GOVERNOR OF ORISSA STATE Vs. SHIVAPRASAD SAHU

JUDGEMENT

(1.) DEFENDANT is the appellant. Plaintiff claims refund of Rs. 1100/- paid as security deposit. He is a forest contractor and gave a bid for Sikerput Selection Coupe No. 4. His was the 2nd highest bid and ultimately his bid was accepted. An agreement (Ex. 5) was executed on 3-11-1954 and the security deposit was made on that day. His work was suspended for sometime by unnecessary interference by the defendant. By the auction sale, 1193 sound and 1874 defective standing trees were sold. Plaintiff felled 500 normal trees and converted those into logs. Out of 1200 logs, only 175 were sound and the rest were found to be hollow and worthless. In consequence of the facts found by the plaintiff that cut of 1200 logs, only 175 logs were sound, he came to the conclusion that the trees in the coupe were not upto their specification or marking as per the Forest Contract Agreement and that the working of the coupe was certain to land him in utter and ruinous loss, and, therefore, he stopped the working of the coupe. In an application dated 8-7-1955 to the Director of forests, Orissa, after stating all the facts, the plaintiff rescinded the contract and requested for refund of his security deposit besides claiming a compensation of Rs. 500/- as expenses incurred in felling and logging the said 500 trees. To the said letter, the plaintiff got an order that the Government of Orissa determined the agreement (Ex. 5) under cl. (1) of R. 34 of the Orissa Forest Contract Rules, as the contractor defaulted in the payments of first and second instalments on the due dates in spite of repeated warnings, and that the security deposit was forfeited. Plaintiff made an assertion that he did not remove all the trees or logs or timbers whatsoever from the Coupe, in question, and had not made any profits or gained any advantage. The suit has been filed for refund of security deposit.

(2.) MOST of the allegations in the plaint are not denied. The stipulated dates of payment of instalments were 1/8/1954, 15/12/1954 and 15/2/1955, and the total consideration was Rs. 11,000.00 On account of the representation made by the highest bidder the work was stopped for about 15 days and the plaintiff was thereafter allowed to fully work out the Coupe in accordance with the contract. The allegation that the work of the Coupe was stopped was denied. With regard to the plaintiff's assertion that he felled 500 trees, defendant denied knowledge but accepted that a representation was filed by the plaintiff on 8-7-1955 to the Director of Forests, Orissa, wherein it was stated that about 500 normal trees were felled and converted into 1200 logs out of which only 175 logs were found sound and the balance were unsound. The department got the matter inquired by the concerned Range Officer. The Forester could not verify all the felled trees as the numbers given on the trees were not clearly visible for identification whether the trees felled by the plaintiff were marked sound or unsound. The Forester could verify only 28 felled trees which were numbered and marked sound of which 6 were sound and the rest 22 mostly sal were defective. Defendants assert that the agreement represented the correct state of affairs and further resort to the defence that under clause (6) of the sale notice, the intending bidders were strictly warned to inspect the areas and the growth beforehand and no complaint as regards the area and growth was entertained after the conclusion of the sale. Plaintiff was an old forest contractor working in the neighbouring Coupe and must have inspected the Coupe in question and satisfied himself before bidding in the auction sale. The defence case is that it is not possible to say accurately which free would turn to be sound and which would be defective from external appearance. Often unsound trees turn out to be sound and the sound trees to be unsound. The sale notice was published giving full and accurate descriptions of the trees intended to be sold, and if the trees marked and numbered as sound ultimately proved unsound, the defendants were not to be blamed for it. Plaintiff defaulted in making payments of instalments and failed to pay arrear outstanding dues within one month after receipt of the order, and according to the Govt. decision the security deposit was forfeited. Plaintiff was never prevented from removing the trees felled on payment of instalment and that the suit is liable to be dismissed.