IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 AS.No. 271 of 1996() -------------------- OS.109/1989 of SUB COURT, CHERTHALA .................... APPELLANT(S): DEFENDANT:- -------------- SEBASTIAN, S/O. JOSEPH, ARACKKAL HOUSE, KANDAKADAVU DESOM, KUMBALANGI VILLAGE. BY ADV. SRI.A.ANTONY,MATHEW SKARIA SRI.S.A.MANSOOR SMT.LEELAMMA ANTONY SRI.TOMY PAUL RESPONDENT(S): PLAINTIFFS:- --------------- 1. SEA PEARL INDUSTRIES, CHANDIROOR, ALAPPUZHA DISTRICT.REPRESENTED BY MANAGING DIRECTOR. 2. K.A.HAMMED KUTTY, S/O. ALIYAR, KIZHEKKE PANDARAKKATTIL, CHANDIROOR MURI, ALAPPUZHA DISTRICT. 3. K.A.MUHAMMED, S/O. ALIYAR, PARTNER, RESIDIGN AT IBRAHIM MANSIL, CHANDIROOR, ALAPPUZHA DISTRICT. ADV. SRI.V.C.BABUKUMAR,RAJESWARI.A. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.M.P. No. 1776/96 in A.S.No.271/1996 Dismissed 15-10-2009 Sd/-P.Q. Barkath Ali, Judge. /true copy/ P.S. to Judge. P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= A.S.No. 271 of 1996 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 15th day of October, 2009 JUDGMENT Appellant who is the defendant in O.S. No.109 of 1989 of the Subordinate Judge’s Court, Cherthala challenges the decree and judgment dated August 7, 1995 of the learned Sub Judge decreeing the suit for recovery of the amount due to the plaintiffs. 2. The case of the respondents/plaintiffs, as detailed in the plaint and as shaped in evidence before the trial court, in brief, was this:- Plaintiffs are Sea Pearl Industries, Chandiroor, represented by its Managing Partner and partner. The plaintiff firm is doing the business of prawn exports and is extending financial help to fish cultivators. The defendant obtained right of fishing of Valiyakari Padasekharam for the period from 13-12-1986 to 23- 4-1987. By Ext.A1 agreement dated December 22, 1986, the defendant agreed to supply prawns caught from the aforesaid padasekharam to the plaintiffs. Towards the advance, the plaintiffs paid Rs.1 lakh to the defendant. The defendant has supplied prawns worth Rs.24,911/- and the balance amount of Rs.75,089/- is due from the defendant. The suit has been filed for recovery of the said amount. 3. The appellant/defendant resisted the suit contending that he has AS 271/96 2 already supplied prawns for the entire amount taken from the plaintiffs and that no balance amount is due to them. PW1 was examined and Exts.A1 to A7 were marked on the side of the plaintiffs. DWs.1 to 3 were examined and Exts.B1 to B10 were marked on the side of the defendant. The learned Sub Judge on an appreciation of the evidence found that there was no evidence to prove the plea of discharge raised by the defendant and decreed the suit as prayed for. The defendant has now challenged the said judgment and decree in this appeal. 4. Heard the counsel for the appellant. The counsel for the respondent remained absent. 5. The following points arise for consideration in this appeal:- 1) Whether the plea of discharge of the liability put forward by the appellant/defendant is proved? 2) Whether the judgment and decree of the lower court can be sustained? 6. The plaintiff examined PW1, the Accountant of the plaintiff firm and produced Exts. A1 to A7 before the trial court to establish the plaint claim. Ext.A1 is the agreement executed between the plaintiff and the defendant, which is admitted. Ext.A2 is the weighment record kept in the company. Exts.A2(a) and A2(b) are the duplicate of weighment received from the defendant. Ext.A3 is the purchase register for the year 1986-'87. AS 271/96 3 Ext.A3(a) is page No.395 of the same, which shows the purchase of prawns from the defendant. Ext.A4 is the ledger book. Exts.A2, A2(a) and A2(b), A3 and A4 show that defendant has supplied prawns worth Rs.24,911/-. Ext.A5 is the copy of notice issued by the plaintiff to defendant. Ext.A6 is the postal acknowledgment. Ext.A7 is the certificate of registration. Thus, it is seen from Exts.A2 to A4 that defendant supplied prawns worth Rs.24,911/-only. 7. Defendant apart from himself as DW1 examined DWs.2 and 3 to prove his case. He produced Exts.B1 to B7. DW1 would say that he supplied prawns to the plaintiff firm through DW3 Mr.K.S.Darvesi. Ext.B1 is a book kept by DW1 showing the fish supplied to plaintiff firm. As it is a one sided document, the learned Munsiff was right in not accepting the same. Ext.B2 is a statement kept by DW1 regarding the fish supplied to plaintiff through DW3. DW3 has signed therein. DW3 admitted having purchased fish mentioned therein from defendant. But he would say that he purchased it in his individual capacity, not for plaintiff firm. But DW3 admitted when cross-examined hat he used to supply fish to plaintiff firm which probabilise the case of DW1 that he supplied fish to plaintiff firm through DW3. Ext.B3 to B6 are slips allegedly issued by PW1 the Accountant of the plaintiff firm showing the quantity and variety of prawn AS 271/96 4 received by the plaintiff firm from defendant amounting to more than one lakh of rupees. PW1 admitted during cross-examination that the handwriting in Exts.B3 to B6 is similar to his handwriting i.e., he almost admitted those slips being issued by him. The learned Munsiff compared the handwriting in Ext.B3 to B6 with the handwriting in Exts.A2(a) and A2 (b), which, according to the learned Munsiff, are the admitted handwriting of PW1 and found them to be dissimilar and came to the conclusion that Exts.B3 to B6 are not issued by PW1. But on going through the evidence of PW1 it is seen that PW1 has denied his alleged handwriting in Exts.A2(a) and A2(b), the register of weighment kept by the plaintiff. That being so, the lower court went wrong in comparing Exts.B3 to B6 with Exts.A2(a) and A2(b). Therefore, in the light of the admission made by PW1 that the handwriting in Exts.B3 to B6 are similar to his handwriting. It has to be taken that Exts.B3 to B6 are issued by PW1. It is pertinent to note that it was not suggested to DW1 during cross-examination that Exts.B3 to B6 were concocted by him to defeat the plaint claim. That being so, it has to be held that defendant has supplied prawns worth more than one lakh of rupees to the plaintiff as mentioned in Exts.B3 to B6. It follows that defendant has succeeded in proving his plea of discharge. Therefore, I hold that no amount is due to the plaintiff from defendant. That being so, the decree and AS 271/96 5 judgment of the lower court has to be set aside and the suit has to be dismissed with cost. 8. In the result, the appeal is allowed with cost and the judgment and decree of the lower court are set aside and the suit is dismissed with costs. P.Q. BARKATH ALI, JUDGE mn AS 271/96 6 P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= A.S.No. 271 of 1996 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= JUDGMENT 15th day of October, 2009