an award of the Commissioner, under the Workmens Compensation Act. Another sum of Rs. 93,605 is also to be deposited. 7. According to the plaintiffs after adjusting the sum of Rs. 35,674 payable to the defendants under the final bill, a sum of Rs. 68,64,303 is recoverable from the defendants. Hence the present suit. The plaintiffs have also claimed pendent lite and future interest on such amount at the rate of 18% per annum from the date of suit till the date of realisation of the amount. 8. The defendants, while resisting the suit admitted that the work in respect of the three lots was allotted to them vide agreement dated 28.5.1985. They, however, denied that 90,093 scants were handed over to them for floating. It was pleaded that the scants from various depots were delivered to them for the purpose of launching and floating without actual counting. They also denied the correctness of the number and volume of the scants alleged to have been received by the plaintiffs. It was also pleaded that the loss of timber, if any, was not on account of negligence in the execution of the work by the defendants but was due to natural calamities. The work was executed and carried out as per the directions of the plaintiffs and under the supervision of the officers of the plaintiffs. 9. The defendants also raised a counter-claim under Order 8 Rule 6-A, Code of Civil Procedure, to the extent of Rs. 7,07,209.82 paise as under : (i) Launching and floating charges of 30973 scants @ Rs. The work was executed and carried out as per the directions of the plaintiffs and under the supervision of the officers of the plaintiffs. 9. The defendants also raised a counter-claim under Order 8 Rule 6-A, Code of Civil Procedure, to the extent of Rs. 7,07,209.82 paise as under : (i) Launching and floating charges of 30973 scants @ Rs. 13.34 per scant. Rs. 4,13,179.82 P. (ii) Cost of stopping, carrying, stacking, recarrying and relaunching at the rate of Rs. 4 per scant. Rs. 2,40,000.00 (iii) Refund of security amount. Rs. 20,000.00 10. In claiming the above amount of Rs. 7,07,209.82 paise, the defendants have averred in para 7 of their written statement as under:— "That even as per the stand of the plaintiffs taken in the plaint they have received 59,120 scants at Bhandarkot. The defendants are entitled to recover at the rate of Rs. 14.95 per scant for these 59,120 scants as agreed. Thus an amount of Rs. 8,83,844 is payable by plaintiffs for floating 59,120 scants at the rate of Rs. 14.95 per scant. The defendants atleast floated the remaining timber of the ghal from launching point to a place in between Galhar and Shasu which point is at a distance of about 15 Kms. from the catching point at Kawar-Bhandarkot. It is submitted when the aforesaid flood came at that time mohri (front) of the remaining timber of the ghal was at Bhandarkot and safai (Tail) of the left over timber was at a point in between Galhar and Shasu. Thus the remaining timber of the ghal i.e. 30,973 scants had covered atleast distance of about 125 Kms. in all. Therefore, the defendants are entitled to recover atleast proportionate charges from plaintiffs for floating remaining 30973 scants for a distance of atleast 125 Kms. at the rate of Rs. 13.34 per scant. The charges at the rate of Rs. 13.34 per scant are proportionate the rate of Rs. 14.95 per scant agreed for floating timber for a total distance of 140 Kms. Thus the defendants for 30973 scants at the rate of Rs. 13.34 per scant are entitled to recover an amount of Rs. 4,13,179.82 from the plaintiffs. In addition to this the defendants are also entitled to recover Rs. 2,40,000 on account of stopping, carrying, stacking, recarrying and relaunching at the rate of Rs. 4 per scant of 60000 scants as submitted above. 13.34 per scant are entitled to recover an amount of Rs. 4,13,179.82 from the plaintiffs. In addition to this the defendants are also entitled to recover Rs. 2,40,000 on account of stopping, carrying, stacking, recarrying and relaunching at the rate of Rs. 4 per scant of 60000 scants as submitted above. The defendants are also entitled to recover Rs. 20,000 on account of refund of security. Thus in all an amount of Rs. 7,07,209.82 is due to the defendants from the plaintiffs” 11. The plaintiffs in their rejoinder denied the counter claim of the defendants and re-iterated their claim as laid down in their plaint. 12. On the pleadings of the parties, the following issues were framed on 2.12.1994: 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 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 Workmens 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. 13. I have heard the learned Counsel for the parties and have also gone through the record of the case. My findings on the above issues are as under: Issue No. 1 14. The learned Counsel for the defendants, during the course of hearing, has readily conceded that the present suit has been filed by a duly competent person. The issue is accordingly decided in favour of the plaintiffs. Issue No. 2 15. It is the admitted case of the parties that as per the terms of the agreement dated 28.5.1986, Ex. PW 1/C, the work in respect of the three lots was required to be completed by 31.5.1987. The issue is accordingly decided in favour of the plaintiffs. Issue No. 2 15. It is the admitted case of the parties that as per the terms of the agreement dated 28.5.1986, Ex. PW 1/C, the work in respect of the three lots was required to be completed by 31.5.1987. It is also the admitted case of the parties that due to the inclement weather during the running of the ghal, the same was stopped at Hartholi. The ghal was relaunched at Hartholi sometime in January, 1988 and the timber was delivered to the plaintiffs at Bhandarkot sometime in May 1988. The work was thus completed in May 1988 instead of May 1987. 16. Clause 6 of the terms and conditions appended to the agreement Ex. PW 1/C provides:— "The contractor will be responsible for loss, if any, during the period remains under his custody for transit, loss in transit exceeding 5% (Five per cent) will be recovered from him at the rates of Rs. 2,500, 2,400 and 2,100, per cum, respectively for Deodar, Kail and Fir/Spruce." 17. In view of the fact that the work stood completed by the defendants in May 1988, the cause of action for the recovery of damages for the shortfall, if any. thus accrued to the plaintiffs in May 1988 immediately after the date by which the work was completed and the timber was delivered back to the plaintiffs at Bhandarkot. The present suit was filed on 15.7.1992, that is, after the expiry of the requisite period of three years. Therefore, the suit on the face of it is barred by time. 18. On similar facts, the suit of the plaintiffs in H.P. State Forest Corporation v. Ram Singh, Civil Suit No. 20 of 1990, decided on 5.6.1990, was held to barred by time. The issue is, therefore, decided against the plaintiffs. Issue No. 3 19. In the absence of evidence it cannot be said that the clause, being clause No, 6 quoted above, while discussing issue No. 2, pertaining to permitted loss is the result of mistaken facts. So much so that Hari Singh, defendant, while appearing as DW 5 has not stated even a single word on this aspect. Rather he has admitted the correctness of the agreement as a whole. The issue is as such decided against the defendants. Issue No. 4 20. So much so that Hari Singh, defendant, while appearing as DW 5 has not stated even a single word on this aspect. Rather he has admitted the correctness of the agreement as a whole. The issue is as such decided against the defendants. Issue No. 4 20. Even if it be assumed that the plaintiffs have suffered loss due to less delivery of timber by the defendants at Bhandarkot, in view of the findings recorded under issue No. 2 above, the plaintiffs are not entitled to. any damages for such loss since their claim is barred by time. 21. Further, there is no evidence to show that the loss/shortfall was due to any negligence on the part of the defendants. The evidence coming on the record, rather goes to show that such loss was due to flood in the river and snow, that is, due to natural calamity and for reasons beyond the control of the defendants. 22. PW 2, Shri Jai Chand Kapoor, admittedly, was supervising the launching of the timber right from the launching point(s) till the roadside depot at Bhandarkot. He has categorically admitted to the following facts:— (i) The entire area was snowbound. The distance to be covered by the ghal was approximately 140 Km; (ii) There was unprecedented flood in the river in March, 1988; (iii) In such flood a number of scants belonging to the plaintiffs, the State of Jammu and Kashmir as well as some private contractors were washed away; (iv) There was avalances in March 1988 in the snowbound area of the ghal; (v) The scants sometime get sunk in water. These also get struck on the way against boulders; and (vi) As many as 10 labourers working on the ghal were washed away in the flood. 23. PW 1 Shri D.S. Saini, PW 3 Shri Suraj Ram Sharma and PW 5 Shri Madan Singh, who are the officers of the plaintiffs, have also admitted to the abovesaid facts. 24. Thus, on the basis of evidence coming on record, it is held that the loss of timber, if any, was not due to the fault and/or negligence on the part of the defendants. Such loss was on account of flood and for the reasons beyond the control of the defendants. Therefore, they are not liable. The issue is decided against the plaintiffs. Issue No. 5 25. Such loss was on account of flood and for the reasons beyond the control of the defendants. Therefore, they are not liable. The issue is decided against the plaintiffs. Issue No. 5 25. The plaintiffs have claimed a sum of Rs. 37,768 which is alleged to have been spent by them on behalf of the defendants as detailed at (a) to (d) above. No evidence is forthcoming by the plaintiffs in support of this issue. Even otherwise, the whole claim of the plaintiffs, under issue No. 2 above, has been held to be time-barred. The issue is accordingly decided against the plaintiffs. Issue No. 6 26. No evidence has been led by the plaintiffs in support of this issue. So much so that the orders/awards passed under the Workmens Compensation Act have not been produced in evidence. Nor the receipts showing the payments under such orders/awards have been produced. The issue is, therefore, decided against the plaintiffs. Issue No. 7 27. During the course of hearing the present issue wa^ not pressed by the learned Counsel for the defendants. The same is accordingly decided against the defendants. Issue No. 8 28. The defendants have set up a counter claim under Order 8 Rule 6A, Code of Civil Procedure, to the tune of Rs. 7,07,209.82 Paise. Such counter claim besides being resisted and contested by the plaintiffs on merits, is being resisted and contested on the following two legal grounds, namely:— (a) the counter claim being in the nature of cross-suit is not maintainable in view of the bar under Section 69, Partnership Act, since the defendants constitute an unregistered partnership; and (b) the counter claim which is based on the same cause of action on which the suit of the plaintiff is based, is barred by time. Section 69 (2), Partnership Act provides:— "No suits to enforce a right arising from a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as Partners in the firm." 29. The Supreme Court in Loonkaran Scthia etc. v. Mr. Ivan E. John and others etc. The Supreme Court in Loonkaran Scthia etc. v. Mr. Ivan E. John and others etc. [AIR 1977 SC 336] has held that the provisions contained in Section 69 of the Act are mandatory in character and that the effect of the Section is to render a suit by the plaintiff in respect of a right vested in him or acquired by him under a contract which he entered into as partner of an unregistered firm, whether existing or dissolved, void. 30. The provisions contained in Section 69(2), Partnership Act, quoted above, specifically bars the institution of a suit by or on behalf of a firm to enforce a right arising from a contract unless the conditions specified therein are satisfied. The two requirements which must be fulfilled before a suit can be instituted to enforce a contractual right by the firm or on behalf of the firm are :— (i) that the firm is a registered one; and (ii) that the persons suing are or have been shown in the register of firms as partners of the firm. 31. Since the above conditions are for the institution of the suit, the relevant date with respect to which these conditions must be satisfied is the date of institution of the suit. In other words, the firm must be registered one and persons suing must either be partners or persons whose names are shown in the register of firms as partners as on the date of the institution of the suit. Both the conditions being mandatory must be fulfilled. If either of these conditions is not fulfilled, the suit would be incompetent. 32. Admittedly, the counter claim of the defendants arises out of the agreement Ex. PW 1/C. Defendant Bhag Singh while appearing as DW 5 has admitted that defendant No. 1 is a partnership firm. During cross-examination, he has further gone to admit that such partnership firm was not a registered one at the time of filing the written statement as well as the counter-claim. 33. The learned Counsel for the defendants while conceding that the counter claim sought to be enforced by the present suit has arisen from the agreement Ex. During cross-examination, he has further gone to admit that such partnership firm was not a registered one at the time of filing the written statement as well as the counter-claim. 33. The learned Counsel for the defendants while conceding that the counter claim sought to be enforced by the present suit has arisen from the agreement Ex. PW 1/C and that the partnership firm of the defendants was not registered one as on the date of making of the counter claim, has contended that Section 69(2) of the Partnership Act will have no application to the present case since a counterclaim is not a suit. In support of his contention, the learned Counsel for the defendants, placed reliance on the decision of a Division Bench of this Court in Himachal Fruit Grower Co-operative Society v. Upper India Food Preservers and Processors (P) Ltd., Parwanu and another, 1997 (2) Sim. L.C. 110. 34. In the case relied upon by the learned Counsel for the defendants, a suit for recovery of Rs. 51,550 was filed by a Co-operative Society against an unregistered partnership firm. A counter-claim to the extent of Rs. 78,007.98 paise was raised by the firm therein. The maintainability of the counter-claim was assailed by the Society on the ground of want of notice under Section 76 of the H.P. Cooperative Societies Act, 1971. It was held that a counter-claim cannot be treated as a suit for the purpose of Section 76 of the H.P. Cooperative Societies Act, 1971. 35. Be it stated that the judgment relied upon by the learned Counsel for the defendants does not help the defendants in the present case. The Division Bench of this Court had no occasion to consider the question, which is involved in the present case. 36. 35. Be it stated that the judgment relied upon by the learned Counsel for the defendants does not help the defendants in the present case. The Division Bench of this Court had no occasion to consider the question, which is involved in the present case. 36. Rule 6A of Order 8, Code of Civil Procedure, which deals with "counter-claim by defendant" provides:— "6-A. Counter-claim by defendants.—(1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before, or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to the plaints."(Emphasis supplied) 35. Under sub-rule (4) of Rule 6-A, quoted above, the counterclaim is to be treated as a plaint and is to be governed by the rule applicable to the plaintiffs. Sub-rule (2) lays down that a counterclaim shall have the same effect as of a cross-suit. 36. Rule 1 of Order 7, Code of Civil Procedure, provides for particulars which are required to be stated in the plaint. A Division Bench of this Court in The Managing Director, H.P. State Forest Corporation and another v. Ghinno Ram and others [R.F.A. No. 83 of 1991, decided on 11.6.1998] has held that the provisions contained in Rule 1 of Order 7, Code of Civil Procedure, are imperative and the failure to state all the necessary particulars required to be stated would entail rejection of the plaint/counter-claim under Order 7 Rule 11, Code of Civil Procedure. 37. 37. To the similar effect it has been held in The Himachal Pradesh State Forest Corporation Ltd. and another v. Gurcharan Dass Sekhri, 1999 (1) Sim. L.C. 98. 38. In the case of suit either by or on behalf of a partnership firm, it has necessarily to be pleaded in the plaint that the suit is being filed either by the firm or on behalf of the firm and that the person(s) suing are or have been shown in the register of firms as partners of the firm. Such pleadings are lacking in the counterclaim. Therefore, the counter-claim of the defendant, which is to be treated as a plaint, is liable to be rejected on this short ground alone. 39. The Supreme Court in Jag Mohan Chawla and another v. Dera Radha Swami Satsang and others, (1996) 4 SCC 699, while dealing with the scope and ambit of Rule 6-A of Order 8, Code of Civil Procedure, has held:— “The counter-claim expressly is treated as a cross-suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceedings and needless protection (sic protraction) the legislature intended to try both the suit and the counter-claim in the same suit as suit and cross suit and have them disposed of in the same trial. (Emphasis supplied) 40. Once a counter-claim is to be treated as a cross suit, the bar contemplated by Section 69(2), Partnership Act would come into play also in respect of a counter-claim. 41. The above proposition also finds support from sub-section (3) of Section 69, Partnership Act which expressly states that the bar contained in sub-sections (1) or (2) shall also apply to a claim of set off or other proceedings. If the claim as to set off cannot be allowed to an unregistered partnership firm, by the same analogy the counter-claim of an unregistered partnership firm cannot be permitted. It appears that legislature desired to carry the penalty as far as possible and not to permit any claims of an unregistered partnership firm arising out of a contract whether in claim or in defence. It appears that legislature desired to carry the penalty as far as possible and not to permit any claims of an unregistered partnership firm arising out of a contract whether in claim or in defence. An escape from the rigours of the provisions of Section 69, Partnership Act, therefore, cannot be allowed even by way of set off or counter-claim. 42. Insofar as the question of limitation is concerned, suffice to say that the counter-claim of the defendants is based on the same cause of action on which cause of action the suit of the plaintiffs is based. Under issue No. 2 above, the suit of the plaintiff has been held to be time barred. For the self same reasons, the counter-claim is also barred by time. 43. The defendants, as such, are not entitled to any counterclaim. The issue is decided against the defendants. Issue No. 9 44. Since neither the plaintiffs nor the defendants have been held entitled to any amount, there is no question of award of interest. The issue has thus become redundant. Relief 45. As a result, the suit as well as the counter claim are dismissed leaving the parties to bear their own costs. Petition dismissed.