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Himachal Pradesh High Court · body

2000 DIGILAW 318 (HP)

H. P. STATE FOREST CORPN LTD. v. PARAS RAM

2000-12-15

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J: - In this suit the plaintiffs have prayed for a decree in the sum of Rs.15, 35,711/- with costs of the suit and future interest till the realisation of the decretal amount. . 2. The case of the plaintiffs as made out in the plaint is that plaintiff No. 1 is a Company duly registered under the Indian Companies Act, 1956, with its registered office at Himrus Building, Cart Road, and Shimla-1 and is a Government of Himachal Pradesh undertaking. Dr. M.S.L. Vaidya, I.F.S., the Managing Director thereof is competent to file the suit on behalf of it and to sign and verify the pleadings. The Managing Director as also the Divisional Manager, Forest Working Division, Chamba are the Principal Officers of the said Corporation. The Plaintiff-Corporaiion apart from other activities, is carrying out the work of failing of trees, conversion, carriage and floating of the timber extracted from the forest Lois purchased by it. The concerned Divisional Managers being Directors of the concerned divisions are empowered and authorised to enter into agreement etc. for carrying out the aforesaid activities of the Corporation. The Divisional Manager, Forest Working Division, Chamba on behalf of the Corporation, invited short tenders for 28.8.1995 for floating of timber of Lot No.2/1983-85, Upper Ravi, Kugti from the Launching Depot upto Kharamukh and then through river Ravi to Dunali, including catching, carriage and size-wise and species-wise stacking of the floated timber on the road side Depot, Dunali. Pursuant to the said invitation, various tenders were received. The tenders of the defendants were finally approved and accepted. Thereafter, the defendants executed agreement dated 10.10.1985 with the plaintiff Corporation and deposited a sum of Rs.5000/- as security. As per the agreement, the work of floating was to be completed by 31.3.1986. Pursuant to the said agreement in all, 10308 scants of Deodar, Kail Fir/Spruce were delivered to the defendants for floating. As per Clause (6) of the contract, the defendants were liable for the loss, if any, caused during the period, the timber remained in their custody and that loss in transit exceeding 2% was to be recovered from them at the specified rates. After the stacking of the timber spacies-wise and size-wise at Dunali it was found that only 6,939 Scants were stacked there. Thus, there was a shortage of 3369 Scants. After the stacking of the timber spacies-wise and size-wise at Dunali it was found that only 6,939 Scants were stacked there. Thus, there was a shortage of 3369 Scants. The loss thus occasioned to the plaintiffs in excess of 2% loss in transit was 39.45% and the defendants are liable to make good the loss. The loss in terms of money suffered by the plaintiffs because of the short delivery is Rs.9,19,481/-. Since this loss was occassioned because of the negligence of the defendants, therefore, they are further liable to pay interest on the aforesaid amount of loss at the rate of Rs.18% per annum w.e.f. 1.4.1986 to 31.12.1989, which works out to Rs.6.21.670/-. The plaintiffs were liable to pay net amount of Rs.83, 302/-to the defendants, out of which a sum of Rs.77,642/- has been paid and the remaining amount of Rs.5,660/- which is payable to them is liable to be adjusted against the claim of the plaintiffs. Thus, after due adjustments, the plaintiffs have claimed a sum of Rs.15, 35,711/-. Hence, the present suit. 3. The defendants resisted the claim of the plaintiffs. In their written statement, they raised preliminary objections that the suit in the present form is not maintainable, that it is not properly filed and presented, that the calim is time barred, that the plaintiffs have no cause of action against the defendants, that the plaintiffs are taking undue advantage of their own wrongs, that the plaintiffs are estopped to file the present suit due to their acts, deeds, conduct, lapses, admissions, consent and omissions and that the performance of the contract became impossible due to supervening events and acts of God. Hence, nothing is recoverable from the defendants. On merits, submitting of the tenders is admitted. It is, however, claimed that the defendants are illiterate and their signatures were obtained on different papers by the officials of the plaintiffs without explaining the contents thereof. The rate for floating the timber and depositing of a sum of Rs.5,000/- as security amount is, however, not disputed. It is also claimed that no time limit was settled between the parties for floating the scants for the reason that this type of work necessarily depends upon the atmosphere, season, climate and workable conditions in the river concerned. The rate for floating the timber and depositing of a sum of Rs.5,000/- as security amount is, however, not disputed. It is also claimed that no time limit was settled between the parties for floating the scants for the reason that this type of work necessarily depends upon the atmosphere, season, climate and workable conditions in the river concerned. It has further be«-n averred that the water in the river from kalang Nallah to Dunali is at the height of more than 12000 feet i nd for most of the period in the year, a concerned part of the river remains covered with snow for eight to nine months. Delivery of 10308 Scants for the purpose of floating has been admitted but it is claimed that the scants were to be delivered to the defendants at Kalang Nallah, which the plaintiffs failed to do. It is also claimed that whatever scants were delivered, those were not delivered at the appropriate time with the result that the snow season started and the process of floating the timber was delayed considerably.. In addition, 1700 Scants were entrusted to the defendants for being floated from Sanathu Nallah to Kalang Nallah on the assurance that extra charges for this work at the rate of Rs.9.25 per scant would be paid. The scants were put in the water at Kalahg Nallah on 20.10.1985. On or about 22.10.1985, there was heavy snow fall, as a result of which, the floating work totally stopped and the water of the rivulet was freezed. The working conditions became available in the end of April, 1986 and the work as re-started on 29.4.1986. The scants which were to be floated were not of standard size and the timber was in a rotten and dilapidated condition incapable of floating properly in the water. It is denied that the timber was to be stacked size-wise and species-wise at the destination or that any loss in transit was to be made good by the defendants as alleged. Infact, the timber in question was under the care and custody of Block Officer, Bhagwan singh, Forest Guard, Tek Chand and 4-5 Chowkidars of the Plaintiffs and it was their duty to watch and guard the timber in transit and to ensure safe arrival thereof at the destination and these persons used to accompany the defendants during the entire floating operations. Though the floating of timber was initially started on 29.4.1986, but could not be continued due to forzen water and 1700 scants were taken out from the water and stacked on the safe side. The floating work was then started on 22.8.1986, which was carried out upto a distance of 13 kilometer. There was again heavy snow fall in November, 1986 resulting in stopping the floating work. The floating work was then started in the first week of January, 1987 and when the timber reached at a place known as Dinka by the second week of February, 1987, when a huge land-slide occurred and a large quantity of timber was burned under the debris in the rivulet and thus finally, the let out timber reached Dunali on 4.4.1987 and was handed over to Bhagwan Singh, Deputy Ranger, Bharmaur. It is further claimed that the value of the timber as claimed is highly excessive and the timber itself was of absolutely inferior quality .Any negligence on the part of the defendants has been denied and it is claimed that the plaintiffs are liable to pay a sum of Rs.77, 642/- to the defendants. The defendants have, thus, denied the claim of the plaintiffs 4. The plaintiffs filed replication, wherein, they denied the grounds of defence as taken in the written statement and reiterated the averments as made in the plaint. 5. On the pleadings of the parties, the following issues were framed on 29.4.1991:- 1. Whether the suit is within limitation? OPP.’ 2. Whether the suit in the present form is not maintainable? OPD. 3. Whether the plaintiffs are taking undue advantage of their own wrongs as alleged? OPD. 4. Whether the plaintiffs are stopped from filing the present suit due to their own acts, conduct, and omission as alleged? OPD. 5. Whether the agreement dated 10.10.1995 was frustrated due to act of God as alleged?. If so, its effect? OPD. 6. Whether only an estimated number of scants, and not the exact number, were put to Ghal for floating by the defendants as alleged? OPD. 7. Whether there was no valid agreement between the parties? OPD. 8. To what amount the plaintiffs are entitled to recover from the defendants? OPP. 9. Relief. 6. Parties led evidence. 7. Arguments were heard. 8. My issue-wise findings are as under:-ISSUE NO. 1. 9. OPD. 7. Whether there was no valid agreement between the parties? OPD. 8. To what amount the plaintiffs are entitled to recover from the defendants? OPP. 9. Relief. 6. Parties led evidence. 7. Arguments were heard. 8. My issue-wise findings are as under:-ISSUE NO. 1. 9. There is no dispute that as per the terms and conditions of the agreement between the parties, the floating work was to be completed by 31st March, 1986 and it was not so completed. On the strength of these admitted facts, the learned counsel for the defendants had contended that the cause of action to the plaintiffs had accrued on 31.3.1986 by which time the floating was not completed. Therefore, the period of limitation started running from that date, where as the suit had been instituted on 23.1.1990, much after the expiry of prescribed period of limitation. 10. Apart from the aforesaid admitted terms and conditions of the agreement regarding completion of the floating of the Ghal Vide agreement Ext. PW-l/B, it has further been provided in the said agreement itself vide clause 11 (a) and 11 (c) that the time for execution of the work beyond the specified period, i.e. 31.3.1986 could be extended on payment of extension fee from time to time. Otherwise, as per clause 1 l(c) the time was the essence of the agreement. It is not the case of the plaintiffs either in the plaint or in evidence that the time for performance of the contract was ever extended as per clause 11 (a) or clause 1 l(c) of the agreement. Therefore, in the absence of any evidence to prove that the time for completion of the work was extended and the fee therefor was deposited, the contract between the parties stood broken on 31.3.1986 which was the last day for the completion of the work under the contract. 11. Under Article-55 of the schedule to the Limitation Act, the period of limitation for institution of a suit for compensation for the breach of any contract, is three years, which will start running (i) when the contract is broken or (ii) in case of successive breaches when the breach in respect of which the suit as filed occurred or (iii) in case of continuous breach when it ceased. It is admitted case of the plaintiffs throughout that the floating work was to be completed and the timber was to be stacked and handed over at the destination by 31.3.1986. There is no evidence that the time for completion of the work was ever extended as per the terms of the agreement. The limitation to institute the present suit, therefore, would start running from the expiry of the specified date. Thus, the suit could be laid by the plaintiffs on or before 31.3.1989. The present suit having been instituted on 23.1.1990, therefore, is barred by limitation. This issue is accordingly held against the plaintiffs. ISSUE NO. 2. 12. At the time-of arguments, neither anything has been pointed out nor do I find on the record which may render the present suit not maintainable in the present form. This issue is, therefore, decided against the defendants. ISSUE No. 3 13. It was contended for the defendants that during the year 1985, floating work was not carried out for the reason that the timber was not made available by the Plaintiff-Corporation in time and in the meanwhile snow season started. DW-4, Mulkhi Ram, one of the defendants has stated so. The defendants, however, have not led any evidence to prove as to on which date the timber was handed over to them for being floated. The agreement between the parties was executed on 10.10.1986. Obviously, the timber was to be handed over to the defendants for being floated thereafter. Defendant Mulkhi Ram vide his notice, photo copy whereof is Ext. PW-3/B on the record has admitted that he had started the floating work in the year 1985. Such work could have been started by him only when the timber was handed over to the defendants after the execution of agreement in 1985 itself. Thus, in the absence of any evidence on the record to show that the timber was not handed over to the defendants immediately after the execution of the agreement, it cannot be concluded that the breach of the agreement occurred because of the non-delivery of the timber to the defendant’s well-in-time as alleged. It is, therefore, held that the defendants have failed to prove that the plaintiffs are taking undue advantage of their own wrongs as alleged. This issue is accordingly held against the defendants. ISSUE No. 4. 14. It is, therefore, held that the defendants have failed to prove that the plaintiffs are taking undue advantage of their own wrongs as alleged. This issue is accordingly held against the defendants. ISSUE No. 4. 14. The defendants have not led any evidence to prove such act, conduct or omission on the part of the plaintiffs which may stop the plaintiffs from filing the present suit. This issue is, therefore, held against the defendants ISSUE No. 5 15. The precise case of the defendants is that the performance of the contract became impossible due to supervening events and acts of God, i.e. the floating work was not possible before 29.4.1986 due to heavy snow fall and freezing of the water of rivulet through which the timber was to be floated. Even on and after 29.4.1986, the floating work could not be carried out as the water was still forzen and the timber scants which were not of standard size and were rotten, could not float properly. Therefore, 1700 scants which were floated had to be taken out of the water and stacked on the safe side. Thereafter, the floating work was again undertaken on 22.8.1986, When it has made hardly any progress, there was heavy snow fall and the floating work had to be stopped. The floating work was then started in January, 1987 but that also came to halt at Dinka because of landslide, resulting in burying a huge quantity of the timber floating in the rivulet under the dabris. Whatever timber was salvaged was handed over at Dunali to Bhagwan singh, Deputy Ranger, against a receipt. It is, thus, claimed that the due performance of the contract was rendered impossible by the natural calamities, i.e. acts of God. The plaintiffs in their replication have denied this case of the defendants as set up in the written statement. 16. According to DW-4, Milkhi Ram, the floating work of the timber was carried out by the defendants under the supervision of Bhagwan Singh, Deputy Ranger and Tek Chand, Guard. He has further stated that for want of timely delivery of the scaxnts to be floated, the floating operation could hot be started because in he meanwhile snow-season started. When the work was started again in August, 1986, the timber could be floated only to a distance of 13 kms when it again started snowing and the work stopped. He has further stated that for want of timely delivery of the scaxnts to be floated, the floating operation could hot be started because in he meanwhile snow-season started. When the work was started again in August, 1986, the timber could be floated only to a distance of 13 kms when it again started snowing and the work stopped. After about 1/2 months, the work was agian started when because of the rainy season a landslide took place, as a result of which some timber was damaged under the debris and the work remained closed for 2-3 days. The floating work was being carried out as per the directions and to the satisfaction of the said Deputy Ranger and other official of the Corporation. He has further stated that the timber handed over to the defendants for being floated was not of standard size and was in rotten condition. Thus, according to him, the stoppage of the work at various intervals and damage to the timber was because of repeated snow-fall and the landslide which led to damage to loss of some timber. So is stated by DW-5, Mast Ram, the Power of Attorney of defendant Paras Ram. The Deputy Ranger Incharge of the Ghal in question, namely, Bhagwan Singh has also been produced by the defendants as DW-3. He has stated that the work of the Ghal in respect of lot No.2/1983-85, i.e. Ghal in question was completed under his supervision and he had been submitting monthly progress reports in respect of the Ghal to the Assistant Manager concerned. He has proved Ext. DW-2, a copy of one of the original reports submitted by him in this regard and has stated that the original report is in his hand. The contents of the report, a copy whereof is Ext. DW-2/A reveal that the work of the floating of the Ghal in question was initially started in 1985 but the work had to be stopped because of snowfall, inclement wheather and rains and the scants already put in the Nallah for floating purposes had to oe removed and stacked at a safe place. Again the work was started in 1986 when 10308 scants were floated out of which only 6939 scants could be collected at Dunali boom and were sent to Gadhroha Sale Depot. Again the work was started in 1986 when 10308 scants were floated out of which only 6939 scants could be collected at Dunali boom and were sent to Gadhroha Sale Depot. It is further stated in the said report that the timber was extracted from marked dried trees and had been kept at the launching points for considerable long time after such conversion. Therefore, because of the rotten condition, the timber so floated got struck up in the boulders in the Nallah and on its banks. Some of the timber so floated got struck up in the mud and soil in Bundal Nallah below a place known as Dinkar because of slips and it was not possible to salvage it. 17. It may be stated here that it is not in dispute that the floating work in question was being carried out under the supervision of DW-3 Bhagwan Singh, a Deputy Ranger of the corporation, who was assisted by forest Guard and Chowkidars in such supervision. The report Ext. DW- 2/A submitted by DW-3 Bhagwan Singh fully supports the version of the defendants. There is no rebuttal of this evidence of the defendants and it is fully proved that the shortage of timber at the station of delivery was because of" snowfall, strucking of some of the timber which was rotten in the boulders in the rivulet and its banks and because some timber was buried in the mud and soil because of land- slides, and it was not possible even according to the Deputy Ranger Incharge Supervisor of the Ghal to extract/salvage such timber. Thus, the delivery of the scants other than 6939 scants admittedly delivered was rendered impossible by the acts of nature rendering it impossible to the defendants to fully perform the contract. Section 56 of the Contract Act provides as follows:- "56. Agreement to do impossible Act-An agreement to do an act impossible in itself is void. Contract to do act afterwards becoming impossible or unlawful-A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Agreement to do impossible Act-An agreement to do an act impossible in itself is void. Contract to do act afterwards becoming impossible or unlawful-A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Compensation for loss through non-performance of act known to be impossible or unlawful- Where one person has promised to do something which he knew, or, with reasonable deligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promise for any loss which such promisee sustains through the non-performance of the promise." 18. A bare reading of the aforesaid provision makes it clear that a contract to do an act which, after the contract is made, becomes impossible becomes void when it becomes impossible. 19. In the instant case, the circumstances as stated hereinabove had intervened rendering the performance of the contract impossible. The snowfall and landslides were infact the act of nature/God and prevention thereof was beyond the control of the defendants. Therefore, the loss occasioned due 10 such natural calamities is not attributable to the defendants and they cannot be held liable for such loss. 20. In view of the above discussion, it is held that the agreement between the parties was frustrated due to the Act of God as alleged. Therefore, the defendants cannot be held liable for the damages as claimed. The issue is accordingly held in favour of the defendants. ISSUE No. 6 21. The case of the plaintiffs vide para-7 is that in all 10308 scants were delivered to the defendants for floating. The defendants vide para-6 of the written statement have admitted that the defendants were handed over 10308 scants. In view of this admission, this issue is decided against the defendants. ISSUE No, 7 22. Evidently, there is nothing in the contents of the agreement Ext. PW-1/B which may tender it invalid. !)W 4, Miikhi Ram, defendant has stated that the defendants are illiterate and after four months of the passing of their tender, their signatures were obtained on some documents, but the contents thereof were neither read over nor explained to them. Evidently, there is nothing in the contents of the agreement Ext. PW-1/B which may tender it invalid. !)W 4, Miikhi Ram, defendant has stated that the defendants are illiterate and after four months of the passing of their tender, their signatures were obtained on some documents, but the contents thereof were neither read over nor explained to them. However, in the cross-examination, he has admitted that floating work of the timber in question was given to them and the timber to be so floated was to be caught and stacked species-wise and size-wise at Road side depot at Dunali and the defendants had submitted tender jointly. He has further admitted that pursuant to the tender submitted by them, agreement Ext.PW-1/B was executed. Thus, he has made a self contradictory statement and the defendants version that the signatures of the defendants were taken on certain documents which were not explained nor read over, stands belied, by the aforesaid admissions of defendant, Milkhi Ram. It is, therefore, held that the defendants have failed to prove that there was no valid agreement between the parties. This issue is accordingly decided against the defendants. 1SSUEN0.8 23. In view of the findings given on issue No. 1 and issue No.5 above, the plaintiffs are not entitled to recover anything from the defendants. This issue is accordingly held against the plaintiffs. ISSUE No. 9 24. In vie w of the findings on issue Nos. 1,5 and 8, the suit of the plaintiffs merits dismissal and is accordingly dismissed. The parties are, however, left to bear their own costs.