IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 AS.No. 265 of 1997() -------------------- OS.580/1991 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANT(S): DEFENDANT -------------- 1. PLEASING POULTRY FARM, MOOZHIKULAM REP. BY OWNER, JOSEPH, S/O CHEEROTHI THOMAS, MOOZHIKULAM DESOM, PARAKADAVU VILLAGE ALUVA TALUK (died) ADDITIONAL APPELLANTS 2. JOSEPHINE JOSEPH D/O LATE SRI.JOSEPH CHEEROTHI HOUSE MOOZHIKULAM, VIA ALWAYE 3. JOLLY JOSEPH, D/O LATE SRI.JOSEPH CHEEROTHI HOUSE MOOZHIKULAM, VIA ALWAYE 4. ANIE SUNNY D/O LATE SRI.JOSEPH CHEEROTHI HOUSE MOOZHIKULAM, VIA ALWAYE 5. WILSON JOSEPH S/O LATE SRI.JOSEPH CHEEROTHI HOUSE MOOZHIKULAM, VIA ALWAYE 6. MOLLY PAILOTH D/O LATE SRI.JOSEPH CHEEROTHI HOUSE MOOZHIKULAM, VIA ALWAYE A.S.No.265/1997 The legal heirs of deceased first appellant impleaded as additional appellants 2 to 6 vide order dated 16-6-2003 on C.M.P.No.6669/2000. BY ADV. SRI.M.M.ABDUL AZIZ, SENIOR ADVOCATE SRI.BABU KARUKAPADATH RESPONDENT(S): PLAINTIFF --------------- LINTO AGENCIES MERCHANT'S AND COMMISSION AGENT MARKET ROAD, IRINJALAKUDA REP. BY OWNER LISSY ANTO W/O KANICHAI ANTO ADV. SRI.K.G.BALASUBRAMANIAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/09/2009, THE COURT ON 05/01/2010 DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - A.S.No.265 OF 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of January, 2010 JUDGMENT Challenge in this appeal by the defeated defendant is to the judgment and decree of Subordinate Judge, Irinjalakkuda in O.S.No.580/1991 dated February 15, 1996 decreeing the suit for recovery of Rs. 27500/- with interest and cost being the amount due to the plaintiff company from defendant firm towards the price of the poultry feeds supplied. 2. The respondent/plaintiff is M/s.Linto Agencies, Merchant's and Commission Agent, Market Road, Irinjalakkuda rep. by partner Lissy Anto, wife of PW1. The appellant/defendant is M/s.Pleasing Poultry Farm, Moozhikulam represented by its partner DW1. 3. The case of the respondent/plaintiff as testified by PW1 and as detailed in the plaint before the lower court is that towards poultry feeds supplied, Rs. 27500/- is due to the plaintiff from defendant and to the lawyer notice Ext.A9 dated September 26, 1991, the defendant sent a reply raising false contentions and denying the liability and that A.S.No.265/1997 Page numbers therefore the plaintiff is entitled to a decree for Rs. 27500/- from the defendant with costs and interest. 4. The appellant/defendant contested the suit contending that the trial court has no territorial jurisdiction to try the suit as no transaction took place within the jurisdiction of the lower court, that defendant had transaction with one K.T. Anto and the account from 1987 to September 1990 were settled between the plaintiff and the said K.T.Anto and that thereafter there was no transaction between them , that on receipt of the notice, on enquiry it is understood that wife of Sri.K.T.Anto is the proprietrix of Linto Agencies and that therefore the suit may be dismissed with costs. 5. PWs 1 to 4 were examined and Exts.A 1 to A13 were marked by the plaintiff . DW1 was examined and Exts.B1 to B15 were produced by the defendant. PW1 is the partner of the plaintiff firm. PW2 is the driver of the vehicle who transported poultry feeds from plaintiff firm to the defendant . He would say that DW1 would come and fetch the vehicle. PW3 is the accountant of plaintiff firm. He proved Ext.A1(a) bill. He would say that till 19/11/1990 Rs. 27,500/- A.S.No.265/1997 Page numbers is due to the plaintiff firm from defendant. PW4 is the clerk of plaintiff firm. He proved Ext.A1 to A11. The lower court on an appreciation of evidence found that the trial court has jurisdiction to try the suit and that the claim of the plaintiff is correct and decreed the suit as prayed for. The defendant has now come up in appeal challenging the said judgment and decree. 6. The counsel for the appellant/defendant argued that the lower court should have accepted the accounts produced by the defendant and should have dismissed the suit. 7. On the other hand, the counsel for the respondent/plaintiff supported the judgment of the lower court. 8. The following points arise for consideration : 1) Whether the suit is maintainable ? 2) Whether any amount is due to the plaintiff from the defendant firm? 3) Whether the judgment and decree of the lower court can be sustained ? A.S.No.265/1997 Page numbers Point Nos. 1 to 3 9. The lower court has found that the suit is maintainable and that the trial court has territorial jurisdiction to try the suit . The said finding is not seriously challenged in this appeal. Therefore, I confirm the said finding of the lower court. 10. The defendant contended that he had no transaction with the plaintiff firm, but with K.T. Anto which was found to be incorrect by the lower court. Defendant in his reply notice Ext.A10 admitted the transaction with the plaintiff firm. The bills Exts.B9 to B15 produced by the defendants are that of Linto Agencies. Therefore the contention of the appellant that there was no transaction with the plaintiff firm has only to be rejected. The finding of the lower court on this point is also confirmed . 11. What remains to be considered is whether the plaintiff has proved Rs. 27500/- is outstanding with the defendant as on November 19 , 1990 . Plaintiff produced Exts.A1 to A13, the bill book, day book and ledger etc. Defendant has also produced his account book Ext.B1, and the bills Exts.B4 to B15 to show that he has settled the account in A.S.No.265/1997 Page numbers September 1990 itself and that thereafter there was no transaction with the plaintiff. 12. It is seen from Ext.A8 , the ledger for the period from 1990-1991 and the account book of the defendant that upto April 1990 the account of the plaintiff and defendant tallies. Thereafter in Ext.A8 ledger for the period from 1990-91 the amounts paid by the defendant has been correctly accounted. Thereafter three consignments worth Rs. 14720/- on May 26th , Rs. 12,800/- on June 9th and Rs. 9750/- on June 26th have been received by the defendant which is not entered in the account of the defendant- Ext.B1. Defendant has no case that he did not receive those consignments. The account of the plaintiff is proved by PW3, the accountant and PW4, a clerk in the plaintiff firm. That being so, I am inclined to accept the account of the plaintiff as correct. 13. For all these reasons, the trial court is perfectly justified in accepting the account of the plaintiff as correct and finding that Rs. 27500/- is due to the plaintiff from the defendant and consequently decreeing the suit. That being so, the decree and judgment of lower A.S.No.265/1997 Page numbers court have to be confirmed and the appeal has to be dismissed. In the circumstances, the respondent/plaintiff is entitled to cost of this appeal. In the result, I find no merit in this appeal and the same is hereby dismissed with cost. P.Q.BARKATH ALI JUDGE sv. A.S.No.265/1997 Page numbers