The defendant's agreement to accept a 10% shortfall due to fire negated his claim of frustration of contract, and the court upheld the judgments of the lower courts based on this principle.

Chander Bhusan Barowalia, J.

The present regular second appeal has been maintained by the appellant, who was defendant before the learned Trial Court (hereafter referred to as “the defendant”), assailing the judgment and decree, dated 01.11.2004, of the learned District Judge, Hamirpur, H.P. passed in Civil Appeal No. 108 of 2002, whereby the judgment and decree, dated 04.09.2002, passed by learned Civil Judge (Junior Division), Barsar, District Hamirpur, H.P., passed in Civil Suit No. RBT 1998/97 was upheld.

2. The key facts, which are necessary for determination and adjudication of the present appeal, are that the respondent/plaintiff (hereinafter referred to as “the plaintiff”) is a body incorporated under the Companies Act, owned and controlled by State of Himachal Pradesh and is having its Division Office at Hamirpur, which deals with the extraction of resin, as well as other activities relating to the forest produce. As per the plaintiff, the Divisional Manager of the Corporation is competent to institute a suit on behalf of the plaintiff. The case of the plaintiff is that on 5th March, 1994, the defendant entered into an agreement with the plaintiff, through its Divisional Manager, Forest working Division, Hamirpur, for extracting the resin of lot No. 3/R/94. As per the said agreement, the defendant was given the contract to extract the resin from 4500 blazes @ Rs. 321/- per quintal. The minimum quantity of net pure resin which was to be collected by the defendant per one thousand blazes was 42 quintals. Thus, the defendant was required to extract 189 quintals of pure resin and deposit the same in the resin depot at Bara. However, as per the terms and conditions of the agreement dated 05.03.1994, the defendant could not extract the required quantity of net pure resin and he could only obtain 156.95 quintals, resulting a shortfall of 32.05 quintals of net pure resin, thus the amount recoverable from the defendant for extraction of less quantity @ Rs. 2500/- per quintal is Rs. 80,125/-. The damage caused by the defendant during the extraction work was 2710 tapped resin blazes, for which, the penalty @ Rs. 2/- per defective blazes comes to Rs. 5420/-. For the said extraction work the plaintiff paid a total sum of Rs. 23,129/- to the defendant and the defendant deposited Rs. 9,000/- as security at the time of the tender. The interest accrued thereon was Rs. 262/-. Hence, the amount, which is payable to the defendant is Rs. 9262/- and after deducting the security amount etc, the plaintiff is entitled to recover a sum of Rs. 49,031/- from the defendant. As per the plaintiff, in-spite of various requests so made, the defendant neither supplied the remaining quantity of resin nor made the payment of the amount. According to the affidavit dated 28.03.1994 given by the defendant, the defendant had agreed to deposit the balance amount, but he has failed to do so, despite various letters issued to him regarding payment of said amount.

3. The defendant, by way of filing the written statement, contested the suit of the plaintiff, wherein preliminary objections, qua, maintainability, estoppel and cause of action were raised. On merits, it was averred that defendant worked as a labour supply mate to the plaintiff for extracting resin from lot No. 3/R/94. The defendant further averred that his signatures were obtained on blank papers and no agreement was ever executed between the parties. The defendant has admitted the fact that he was to extract resin from 4500/- pine trees blazes. However, he denied that less quantity of resin was supplied by him. He alleged that the In-charge, Sara Depot, has not entered 71 tins of resin, which was supplied to him during the period of 16th to 31st October, 1994, this fact was brought to the notice of the plaintiff, as well as the local Police, but no action in this regard was taken. It was also averred that out of 4500/- blazes, 3304 blazes were destroyed due to fire in the forest, so the shor