IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 RSA.No. 779 of 2009() --------------------- AS.6/2007 of III ADDL.SUB COURT, KOZHIKODE OS.592/2005 of PRL.M.C.KOZHIKODE-I .................... APPELLANT: APPELLANT/DEFENDANT --------------------------------------- M/S. C.M.TRADERS, X/224, MAMBATTA, KAYITTAMPOYIL, P.O.MUKKAM, KOZHIKODE, REP. BY ITS PARTNER, PRABHAKARAN NAIR, S/O. NARAYANAN NAIR, KATCHEIAMSOM THAZHIKODE DESOM, KOZHIKODE TALUK AND DIST. BY ADV. SRI.G.GOPALAKRISHNAN NAIR (EDAPPALLY) RESPONDENT: RESPONDENT/ PLAINTIFF ---------------------------------------------------------- M/S. RADHAKRISHNAN ERADI, REP. BY ITS PARTNER, V. RMAKRISHNAN ERADI, S/O. SINNAMMALU KOVILAMMA, NAGARAM AMSOM, DESOM, KOZHIKODE TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 1713 OF 2009 IN R.S.A. NO. 779 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 21.08.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.779 of 2009 ---------------------------------------- Dated this the 21st day of August, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 6/2007 on the file of the Sub court Kozhikode which arises from the judgment and decree in O.S. No. 592/2005 on the file of the Principal Munsiff-I, Kozhikode. The suit is for money The suit was decreed by the trial court and confirmed in appeal by the lower appellate court Hence the second appeal The parties hereinafter referred to as plaintiff and defendant as arrayed in the suit. The defendant in the suit is the appellant herein. 2. The plaintiff is the partner of a partnership firm by name and style M/s Radhakrishnan Eradi and the defendant is the proprietor of a business concern by name and style ”C.M.Traders” 3. It is alleged in the plaint that the defendant purchased rice from the shop of the plaintiff on credit basis and thereby an amount of Rs.65,243.54 was due to the plaintiff from the defendant as on 11.5.2004 . According to the plaintiff even though he issued a lawyer notice, there is no response from the defendant and hence he filed the suit to realise the said amount from the defendant with 12% interest per annum from the defendant and his assets. 4. The defendant filed written statement. He contended that eventhough he purchased rice bags from the plaintiff -firm , payments for R.S.A.No.779 of 2009 -2- the purchases were made on the respective dates itself. The plaintiff did not entertain delivery of goods on credit, that the accounts submitted are forged and therefore no amount is due to the plaintiff . 5. The evidence in this case consists of testimonies of PW1 and DW1. Exts.A1.A2, A2(a), A3 ,A3(a) , A4 series and A5 to A9 were marked. 6. Before the trial court the plaintiff produced Exts.A2 A2(a), A3 and A3(a) bills to prove that the defendant has purchased rice bags from the plaintiff on credit basis. While cross examination DW1 has also admitted the above transaction during the said period. While cross- examining DW1 the trial court noted that he was not able to say whether he has paid any amount to the plaintiff for the purchase of rice bags as alleged in the plaint. The defendant even though claimed that he is maintaining day book and ledger book , he could not produce the same to prove the payments. The defendant also claimed that he is having the balance sheet for the year 2004-2005 and the sales tax returns but the same were not produced to prove the payments. The trial court noted that the oral evidence of PW1 corroborates Exts.A1 A2 series, A3 series A8 , A9 and the non-response of the defendant to Ext.A4 lawyer notice and held that the defendant could not specifically deny the transaction as alleged in the plaint. 7. In the above facts and circumstances of this case the trial R.S.A.No.779 of 2009 -3- court decreed the suit allowing the plaintiff to realise Rs. 85,316.60/- with 6% interest per annum on the principal sum of Rs. 65,243.54 from the date of suit till realisation. 8. On the same set of facts circumstance and evidence the lower appellate court confirmed the trial court's judgment and decree. 9. I do not think that any other view is possible other than the views taken by the fact finding courts in the given circumstances. Since the findings of the courts below are purely on the basis of attendant circumstances, established facts, and proved evidence, I find no grounds to invoke this Court's jurisdiction under Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and dismissed in limine (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No.779 of 2009 ---------------------------- JUDGMENT 21st August, 2009