THE SAVAMALAI ESTATES LIMITED Vs. P.M. KANNAYAN

JUDGEMENT

(1.) THE defendant in O.S. No. 519 of 1968 in the Court of the Subordinate Judge of Coimbatore is the appellant. The plaintiff entered into an agreement with the defendant company at Coimbatore on 1st August, 1965 for clearing and uprooting all jungle and shade trees together with coffee stumps in 20 acres in plot No. 2 in Fields Nos. 5 and 6 of survey No. 39 in Manamboli Estate belonging to the defendant company. The value of the trees and the coffee stumps in their then existing condition was fixed at Rs. 300 per acre and the plaintiff paid the entire consideration of Rs. 6,000 for 20 acres. According to the agreement the plaintiff should on or before 15th September, 1965 clear and fell all standing trees together with the coffee stumps on the 20 acres. It was contemplated that the plaintiff should get the necessary permission from the concerned authorities for transporting and removing all the trees uprooted as expeditiously as possible. On receipt of such permission any timber or firewood remaining on the estate at the expiry of the validity of the permit granted by the Collector of Coimbatore would become the property of the estate. The plaintiff cleared and felled all the trees in the 20 acres and transported all the logs and firewood and charcoal from about 10 acres in time. The removal of the rest of the logs, firewood and charcoal could not be completed before the date of expiry of the Collector's permit, that is, 25th April, 1966 on account of various reasons. After 25th April, 1966 when the previous permit had expired, the defendant applied to the Collector for extension of time for transporting the timber, firewood etc., by a letter dated 12th May, 1966. By his proceedings dated 12th May, 1967 the Collector granted extension of time for three months from that date. The plaintiff came to know about the extension of time and requested the defendant's permission to remove the logs etc. The defendant stated in its letter dated 2nd August, 1967 that the plaintiff had no right over the timber and that he had committed a breach of the contract. The value of the timber etc., which had been left in the defendant's estate was estimated at Rs. 24,750 and after deducting the felling charges etc., the plaintiff claimed a sum of Rs. 14,750 as the loss of the timber, logs, charcoal etc., and in addition claimed to have paid Rs. 2,106 by way of seigniorage charges. Thus, the total amount claimed as due from the defendant was Rs. 16,856; as the defendant did not pay the said amount in response to a notice sent by the plaintiff on 11th June, 1968, the plaintiff came forward with the present suit for its recovery.

(2.) THE defendant in its written statement contended that the Collector's permit expired on 25th April, 1966, that under the contract the timber etc., remaining in the land after that date became its property and that time was of the very essence of the contract. The defendant wanted the clearance for the purpose of replantation. According to the defendant, the plaintiff had ample opportunity to remove the timber etc., and as he failed to do so, under the contract, the timber etc., became its properties. As the plaintiff had committed a breach, there was absolutely no cause of action as against the defendant.

(3.) THE learned Counsel for the appellant contended that there was no hindrance to the plaintiffs' removing of the timber etc., before the stipulated time and that the timber remaining on the land after the stipulated time, had become the defendant's property. It was argued that the contract being in the nature of a licence stood on a par with a lease in respect of which the plea of impossibility of performance envisaged in Section 56 would not apply and that, in any event, the result of the timber etc., becoming the property of the defendant after 25th April, 1966 could not be said to be a penalty, which could be relieved against. For the respondent the submission was that the correspondence emanating from the defendant itself would go to show that the plaintiff could not remove the logs because of non -availability of diesel oil and this is a case in which the plaintiff would be entitled to realise the value of the logs etc., left on the land.