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2025 DIGILAW 963 (HP)

Managing Director v. Partap Singh Chauhan

2025-05-09

BIPIN CHANDER NEGI

body2025
JUDGMENT : Bipin Chander Negi, J. The Appellants, by filing this appeal under Section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgement and decree dated 28.02.2023 passed by learned District Judge, Solan, in Civil Appeal No. 42-S/13 of 2022, whereby Appeal filed by the Appellants against the Judgement and Decree dated 20.12.2019, passed by the learned Civil Judge Court No.1, Solan, HP in Civil Suit No. 52/1 of 2016 was partly allowed. 2. The parties shall hereinafter be referred to as "plaintiff" and "defendants" in accordance with their status before the trial Court. The facts leading up to the present appeal are that the plaintiff's case, as set out in the plaint, was that a contract for felling and conversion of 377 trees comprised in Lot No.5/2011- 12 (Rajgarh HL), including engraving, haulage of forest produce, carriage, and dispatch up to the roadside depot in Forest Division Rajgarh, was awarded to him by the Himachal Pradesh Forest Development Corporation, Shimla, through its Divisional Manager, vide agreement dated 04.08.2011. Prior to the execution of the agreement, the plaintiff deposited a sum of Rs.50,000/- as security with defendants No. 3 and 4. The plaintiff claimed to have executed the contract as per its terms and conditions to the satisfaction of the said defendants. Upon completion of the work, he submitted his bills to defendant No. 4 for payment, but an amount of Rs.84,000/- was deducted as extension fee, despite the fact that he had never sought any extension of time for completing the work. Additionally, the defendants No. 3 and 4 allegedly retained the security amount of Rs.50,000/- without any justification. 3. The plaintiff further contended that when he visited the site after the assignment of work, he found that the trees to be felled and converted were not bearing any hammer or khudan marks, making them unidentifiable and rendering the execution of the work practically impossible. He made representations to the Divisional Manager, Forest Division, Solan (D-4), pursuant to which a joint inspection was conducted by a team of the Forest Department and the Forest Development Corporation, leading to the re-enumeration of 377 trees. Only after this exercise could the plaintiff proceed with the felling and conversion of the trees and dispatch the forest produce to the roadside depot of defendants No. 3 and 5. Only after this exercise could the plaintiff proceed with the felling and conversion of the trees and dispatch the forest produce to the roadside depot of defendants No. 3 and 5. The plaintiff asserted that the defendants were not entitled to deduct any amount towards delayed execution of the agreement, as the delay was attributable to their failure to properly mark the trees. Accordingly, he sought recovery of Rs.1,34,000/- (Rs.84,000/- as extension fee and Rs.50,000/- as security) along with interest at the rate of 16% per annum from July 2014 till realization. 4. Defendants No. 3 and 4 filed a joint written statement contesting the suit on preliminary objections regarding maintainability, cause of action, valuation, and jurisdiction. On merits, while admitting the execution of the agreement dated 04.08.2011, they denied the remaining allegations. They contended that the plaintiff informed them about the non- marking of trees only after six months from the date of allotment of work. They asserted that there was a delay in the completion of work by the plaintiff, and in terms of Clause 12(b) of the agreement, they were entitled to deduct an extension fee at the rate of 1% per month of the contract value for the leftover work. Since the plaintiff failed to complete the work within the stipulated time, the deduction was lawful. They prayed for the dismissal of the suit. 5. Defendants No. 1 and 2, namely the State of Himachal Pradesh and the Secretary (Forest), did not file a separate written statement but adopted the defence of defendants No. 3 and 4. In his replication, the plaintiff denied the allegation that he informed the authorities about the non-marking of trees only after six months. He reiterated that the work could not commence on time due to the absence of hammer or khudan marks on the trees, making them unidentifiable at the site. 6. On the basis of the pleadings, the learned trial court framed the following issues on 03.05.2017: 1. Whether the plaintiff is entitled for recovery of Rs.1,74,299/- along with future interest @ 16% per annum from the date of institution of the suit till the realization of the whole amount, as prayed for? OPP 2. Whether the suit is not maintainable in the present form, as alleged? OPD 3. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD 4. OPP 2. Whether the suit is not maintainable in the present form, as alleged? OPD 3. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD 4. Whether the plaintiff has not come to court with clean hands and has suppressed material facts from this court, as alleged? OPD 5. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, as alleged? OPD 6. Whether this court has no jurisdiction to try and decide the present suit, as alleged? OPD 7. Whether the plaintiff is estopped by his own act, conduct, deeds, admissions, omissions, and acquiescence from filing the present suit, as alleged? OPD 7. After recording the evidence of the parties and hearing their arguments, the learned trial court concluded that the stipulated time period for completion of work could not be adhered to by the plaintiff because the trees to be cut and converted were not properly marked and identified by defendants No. 3 and 4. The fault lay with the defendants, and therefore, they were not entitled to retain any amount from the plaintiff on account of delayed execution of the agreement. Accordingly, the trial court decided Issue No. 1 in favour of the plaintiff and the remaining issues against the defendants, decreeing the suit for a sum of Rs.1,71,299/- with interest at the rate of 6% per annum from the date of the suit till realization. 8. Aggrieved by this judgment and decree, defendants No. 3 and 4 had preferred a first appeal, contending that the trial court failed to appreciate the evidence in the correct perspective. They argued that the plaintiff did not comply with the terms of the agreement within the stipulated time and initiated work only after six months from the date of allotment, raising the plea of unmarked trees belatedly. Despite this, the defendants accommodated the plaintiff by getting the trees re- enumerated. They asserted that, in terms of Clause 12(b) of the agreement, they were entitled to deduct the extension fee from the plaintiff's final bills on account of the delay attributable to him. 9. The first appellate court partly allowed the appeal of defendants No.3 and 4. Despite this, the defendants accommodated the plaintiff by getting the trees re- enumerated. They asserted that, in terms of Clause 12(b) of the agreement, they were entitled to deduct the extension fee from the plaintiff's final bills on account of the delay attributable to him. 9. The first appellate court partly allowed the appeal of defendants No.3 and 4. The decree passed by the trial court was partly modified and the suit was decreed to the following effects:- (a) Plaintiff were held entitled to recover amount of Rs.1,34,000/- with pre-suit interest at the rate of 6% per annum from July 2014 till filing of suit i.e. 21.4.2016. (b) The plaintiff was further held entitled to recover the principal so adjudged [i.e. Rs.1,34,000/- plus pre- suit interest component as awarded vide (a) above], with interest at the rate of 6 % from the date of suit till realization. (c) The amount of Rs.50,000/- was held to be released to the plaintiff towards security during pendency of suit on 13.6.2016, which was ordered to be deducted from the principal (as standing on that date for further calculations) (d) The suit was decreed against defendants No.3 and 4. 10. Against the aforesaid modification in the judgement & decree of the trial court no further appeal had been preferred by the plaintiff. Aggrieved by the impugned judgment and decree, the defendant has filed this second appeal. 11. Perused the impugned judgment and heard counsels for the parties. 12. Upon careful consideration of the material on record and the submissions advanced, this Court finds that the two courts below have concurrently and correctly held that while there was no dispute regarding the allotment of work in 2011, the defendant's own witness admitted that hammering and marking of trees was done only on 20.10.2012, after which the plaintiff commenced work in November 2012. The defendant's primary contention that the work was not completed within the stipulated time stands rebutted by the evidence on record, which clearly establishes that the delay was attributable to the defendant's failure to provide proper tree markings. 13. The contention raised by the learned counsel for defendants No.3 and 4 regarding excessive pre-suit interest was found to be reasonable and well-founded by the courts below. A cumulative sum of Rs.1,34,000/- was retained by defendants No.3 and 4 as extension fee and security. 13. The contention raised by the learned counsel for defendants No.3 and 4 regarding excessive pre-suit interest was found to be reasonable and well-founded by the courts below. A cumulative sum of Rs.1,34,000/- was retained by defendants No.3 and 4 as extension fee and security. The plaintiff, however, claimed a principal amount of Rs.1,71,299/- as on the date of the suit by including interest calculated at 16% per annum, as evident from para-No.7 of the plaint. Since the agreement Ex.PW1/A did not stipulate any interest rate payable on dues, the plaintiff was held to be entitled to interest only at a reasonable rate on the amount found due by both the Courts. I see no infirmity in the same. 14. In the aforesaid facts and attending circumstances, there arises no question of law, much-less a substantial question of law for consideration of the Court, therefore, the appeal is dismissed being devoid of any merit. Pending miscellaneous applications, if any, also stand disposed of.