Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DIGILAW 964 (HP)

Managing Director v. Kuldeep Chauhan

2025-05-09

BIPIN CHANDER NEGI

body2025
JUDGMENT : Bipin Chander Negi, J. The Appellant, 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 District Judge, Solan, in Civil Appeal No. 43-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 in Civil Suit No. 53/1 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, is that a contract for felling and conversion of 532 trees comprised in Lot No.5/2012- 13 (Rajgarh HL), engraving and 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 the Divisional Manager, vide agreement dated 10.2.2012. The plaintiff executed the contract as per its terms and conditions to the satisfaction of defendants No.3 and 4. Upon completion of the work, he submitted his bills to defendant No.4 for payment, but an amount of Rs.39,094/- was deducted as "extension fee," despite the plaintiff never having applied for an extension of time to complete the work. 3. The plaintiff contends that when he visited the site after being assigned the work, he found that the trees to be felled and converted were not marked with 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), following which a joint inspection was conducted by a team from the Forest Department and the Forest Development Corporation, and the trees were re-enumerated. Only after this was the plaintiff able to fell and convert the trees and transport the forest produce to the roadside depot. The plaintiff argues that the defendants were not entitled to deduct any amount for delayed execution, as the delay was caused by their failure to properly mark the trees. He seeks recovery of Rs.39,094/- along with interest at 16% per annum from the defendants. 4. The plaintiff argues that the defendants were not entitled to deduct any amount for delayed execution, as the delay was caused by their failure to properly mark the trees. He seeks recovery of Rs.39,094/- along with interest at 16% per annum from the defendants. 4. Defendants No.3 and 4, in their joint written statement, admit the execution of the agreement but contest the suit on preliminary objections regarding maintainability, cause of action, valuation, and jurisdiction. On merits, they deny the plaintiff’s allegations and assert that the plaintiff informed them about the unmarked trees only after six months of the work being awarded. They argue that the delay in completion was attributable to the plaintiff, and under Clause 12(b) of the agreement, they were entitled to deduct an extension fee at 1% per month of the contract value for the leftover work. They maintain that the deduction was lawful and pray for the dismissal of the suit. 5. Defendants No.1 and 2 (State of H.P. and Secretary, Forest) did not file a separate written statement but adopted the defence of defendants No.3 and 4. In his replication, the plaintiff denies that he informed the authorities about the unmarked trees only after six months. He reiterates that the work could not commence on time due to the absence of markings, making the trees unidentifiable. 6. The trial court framed the following issues on 3.5.2017: 1. Whether the plaintiff is entitled to recovery of Rs.49,976/- along with future interest @ 16% per annum, 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. 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 8. Whether the suit is bad for misjoinder and non-joinder of parties, as alleged? OPD. 9. Whether the suit is not within limitation, as alleged? OPD 10. 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 8. Whether the suit is bad for misjoinder and non-joinder of parties, as alleged? OPD. 9. Whether the suit is not within limitation, as alleged? OPD 10. Whether the suit is bad for want of better particulars, as alleged? OPD 11. Relief 7. After recording evidence and hearing the parties, the trial court held that the plaintiff could not adhere to the stipulated time period due to the defendants' failure to mark and identify the trees. The fault lay with defendants No.3 and 4, and they were not entitled to deduct any amount for delayed execution. Accordingly, the trial court decided Issue No.1 in favor of the plaintiff and the remaining issues against the defendants, decreeing the suit for Rs.49,976/- with interest at 6% per annum from the date of the suit till realization. 8. Aggrieved by this judgment and decree dated 20.12.2019, defendants No.3 and 4 filed a first appeal. The grounds of appeal stated that the trial court failed to appreciate the evidence correctly and overlooked the fact that the plaintiff did not comply with the agreement’s terms within the stipulated time. The plaintiff did not initiate work for six months and only later raised the issue of unmarked trees. Despite this, the defendants accommodated his request by re-enumerating the trees. The appellants argued that under Clause 12(b) of the agreement, they were entitled to deduct the extension fee for the delay and that the trial court’s decision is erroneous. 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 was held entitled to recover amount of Rs. 39,094/- 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. 39,094/- 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 rest of the suit was decreed against defendants No.3 and 4 10. (b) The plaintiff was further held entitled to recover the principal so adjudged [i.e. Rs. 39,094/- 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 rest of 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.39,094/- was retained by defendants No.3 and 4 as extension fee and security. The plaintiff, however, claimed a principal amount of Rs.49,976/- 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.