Himachal Pradesh High Court
H.P. State Forest Corporation vs Sh. Kahan Singh (Since Deceased) ... on 19 March, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 425 of 2007.
Reserved on : 8th March, 2018.
.
Decided on : 19th March, 2018.
H.P. State Forest Corporation .....Appellant/Plaintiff.
Versus Sh. Kahan Singh (since deceased) through his legal heirs.
....Respondent/defendant.
Coram: r The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Bhupender Pathania, Advocate.
For the Respondent(s): Mr. G.R. Palsra, Advocate.
Sureshwar Thakur, Judge.
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 first appeal, of the plaintiff/appellant herein, and, affirmed the judgment and 1 Whether reporters of the local papers may be allowed to see the judgment?
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decree rendered by the learned Civil Judge (Senior Division), .
Mandi, District Mandi, H.P., whereby, the latter Court dismissed, the plaintiff's suit for recovery of Rs.2,43,088, whereas, it decreed the counterclaim of the defendant, for recovery of a sum of Rs.86,483/- along with interest @ 6% per annum, from, the date of filing of the counter claim, till, 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, hence it has therefrom preferred the instant appeal before this Court, for seeking from this Court reversal(s), of, 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.32/1997, Jogindernagar for the year 1997. The tender filled in by the ::: Downloaded on - 22/03/2018 23:06:54 :::HCHP ...3...
defendant was accepted and the resin extraction work was .
allotted to the defendant vide agreement of 20.03.1997 which was signed by both the parties. As per agreement a target of 280.500 Qtls, pure resin, was fixed to be extracted from 7185 blazes and carriage of the same upto road side Depot at the rate of 620/- per Qtls. The defendant deposited earnest money of Rs.10,000/- 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 well in time on 29.3.1997. But the defendant during the entire period extracted only 180.620 Qtls. pure resin as against the target of 280.500 Qtls. as agreed between the parties. Thus the defendant extracted 99.87 Qtls. less resin than the target and the defendant caused loss of Rs.3,29,571/-. Thus, the plaintiff is entitled to recover the amount of Rs.2,44,088/- after deducting the amount of Rs.86,483/-, which is with the plaintiff. Hence the suit.
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3. The defendant contested the suit and he also filed .
counter claim against the plaintiff for the recovery of Rs.86,483/-. 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. However, the defendant supplied 180.630 Qtls. Pure resin worth of Rs.1,11,990/- to the plaintiff out of which a sum of Rs.38,952/-
was paid to the defendant and the remaining amount of Rs.73,038/- is still due to the defendant from the plaintiff.
Besides this the defendant is also entitled to recover the earnest money of Rs.13,455/- which was deposited with the plaintiff by way of F.D.R. Thus, the defendant is entitled to recovery Rs.86,483/- from the plaintiff. The defendant prayed ::: Downloaded on - 22/03/2018 23:06:54 :::HCHP ...5...
for dismissal of the suit and for a decree of Rs.86,483/- in his .
favour.
4. 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. Whether the agreement dated 20.03.1997 for lot No.32/1997, Jogindernagar is signed by the parties?
OPP.
2. Whether the above stated agreement is genuine and legal one?OPP.
3. Whether the defendant is failed to achieve the target of 280.500 Qtls. Pure resin as prayed in the agreement?OPP.
4. Whether the plaintiff is entitled for the recovery of Rs.2,43,088/- from the defendant?OPP.
5. Whether the suit is not legally instituted and constituted?OPD
6. Whether the plaintiff has no enforceable cause of action and right to sue against the replying defendant?OPD
7. Whether the suit of the plaintiff is time barred?OPD ::: Downloaded on - 22/03/2018 23:06:54 :::HCHP ...6...
8. Whether the plaintiff is estopped by his own act, conduct ad deed to file the present suit?OPD .
9. Whether the defendant is entitled to recover the amount of Rs.86,483/- by way of counter claim alongwith interest from the plaintiff?OPD
10. Relief.
6. On an appraisal of the evidence, adduced before suit, r whereas, to the learned trial Court, the learned trial Court, dismissed, the plaintiff's it decreed the instituted by the defendant against the plaintiff/appellant counter claim herein. In a first 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, wherein, it assails the findings recorded by the learned First Appellate Court, in its impugned judgment and decree. When the appeal came up for admission on 18.09.2007, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned ::: Downloaded on - 22/03/2018 23:06:54 :::HCHP ...7...
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. PW2/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.PW2/A becoming impossible and whether there was sufficient evidence to prove that the agreement had rbecome 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 him under the relevant contract, (i) breach whereof, is contended to stand occasioned, by occurrence, of, heavy rain fall, in the area whereat the relevant work stood allotted to him. (ii) Ex.DW2/A, makes an evident display, of, occurrence of heavy rain fall, in the area whereat the relevant work stood allotted, to the defendant/respondent ::: Downloaded on - 22/03/2018 23:06:54 :::HCHP ...8...
herein, by the plaintiff/appellant herein. Recitals qua the .
facet aforesaid, occurring in Ex.DW2/A stand corroborated by PW-2, PW-5 and PW-6. Given the evident occurrence of heavy rainfall, in the area whereat the relevant work stood allotted by the plaintiff, for its execution, by the defendant, obviously hence deterred him to mete the relevant target imposed upon him, under agreement borne in Ex.PW2/A. Also with PW-4 admitting, of, on his visiting the relevant site, his noticing of the defendant, in consonance with the terms and conditions, of agreement Ex.PW2/A, hence employing sufficient manpower, does give leverage, to an inference of the defendant, not, dereliciing in achieving the target imposed upon him, under agreement Ex.PW2/A, rather the evident fact of occurrence of heavy rainfall, in the relevant area, rather hence deterring him to achieve the target imposed upon him, under Ex.PW2/A.
9. Be that as it may, even if, in Ex.PW2/A, there occurs no recital of occurrence of heavy rainfall, whereupon , the accomplishment by the defendant of the relevant ::: Downloaded on - 22/03/2018 23:06:54 :::HCHP ...9...
contractual target, stood, rendered impossible, hence .
rendering tenable the imposition, of, mandatory pecuniary liability(ies) upon the defendant, (I) 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.PW2/A, rather imminently hence frustrated the accomplishment, of the relevant contractual target, by the defendant. (ii) Even if, the factum aforesaid remained unembodied in Ex.PW2/A, nonetheless, with the provisions of Section 56 of the Indian Contract Act, 1872 (hereinafter referred to the "Act"), provisions whereof, stands extracted hereinafter, enshrining the doctrine of frustration of contracts, frustration whereof arises, from occurrence of events supervening the recording of the relevant contract, enjoin or warrant their 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, ::: Downloaded on - 22/03/2018 23:06:54 :::HCHP ...10...
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 non-performance of the promise."
(iii) Imperatively, when hereat the frustrating supervening event, since, the execution of Ex.PW 2/A, is the aforereferred vis major, occurrence whereof evidently frustrated, the defendant to achieve the relevant contractual target, hence enjoined to be accomplished by him, rather hence renders its attraction hereat, (iv) dehors recitals inconsonance therewith standing un-enunciated, in Ex.PW2/A, (v) 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 hence stands enlivened, (vi) thereupon their apposite invocation hereat, is not amenable, to face the ill fortune, of ::: Downloaded on - 22/03/2018 23:06:54 :::HCHP ...11...
theirs being rather 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, hence constrain this Court to conclude of the apposite supervening vis major, rather frustrating, the execution, to the fullest, by the defendant, of, all the obligations cast upon him, under Ex.PW2/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. Since, no appeal stands preferred hereat by the plaintiff/appellant against the concurrently recorded judgments and decrees, of, both the learned Courts below ::: Downloaded on - 22/03/2018 23:06:54 :::HCHP ...12...
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, and, 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 judgements 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.
(Sureshwar Thakur) 19th March, 2018. Judge.
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