IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 AS.No. 375 of 1996(B) --------------------- OS.334/1992 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT(S): -------------- M/S.THALIATH PACHAGING REPRESENTED BY ITS MANAGING PARTNER, MR.XAVIER JOSEPH, S/O.JOSEPH, AGED ABOUT 30. BY ADV. SRI.T.N.HAREENDRAN RESPONDENT(S): --------------- M/S.UNITED PAPER CORPORATION REPRESENTED BY ITS MANAGING PARTNER R.RANGANATHAN, AGED 62, RANGANIVAS, 35/659, DIWANS ROAD, ERNAKULAM, KOCHI-682016. ADV. SRI.C.RAGHAVAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25 /09 /2009 , THE COURT ON 25/09/2009 DELIVERED THE FOLLOWING: HARUN -UL- RASHID, J ------------------------------------- A.S.NO.375 OF 1996 -------------------------------- Dated this the 25th day of September, 2009. JUDGMENT The defendant in O.S. No.334 of 1992 on the file of Sub Court Ernakulam is the appellant. The plaintiff company filed suit for recovery of money. The court below passed a decree allowing the plaintiff to recover an amount of Rs.77,530/- with future interest on the principal amount of Rs.51,378/- at the rate of 12% per annum from the date of suit till realisation with costs. Aggrieved by the decree and judgment dated 30.6.1995 the defendant has come up in appeal. The parties to the appeal are hereafter referred to as plaintiff and defendant. 2. Plaintiffs case is that the defendant has business transaction with the Seshasayee Paper and Boards Ltd., through the plaintiff as indentor. As per the agreement between the plaintiff and Seshasayee Paper and Boards Ltd, the plaintiff is entitled to get commission for the sale of paper from Seshasayee Paper and Boards Ltd., to its customers in Kerala. By the said agreement plaintiff is liable to A.S.NO.375 OF 1996 2 discharge the dues arising out of such transactions on behalf of the customers in the capacity of indentor. It is the case of the plaintiff that the defendant is a customer who used to purchase paper materials on credit, that as on 11.6.1989 there is an outstanding dues of Rs.51,378/- due to Seshasayee Paper and Boards Ltd.,. The outstanding dues of defendant was adjusted from the account of plaintiff by Seshasayee Paper and Boards Ltd., and on getting intimation the defendant issued three cheques in favour of the plaintiff in full settlement of the above mentioned dues. The said three cheques mentioned are dated 11.6.1989 for Rs.28,626/-, cheque dated 28.12.1989 for Rs.25,000/- and cheque dated 11.4.1989 for Rs.27,359/-. Out of the three cheques, cheque dated 11.6.1989 alone was encashed and two cheques were dishonoured and the balance dues as on that date is Rs.51378. According to the plaintiff the defendant is liable to pay Rs.77530/- towards the principal amount and interest. The defendant in the written statement raised several contentions and prayed for dismissal of the suit. The transaction alleged in the plaint is denied and further contended that defendant have no business transaction with M/S.Seshasayee paper A.S.NO.375 OF 1996 3 and Boards Ltd.,and that all such transactions were conducted through M/S.Ramalinga Iyer, Broadway Ernakulam and that Mr. Ramalinga Iyer is the Managing Partner of the plaintiff firm. According to the defendant the payments due to M/S.Seshasayee Paper and Boards Ltd., from the defendant is made through M/s.Ramalinga Iyer, Broadway, Ernakulam. It is further denied that there is no agreement to pay interest at the rate of 24% per annum as stated in paragraph 4 of the plaint. The trial court examined and appreciated the dispute between the parties in the light of the oral and documentary evidence. The evidence consists of the oral evidence of PW1, PW2 and the documentary evidence Ext.A1 to A6 and B1 to B6. 3. The trial court placed reliance on Ext.A1 letter dated 13.12.1991 issued by Seshasayee Papers and Boards Ltd., Ext.A1 shows that the plaintiff is the indentor. The copies of Ext.A1 was issued both to the plaintiff and the defendant. Ext.A2 is the copy of invoice dated 1.7.1988 sent by Seshasayee Paper and Boards Ltd., which shows the customer code and the name of the defendant and also the indentors name. Ext.A3 is another invoice dated 16.7.1988 A.S.NO.375 OF 1996 4 which also shows the name of the customer and the indentor. Ext.A3 would go to show that an amount of Rs.52,359/- is due from the defendant. The deposition of PW1 was also relied by the trial court. PW1 deposed that the defendant had settled ,the amount as per Ext.A2 cheque Rs.27,626/- dated 11..6.1989 which was encashed by the plaintiff, that defendant issued Ext.A4 account payee cheque dated 11.4.1989 for Rs.27,359/- in favour of the plaintiff and Ext.A5 account payee cheque dated 19.12.1988 for Rs.25,000/-. Both cheques were dishonoured. Ext.A6 dated 6.2.1999 is the copy of the debit note . Ext.A6 would shows that plaintiff claimed 20% interest per annum. Out of the three chequess the cheque dated 4.6.1989 for Rs.28,626/- alone was encashed and the other two cheques were dishonoured. The balance amount due as per the two dishonoured chehue is Rs.51378/-. On the basis of the oral and documentary evidence the trial court held that the plaintiff is entitled to get Rs. 77,530/- as on the date of suit. 4. The contentions of the defendant was also examined in detail. The learned counsel for the appellant contended that the suit should have been dismissed in view of the 69 of the Contract Act, A.S.NO.375 OF 1996 5 that there is payment as per Ext.B2 and therefore there is no reason not crediting the amounts covered by Ext.B1, B3 to B6 towards the claim of the plaintiff. According to the learned counsel there are circumstances which would go to show that the payments of B1, B3 to B6 are towards the plaint claim. I have already referred to the documents produced by both sides. Ext.A3 invoice would go to show an amount of Rs.52,359/- is due from the defendant. The total amount covered due to the plaintiff covered by Ext.A4 and A5 cheques is also Rs.52,359/- it evidently shows that the Ext.A4 and A5 cheques are issued towards the amount due under Ext.A3 invoice. The PW1 has also deposed before the court that the amounts are due to M/S.Ramalinga Iyer from the defendant, the defendant issued cheques for some amount in favour of Ramalinga Iyer which were dishonoured and therefore, accordingly complaints are lodged against the defendant. Ext.B1, Ext.B3 to B6 would show that the defendant had issued cheques in favour of Ramalinga Iyer. These documents do not show that the amounts are paid to the plaintiff towards amounts due for the goods received from Seshasayee Paper and Boards Ltd.,. Thus the evidence discussed above conclusively A.S.NO.375 OF 1996 6 prove that the contention raised by the defendant cannot stand. The trial court examined each and every document and appreciated the evidence on record and held that the plaintiff has entitled to realise the amount covered by the cheques and interest therein. I do not find any reason to interfere with order passed by the trial court. The reasons stated and conclusions arrived at by the trial court stand to reason and therefore unassailable. In the result, confirming the decree and judgment passed by the trial court, I dismissed the appeal with costs. HARUN-UL-RASHID, JUDGE. pm