IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 RSA.No. 920 of 2008() --------------------- AS.70/2006 of I ADDL.DISTRICT COURT, ERNAKULAM OS.1614/2003 of III ADDL. MUNSIFF'S COURT, ERNAKULAM. .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 TO 3 ----------------------------------------------------------- 1. QUALITY SYSTEMS, 39/3144 C, CHELAVEETTIL ESTATE, OVER BRIDGE(SOUTH SIDE)COCHIN-16,ERNAKULAM VILLAGE, KANAYANNUR TALUK, REP.BY MR.M.A.RAMACHANDRAN, ITS PARTNER. 2. M.A.RAMACHANDRAN, AGED 35 YEARS, S/O.ARAVINDAKSHAN, RESIDING AT SRICHANDRA, IRUMPANAM, COCHIN-682 309,NADAMA VILLAGE, KANAYANUR TALUK. 3. B.MURALI, AGED 41 YEARS, S/O.BHASKARAN, RESIDING AT BHAGAVATHIKKAL HOUSE, ARTHUNGAL, CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.V.J.MATHEW RESPONDENT/ RESPONDENT/PLAINTIFF ----------------------------------- WILTECH SOFTWARE SOLUTIONS (P) LTD, COCHIN SPECIAL ZONE, KAKKANAD, ERNAKULAM REP.BY ITS MG.DIRECTOR, MR.THOMAS WILLIAM JUDE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 920 of 2008 ========================== Dated this the 24th day of October, 2008. JUDGMENT The defendants in O.S. No. 1614 of 2003 on the file of the III Additional Munsiff's Court, Ernakulam are the appellants in this Second Appeal. The said suit was one for recovery of a sum of Rs.93,038/- towards the money due to the plaintiff for the breach of contract committed by the defendants. 2. The case of the plaintiff can be summarised as follows:- The plaintiff is engaged in the development and export of computer software. Plaintiff's company premises are fully air conditioned with air conditioning units of different capacities such as 8.3 Ton Blue Star-ductable air conditioners (two in number) and Voltas air conditioners of 3 Ton and 1.5 Ton capacity (two in number) installed in the premises of the plaintiff. The 1st defendant is a partnership firm engaged in the installation and the after sale service of air conditioners on annual maintenance contract basis. The defendants approached the plaintiff with a proposal for annual maintenance of the air conditioning systems installed in the plaintiff's company. The contract was entered into on 27.09.2001 and was R.S.A No. 920/2008 : 2: renewed for a period of one year from 29.09.2002 to 28.09.2003. The total service charges to be paid for the above one year period was fixed at Rs.25,000/-. For the period 2002 – 2003, the plaintiff paid Rs.12,500/- as part payment for six months as agreed to by the defendants. The balance amount of Rs.12,500/- was to be paid after the expiry of six months. One of the air conditioning units having a capacity of 8.3 Ton got damaged. When the plaintiff approached the defendants for repairing the said unit, the defendants did not accede to the request of the plaintiff. The plaintiff was thereupon constrained to repair it through another person for Rs.93.038/-. The suit is filed for recovery of the said amount which the plaintiff had incurred on account of the refusal on the part of the defendant to undertake the repair and maintenance of the defective air conditioning unit. 3. The suit was resisted by the appellants contending inter alia as follows:- The particular AC unit having a capacity of 8.3 Ton was not covered by Ext.A2 contract. The plaintiff had not paid the full amount of Rs.25,000/- as stipulated in Ext.A2 contract without which the contract would not become operative. There was no agreement to make part payment as alleged by the plaintiff. This defendant was R.S.A No. 920/2008 : 3: therefore not bound to undertake the repair of the said A.C unit nor is the defendant liable for the amount claimed. 4. The trial court, after trial, decreed the suit for Rs.80,538/- after deducting Rs.12,500/- from the total amount for the reason that that was the amount outstanding to be paid by the plaintiff towards the annual maintenance contract. The lower appellate court, on appeal preferred by the defendants, confirmed the decree passed by the trial court. Hence this Second Appeal by the defendants. 5. The learned counsel for the appellants made the following submissions in support of the appeal:- It has not been conclusively established by the plaintiff that the air conditioning unit having a capacity of 8.3 Ton was covered by Ext. A2 contract. Ext. A2 contract pertains only to two air conditioning units of 8.5 Ton capacity. It is true that in response to Ext.B1 complaint submitted by the plaintiff before the Consumer Disputes Redressal Forum, Ernakulam the defendants had agreed to repair the AC unit of the plaintiff. But then, the plaintiff had not revealed the type of AC unit which had become faulty. Hence, the defendants had no opportunity to find out whether the complaint of deficiency in service was with regard to any of the AC units covered by Ext.A2 R.S.A No. 920/2008 : 4: contract. In Ext.B1 complaint, the plaintiff had only stated that the plaintiff's AC units are under the annual maintenance contract with the defendants. Hence, there was no acceptable evidence before the court below to show that the AC unit having a capacity of 8.3 Ton was one of the AC units covered by Ext.A2 contract. The courts below have failed to note that Ext.A2 contract would become operative only on payment of Rs.25,000/- as fixed thereunder. The plaintiff had admittedly paid only Rs.12,500/-. He had not paid the balance amount after six months as stipulated in Ext.A2 contract. The so called agreement alleged by the plaintiff to pay half the amount at the commencement of the contract and to pay the balance amount after six months of the contract is neither discernible from the terms and conditions in Ext.A2 contract nor could it be accepted. It was overlooking these two vital aspects that the trial court decreed the suit. 6. I am afraid that I cannot agree with the above submissions. It is true that in Ext.A2 contract, among the four air conditioning units mentioned, two are stated to be of 8.5 Ton capacity. It is also true that the air conditioning unit which was allegedly repaired in this case was having a capacity of 8.30 Ton. But then, the courts below have accepted the plaintiff's case that the capacity namely 8.5 Ton was R.S.A No. 920/2008 : 5: mentioned in Ext.A2 contract as the plaintiff was under the impression that the two air conditioning units were of 8.5 Ton capacity. 7. With regard to the further question as to whether the particular AC unit had been covered by Ext.A2 contract, the courts below have concurrently accepted the plaintiff's case in this behalf. It is true that in Ext.B1 complaint before the Consumer Disputes Redressal Forum, the plaintiff had not specified the air conditioning unit which was malfunctioning. But from that alone, it is not possible to conclude that the complaint was not in respect of an AC unit not covered by Ext.A2 contract. In fact, what is alleged in Ext.B1 complaint is that the AC units of the plaintiff are under annual maintenance contract with the defendants. The appellants had no case that there were other AC units installed in the premises of the plaintiff which were not covered by Ext.A2 annual maintenance contract. The appellant did not take out a Commission also to ascertain whether there were other AC units installed in the premises of the plaintiff to suggest that the AC unit of 8.3 Ton which had started malfunctioning and which was got repaired was not covered by Ext.A2 contract. 8. It is true that Ext.A2 contract stipulates the contract amount as Rs.25,000/-. It is also true that Ext.A2 contract is silent as to R.S.A No. 920/2008 : 6: whether the amount can be paid in two instalments. But then, both the courts below have accepted the plaintiff's case that the annual maintenance contract for the previous year also contained a similar clause and the defendants had permitted the plaintiff to pay the amount in two instalments. If so, the case of the plaintiff that under Ext.A2 also there was an agreement to pay the balance amount after six months, was fully acceptable. I do not find any illegality in the conclusions reached by the courts below. No question of law, much less any substantial question of law arises for consideration in this Second Appeal which is accordingly dismissed in limine. V. RAMKUMAR, JUDGE. rv