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Himachal Pradesh High Court · body

2000 DIGILAW 253 (HP)

H. P. STATE FOREST CORP. v. MANOHAR LAL

2000-09-15

M.R.VERMA

body2000
JUDGMENT (M.R. Verma J.):- The plaintiffs have instituted this Suit for a decree for Rs. 23, 72,942/- on the basis of an agreement. Case of the plaintiffs as made out in the plaint is that ii is a Company duly incorporated under the Indian Companies Act, 1956 having its registered office at Shimla and is a Government of Himachal Pradesh undertaking. D.P. Gupta, I.F.S. is the Managing Director of the plaintiff-Corporation and is competent to file suits and to sign and verify the pleadings and to act on its behalf. The plaintiffs inter alia are carrying out the work of felling, conversion, carriage by manual labour, truck transportation, floating and sole o timber from the forest lots and purchase from the Forest Department and from private owners on payment of royalty amount etc. through its Divisional Manager. The plaintiff through its Division Manager, Forest working Division Chamber invited sealed tenders to be submitted by 30.6.1988 for floating of extracted timber, that is approximately 54,000 scants from lot Nos. 1/83-87,2/83-86 and 1/97/88 to be launched from Kuthal, Chhota Rambal and Kulal in Sachu Nallaha and then in river Chanab and to be caught at Bhandarkot Nonotu Kawar and also for floating approximately 42000 scants of lot No. 1/86-88, 2/87- 89 and 3/86-87 from near Hasku Bridge, Chilkot and Luj which were also to be caught and stacked at the aforesaid places. The defendant submitted his tenders for the said work and were accepted by the competent authority. Pursuant to the said acceptance and the approval of rates defendant executed an agreement on 2.8.1988 about the floating of the timber scants of lot Nos. 1/83-87, 2/83-88 and 1/87-88 numbering about 54000 as per agreed rates. One of the terms and conditions of the agreement was to complete the work by 1.4.1989 though the period of working could be extended by virtue of clause 12 of the agreement. Under clause 6 of the agreement the timber was to be handed over to the defendant against receipts and he was responsible for any loss during the period the timber remained in his custody in transit and the loss in transit over and above 5% in volume was to be recovered from him at the specified rates. Under clause 6 of the agreement the timber was to be handed over to the defendant against receipts and he was responsible for any loss during the period the timber remained in his custody in transit and the loss in transit over and above 5% in volume was to be recovered from him at the specified rates. As per the schedule of movement of Ghal (Floating of timber) the defendant was required to start launching work by 5.9.1988 and complete the same by 15.9.1988 and was also required to engage minimum 150 labourers on Ghal for speedy execution of work. Against this agreement 54595 scants of deodar, Kail, Fir etc. were delivered to the defendant for floating purpose as per the agreement. The contract of floating the timber extracted from Lot Nos. 1/86-88, 2/87-89 and 3/86-87 was also awarded in favour of the defendant and it was specifically provided in the agreement that the timber which is the subject matter of two separate agreements was to be launched and floated separately as per the schedule of movement of Ghal. The defendant however delayed the launching of both the Ghal with intention to launch the floating jointly with the result that the timber of two different ghals got mixed up. The defendant further failed to engaged sufficient number of labourers to speed up the floating of the ghal despite letters, reminder and notices with the result that the work of the ghal was completed on 17.10.1988. It was found that out of the 54595 scants only 51324 scants were delivered by the defendant to the plaintiffs thereby causing a shortage of 3231 scants of the volume of 1021.613 M3. As per the terms and conditions of the agreement the defendant was entitled to permissible loss only to the extent of 5% and was liable to pay for the damages over and above the said percentage in volume. In view of the shortage of the timber delivered, loss to the extent of 19.5% was caused. Such loss has been worked out in the sum of Rs. 22,69,211/- after ignoring the loss upto the permissible limit of 5%. A sum of Rs. 25,731/- has been claimed as costs of errection of Room at Kawar etc and expenditure incurred for collection of 518 scants in Chandas by the plaintiffs. Such loss has been worked out in the sum of Rs. 22,69,211/- after ignoring the loss upto the permissible limit of 5%. A sum of Rs. 25,731/- has been claimed as costs of errection of Room at Kawar etc and expenditure incurred for collection of 518 scants in Chandas by the plaintiffs. It is further alleged that during the course of Ghal operation one labourer engaged by the defendant died and the compensation of Rs. 78000/- under the workmen compensation Act has to be paid by the plaintiffs on behalf of defendant being the principal employer. After taking into account the aforesaid costs of erection of the booms, the compensation and the payments made to the defendant for ghal operation a sum of Rs. 23,72,942/- is claimed to be due from the defendant, which amount he has failed to pay despite demand. The defendant was served with a notice on 6.9.1991 to pay the said amount on account of the losses suffered by the plaintiffs. However, the defendant failed to make any payment. The plaintiffs further claim that cause of action accrued to them against the defendant on 30.6.1988 when the defendant submitted his tender, on 26.7.1988 when the tender was accepted, on 2.8.1988 when the agreement was executed, on 31.8.1989 when the defendant received running payments, on 31.9.1989 when the afloat amount was prepared, on 14.7.1990 when the final bill was prepared and on 6.9.1991 when the defendant was served with notice to make the payment. Hence, the present suit. 2. The defendant contested the claim of the plaintiff and filed a written statement wherein he took the preliminary objections that the suit is barred by limitation, that it has not been filed by a duly authorised person, that the loss was caused due to flash flood, caused by cloud burst and heavy rains and the scants were washed away in the floods into Pakistan and thus the loss of timber being consequent upon the vis-major defendant cannot be held liable for the loss and that some of the flooded timber got mixed up with the timber being floated by the Government of Jammu and Kashmir and no action in this regard was taken by the plaintiffs despite information having been given by the defendant, therefore the loss is not attributable to the act, omission or negligence of the defendant as claimed. On merit it has been averred that the records regarding launching of scants has not been correctly and regularly maintained by the plaintiffs, the delay in launching has been denied and any mala fide intention in this regard has also been denied. It is claimed that the defendant complied with all the terms and conditions of the agreement and engaged requisite number of labourers and the plaintiffs never objected nor pointed out about appointment of any lesser number of labourers. The allegations about intentional mixing up of the two ghals has been denied and the loss occasioned has been attributed to vis major as already stated here-in-above. 3. The plaintiffs filed replication wherein the ground of defence as taken in the written statement are denied and the claim as made out in the plaint was re-affirmed. 4. On the pleadings of the parties the following issues were framed: 1. Whether the suit is within limitation? OPP. 2. Whether the suit has been filed by a competent person, if not, its effect? OPP/OPD 3. Whether the losses suffered by the plaintiff are due to the negligence on the part of the defendant, as alleged? OPP 4. Whether the losses suffered by the plaintiff were due to the act of God as alleged by the defendant? OPD 5. In case Issue No. 3 is proved in the affirmative, whether the plaintiffs are entitled for any amount, if so, how much? OPP. 6. Whether the defendant is liable to pay a sum of Rs. 78,000/- as demanded by the Commissioner Workmen Compensation Act, on account of death of labour subject of final award, as alleged? OPP. 7. Whether the plaintiff is entitled for future interest at the rate of Rs. 18% as claimed? OPP. 8. Relief. 5. Parties led evidence. Agreements heard. My issue-wise findings are as follows: ISSUE No: 6. There is no dilute that the plaintiffs have filed the present Suit for recovery of compensation (damages) caused due to breach of the contract. Therefore, for the purpose of limitation it will be governed by Article 55 of the Schedule to the Limitation Act which reads as under:- Description of 55. Suit. Period of Limitation. Time from which period begins to run. Per compensation for the breach of any contract, express or implied not specially provided for. three years. Therefore, for the purpose of limitation it will be governed by Article 55 of the Schedule to the Limitation Act which reads as under:- Description of 55. Suit. Period of Limitation. Time from which period begins to run. Per compensation for the breach of any contract, express or implied not specially provided for. three years. When the contract is broken (when there are successive breaches when the breach in respect of which the suit is instituted occur or (when the breach is continuing) when it ceases. 7. It is evident form a bare reading of the aforesaid provisions that to lay a suit for compensation for breach of contract the prescribed period of limitation is three years and it shall start running (i) when the contract is broke (ii) in case of successive breach when the breach in respect of which the suit is filed occurred or (iii) in case of continued breach when it ceased. 8. In the case in hand the contract between the parties is Ex.PW-1/E whereby it was agreed to between the parties that the defendant would float timber to be entrusted to him by the plaintiffs as per the schedule attached to the said agreement. The launching was to commence on 5.9.1988 and safai at the last station i.e. Bhandarkot was to be started on 15.3.1989, and the timber was to be stacked and entrusted to the plaintiffs servants at Bhandarkot on 1.4.1989. Clause B of the agreement which provides for the time for performance of the contract reads as follows:- "The period of the work shall be form date of signing this agreement to 1st April 1989 and the time is the essence of this agreement". In view of this clause the work under the contract was to be completed by 1.4.1989 and as already stated launching was to commence on and W.E.F. 5.9.1988. The case of the plaintiffs is that the performance of the contract was not completed by due date. It is not the case of the plaintiffs that this date by a subsequent agreement or understanding extended to any future date. The case of the plaintiffs is that the performance of the contract was not completed by due date. It is not the case of the plaintiffs that this date by a subsequent agreement or understanding extended to any future date. The plaintiffs claim is based on the ground that the timber as entrusted to the defendant for floating was not delivered by him to it at Bhandarkot as a whole as agreed to and various acts and omissions of the defendant led to non-delivery of side- able volume of the timber. Thus, in view of the above quoted clause of the agreement, the period of limitation to sue the defendant for compensation for non-delivery of the timber started running on 2.4.1989. In view of the prescribed period of limitation the suit could be instituted on or before 1.4.1992 so far as the claim for compensation for short delivery of timber is concerned. 9. The plaintiffs have further claimed a sum of Rs. 21,756/- on account of expenditure on collection of timber, Rs. 3,975/- on account of erection of Boom and Rs. 78,000/- on account of compensation awarded under the Work man Compensation Act. However, there is no evidence on the record to show the date/dates of incurring these liabilities by the plaintiffs for and on behalf of the defendant and it has not been disclosed as to when the cause of action arose to lay these claims. The liabilities so incurred in the absence of any evidence to the contrary can at the most be deemed to have been incurred within the time fixed for performance of the contract. 10. As already stated here-in-above, the cause of action thus accrued to the plaintiffs when the defendant committed breach of the contract by not^ completing it on or before 1.4.1989. The present suit has been instituted on July 15, 1992 that is after expiry of 3 years prescribed period of limitation from I the date of breach of the agreement. 11. It was contended by the learned counsel for the plaintiffs that the afloat account in the case was prepared on 30.9.1989, the final bill was prepared on 14.7.1990 and the defendant was served with a notice on 6.9.1991 to make payment of the claimed amount, therefore, the suit is within the period of limitation. 11. It was contended by the learned counsel for the plaintiffs that the afloat account in the case was prepared on 30.9.1989, the final bill was prepared on 14.7.1990 and the defendant was served with a notice on 6.9.1991 to make payment of the claimed amount, therefore, the suit is within the period of limitation. The precise contention in fact is that the period of limitation in this case would start running after the preparation of the afloat accounts. To support his contention the learned Counsel for the plaintiffs has relied on Praksh Chand vs. Divisional Manager & Anr. 1999 (3) SLC 65 wherein a Divisional Bench of this Court has held as under: “9. The challenge to the award as also the judgment of the learned District Judge on the further ground that the subject matter of the claim itself was barred and, therefore, the Arbitrator could not have entertained and passed an award in favour of the respondent-Corporation and consequently such award could not have been made rule of the Court by the learned District Judge does not equally merit our acceptance. Such a contention in our view has been urged in total disregard of the factual position emanating from the records, even filed before the Arbitrator. Adverting to this aspect of the matter, the learned District Judge has held in paragraph 16 of his judgment under challenge that the claim of the respondent-Corporation was not barred. The learned District Judge has adverted to the terms of the agreement to find out the real and actual as well as factual cause of action, with reference to which only the period of limitation should be held to start running. The conclusion of the learned District Judge in this regard cannot be said to suffer any infirmity whatsoever. The learned District Judge has adverted to the terms of the agreement to find out the real and actual as well as factual cause of action, with reference to which only the period of limitation should be held to start running. The conclusion of the learned District Judge in this regard cannot be said to suffer any infirmity whatsoever. It is only in order to deal with and notice the justification in the finding relating to this aspect of the matter rendered by the learned District Judge in paragraph 16 of his judgment that we were obliged even to refer to the terms and conditions of the agreement itself at considerable length in the beginning itself, which makes it clear that the liability of the appellant could be fixed only after the statement was submitted by the agreed party, namely, Resin and Turpentine Factory, Nahan, after reconciliation of resin received in the factory after purification of the quantity of resin and arriving at the actual quantity of pure resin delivered so as to finally determine the short-fall or shortage in the required and undertaken supply. This statement Itself was furnished by the Resin and Turpentine Factory, Nahan with its report dated 1-9.1.1985 and, therefore, it is not given to the appellant to clam limitation to run against the respondent-Corporation before even finalization of the account and making the final bill based on the report of the Resins and Turpentine Factory, Nahan. All these factual aspects that have been justifiably and properly taken into account by the District Judge will repe11 this charge also against the award. The reasons assigned by the learned District Judge in this regard do not suffer from any infirmity in law so as to call for our interference in this appeal under Section 39 of the Arbitration Act". 12. The reasons assigned by the learned District Judge in this regard do not suffer from any infirmity in law so as to call for our interference in this appeal under Section 39 of the Arbitration Act". 12. It is evident from the contents of the above quoted portion that the claim therein has been held to be within limitation because the liability of the defendant therein could be fixed only after the statement about the pure resin delivered was given by the Turpentine Factory, Nahan so that the short fall of resin could be worked out and it was so agreed to between the parties as is evident from the following contents of the judgment:- "..The terms and conditions of the auction as well as the agreement provided for the mandatory delivery of the resin collected by the appellant in the manner and within the time stipulated with initial payment, in portion and on account, of remuneration for the work to be carried out with provision for final determination and settlement of such accounts. Clause 11 of the terms of the agreement stipulated that the quantity of net pure resin shall be as determined at the Resing and Turpentine Factory the resin is carried by the Forest Corporation after deducting the weight of the container, sakki and other impurities and that it shall have to be accepted by the agents to be correct and final. Clause 17 provided that running payments upto 30% of the total value of the work done can be made after verification by the Assistant Manager concerned after having extracted and stacked the resin in the forest at the approved place and another 50% after delivery of resin at the road side depot and that the balance final after percentage of sakki and other impurities having been determined in the Resing and Turpentine Factory of the Corporation to which the resin is supplied. Clause 25 stipulated that in case the appellant fails to extract the minimum yield for each lot, a compensation of Rs. 750 per quintal for short fall shall be recovered from the agents by the Corporation and that the compensation for decrees upto 10% may be waived off if the Managing Director/Director concerned is satisfied that the decrease in yield is on account of circumstances beyond the control of the agents. 750 per quintal for short fall shall be recovered from the agents by the Corporation and that the compensation for decrees upto 10% may be waived off if the Managing Director/Director concerned is satisfied that the decrease in yield is on account of circumstances beyond the control of the agents. Clause 31 provides that the final payment to the agents will be made only after due satisfaction of the Corporation that the agents have discharged all their obligations/liabilities towards his/their labour/workmen/employees and to the Corporation, on the finalisation of their accounts." 13. It was in view of the above terms and conditions that the claim was held within limitation. However, similar conditions do not exist here. In the case at hand, the work under the agreement was to be completed by 1.4.1989 which the defendant had failed to complete. The time being of essence of the agreement, there being no further agreement to complete the job, the time to claim damages started running immediately after the breach of the conditions of the agreement, i.e.2.4.1989. 14. In view of the above discussion, I hold that the plaintiffs have failed to prove that the suit is within limitation, this issue is, therefore, decided against the plaintiffs. ISSUE No. 2: 15. Rule 1, Order XXIX of the Code of Civil Procedure which provides for subscription and verification of pleadings in a suit by or against a Corporation, reads as under: " 1. Subscription and Verification of pleadings :-In suit by or against a corporation, any pleading may be signed and verified on behalf of the Corporation by the Secretary or by any Director or other Principal Officer of the Corporation who is able to depose to the facts of the case". 16. In view of the above, Secretary, Director and Principal Officer of the Corporation who is able to depose to the facts of the case, is competent to sign and verify the pleadings and anyone of these may sign and verify the pleadings for and on behalf of the Corporation. 17. In the case at hand, the plaint has been signed and verified by D.P. Gupta, Managing Director of the plaintiff Corporation and has been filed by him and two principal Officers of the Corporation who are the Divisional Managers of the concerned Divisional through counsel. It is so stated by PW-4. 17. In the case at hand, the plaint has been signed and verified by D.P. Gupta, Managing Director of the plaintiff Corporation and has been filed by him and two principal Officers of the Corporation who are the Divisional Managers of the concerned Divisional through counsel. It is so stated by PW-4. There is no evidence to the contrary nor the competence and authority of the said Managing Director of the plaintiffs to sing and verify the pleadings nor his competence and that of the principal Officers of the Corporation to institute the suit on behalf of the plaintiffs was assailed in any manner for the defendant at the time of arguments. 18. As a result it is held that the suit has been filed by a competent person. This issue is accordingly decided the favour of the plaintiffs and against the defendant. ISSUE Nos. 3&4. 19. Since both these issues are inter-connected, therefore, are taken up together for decision. In this regard the case of the plaintiffs is that the defendant had been negligent in carrying out the job inasmuch as he did not deploy the requisite number of labourers and mixed the timber of this "Ghall" with the timber of another "Ghall" which was also to be launched by the defendant and these omissions and act resulted in the loss of timber. On the other hand the defence set up by the defendant is that the loss was caused due to flash floods caused by cloud burst and heavy rains whereby the scants were washed away but the floods into Pakistan. Hence, the defendant has attributed the loss to vis-major. 20. In so far as the allegation of mixing up the timber of two "Ghalls" as concerned, there is no evidence to prove it. None of the PWs. examined by the plaintiffs has stated so. It was though suggested to the defendant (DW-5) that he delayed the launching of the "Ghalls" with a view to mix up the timber of two "Ghalls" but the suggestion has been denied by him. If is, thus, not established that the defendant mixed up the timber of two "Ghalls" which resulted in any loss of timber. 21. To support the averment that the defendant failed to deploy the agreed number of the labourers, the plaintiffs rely on the statements of Suraj Ram Sharma (PW-2) and Madan Singh (PW-3) and the communications Exts. If is, thus, not established that the defendant mixed up the timber of two "Ghalls" which resulted in any loss of timber. 21. To support the averment that the defendant failed to deploy the agreed number of the labourers, the plaintiffs rely on the statements of Suraj Ram Sharma (PW-2) and Madan Singh (PW-3) and the communications Exts. PW-2/A to PW-2/J. PW-2 has stated that the reason for delay in execution of the work of "Ghalls" was on account of short labourers and in case full labour would have been provided the loss would not have occurred. This witness primarily was not concerned with launching which was done by M.S. Parmar. Therefore, his statement cannot be delivered and relied upon to held that the number of the labourers engaged in the work was not as per the terms of the launching Schedule. He has stated in his cross-examination that 180 labourers were to be deployed at the time of launching whereas not even 80 were so deployed by the defendant. His statement on this count is contrary to the contents of the launching Schedule wherein the number of labourers to the employed is 150 only and not 180. This witness himself is admittedly the signatory of communication Ext. PW-2/E which shows that 155 labourers were deployed at Sachu Nalla. It belies his statement that even 80 labourers were not deployed for the work. He has admitted that the actual launching started on 5-9-1989, hence as per the Schedule. He has further stated from the records that "The launching initially went smoothly but later to floods it could not be carried further. I have seen the original record in this respect". It simply mean that the launching operations were obstructed due to floods and not for want of labourers. PW-3 is the person in whose presence the launching operation was carried out. He states that he had been telling the department that the contractor had not employed full labour. He has stated in his cross- examination that 100 labourers were to be employed whereas the contractor had not employed even 50. Evidently, his statement is contradictory of the contents of the launching Schedule and the letter Ext. PW-2/E referred to above. He states that he had been telling the department that the contractor had not employed full labour. He has stated in his cross- examination that 100 labourers were to be employed whereas the contractor had not employed even 50. Evidently, his statement is contradictory of the contents of the launching Schedule and the letter Ext. PW-2/E referred to above. He has admitted that after the launching and before the "Ghalls" could reach the first, destination, the floods came and the defendant informed them that appropriate steps to save the scants might be taken. Be it stated that the "Ghalls" operation could be taken over by the plaintiffs in the event of the defendant committing breach of any of the terms and conditions of the agreement including the requirement of labourers to be deployed. He could even be penalised by imposing for such breach. However, neither the work was taken over by the plaintiffs nor any penalty was imposed. This inaction on the part of the plaintiffs belies the version regarding non- deployment of full strength of labourers from the initiation of the launching operation. 22. It is not in dispute that launching operation was to start on 5-9-1988. Ext. PW-2/A and Ext.PW-2/B are the copies of the telegrams respectively dated 27-8-1988 and 30-8-1988. The former requesting the defendant to resume launching and floating of the "Ghalls" immediately and the latter requesting him to erect booms and to send maximum "Ghalls" labourers to the launching point by first September. There is no explanation what- so-ever as to why should he start the launching and floating operation before 5-9-1988. More over, the former document does not require the defendant to start work but to resume, that is, to beginning again the launching and floating work. It is nobodys case that launching and floating had been started prior to the date of the communication that is 27-8-1988. For want of any explanation in this regard, the only inference which can be drawn is that the plaintiffs are capable of creating record which may or may not be relevant to the issue in question. Ext. PW-2/C has no relevance to the strength of the labourers at work. It, however, admits the fact that some timber was "involved in recent floods" and its collection was to be resumed by the PW-3. Ext. PW-2/D is dated 29-9-1988 and Ext. PW-2/E is dated 6-10-1988. Ext. PW-2/C has no relevance to the strength of the labourers at work. It, however, admits the fact that some timber was "involved in recent floods" and its collection was to be resumed by the PW-3. Ext. PW-2/D is dated 29-9-1988 and Ext. PW-2/E is dated 6-10-1988. As per the former, 120 labourers were at work and according to the latter, the number of labourers at work was 155 the communications Exts. PW-2/F to PW-2/J have no relevance in determining the number of labourers at work. What emerges from the above is that the allegation of non-deployment of full strength of the labourers may be true to the posts-floods period but it is not true regarding pre-floods period. 23. This conclusion is strengthened even in view of the evidence led by the defendant. DW-1 Om Parkash and DW-2 Uma Datt were working as labourers in the launching operation. They have stated that due to floods a large number of scants was washed away". They worked only for a few days. DW-2 further stated that he left the work and went home because there was danger to life due to land-slides. In such a situation at the time of the flash floods, which admittedly occurred, it was humanly impossible to retain the requisite strength of the labourers. Inability to arrange labourers at such a time is admitted even by PW-2 When he states that control of "Ghalls" could not be taken over by the plaintiffs because they also could not arrange such a huge labour. He has admitted that the floods came from 22-9-1988 to 28-9-3988. It is notice-worthy that there is no evidence on record that the requisite strength of labourers was not at work before the date when the floods came, i.e. 22-9-1988. 24. DW-5 Manohar Lai, defendant has stated that he had employed the agreed number of labourers and then increased the labour by 100 more labourers. However, after about a week of the launching of Me operation, there was a cloud-burst resulting in flash floods whereby the timber already floated was carried away beyond Jammu & Kashmir towards Pakistan and could not be retrieved. He intimated the department about it vides Exts. DW-3/1 to DW-3/6. These disclose the flooding of the timber and reasons for inadequate strength of labourers. DW-1 and DW-2 also state about the floods and its consequences, i.e. carrying away of the launched/floated timber. He intimated the department about it vides Exts. DW-3/1 to DW-3/6. These disclose the flooding of the timber and reasons for inadequate strength of labourers. DW-1 and DW-2 also state about the floods and its consequences, i.e. carrying away of the launched/floated timber. PW-2 states that initially the launching was smooth but later on due to floods it could not be carried further. PW-3 also admits the occurrence of the floods and thereby carrying away of the floated timber. He admits that the defendant in such situation had requested to take steps to save the timber. He has further admitted that the defendant was successful in retrieving 5000 to 6000 scants beyond the last station and some timber was retrieved at places behind the last station. Even about the labourers employed by the defendant, he admits that the defendant had given them list of the employees of the defendant. Such list has not been produced to shows that the labourers so employed initially were less than the agree number PW-5 has also admitted that some timber was carried away towards Jammu & Kashmir out of which some was retrieved and the reason for loss was diversion of timber (proved to have been caused by floods) towards Jammu & Kashmir. 25. In view of the evidence as discussed here-in-above what clearly emerges is that the timber was lost not because of the negligence on the part of the defendant but it was directed/carried away towards Jammu & Kashmir due to floods, which could not be retrieved as a whole. 26. As a result it is held that the plaintiffs have failed to prove that the loss of timber and consequential loss was caused to the plaintiffs due to the negligence on the part of the defendant, whereas it is proved that the loss was occasioned by the cloud burst resulting in flash floods, i.e. an act of nature, beyond the control of the defendant. Accordingly, issue No. 3 is held against the plaintiffs and issue No. 4 is decided in favour of the defendant. ISSUE NO. 5 27. Since issue No. 3 has been held in the negative, therefore, this issue does not arise for determination. ISSUE NO. 6: 28. In view of the findings on issue No. 1 above, the claim for compensation amount is time barred. ISSUE NO. 5 27. Since issue No. 3 has been held in the negative, therefore, this issue does not arise for determination. ISSUE NO. 6: 28. In view of the findings on issue No. 1 above, the claim for compensation amount is time barred. Even otherwise, there is no cogent and reliable evidence on the record to prove that any compensation as claimed was ever awarded against the plaintiffs or they made payment thereof for and on behalf of the defendant, so much so that even a copy of the alleged award or receipt of payment of any compensation has not been produce in evidence. 29. In view of the above it is held that the plaintiffs have failed to prove that the defendant is liable to pay Rs. 78,000/- to them as alleged. This issue is accordingly decided against the plaintiffs. ISSUE NO. 7: 30. In view of the findings on issues No. 1 and 3 to 6 above, the plaintiffs are not entitled to any interest. This issue is accordingly decided against the plaintiffs. ISSUE NO. 8 RELIEF: 31. In view if the findings on issues No. 1 and 3 to 7, the suit merits dismissal and is accordingly dismissed. In the facts and circumstances of the case, the parties, however, are left to bear their own costs.