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M. Alavi and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCommercial;Contract
CourtKerala High Court
Decided On
Case NumberA.S. No. 392 of 1957
Judge
Reported inAIR1960Ker94
ActsSale of Goods Act, 1930 - Sections 12(3) and 17; Evidence Act, 1872 - Sections 115
AppellantM. Alavi and anr.
RespondentState
Appellant AdvocateK. Kuttikrishna Menon
Respondent Advocate V.P. Nambiar, Government Pleader
DispositionAppeal dismissed
Cases ReferredThawardas Pherumal v. Union of India
Excerpt:
.....that the contract is not vitiated by misrepresentation regarding the volume and quality of standing trees in the area, that the plaintiffs are guilty of neglect in not having satisfied themselves by actual inspection of the area before the date of the contract and that there is no breach of warranty of volume or quality of standing trees. , except materials required by the-department for a good burn, from the areas of 28' acres of natural forest in coupe 5 in edacode block in nilambur range, nilambur division',that tenders were called for. in such cases if the quantity is named with the qualifications of 'about' or 'more or less' or words of like import and the contract applies to a specific lot, the naming of the quantity is not regarded as in the nature of a warranty, but only..........sejiding in their tenders, and to satisfy themselves of the quality and probable out-turn of timber estimated by the department, and it was also provided that complaints, if any, received after the sale will not be considered, ext. b7 agreement between government and the plaintiffs also specifies that what the government has agreed to sell and the contractors have agreed to purchase was the right to 'clear-fell, collect and remove all timber and bamboos and to cut completely all other growth remaining on the area (including creepers, climbers lantana, bamboo clumps etc.) in the forest referred to in the schedule hereto annexed at the price set out therein in the manner and upon the terms and conditions hereinafter appearing . further clause 39 of ext. b7 provided that 'the.....
Judgment:

Anna Chandy, J.

1. This appeal is by the plain tiff in O. S. 112 of 1955 on the file of the Subordinate. Judge, Kozhikode.

2. The suit was for recovery of Rs. 25,213/- as damages on account of the breach of a contract with the defendant State for clear-felling an area of 28 acres in coupe No. 5 of Edacode Block in Nilambur Reserve Sorest, and for the return of Rs. 500/- being the advance deposit made for the contract. The advance amount was deposited in court and withdrawn by the plaintiff.

3. The allegations, in the plaint, relevant for the disposal of the appeal, arc the following:

'By a notice dated 12th October 1952, the District Forest Officer, Nilambur, had called for sealed tenders for the purchase of the right to cut and remove 1269 enumerated standing trees in coupe No. 5 of Edacode Block in Nilambur reserve forest and having an estimated volume of 44,500 Cubic feet. Tenderers were directed to quote an amount exceeding Rs. 40,700/- exclusive of sales-tax for all the timber that was so offered. In pursuance of the said notice, the plaintiff firm submitted a written tender for the trees in question for the sum of Rs. 49,751 which was ultimately accepted by the concerned authority. The plaintiff firm had submitted its tender accepting the particulars of the number and volume as indicated in the tender notice, as substantially correct. In particular, the firm had no reason to doubt that the volume of the timber as shown in the notice would not be substantially correct. On this basis, the plaintiff firm did not make any attempt to inspect the coupe before submitting its tender. The price of Rs. 49,751/- was fixed on the basis of the estimated volume as shown in the tender notice and taking into account the market value of the timber and the probable cost of extraction etc. It was however found on the extraction of the 1269 standing trees mentioned in the tender notice, that the total volume of those amounted only to 21948 cubic feet as against the 44500 cubic feet mentioned as the estimated volume of the trees in question. In fact the particulars regarding the volume of the standing trees were more or less a warranty that the estimated volume of timber would be had when all the trees are cut and removed from the coupe area. On the above basis, the agreement between the parties was vitiated by misrepresentation and the plaintiff firm is entitled in law to claim damages from the State Government on the basis of the difference in value between the amount paid for the estimated volume as shown in the tender notice and the corresponding value of the actual timber that was alone available on extraction from the coupe area.'

4. In the written statement the defendant contended that

'Tenders were called for the purchase of the right to clear-fell all growth and standing trees and to remove all timber, bambos etc., except materials required by the forest department for a good burn, from an area of 28 acres in coupe 5 in Edacode Block in Nilambur Range of the Nilambur Forest Division. Tenders were called not for the right to cut 1269 trees with an estimated volume of 44500 oft as mentioned in para III (1) of the plaint. The tender amount was towards the value of all standing growths including the enumerated trees and bamboos and not for the enumerated trees alone. The tenderers were specifically warned to inspect the area and satisfy themselves of the quality and quantity roughly estimated by the department and that complaints of any kind received after the sale will not be considered. The plaintiffs acceptedwithout reservation all the conditions of the tender notice which they signed on 29-10-1952, for a tender amount of Rs. 49,751/-. The contract among terms provided that the plaintiff's shall have no claim for compensation, if any of the trees in the- leased areas were found unsound or if any shortage was found in the estimated volume thereof after conversion. The plaintiffs were fully aware of all the terms of the contract and accepted the same. It is not true that any price was fixed on the basis of any estimated volume and taking into account the market value of the timber and the probable cost of extraction. It was the duty of the plaintiffs to inspect the trees and satisfy themselves. The contract was subject to all risks and advantages on both sides, The Forest Department is not guilty of any misrepresentation There is no such warranty of volume as stated in para III (5) nor was the Forest Department bound to deliver 44500 cft to the plaintiffs.'

5. The learned Sub-Judge held that the contract was for clear-feling the coupe and removal of all the timber, bamboo, etc., and not for the sale of 1269 enumerated trees with specific cubic contents, that the contract is not vitiated by misrepresentation regarding the volume and quality of standing trees in the area, that the plaintiffs are guilty of neglect in not having satisfied themselves by actual inspection of the area before the date of the contract and that there is no breach of warranty of volume or quality of standing trees. It was further held that the plaintiffs have extracted 21958 cubic feet of timber, 325 stacks of firewood amounting to 24400 cubic feet and 1000 cubic feet of billets out of the coupe making a total of 46538 cubic feet which is in excess of the quantity they bargained for.

6. The only points urged in this appeal are: (1) that the agreement is void since both parties were under a mistake as to the cubic contents of the timber which was a matter of fact essential to the agreement. (2) that there was a breach of the warranty of the quantity of the timber.

7. The correctness of the finding of the learned Sub-Judge that the estimate of the cubic contents was inclusive of the firewood and billets was also attacked and it was argued that it was timber alone that was taken into account,

8. The plea of mistake has to be negatived on more grounds than one. In the first place, no such plea was put forward in the plaint but on the other hand, it was a definite plea of misrepresentation that was relied upon. Moreover in this case the State was under no mistake, and the definite plea of the State is that tenders were called not for the right to cut 1269 trees with an estimated volume of 44500 cubic feet as mentioned in the plaint, but for the purchase of the right to clear-fell all growths and standing trees and to remove all timber, bamboos etc., except the materials required by the forest department from an area of 28 acres in coupe No. 5, and the tender amount was towards the value of all standing growths including enumerated trees and bamboos and not for the enumerated trees alone. They further denied the allegation that the price was fixed on the basis of estimated volume or by taking into account the market value of the timber and the probable cost of extraction. It was the duty of the plaintiffs to inspect the trees and satisfy themselves. These contentions of the defendant are fully substantiated by the provisions of Exts. B2 and B7. Ext. B2 is the notice calling for tenders. It specifies that it was

'for the purchase of the right to clear-fell all growth and standing trees and remove all timber,bamboos etc., except materials required by the-department for a good burn, from the areas of 28' acres of natural forest in coupe 5 in Edacode Block in Nilambur range, Nilambur division', that tenders were called for. A rough estimate of the standing volume of the trees was given as 44500 cubic feet and intending tenderers were advised to inspect the area with the permission of the range officer, Nilambur before sejiding in their tenders, and to satisfy themselves of the quality and probable out-turn of timber estimated by the department, and it was also provided that complaints, if any, received after the sale will not be considered, Ext. B7 agreement between Government and the plaintiffs also specifies that what the Government has agreed to sell and the contractors have agreed to purchase was the right to

'clear-fell, collect and remove all timber and bamboos and to cut completely all other growth remaining on the area (including creepers, climbers lantana, Bamboo clumps etc.) in the forest referred to in the schedule hereto annexed at the price set out therein in the manner and upon the terms and conditions hereinafter appearing .

Further clause 39 of Ext. B7 provided that

'The contractors shall have no claim for compensation if any of the trees in the leased area are-found unsound, or if any shortage is found in the estimated volume thereof after conversion'.We find that the contract is not vitiated by any mistake. At any rate the Government was not under a mistaken impression that what was to be sold and; purchased was the right to cut and remove 44500 cubic feet of timber.

9. The plea of misrepresentation that is put forward in the written statement was not pressed before us, evidently because there is no scope for such a plea being raised in view of the provisions of the contract. As mentioned already Ext. B2 specifies that 44500 cubic feet is only a rough estimate of the standing volume of the trees enumerated in the area given and advised the tenderers to inspect the area and satisfy themselves of the quality and probable out-turn of timber estimated by the department, and Sub-clause 21 of Clause 11 further provided that the contractor shall have no claim for compensation to any of the trees that are found unsound in the leased area. Clause 14 provided that the notice will form an integral part of the agreement to be executed by the contractor. Ext. B7 Clause 39 also provided as mentioned earlier, that the contractors shall have no claim for compensation if any of the trees in the leased area are found unsound, or of any shortage is found in the estimated volume thereof after conversion.

10. The next question for consideration is whether there was any breach of warranty of the quantity of the timber. The terms of the contract make it clear that the estimate given there is only an anticipative one and was not a term of the contract to clear-fell, and cannot he regarded as in the nature off a warranty. The area from which the trees were to be cut was specified as 28 acres of natural forest in coupe No. 5 in Edacocle Block in Nilambur range, Nilambur division and the tenderers were advised to inspect the area before sending in their tenders, and as such the volume could be ascertained by independent circumstances. In such cases if the quantity is named with the qualifications of 'about' or 'more or less' or words of like import and the contract applies to a specific lot, the naming of the quantity is not regarded as in the nature of a warranty, but only an estimate of the probable amount in reference to which good faith is all that is required of the party making it: Vide Harnarain Rama-chandra v. Firm Radhakisan Narayanadas, AIR 1949Nag 178.

The principle that when quantity is specified byreference to particular circumstance or a particular standard and a specific quantity is also mentionedwith the addition of qualifying words such as 'about,' 'more or less', or similar words, suck quantity prima facie represents only an anticipativeestimate of the quantity is also enunciated in Halsbury's Laws of England (Second edition) Vol. 29, page 129.

11. Even granting for argument's sake that the contract was vitiated by misrepresentation or mistake, Clauses 21 of Ext. B2 and 39 of Ext. B7 would be a complete answer to the claim made by the plaintiff. This is a case in which Government expressly stipulated and the plaintiff expressly agreed that the Government will not be liable for the loss occasioned by any shortage in the estimated volume of the trees. It is an express term of the contract and the contractor must be tied down to it. If he chose to contract in absolute terms that was his affair. But having contracted, he cannot go back on his agreement simply because it does not suit him to abide by it--vide Thawardas Pherumal v. Union of India, (S) AIR 1955 SC 468. The plaintiff's claim for damages is not sustainable and this appeal has only to be dismissed with costs.

12. In the result the appeal fails and is dismissed with costs.


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