HIMALAYA TIMBER COMPANY Vs. STATE OF H.P.

JUDGEMENT

(1.) This is an appeal filed by the appellant under Section 96 of the Code of Civil Procedure against the judgment and decree of the Court of learned District Judge, Shimla, dated 7.7.1997, vide which the suit of the plaintiff for recovery of Rs. 2,41,695/-, alongwith future interest, was dismissed.

(2.) Briefly stated the facts of the case are that the appellant (hereinafter also referred to as the plaintiff) filed a suit for recovery of Rs. 2,41,695/- alongwith interest, against the respondents (hereinafter also referred as the defendants). It was alleged by the plaintiff that the plaintiff firm was a registered firm. On an auction held, in the year 1980, the plaintiff firm purchased lot No. 6, Shimla Divisional for a sum of Rs. 2,40,000/-. The plaintiff was to be charged sales tax on the aforesaid amount of money and the total amount, inclusive of sales tax, which it was supposed to pay was Rs. 3.06 lacs. An agreement was executed in between the parties on 16.4.1980. The charge of the forest, in which the trees of the lot purchased by the plaintiff stood, was taken by the plaintiff. After taking the charge, the plaintiff noticed some illicit feiling in the said area and wrote a letter to the Range Officer. The plaintiff firm also asked for marking of the stumps of the trees which had already been illicitly felled and removed so that it was not made liable for the said trees. The plaintiff completed the work by 31.7.1980 and informed the Range Officer Kotkhai to take back the charge of the forest. The plaintiff was also liable to pay royalty in three installments. The plaintiff firm paid the first installment and permit was issued in its favour on 19.12.1980 valid upto 15.1.1981. After the issuance of the petmit, the plaintiff firm approached the Range Officer to get the timber marked for export, but it was not done. Resultantly, the export permit lapsed. The Range Officer informed the plaintiff, even before the lapse of 'the permit, that the permit stood cancelled on the basis of some telephonic instructions received from the Divisional Forest Officer, Shimla. The plaintiff again wrote to the Divisional Forest Officer requesting him to direct the Range Officer to hammer mark the timber sought to be exported followed by several reminders, but to no avail. The second and third installment of royalty also became due and the Divisional Forest Officer started charging interest on, the royalty and the proportionate amount on sales tax. A sum of Rs. 3,90,741.75 was charged from the plaintiff against the agreed amount of Rs. 3.06 lacs. Out of this, a sum of Rs. 2,40,000/- was on account of the royalty and Rs. 66,000/- on account of the sales tax. The plaintiff was conveyed the break-up of the amount by the Divisional Forest Officer, Shimla. The plaintiff claimed that defendants were not entitled to charge any interest either on the royalty or on the sales tax since the plaintiff firm was not able to pay subsequent installments of royalty and sales tax on account of omission and commission of the Divisional Forest Officer, Shimla. The plaintiff had claimed the sum, including a sum of Rs. 32,759.25, on account of the damage bill, which had been wrongly added to the royalty of the plaintiff. The plaintiff firm claimed that it has not been paid the value of the lot and has accordingly claimed a sum of Rs. 1,56,944.77 alongwith interest amounting to Rs. 84,750/- at the rate of 18%.

(3.) The defendants took up the plea of limitation, non-issuance of notice under Section 80 CPC etc. They admitted that the lot was sold to the plaintiff for Rs. 2,40,000/-. It was denied that there was any illicit felling in the lot prior to this sale to the plaintiff. They also pleaded that the plaintiff had not taken over the possession of the lot of its own. They denied their liability to pay the amount in question.