IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 AS.No. 775 of 1999(C) --------------------- OS.633/1991 of PRL.SUB COURT,KOTTAYAM .................... APPELLANTS: -------------- M/S HARRISONS MALAYALAM LTD, A COMPANY INCORPORATED UNDER THE COMPANIES ACT HAVING ITS REGISTERED OFFICE AT BRISTOW ROAD WILLINGDON ISLAND COCHIN 682 003, REPRESENTED BY ITS MANAGER LEGAL AND POWER OF ATTORNEY HOLDER SRI.V.VENUGOPAL. BY ADV. SRI.A.M.SHAFFIQUE(SR) RESPONDENT:DEFENDANT ------------------------------------ BOBBY ABRAHAM , PROPRIETOR M/S CLASSIC TRADERS KARAYOGAM BUILDINGS KUMARANALLOOR, KOTTAYAM -686016 ADV. SRI.T.K.MARTHANDAN UNNITHAN SRI.BIJU OMNATH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- A.S.No. 775 of 1999 ---------------------------------------- Dated this the 7th day of December, 2009 JUDGMENT The Plaintiff in O.S.No. 633/1991 on the file of the Sub court, Kottayam, is the appellant. The suit was dismissed by the court below. The appeal is directed against the judgment and decree in the said suit. The parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit. 2. The plaintiff is a company owning rubber estate in many parts of Kerala. The suit was filed against the defendant for realisation of a sum of Rs.23,712/- with interest at 18% per annum as the balance value of the skim rubber supplied by the plaintiff. The averments in the plaint shows that the plaintiff supplied skim rubber to the defendant from 30.3.1989 on various dates valuing Rs. 3,92,712/- and the defendant has paid Rs.3,69,000/- and the balance amount due from the defendant to the plaintiff is Rs.23,712/- It is alleged that in spite of repeated demands and issuance of lawyer's notice, the defendant did not settle the account. 3. In the written statement filed by the defendant, it is contended interalia that there is no written agreement endorsing the terms agreed upon between the parties for the supply of skim rubber. The defendant admitted the transaction . According to the defendant the weight of the A.S.No. 775 of 1999 -2- dried rubber as stated in the plaint is not correct and hence the value claimed by the plaintiff is also not correct. The defendant denied the claim of the plaintiff and further averred that he had made excess payment of Rs.7,000/- and no amount is due to the plaintiff from him. 4. The court below examined one of the plaintiff's officers as PW1 and marked Exts.A1 to A8 documents. The defendant was examined as DW1. No documentary evidence was produced by the defendant. 5. I have gone through the oral and documentary evidence adduced by both sides. The trial court examined the basic issue as to whether the signatory to the plaint is competent to represent the plaintiff. In the plaint it was stated that the plaintiff is represented by the power of attorney holder . For the non-examination of the power of attorney holder and for the non-production of the power of attorney by the plaintiff ,the trial court accepted the contentions of the defendant that the plaint has not been signed and verified by a duly authorised person of the plaintiff- company and that the signatory to the plaint is incompetent to represent the plaintiff. 6. I have gone through the averments in the plaint. The plaint averments shows that the plaintiff is represented by its Power of Attorney holder Sri.V.Venugopal . It is the said Venugopal who verified and signed A.S.No. 775 of 1999 -3- the plaint. In the written statement the defendant has no case that the said Venugopal is not the Power of Attorney holder of the plaintiff- company. There is no dispute regarding the competency of the person to represent the plaintiff-company. Unfortunately, the trial court hold that the plaint has not been signed and verified by a duly authorised person of the plaintiff-company and therefore the signatory to the plaint is not competent to represent the plaintiff-company. Since the defendant has no case that Sri.V.Venugopal is not the Power of Attorney holder, there is no necessity for the production the Power of Attorney before the court below. Therefore the finding of the court below on issue No.1 is reversed and it is declared that the signatory to the plaint is competent to represent the plaintiff-company. 7. Ext.A1 is the communication dated 10th .August 1989, issued by the plaintiff-company to the defendant. After referring to the letter dated 6.6.1989 and the subsequent reminder dated 10th July 1989, in Ext.A1, it was stated that it is most unfortunate that you have so far not cleared the debit balance of Rs.23,712/- on your account and also reminded the defendant to make arrangements to settle the said amount without further delay. Ext.A2 is the next communication issued by the plaintiff-company to the defendant on 6th October 1989 . After referring to the earlier letters the plaintiff- company in Ext.A2 it is stated thus: A.S.No. 775 of 1999 -4- “ Please note that the amount of Rs.23,712/- is outstanding since May 1989 and your casual attitude to clear the debts puts me in an embarrassment with the company. You are once again requested to settle the account immediately on receipt of this letter to avoid any legal action in the matter” 8. Ext.A3 is the letter issued by the defendant to the Manager of the plaintiff-company in which the defendant asked for statement of accounts , details of the date of despatch, wet weight of materials, D.R.C. analysis for each load and the remittance made so far, so as to enable the defendant to settle the matter. So it has to be inferred that the defendant has no case that he does not owe any money to the plaintiff-company . 9. Ext.A4 is the reply letter dated 23.11.1989, issued by the plaintiff to Ext.A3. In Ext.A4 the details as desired by the defendant are furnished by the plaintiff -company. The respective dates on which the skim rubber was taken delivery from time to time by the defendant, wet weight and dry weight of the skim rubber per Kilograms, the value and the amount advanced are also mentioned in Ext.A4..According to the plaintiff- company the balance amount due from the defendant is Rs.23,712/-. Ext.A4 is dated 27.11.1989, after the receipt of the same, the defendant remains silent. The defendant neither issued any reply to Ext.A4 nor pay or deposit the amount or portion of the amount mentioned in Ext.A4. Therefore the plaintiff-company issued Ext.A5 lawyer's notice dated A.S.No. 775 of 1999 -5- 6.7.1990 for which there is also no reply from the side of the defendant. Only in the written statement, for the first time, the defendant contended that no amount is outstanding and payable to the plaintiff-company. For the above said circumstances and the conduct of the defendant it is difficult to believe that the defendant does not owe the money as demanded by the plaintiff-company. . 10. The trial court found fault with the plaintiff for not producing the ledger, account, delivery chalan and the DRC report to prove their claim. I have already referred to the documents produced by the plaintiff and the attendant circumstances and the non-response of the defendant to various letters and Ext.A5 lawyer's notice issued by the plaintiff company which clinches the issue. In Ext.A3 the defendant has no case that no amount is due to the plaintiff-company. Ext.A3 clearly indicates that the defendant owes money to the plaintiff, that is the reason why, he asked the details of the transaction, which were given by the plaintiff- company through Ext.A4 letter. Hence the reasons stated by the court below for non- suiting the plaintiff are not satisfactory nor convincing. The facts and circumstances discussed above, will go to show and prove that the defendant is evading the payment of the balance amount in one pretext or the other. Certainly the plaintiff is entitled to a decree for the amount claimed in the plaint. A.S.No. 775 of 1999 -6- 11. The learned counsel for the respondent strongly contended that the documents produced by the plaintiff, are not sufficient enough to record the finding in plaintiff's favour and therefore the plaintiff is not entitled to the reliefs as sought for in the plaint. The learned counsel also submitted that the interest rate claimed at 18% per annum is exorbitant and requested this Court to fix a reduced rate of interest in case a decree is proposed to be passed is in favour of the plaintiff-company. In the result, the judgment and decree passed by the trial court are set aside. A decree is passed allowing the plaintiff to realise a sum of Rs. 32,841/- with future interest at the rate of 9% per annum on the principal amount of Rs. 23,712/- with costs throughout from the defendant and his assets. The appeal is allowed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S.No. 775 of 1999 ---------------------------- JUDGMENT 7th December, 2009