IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 AS.No. 4 of 2001(A) --------------------------- OS.1358/1995 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT(S): DEFENDANT ----------------------------------------- DR.PRAKASH SEBASTIAN, AGED 45 YEARS, DIRECTOR, CHALIYAR MISSION HOSPITAL, NILAMBUR, MALAPPURAM. BY ADV. RESPONDENT(S): PLAINTIFF ----------------------------------------- M/S. LIFE SCIENCE INSTRUMENTION 607, 3RD FLOOR, PARK HOUSE, ROUND NORTH THRISSUR, REP.BY ITS MANAGING PARTNER, ASOK KUMAR. ADV. SRI.P.V.CHANDRA MOHAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J ------------------------------ A.S.NO.4 OF 2001 ----------------------------------- Dated this the 25th day of November, 2010 JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judges court, Trichur in O.S.1358 of 1995. The suit is one for realisation of money. The brief facts necessary for the disposal of the appeal are stated as follows: The plaintiff concern is a partnership one dealing with the manufacture and sale of dealers of Medical Instruments. The defendant has placed an order on 05-05-1994 for an X-ray machine for Rs.91,000/- and he had paid an advance amount of Rs. 20,000/-. He had also placed an order on Baby Care Unit and paid Rs.2,000/- for the same as advance. The plaintiff had sent the machine through the Bank but the defendant did not take delivery of the machine therefore, it has to be brought back and then again transported in a special conveyance and installed and only a further sum of Rs.60,000/- was paid and the balance amount of Rs.11,000/- is still due. The plaintiff has also sustained heavy damages on account of the transport and re-transporting as well as the necessity to send people one after the other for the realisation of the amount and A.S.NO.4 OF 2001 2 therefore, the plaintiff has instituted the suit for money including damages. On the other hand, the defendant who is running a hospital would contend that it was the representatives of the plaintiff who brought a machine and placed into the hospital and the condition was to pay 85,000/- and pay the balance after three months on satisfaction of the proper functioning of the instrument. The defendant would contended over and above an amount of advance Rs.20,000/-, 5,000/- has also had been paid and thereafter another Rs. 60,000/- making a total of 85,000/- and the liability to pay the balance arise only after three months on proper functioning of the instrument. The defendant denies negligence on his part and prays for a dismissal of the suit. On appreciation of the entire materials, the trial court found the balance consideration is Rs.9,000/- allowed Rs.1,500/- and Rs.1,000/- towards the expense incurred and attending circumstances another Rs.5,00/- towards transport expenses thus making a total of 12,000/- as due from the defendant to the plaintiff. It is against that decision the defendant has come up in appeal. Heard the learned counsel for the appellant and the respondent. A.S.NO.4 OF 2001 3 The short point for determination is whether the entire amount is paid and whether the plaintiff has sustained any loss on account of the conduct of the defendant. There is no dispute between the parties that the cost of the machinary is Rs.91,000/-. According to the plaintiff only an amount of Rs,80,000/- is paid whereas according to the defendant an amount of Rs.85,000/- is paid. The trial court on analysis of the materials found that document produced in this case would reveal that 20,000/- as advance for the X-ray unit as well as Rs.2,000/- for the Baby Care Unit has been received by the plaintiff's establishment. The belated case was put by the plaintiff side that since the Baby Care Unit order was cancelled that amount has been forfeited. The trial court did not find in favour of the plaintiff therein and held that 22,000/- rupees has to be taken as the amount of advance paid in this case. It is admitted that subsequently, Rs.60,000/- has been paid and so out of total costs on 91,000/-, 82,000/- had been paid and so the balance sale consideration was fixed at Rs.9,000/-. After hearing the learned counsel for the parties and perusal of the records, I am satisfied that the said finding on fact is correct and does not call for any interference. Then the case of the plaintiff is that he had sent the machine through the Bank on condition A.S.NO.4 OF 2001 4 that the defendant has pay the amount and take the delivery of the machinary. He did not take it. So it is contended that the plaintiff was obliged to take back machinary by the special conveyance and again re-transport it to the defendant establishment. The document produced in this case would reveal that the transport charge incurred by common carrier was only Rs.1006/-. Therefore, taking into consideration that as a basis that the machine can be brought back in the same method and again re-sent, the court granted transport charges on Rs.500/-. It appears to be correct and proper. The court below had rejected the claim for mental agony it granted Rs.1,500/- towards loss. Rs.1,000/- towards expenses for collecting the amount was also granted. The learned counsel for the appellant would contend before me that these charges should not have been given by the court below. It has to be remembered that as per the terms, the instrument was sent by a common carrier and as the defendant did not pay the amount it had to be sent back and thereafter it was again taken and installed and in his establishment and thereafter also the plaintiff had to run from pillar to post to collect the balance amount and ultimately it has landed in litigation. The conduct of the defendant in this case is not at all good. The court below has been very A.S.NO.4 OF 2001 5 considerate in awarding only Rs.1,500/- towards loss, Rs.500/- towards freight charges and Rs.1,000/- towards expenses for collecting the amount. I do not find that the said finding is liable to be interfered with. Therefore, I confirm the finding with respect to Rs.12,000/-, but I find the interest award is exorbitant at 18%. I make it clear since it is sale, I grant 18% interest from the date of suit till date of decree and that at the rate of 12% from the date of decree till realisation from the defendant and his assets. Therefore, the judgment and decree of the trial court is confirmed with the only modification that the entitlement of interest shall be at the rate of 18% from the date of suit till the date of decree and at the rate of 12% from the date of decree till realisation from the defendant. Parties are directed to bear their respective costs in the appeal as well. M.N.KRISHNAN, JUDGE pm