JUDGMENT
The defendants in O. S. No. 48/80 on the file of Subordinate Judge. Guntur are the appellants and the plaintiff is the respondent.
2. The parties will be referred to as “plaintiff and “defendants” for the purpose of convenience.
3. The plaintiff filed the suit O.S. No.
48/80 on the file of Subordinate Judge, Guntur for recovery of Rs. 21.837-84 ps. being the amount including interest at 6% per annum deposited by the plaintiff with the 2nd defendant on 25-2-1977 in respect of a forest contract as highest bidder and requested for the relief of refund of the said amount.
4. The allegations made in the plaint are as follows:
The plaintiff is a long standing forest contractors who had been taking coupes on contract since 1973 onwards. He is a permanent resident of Vinukonda and he is owning properties at Nagayapalem village of Vinukonda Taluk. The 1st defendant is the State of Andhra Pradesh and the 2nd defendant published a re-sale notice dated 28-12-1976 proposing to sell the right to cut and collect and remove the standing growth of the specific lease units exclusive of right to cut and sell the growth FC area 8 of Sirigiripadu of Macherla range in an area of 25-74 hectares. The said coup was originally auctioned for one year and the same was knocked down in the name of one E. China Narisi Reddy and the lease period being between 1-12-1976 to 31-12-1976. The said contractor defaulted in payment of cist due by 1-9-1976 and the sale was also held at the risk of the previous contractor with a right to cover damages from the previous contractor in case the bid amount falls less than the actual amount due. Accordingly, the right to cut trees in the above area was sold by public auction on 20-1-1977 and it was stated that the plaintiff shall remove the same within the 3 months. Though the auction was held on 20-1-1977, the plaintiff was not communicated the acceptance of the tender and ultimately it is only on 17-2-197.7 the plaintiff received the communication of acceptance from the 2nd defendant and immediately the plaintiff paid the whole amount due and executed an agreement dated 25-2-1977. Before the plaintiff could make arrangements for cutting and removing the trees, very little time was left out. By the time the acceptance was communicated the busy batons season was completed and though the plaintiff requested for permitting him to cut the fuel and burnt for converting the same into charcoal, the 2nd defendant and his subordinates refused to allow the plaintiff to have the burning for charcoal outside the coup limits. Even on
the date of agreement of sale the plaintiff sent a representation to the 2nd defendant to extend time till 30-6-1977 to enable him to cut and remove the trees. The plaintiff was requesting the defendants to extend time to enable him to take possession of the coup and cut and remove the growth. The defendants having kept quiet sent a letter dated 15-1-1977 questioning the plaintiff why the coup was not taken over and why the operation could not be done. Though the plaintiff made representations that it is only on account of the delay of the Department in communicating the order the plaintiff could not cut and remove the trees for want of adequate time. The defendant did not heed to the request of the plaintiff and took up an unreasonable attitude and ultimately refused to extend time and also rejecting the request of the plaintiff for recasting the lease period. It is submitted that though the plaintiff has paid a sum of Rs. 18,532-80 on 25-2-1977 itself, the defendant did not handover the coup to enable the plaintiff to cut and remove the growth. Thereupon, the plaintiff also sent a registered notice requesting the 2nd defendant to extend the lease period and that he was prepared to pay 5% excess over the lease amount to enable the defendant to extend the lease period, but the defendemts did not heed to his request. The plaintiff also made several representations to the superior authorities viz., the Conservator of Forests, Hyderabad, Secretary to the Ministry of Forests, but the same were of no avail. The plaintiff, thus submits that though he paid the amount, on account of the unreasonable attitude of the defendants, the contract could not be completed. Thus the consideration, which the plaintiff paid is bound to be returned. The plaintiff further submits that the time is not essence of contract and the defendants are unreasonable in not allowing the plaintiff to cut and remove the trees beyond the period originally mentioned in the contract. Therefore, the plaintiff is entitled to have refund of the whole amount paid by him as there was failure of consideration for the amount paid by the plaintiff. Hence, the plaintiff is constrained to file the suit for the recovery of the amount with interest for costs and for other reliefs. The plaintiff is also entitled for interest on the suit amount.
5. The 2nd defendant filed written statement and a adoption memo was filed by de-
fendants 1 and 3. Almost all the allegations had been denied and it was also further pleaded in the written statement as follows:
The suit as framed is not maintainable. There is no valid notice under Section 80, C.P.C. This suit, which is filed without issue of notice under Section 80, C.P.C, is liable to be dismissed in limine. It is a fact that Sirigiripadu FC VIII/76 was originally sold to E. China Narisireddy on 2-12-1975 with a lease period of 1-1-1976 to 31-12-1976. Due to non-payment of final kist amount due on 1-9-1976, the lease unit was cancelled in this office Re. No. 8112/75-L. dated 8-12-1976 as per condition No. 26 of the agreement and 33 of the General Sale Notice of this Division. The sale of unworked area in Srigiripadu FC VIII/76 i.e. 25-74 hectares was conducted on 20-1-1977 and the sale was knocked down in the name of the plaintiff S. Yellamanda. The confirmation orders were also immediately dispatched to the plaintiff on 24-1-1977 to the address of Vinukonda. The lease period as announced in the re-sale notice dated 28-12-1976 was from the date of execution of agreement to 30-4-1977. Since no representation was received from the intending bidders (including the plaintiff) who attended the sale on 20-1-1977 for enhancing the lease period, the sale was conducted with the lease period as announced in the re-sale notice. Agreement was executed on 25-2-1977 and hence it is a fact that the plaintiff had more than two months time at his disposal for the working of the suit. It is not out of place to mention that the plaintiff while signing the agreement papers was in know of the fact that the lease period was only up to 30-4-1977. It was never stated in the sale notice that the lease period is three months as claimed by the plaintiff. If the plaintiff was of the opinion that the lease period given to him i.e., from 25-2-1977 to 30-4-1977 was not sufficient for working of the coup he should not have executed the agreement on 25-2-1977. So his execution of the agreement shows that he was confident of working of the coup within the given lease period. Hence, his complaint of insufficiency of lease period is not justified. He had never asked for permission for converting the cut material into charcoal. Even if he had asked, it is exclusively the discretion of the Divisional Forest Officer to permit him accordingly or not. Hence, he can-
not claim on the said issue. The plaintiff who signed the agreement papers shall be deemed to be in know of things particularly the fact that the lease period was only up to 30-4-1977. The representation sent by the plaintiff requesting extension of time period beyond 30-4-1977 to 30-6-1977 was rejected and the same was communicated through telegram in this office Re. No. 465/ 77-L. dated 22-2-1977 and the plaintiff acknowledged the receipt of rejection orders on 28-2-1977. Hence, the question of delaying the matter in giving reply to the plaintiff does not arise. As per condition No. 32 of the General Sale Notice of 1977-78 of Guntur Forest Division, the lease will be deemed to be effective from the date of execution of agreement and the plaintiff shall be at liberty to undertake possession and work the unit from that date after tendering a receipt signed by him to the concerned Forest Range Officer in the form of Schedule TV. But the plaintiff failed to take possession of the lease unit in spite of issue of notices by the Forest Range Officer. Macherla in his Re. No. 7/77 dated 9-3-1977 and 15-4-1977 and to work in the lease area as per the conditions of the General Sale Notice as well as agreement signed by him. As per condition No. 22 of General Sale Notice which was signed by the plaintiff at the time of sales, the plaintiff has to furnish his postal address to which all communications have to be sent. But the plaintiff failed to do so and thereby infringed the General Sale Notice conditions. Hence, the confirmation orders were sent to the address given in the Solvency Certificate and which was not received by the plaintiff. Immediately confirmation orders were sent to the plaintiffs Vinukonda address and the same was acknowledged by him. Therefore, the delay caused in sending the confirmation orders is only because of the plaintiff failing to furnish his correct postal address at the time of sales. Hence, the department cannot be held responsible for causing any delay. The contention of the plaintiff that the period of lease is insufficient to complete the work of the coup is absolutely false and incorrect. He has never asked for permission for converting the cut material into charcoal. It is in the absolute discretion of the Divisional Forest Officer to permit any body to convert the cut material into charcoal. Moreso, the plaintiff had never sought for such permission nor was if ever accorded. Hence, the plaintiff cannot claim any relief on that account. The plaintiff was at liberty to possess and work the unit after tendering receipt signed by him to the concerned Forest Range Officer in the form of Schedule ‘D’. If the plaintiff was not given the required cooperation from the Forest Range Officer in possessing the unit he could have reported the same to the defendant. He had not done so and in spite of issue of notice by the Forest Range Officer concerned in his Re. No. 7/77 dated 9-3-1977 and 15-4-1977 to take possession of the unit the plaintiff tailed to do so. The plaintiff is not entitled to claim any extension of lease as a matter of right. When the plaintitf is not clothed with any right, he cannot agitate the same in a Court of law. The plaintiff has committed wilful default and he is guilty of laches. The plaintiff is not entitled to any relief whatsoever. The defendants cannot be fastened with any responsibility for the plaintiffs mistakes. The allegations in the plaint that the Officers of the defendant have not co-operated or responded to the requests of the plaintiff and that the lease period is too short to work and complete the coup etc.. are all false and the defendant prays to dismiss the suit with costs.
6. On the strength of the respective pleadings, the following Issues were settled:
1. Whether the suit as framed is not maintainable?
2. Whether there is no valid notice Section 80, C.P.C. and the suit, is bad for want of Section 80. C.P.C. notice?
3. Whether the plaintiff is entitled to his claim prayed for?
4. To what relief.
7. In the trial Court, PW-1 and DW-1 were examined and Exs. A-1 to A-9 and Exs. B-1 to B-6 were marked and on appreciation of the oral and documentary evidence, the trial Court had decreed the suit only for Rs. 18.532-80 without costs and only with future interest @ 6% per annum from the date of decree till the date of realization and aggrieved by the same, the present appeal is preferred.
8. The learned Government Pleader for Appeals had taken me through the respective pleadings of the parties and also the findings which had been recorded by the trial Court. The learned Counsel contended that
the trial Court having observed that the plaintiff is a defaulting party in the light of the terms and conditions of the agreement, could not have grained the relief by decreeing the suit. The learned Counsel also pointed out that at paragraph 10 of the Judgment, the trial Court had observed that the defendants are at liberty to file a separate suit to claim the damages and this approach is not the correct approach since the plaintiff had approached the Court for refund of the amount and in such a case the trial Court should have decided that question also in the same suit instead of driving the parties to a separate suit. The learned Counsel further contended that at any rate inasmuch as the plaintiff had agreed for the terms and conditions now contrary to the said terms and conditions the plaintiff cannot claim the present relief. The learned Counsel also commented that though absolutely there is no urgency in the matter, no notice was given under Section 80, C.P.C. and the mere filing of an application subsequent thereto will not cure the defect.
9. On the contrary, Sri P. Madhusudhan Reddy, the learned Counsel representing the respondent/plaintiff had contended that no doubt certain findings had been recorded by the trial Court relating to the default. Bul absolutely no prejudice is caused to the Government or no loss was occasioned because of the conduct of the respondent/ plaintiff. The learned Counsel also had explained the clauses relating to the penalty and also the scope and ambit of the relevant provisions of the Indian Contract Act in the this regard in general and Sections 73 and 74 of the said Act, in particular. The learned Counsel also had drawn my attention to a decision of the Apex Court in Maula Bux v. Union of India, . It was also pointed out by the learned Counsel that the trial Court had ordered refund of Rs. 18,532-80 without any interest and the suit was decreed without costs and only with future interest @ 6% per annum from the date of decree till the date of realization and this approach of the trial Court clearly shows that in view of the facts and circumstances of the ease, the trial Court fell that not only in law, but also on the ground of equity, the respondent/plaintiff is entitled to the refund of the amount. The learned Counsel also had pointed out that no doubt liberty was given to the appellants/defendants to file a sepa-
rate suit to claim damages. But for the reasons best known, the Government had not initiated any pleadings in this regard.
10. Heard both the counsel and also perused the oral and documentary evidence available on record.
11. In view of the respective contentions of the parties, the following Points arise for consideration in this Appeal :
1. Whether the suit as framed is maintainable in view of the absence of issuance of notice initially before the institution of the suit?
2. Whether the respondent/plaintiff is entitled to the relief granted by the trial Court in the facts and circumstances of the case?
3. To what relief, the parties are entitled to?
Point No. 1: The question of non-issuance of notice under Section 80 of the Code of Civil Procedure had been raised and an Issue also was framed in the trial Court and a finding had been recorded thereon. In the present appeal also, this question was again canvassed. It appears from record that originally the suit was instituted without issuing notice, but on an objection taken by the office, an application I.A. No. 290/80 was filed under Section 80(2) of the Code of Civil Procedure to dispense with the issuance of notice on the ground of urgency, and the appellants herein — defendants in the suit, had not chosen to file any counter and ultimately the said application was allowed on 27-11-1980 and in view of the same even framing of Issue on this Point by the trial Court may not be necessary and equally so even in Appeal a Point for consideration need not be framed. But however, since the said aspect had been raised, the contention is being answered accordingly and I have no hesitation in holding that this ground raised cannot be sustained at all especially in the light of the fact that the application to dispense with notice under Section 80. C.P.C. had been allowed even by the trial Court at the appropriate stage.
Point No. 2: The factual background of the case had been well narrated in detail in the respective pleadings of the parties. The respondent/plaintiff was the highest bidder in re-sale of forest coup area 8 of Srigiripadu of Macherla range in the auction held on
20-1-1977 as per the terms and conditions of the auction sale notice which was marked as Ex. A-1 and the same was confirmed on 24-1-1977 and it was duly communicated and the said communication was received by the respondent/plaintiff on 17-2-1977 and on 25-2-1977 the respondent/plaintiff executed an agreement in favour of the Government, marked as Ex. A-4. The confirmation order had been marked as Ex. A-2. On receipt of the confirmation order on 17-2-1977, the respondent/plaintiff filed an application on 18-2-1977 under Ex. B-4 which was also marked as Ex. A-3. wherein it was specifically stated that he had received the confirmation order only on 17-2-1977 and he had to complete the work by 30-4-1977 and inasmuch as it is very difficult, he wanted further extension of time till 30-6-1977. On 25-2-1977. the respondent/plaintiff had executed the agreement agreeing to complete contract work before 30-4-1977 and immediately after this date i.e., 25-2-1977. the respondent/plaintiff had not taken possession and had not started the work at all and no doubt he was making applications like Exs. A-6. A-7 etc. In view of the conduct of the respondent/plaintiff in not taking possession of the coup, the Forest Range Officer also had issued a communication which was marked as Ex. A-5. No doubt, certain admissions were made on the part of the plaintiff to get the time extended, but he was not successful and ultimately the present suit was thought of.
12. The stand taken by the respondent/ plaintiff is that he was granted three months time for clearing the coup i.e., from 20-1-1977 to 30-4-1977 and the stand of the appellants/Government is that the auction was held and the period had commenced from the date of entering into the agreement till 30-4-1977. In the confirmation order also, it was specified that the period of action is from the date of execution of the agreement to 30-4-1977 and the recitals of the agreement also appear to be to the same effect. The trial Court had discussed in detail the evidence of PW-1 and DW-1 and also Exs. A-1 to A-9 and Exs. B-l to B-6. Ex. A-5, as already specified supra, is the communication sent to the respondent/plaintiff by the Forest Range Officer and Exs. A-6 and A-7 are the petitions filed by the respondent/ plaintiff. Ex. A-5 is the office copy of the letter from the defendants. Ex. A-9 is the certifi-
cate of posting. Likewise, Ex. B-l is the bid list. Ex. B-2 is the solvency certificate. Ex.-3 is the bid conditions. Ex. B-4 is the application by the plaintiff for extension of time. Ex, B-5 is the agreement of lease. Ex. B-6 is the registered post acknowledgement.
13. It is not in dispute that the respondent/plaintiff had not furnished his permanent address as specified in the bid conditions incorporated in Ex. B-3 and hence the stand taken by the respondent/plaintiff that since he is an old contractor, it should be taken that his address will be available with the Department, cannot be said to be a reasonable stand. In Ex. B-3, under condition No. 30, a confirmation may be made within 30 days from the date of auction. But however, in the present case, within four days the confirmation orders had been made and they were communicated. After recording several facts and circumstances and correspondence between the parties, the trial Court had recorded a finding that the object of the contract, in the peculiar facts and circumstances should be taken, as failed. No doubt, the trial Court after elaborately discussing the bid conditions in Ex. B-3 had arrived at the conclusion that the respondent/plaintiff alone can be said to be the defaulter. But therefore, at paragraph 7 of its Judgment, the trial Court had recorded the reasons why the refund of the amount has to be ordered. It is needless to mention that the Government is the appellant and no doubt it is throwing the whole blame on the respondent/plaintiff and inasmuch as the respondent/plaintiff is the defaulting party, the stand taken by the Government is that the respondent/plaintiff is not entitled to the refund of the amount at all. The trial Court had recorded detailed reasons that if any damages had been suffered in view of the breach of the contract, only the quantum of damages to such an extent alone can be claimed and not exceeding it and hence the total forfeiture of the amount cannot be justified, especially in the light of Sections 73 and 74 of the Indian Contract Act. No doubt, serious stress was laid on Clause 19 of the agreement Ex. A-4 and a contention had been advanced that under no circumstances, the respondent/plaintiff is entitled to claim the refund. As can be seen from the material available on record and also the findings which had been recorded by the trial Court, it is clear that the appellants/Government had not suffered any serious prejudice and even otherwise for remission of the quantum of damages, if any resulting out of the breach of the conditions, liberty was given to institute a separate suit, if they are so advised. But for the reasons best known, the appellants/Government had not proceeded to initiate any action in this regard. Apart from this aspect, the trial Court after recording detail reasons at paragraph 10 had arrived at the correct conclusion that in the peculiar facts and circumstances, especially in the light of the fact that whatever may be the circumstances, in view of the default, the respondent/plaintiff is entitled to the refund of the actual amount only, that too without interest and also without costs, and this approach of the trial Court, in my considered opinion, is a proper approach, both in the light of peculiar facts and circumstances and also in law and in equity too. Hence, I am not inclined to interfere with any of the findings recorded by the trial Court in this regard.
Point No. 3: In view of the findings recorded above, the Appeal is devoid of merits and accordingly the appeal is dismissed. But, inasmuch as the trial Court had recorded a finding that the respondent/plaintiff also is a defaulting party and the suit was decreed only without costs, this Court also is not inclined to make any order in relation to costs.