S.I. MUNEER AHMED, SON OF LATE ISMAIL Vs. THE STATE OF KARNATAKA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BANGALORE - 560 001 AND THE DEPUTY CONSERVATOR OF FORESTS, MADIKERI DIVISION, MADIKERI, KODAGU DISTRIC

JUDGEMENT

(1.) IN this appeal, the Plaintiff in O.S. No. 55/2000 on the file of the learned Civil Judge (Sr. Dn.,) Madikeri (hereinafter referred to as 'Trial Court', for short) has challenged legality and correctness of the judgment and Decree dated 02.02.2006 passed by the Trial Court dismissing the said suit.

(2.) STATE in brief, the case of the Plaintiff as averred in his plaint is as under: i) Plaintiff has been a trader in timber at Madikeri Town in Kodagu District. Second Defendant, viz., the Deputy Conservator of Forests, Madikeri Division, Madikeri, Kodagu District published a Notification in "Udayavani" Kannada daily dated 04.10.1998 in respect of the sale of certain quantities of timber by way of public auction scheduled to be held on 14.10.1998 from 10.00 a.m. onwards at Government Depot, Sampaje Taluk, Madikeri, Kodagu District. In response to the said Notification, the Plaintiff participated in the said auction along with other timber merchants in respect of proposed sale of 68.000 Cubic Meters of jack timber and 22 pieces of rose wood stumps. ii) The Plaintiff purchased in the said auction sale 153 logs of jack timber stored in 36 lots said to be measuring about 56.229 Cubic Meters and 3 logs of rose wood stumps for a total price of Rs. 7,31,500/ - excluding the tax (Rs. 9,10,169/ - including the tax). As per the terms of the auction, the Plaintiff, being the successful bidder, was to deposit 25% of the said price and to pay the balance within three months from the date of auction or within such time as would be extended by second Defendant. iii) The second Defendant issued Confirmation Order dated 14.10.1998 in favour of the Plaintiff giving a list of timber logs and rose wood stumps mentioning therein measurement of each log and confirming the bid of the Plaintiff and also requiring him to pay Rs. 5,40,169/ - being balance sale price, by way of demand draft drawn in favour of the second Defendant on or before 13.01.1999, i.e., within three months from the date of the said sale and to lift the said timber. In the said confirmation order, the Range Forest Officer concerned was directed to accept the demand draft of the Plaintiff and release the said timber lots. As per the terms of auction sale, the Plaintiff paid on the date of auction Rs. 3,70,000/ - being 25% of the sale price. iv) The timber lots in question were not properly measured inasmuch as, measurements at the middle portion of some of the logs were taken without removing the 'bark', which was not correct. If the measurement of the girth of each log had been taken at the middle portion of each timber log after removing the bark, the total measurement of the logs could be 31 Cubic Meters only but not 56.229 Cubic Meters as mentioned in the confirmation order. Since neither the Plaintiff nor any number of the public was allowed to go near the logs of timber that were subjected to public auction, the Plaintiff could not notice the discrepancy in the measurements of the said logs. Therefore, the Plaintiff participated in the auction and made his bid in good faith, believing that the measurements of the said logs would be taken in accordance with the said procedure, by removing the bark. v) Subsequent thereto, the Plaintiff found to his shock that the logs of jack timber totally measured only 31 Cubic Meters but not 56.229 Cubic Meters as stated in the confirmation order dated 14.10.1998. Immediately thereafter, the Plaintiff brought the said fact to the notice of the second Defendant who appeared to have concurred with the Plaintiff and stated that necessary report would be made about the shortage in the quantity of the said timber. vi) The Plaintiff made repeated representations to the second Defendant and other superior officials of the Karnataka Forest Department and requested them either to make good of the shortfall or to refund the amount that was paid by him. The second Defendant, though agreed that necessary action would follow, he did not take any action in the matter. Therefore, the Plaintiff is entitled to refund of the said amount of Rs. 3,70,000/ - being 25% of the bid amount, with interest thereon @ 18% p.a. till the date of actual payment. vii) The Plaintiff addressed a letter dated 17.05.1999 to the second Defendant informing him all the said facts. In response thereto, second Defendant sent his letter dated 10.07.1999 requiring the Plaintiff to pay balance amount on or before 13.09.1999 and lift the timber. The second Defendant sent another letter dated 26.07.1999 purporting to be reply to the letter of the Plaintiff dated 17.05.1999 informing the Plaintiff that his representation had been rejected. viii) Thereafter, the Plaintiff caused a legal notice dated 17.01.2000 issued to both the Defendants as required under Section 80 of Code of Civil Procedure The Defendants sent an untenable reply dated 14/15.02.2000 refusing to comply with the demands made in the said notice issued under Section 80 Code of Civil Procedure. Therefore, the Plaintiff filed the instant suit seeking a decree for recovery of Rs. 3,70,000/ - being 25% of the bid amount, Rs. 1,000/ - being notice charges and Rs. 99,900/ - interest on the said amount from 14.10.1998 till the date of suit, totally amounting to Rs. 4,70,900/.

(3.) ON the basis of the above pleadings, the Trial Court framed the following seven issues and recorded its findings thereon as shown against each of them: <FRM>JUDGEMENT_1079_TLKAR0_2011.htm</FRM>