IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 AS.No. 247 of 1996() -------------------- ( O.S.NO.82/1991 OF SUB COURT, KOTTARAKKARA) APPELLANT(S): PLAINTIFF -------------- C.Y.YACOOB CHEERAKATHOTTATHIL HOUSE CHATHAMATTAM P.O. KADAVOOR, KOTHAMANGALAM ERNAKULAM BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): DEFENDANT --------------- THE STATE OF KERALA REP. BY THE CHIEF SECRETARY SECRETARIAT, TRIVANDRUM GOVERNMENT PLEADER SRI.M.P.PRAKASH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - A.S.No.247 OF 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of December, 2009 JUDGMENT Challenge in this appeal by the plaintiff is to the judgment of the Subordinate Judge, Kottarakkara in O.S.No.82/1991 dated 29-5-1995 dismissing the suit for recovery of security deposit. 2. The respondent defendant is the State of Kerala represented by Chief Secretary. The case of the appellant/plaintiff as shaped in evidence before the lower court in brief is this : The plaintiff is a contractor. The right to remove top-ends, butt- ends felled hollow trees and rejected logs from Aryancavu Forest Range under Thenmala Forest Division was sold in auction on March 14, 1985. The plaintiff bid the right in auction and executed an agreement Ext.A1 on April 6, 1985. The plaintiff deposited Rs. 20,000/- as security. It was agreed that the security will be released on completion of the contract. The period of contract expired in May 1986. But the security was not released. The plaintiff was informed that the security amount would be released only if arrears of sales tax due by him was paid. Plaintiff has A.S.No.247/1996 Page numbers remitted the entire arrears of sales tax on April 15, 1988. The defendant demanded Rs. 16016.69 by letter dated 18-02-1987- Ext.A5 as the deficit of value of goods removed by the plaintiff which is illegal. The re-computation is contrary to the agreement. The species of timber mentioned in Ext.A5 letter are not enumerated in the Kerala Forest Produce(Fixation of Selling Price) Act 1978. In spite of the letter dated November 16, 1988 - Ext.A2 the defendant refused to return the security deposit. Hence this suit. 3. The defendant resisted the suit by raising the following contentions: The plaintiff has collected 5.199 cubic metres of Madagiri vemp, 3.199 cubic metres of Manjakkadamp and 0.821 cubic metres of Akil timber. These species come under Kerala Forest Produce ( Fixation of Selling Price ) Act 1978. The rate of quota was revised by the government with effect from 1-4-1984. The plaintiff is bound to pay the revised rate. The said amount is adjusted in the security deposit as per chalan dated December 17, 1990 . At the request of the plaintiff Rs. 8801/- was also remitted towards sales tax on December 17, 1990. Therefore no amount is due to the plaintiff. A.S.No.247/1996 Page numbers 4. On the side of the plaintiff Exts.A 1 to A8 were marked and on the side of defendant Ext.B1 was marked. 5. The trial court on an appreciation of evidence accepted the plea of discharge put forward by the defendant and dismissed the suit. The plaintiff has challenged the decree and judgment of the lower court dismissing the suit. 6. The following points arise for consideration : 1) Whether the plea of discharge put forward by the defendant is proved ? 2) Whether the judgment and decree of the lower court can be sustained ? Point No.1 7. It is not disputed that the plaintiff bid in auction the right to collect timber from Aryancavu Range under Thenmala Forest Division which was sold in auction on March 14, 1985 and executed the agreement Ext.A1 and deposited Rs. 20,000/- as security for the due performance of the contract. The case of the plaintiff is that he has paid the whole amount as per the bill issued to him. But the defendant would contend that the bill issued to the plaintiff was prepared on the A.S.No.247/1996 Page numbers basis of the price prevalent before 1-4-84 and the rate was revised with effect from 1-4-84 and therefore, the plaintiff is liable to pay at the revised rate which comes to Rs. 16,069.65 as shown in Ext.A5 notice dated Feb 18, 1987. The appellant/plaintiff would contend that the three species of timber Madagiri Vembu , Manjakadambu and Akil mentioned in Ext.A5 demand notice do not come under Section 2(c) of the Kerala Forest Produce ( Fixation of Selling Price ) Act and that therefore defendant is not entitled to claim the enhanced value fixed under the notification dated 01-04-1984. In Section 2(c) of the Kerala Forest Produce ( Fixation of Selling Price ) Act, the botanical name of Kadambu is Adina Cordifolia, the botanical name of Chandana vambu is Cedrelatoona , the botanical name of vellaki is dyscylum malabaricum. It is admitted by the counsel for the appellant that the botanical name of Manjakadambu is also Adina Cordifolia and the said timber comes under Section 2(c) of the Act. It is also proved by page No. 296 of Illustrated Manual on Tree Flora of Kerala Supplemented with Computer-Aided identification which is KFRI Research Report No.282 and also the KFRI Handbook of Forest Trees of Kerala which is published by Kerala Forest Research Institute, A.S.No.247/1996 Page numbers Peechi produced by the Special Government Pleader. Learned counsel for the appellant submitted that the botanical name of Madagiri Vembu mentioned in Ext.P5 is Toona Ciliata and not Cedrelatoona as mentioned in Section 2(c) of the Act. The above argument appears to be not correct. From Page 296 of Illustrated Manual on Tree Flora of Kerala Supplemented with Computer-Aided identification, it is seen that Toona Cillata is the name given to the same timber by one author i.e. Roem and Cedrelatoona is the name given by another author ( Roxb). Therefore, in my view Madagirivembu mentioned in Ext.A5 is the same as Chandanavembu mentioned in Section 2(c) of Kerala Forest Produce ( Fixation of Selling Price ) Act. Regarding the timber Akil mentioned in Ext.A5, according to the counsel for the appellant, its botanical name is Dysexylum Glandulos . But in Page 138 of the above mentioned book, the botanical name of Akil is also mentioned as Dysoxylum malabaricum . It is clear from the above that the timber mentioned in Ext.A5 demand notice is covered by Section 2(c) of Kerala Forest Produce ( Fixation of Selling Price ) Act. That being so, the appellant is bound to pay the amount mentioned in Ext.A5 i.e. Rs. 16069/- which is also supported by Ext.A1 agreement A.S.No.247/1996 Page numbers dated April 1, 1985. 8. The next question is whether the claim of the defendant that the defendant has paid sales tax to the tune of Rs. 8801/- for the plaintiff and the same has to be adjusted towards the security deposit can be allowed. 9. The specific case of the plaintiff is that defendant did not pay any sales tax and the sales tax is seen remitted by him. He has produced Ext.B1 letter issued from the Sales Tax Officer, Kothamangalam that he has paid the sales tax on 25-09-1986 before the lower court. The defendant did not produce any document before the lower court to show that the defendant remitted the arrears of sales tax of the plaintiff. Before this court, defendant produced a certificate dated November 2, 2009 issued by the Sub Treasury Officer, Punalur to the effect that Rs. 8801/- has been adjusted towards the transfer credit from TSA 2510 which is in the name of the plaintiff. This certificate is marked as Ext.B2. Defendant has also produced the Register for interest bearing securities. Copy of the relevant pages is marked as Ext.B3. It shows that the security was deposited in the Treasury Saving Bank account having the same account number and A.S.No.247/1996 Page numbers that the total amount including interest of the security deposit comes to Rs. 27271/- and that out of this amount Rs. 18470/- is adjusted towards the revised value of the timber and Rs. 8801/- is adjusted towards the sales tax. Ext.A2 is the letter sent by the plaintiff requesting the defendant to adjust the sales tax from his security deposit. Thus entire amount of security deposit made by the plaintiff stands adjusted towards the deficit value of timber as well as sales tax payable by him. Therefore, in my view, the lower court is perfectly right in finding that the plaintiff is not entitled to recover the security deposit deposited by him in pursuance of the agreement Ext.A1. That being so, the lower court is perfectly justified in dismissing the suit. In the result, confirming the judgment and decree of the lower court, this appeal is dismissed. Parties shall bear their own costs. P.Q.BARKATH ALI, JUDGE sv