KOHLI BROTHERS Vs. STATE OF J&K

JUDGEMENT

(1.) THE plaintiffs case is that in response to the notification issued by the Conservator of Forests inviting tenders for the purchase of timber in different coupes as mentioned in Para 1 of the plaint for the year 1965, the plaintiff submitted two tenders which were accepted. The plaintiff, however, realised that the tender notice of the conservator of Forests in respect of one lease e.g. compartment Nos 1 & 2 Billawar for Rs. 651000 was issued by an incompetent authority who had not been authorised to do so. Realising this illegality the plaintiff requested the Government that he would not be in a position to work out the forest lease and thus no contract could be concluded. The plaintiff further informed the defendant that since he was not in a position to work out the two leases simultaneously, working of one forest lease be deferred to some other date. The Government did not consider the prayer of the plaintiff and being conscious of the fact that the tender was illegal and acceptance thereof was not enforceable, illegally ordered on 1 -2 -66 the confiscation of the current money of Rs. 25,000/ - deposited by the plaintiff alongwith the tender of lease and also deregistered the firm of the plaintiff for a period of 5 years. The earnest money was actually confiscated on 4 -2 -66 when the amount was adjusted towards the State Exchequer. The plaintiff has averred that both the orders of forfeiture of the earnest money as well as that of the deregistration of the plaintiffs firm were unauthorised and illegal as there was no existing contract between the parties as envisaged by Sec. 122 of the Jammu and Kashmir Constitution. The order of forfeiture being illegal the plaintiff served a registered notice on 21 -8 -72 to the Chief Secretary to the Government but the latter did not send any reply thereto, nor did it pay the amount claimed by the plaintiff. The plaintiff has, therefore, claimed a decree for the payment of Rs. 25,000/ - with interest and also with costs of the suit. He has further stated that the cause of action accrued to him on 4 -2 -66 when the amount was wrongly and illegally confiscated.

(2.) IN his written statement the defendant has pleaded that the suit is time barred and therefore is liable to be dismissed: On facts it is admitted that the tender notices were issued by the Conservator of Forests in respect of the aforesaid compartments but it is denied that the Conservator of Forests was not competent to issue the tender notices. "The tender notices were not illegal. The question of detecting and of realising any illegality in the tender notice by the plaintiff did not arise. The plaintiff had deposited the earnest money and was bound to perform the lease. He wilfully refused to perform his part of the contract. The lease could not, therefore, be deferred under rules. The amount of Rs. 25000/ - has been validly and legally confiscated. The defendant suffered huge loss on account of non -performance of lease by the plaintiff. For non -performance of the contract the defendant is entitled to recover the additional amount from the plaintiff for which a separate suit will be filed. As between the parties by the acceptance of tender a legal and valid agreement had come into existence. The plaintiff is not therefore entitled to any decree.

(3.) ALONGWITH the written Statement the defendant has filed a number of documents namely copy of letter No. 5451 -92/C VII -67 dated 18 -3 -1966. (2) copy of letter No. 2575 -70 dated 14 -9 -1968 (3) copy of Government Order No. FST/21/65 of 1965 dated 12 -3 -1965, (4) copy of the Government Order No. FST/31/65 of 1965 dated 14 -4 -1965.