IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 SA.No. 734 of 1999(D) --------------------- AS.178/1995 of D.C. & SESSIONS COURT,KOLLAM OSA.128/1990 of SUB COURT,KOTTARAKKARA .................... APPELLANT/APPELLANT/PLAINTIFF --------------------------------------------------- 1. K.V KURIAKOSE, RESIDING AT KANNAMGANA MALIL VEEDU DIED & LRS IMPLEADED ASMALAKARA, THRIKKARIYOOR VILLAGE THRIKKARIYOOR PO, KOTHAMANGALAM TALUK ADDL.APPELLANTS 2 TO 6 2. ALIYEMMA KURIAKOSE, W/O.K V KURIAKOSE KANNAMGAMALIL HOUSE, THRIKKARIYOOR PO KOTHAMANGALAM 3. K K GEORGE, S/0.K V KURIAKOSE KANNAMGAMALIL HOUSE, THRIKKARIYOOR PO KOTHAMANGALAM 4. K K VALSA, D/O.K V KURIAKOSE KANNAMGAMALIL HOUSE, THRIKKARIYOOR PO KOTHAMANGALAM 5. K K MOLY, D/O.K V KURIAKOSE KANNAMGAMALIL HOUSE, THRIKKARIYOOR PO KOTHAMANGALAM 6. LISSY KURIAKOSE, D/O.K V KURIAKOSE KANNAMGAMALIL HOUSE, THRIKKARIYOOR PO KOTHAMANGALAM (LRS OF DECEASED SOLE APPELLANT IMPLEADED AS ADDL. APPELLANTS 2 TO 6 BY ORDER DT.25.8.2008 ON IA 1809/08) BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH SA 734/99 -2- RESPONDENTS/RESPONDENTS/DEFENDANTS 1 & 2 -------------------------------------------------------------------------- 1. THE DIVISIONAL FOREST OFFICER THENMALA 2. STATE OF KERALA, REP BY SECRETARY TO GOVT OF KERALA SECRETARIAT, THIRUVANANTHAPURAM SPL GOVERNMENT PLEADER FOR R1 & R2 MR.T.R.RAVI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19.11.2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- SA No.734 of 1999-I ------------------------------------- Dated this the 19th day of November 2011 Judgment The plaintiff, who was non-suited by both the courts below, is the appellant. 2. The plaintiff took part in an auction conducted on 14.3.1985 for removal of firewoods from the Sub Coupe 3, 4 and 7 in the reserve forest under the control of the first defendant. The plaintiff was found to be the highest bidder and his bid was accepted and confirmed on 23.03.1985. Thereafter, an agreement was executed by the plaintiff with the second defendant and a security deposit of Rs.20,000/- was remitted by the plaintiff. As per the agreement, he had to remove the firewood on or before 1.1.1986 or the date of submersion of the approach road to the coup whichever was earlier. According to the plaintiff, he was able to remove only 32.175 cubic metres of logs and 263.325 tonnes of firewood from sub-coupe No.3, the value of SA 734/99 2 which came to Rs.86,518.30. In the meanwhile the approach road to the coup got submerged in water and the plaintiff could not remove the remaining firewood. It is stated that a notice was received by the plaintiff from the first defendant stating that they have decided to re-auction the removal of firewood. The plaintiff was also informed by order dated 5.2.1986 that the security amount deposited by him stands forfeited. He, then filed an application on 10.02.1986 requesting for time to remove the goods and also seeking review of the order dated 5.2.1986. Later, the plaintiff was served with Ext.A9 notice dated 13.08.1990, whereby he was asked to pay a sum of Rs.32,708/- towards the loss sustained by the second defendant as a result of re-auctioning the removal of firewood. Therefore, the suit was laid for a declaration that the order dt.5.2.86 and the notice dated 13.8.90 are unauthorised and for realising an amount of Rs.20,000/-. 3. The defendants resisted the suit. They pointed out that the suit is barred by limitation and there SA 734/99 3 was no bona fides in any of the claim made by the plaintiff. According to them, the story of the approach road being submerged in water is only an after-thought to evade payment of Rs.32,708/-. By the time the plaintiff had filed a representation before the second defendant, the contract had already been cancelled and the security amount had been forfeited. Pointing out that the plaintiff is not entitled to any of the claims raised by him, they prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were raised. Evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A9 from the side of the plaintiff. The defendants had DW1 examined and Exs.B1 to B5 marked. 5. Both the courts below found, on an evaluation of the evidence that the suit is barred by limitation. It is also pointed out that there was no evidence to show that the claim of the plaintiff that the contract could not be performed due to the submersion of the approach road is SA 734/99 4 true. The suit was accordingly dismissed which was confirmed in appeal. Hence the second appeal. 6. Notice is seen issued on the following questions of law raised in the second appeal : 1. Whether the finding of the courts below that the suit is barred by limitation is legally correct since the cause of action for the suit arose on 5.2.86 and on 13.8.90 admittedly ? 2. On the admitted facts and circumstances, the pleadings as well as the findings of the courts below whether there is frustration of the contract and if there is finding of the courts below that the plaintiff/appellant violated the terms and condition of the contract is justified ? 3. Whether the respondents/defendants could succeed in a suit for declaration and for injunction without substantiating the pleadings in the written statement filed ? SA 734/99 5 7. The learned counsel for the appellant pointed out that the cause of action is a continuing one and it continued till the issuance of Ext.A9 notice which was served on the plaintiff only on 13.8.1990. Soon thereafter, the suit was laid and the courts below are not justified in holding that the suit was barred by limitation. It is also pointed out that the other reasons stated by the courts below for non-suiting the plaintiff are also not justified. 8. After having gone through the evidence and having heard the learned counsel on both sides, I find little merit in the contentions taken by the appellant before this court. Admittedly, Ext.A5 dated 5.2.1986 clearly inform the plaintiff that the contract has been cancelled and that the security amount deposited by him stands forfeited for the breach of contract made by him. It is true that he had filed a representation thereafter which was rejected by the second defendant. It appears that the re-auction was conducted and in that process, the State sustained a loss SA 734/99 6 of Rs.32,708/-. Therefore, Ext.A9 notice was issued to him. The claim of the appellant that the cause of action is a continuing one and it continued till the issuance of Ext.A9 notice which was served on the plaintiff only on 13.8.1990, cannot be countenanced. As far as the plaintiff is concerned, by the issuance of Ext.A5, he was clearly informed that the contract stands cancelled and the security deposited paid by him stands forfeited. One fails to understand how the cause of action could be a continuing one. Moreover, the courts below have also found that the claim made by the plaintiff that he was unable to remove the firewood due to submersion of the approach road, is not established. The findings of the courts below are based on evidence on record and they are findings on facts. It is not shown that the findings of the courts below are either perverse or unwarranted by the evidence record. No substantial questions of law arise for SA 734/99 7 consideration in the second appeal. The appeal is without any merits and it is accordingly dismissed. No order as to costs. P.Bhavadasan, Judge sta SA 734/99 8