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Himachal Pradesh High Court · body

2016 DIGILAW 1419 (HP)

H. P. State Forest Corporation v. Narain Singh

2016-07-18

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant Regular Second Appeal stands directed by the plaintiff/appellant against the impugned rendition of the learned Additional District Judge, Mandi whereby he dismissed the appeal of the plaintiff/appellant herein and affirmed the judgment and decree rendered by the learned Civil Judge (Senior Division), Mandi, District Mandi, H.P., whereby the latter Court dismissed the suit of the plaintiff for recovery of Rs.2,44,453, whereas, decreed the counterclaim of the defendant for recovery of a sum of Rs.99,704/- along with interest @ 6% per annum from the date of filing of the counter claim till the realization of the decretal amount. The plaintiff/appellant herein stands aggrieved by the judgment and decree of the learned Additional District Judge, Mandi. Its standing aggrieved, it has therefrom preferred the instant appeal before this Court for seeking from this Court an order reversing the findings recorded therein. 2. Briefly stated the facts of the case are that the plaintiff is independent wing of Forest Department of Himachal Pradesh, which deals in timber, charcoal, resin and fuel wood. The plaintiff invited tenders from labour supply mates for setting up crop extraction of resin and carriage of the same upto road side Depot, for forest lot No.33/97, Jogindernagar for the year 1997. The tender filled in by the defendant was accepted and the resin extraction work was allotted to the defendant vide agreement of 20.09.1997 which was signed by both the parties. As per agreement a target of 354 Qtls, pure resin, was fixed to be extracted from 10,106 blazes at the rate of Rs.580 per Qtls. The defendant deposited earnest money of Rs.15,000/- by way of FDR of Himachal Gramin Bank and pledged the same in favour of the plaintiff. As per agreement all the necessary articles were provided to the defendant and trees were also handed over to him. Though the defendant started work on 29.3.1997, but his work was not satisfactory. He was also asked to speed up the work. The defendant during entire period extracted only 249.710 Qtls. pure resin as against the target of 354 Qtls. as agreed between the parties. Thus the defendant extracted 104.290 Qtls. less resin than the target and the defendant caused loss of Rs.3,44,157/- to the plaintiff. On the objection of the defendant the Higher Authority of the plaintiff gave relaxation of 67.830 Qtls. pure resin as against the target of 354 Qtls. as agreed between the parties. Thus the defendant extracted 104.290 Qtls. less resin than the target and the defendant caused loss of Rs.3,44,157/- to the plaintiff. On the objection of the defendant the Higher Authority of the plaintiff gave relaxation of 67.830 Qtls. of resin on account of heavy rain and unfavourable circumstances. Thus, the plaintiff is entitled to recover the amount of Rs.2,44,447/- after deducting the amount of Rs.99,704/-, which is with the plaintiff. Hence the suit. 3. The defendant contested the suit and he also filed counter claim against the plaintiff for the recovery of Rs.99,704/-. In the written statement, the defendant has taken preliminary objections qua maintainability, limitation and estoppel. On merits, he averred that the agreement was in the form of Cyclostyled already prepared by the plaintiff and only signatures of the defendant were obtained on the same which was not readover and explained to him. Thus, the terms and conditions of the agreement are not binding upon him. He further averred that the target of extraction of resin could not be achieved due to heavy rain fall and the plaintiff has already recommended the case of the defendant for waving off the extraction. Even cost of the resin has been wrongly worked out at exorbitant rate of Rs.3300 per Qtls. The defendant refuted the case of the plaintiff and prayed for the dismissal of the suit. 4. In the counter claim the defendant alleged that balance of Rs.79,535/- is still out standing which is liable to be paid to the defendant by the plaintiff besides this he is also entitled to the refund of earnest money of Rs.20,169/-. Thus, the defendant is entitled to recovery of a sum of Rs. 99,704 with interest at the rate of 18% per annum thereon. The defendant prayed that the suit of the plaintiff be dismissed and his counter claim be decreed. The plaintiff/appellant herein filed replication to the written statement of the defendant/respondent as well as written statement to the counter claim instituted by the defendant, wherein, he denied the contents of the written statement as well as of counter claim besides re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is entitled to recover the suit amount with interest, if so to what extent? OPP 2. Whether the plaintiff has no locus standi to file the present suit? OPD 3. Whether the plaintiff has no cause of action? OPD 4. Whether the suit is barred by limitation? OPD 5. Whether the plaintiff is estopped by his own act and conduct from filing the suit? OPD 6. Whether the defendant is entitled to recover a sum of Rs.99,704/- with interest from the plaintiff, as claimed in the counter claim, as alleged? OPD 7. Relief. 6. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff whereas it decreed the counter claim instituted by the defendant against the plaintiff/appellant herein. In an appeal, preferred therefrom by the plaintiff/appellant herein, the learned first Appellate Court dismissed its appeal. 7. Now the plaintiff/appellant has instituted the instant Regular Second Appeal before this Court assailing the findings recorded by the learned First Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 28.03.2008, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned First Appellate Court, on the hereinafter extracted substantial question of law:- 1. Whether the Courts below have erred in law in concluding that the agreement Ex. PW4/A had become impossible and become void when it became impossible. Have not the Courts below wrongly construed the provisions of Section 56 of the Indian Contract Act and have thereby wrongly applied the same in favour of the respondent/defendant. Had the agreement Ex.PW4/A becoming impossible and whether there was sufficient evidence to prove that the agreement had become impossible? Substantial question of Law No.1: 8. Uncontrovertedly, the defendant/respondent herein omitted to abide by the terms of allotment of the apposite work made in his favour by the plaintiff/appellant. The apposite breach occurred in the defendant/respondent herein not meteing the requisite target enjoined to be accomplished by the relevant contract by him, breach whereof is contended to stand occasioned by heavy rain fall occurring in the area whereat the relevant work stood allotted to him. The apposite breach occurred in the defendant/respondent herein not meteing the requisite target enjoined to be accomplished by the relevant contract by him, breach whereof is contended to stand occasioned by heavy rain fall occurring in the area whereat the relevant work stood allotted to him. The factum of occurrence of heavy rain fall in the area whereat the relevant work stood allotted to the defendant/respondent herein by the plaintiff/appellant herein stands displayed in Ex.DW4/A. Recitals qua the facet aforesaid occurring in Ex.DW4/A stand corroborated by PW-2 and PW-6. Given the occurrence of heavy rainfall in the area whereat the relevant work stood allotted for execution to the defendant by the plaintiff obviously deterred him to mete the relevant target imposed upon him in agreement Ex.PW4/A. Also with PW-6 admitting of on his visiting the relevant site his noticing of the defendant employing sufficient manpower in consonance with the terms and conditions of agreement Ex.PW4/A, does give leverage to an inference of the defendant not dereliciing in achieving the target imposed upon him under agreement Ex.PW4/A rather the evident fact of occurrence of heavy rainfall in the relevant area deterring him to achieve the target imposed upon him under Ex.PW4/A. 9. Be that as it may, even if, in Ex.PW4/A there occurs no recital of on occurrence of heavy rainfall whereupon the accomplishment by the defendant of the relevant contractual target is rendered impossible, mandatory pecuniary liability towards the plaintiff standing exculpated, nonetheless, the evident fact of occurrence of heavy rainfall in the relevant area, factum whereof is a vis major, occurrence whereof supervenes the execution of Ex.PW4/A imminently frustrated the accomplishment by the defendant of the relevant contractual target. Even if, the factum aforesaid remained unembodied in Ex.PW4/A nonetheless with Section 56 of the Indian Contract Act, 1872 (hereinafter referred to the “Act”), which stands extracted hereinafter, enshrining the doctrine of frustration of contracts, frustration whereof arises from occurrence of events supervening the recording of the relevant contract, enjoins or warrant its workability hereat:- “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. 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 diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the nonperformance of the promise.” Imperatively, when hereat the frustrating supervening event since the execution of Ex.PW 4/A is the aforereferred vis major, occurrence whereof frustrated the defendant to achieve the relevant contractual target enjoined to be accomplished by him, renders its standing attractable hereat dehors the recitals inconsonance therewith standing unenunciated in Ex.PW4/A, preeminently when statutory postulations even when remain unrecited in the relevant agreement, their workability when on evident material as exists hereat in display qua their awakening stands enlivened, renders their apposite invocation hereat to be not amenable to face the ill fortune of it being blunted and benumbed. Consequently, while galvanizing the provisions of Section 56 of the Act, the inevitable sequel is of with evident material in satiation thereof existing hereat obviously constrain this Court to conclude of the apposite supervening vis major frustrating the execution to the fullest by the defendant the obligations cast upon him under Ex.PW4/A. 10. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as well as by the learned trial Court stand based upon a proper and mature appreciation of the evidence on record. While rendering the findings, both the learned Courts below have not excluded germane and apposite material from consideration. Accordingly, the substantial question of law stands answered in favour of the defendant/respondent and against the plaintiff/appellant. 11. While rendering the findings, both the learned Courts below have not excluded germane and apposite material from consideration. Accordingly, the substantial question of law stands answered in favour of the defendant/respondent and against the plaintiff/appellant. 11. Since, no appeal stands preferred hereat by the plaintiff/appellant against the concurrently recorded judgments and decrees of both the learned Courts below whereby they decreed the counterclaim instituted thereat by the defendant/respondent herein nor any substantial question of law in consonance therewith stands either framed nor obviously thereupon the appeal of the plaintiff/appellant herein stands admitted, hence renders the renditions of both the learned courts below, whereby they decreed the counterclaim instituted by the defendant/respondent herein against the plaintiff/appellant herein to not warrant any interference by this Court. 12. In view of above discussion, the present Regular Second Appeal is dismissed. In sequel, the judgments and decrees rendered by both the learned Courts below are maintained and affirmed. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.