IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 AS.No. 201 of 1997() -------------------- OS.475/1991 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT(S): -------------- M.BALAKRISHNA PILLAI, S/O. MAXHAVANKUTTY, RESIDING AT PORUNNEL KISHAKKATHIL, NJARACKAL, PERINADU P.O. KOLLAM SRI.P.N.SANTHOSH RESPONDENT(S): --------------- 1. B.RADHAMONY AMMA, W/O. K.C. SOMANATHAN PILLAI RESIDING AT MAMPUZHAVILA VEEDU, KADAVOOR CHERRY, PERINADU P.O., KOLLAM 2. K.C. SOMANATHAN PILLAI, S/O. CHELLAPPAN PILLAI, RESIDING AT MAMPUZHAVILA VEEDU, PERINADU P.O. KOLLAM ADV. SRI.B.SURESH KUMAR FOR R1 AND R2 SMT.K.GIRIJA SMT.K.A.MAYA THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * A.S. No.201 of 1997 * * * * * * * * * * * * * * * * * * Dated: 10th day of June, 2009 JUDGMENT The plaintiff in O.S. No. 475 of 1991 before the Sub Court, Kollam is the appellant in this appeal. The said suit was one for realisation of a sum of Rs. 34,115.- with interest thereon and costs. 2. The case of the plaintiff can be summarised as follows: The plaintiff was a copra dealer and the first defendant was conducting an oil mil under the name and style of “Smitha Oil Mills” at Thrikkadavoor Village. The 2nd defendant is the husband of the first defendant and he is conducting the business on behalf of the first defendant. For the purpose of their business defendants used to purchase copra from the plaintiff. While purchasing the copra, the defendants issued Ext. A3 kuruppu kanakku (account slip) to the plaintiff. As per the said account a sum of Rs. 25,080/- was outstanding from the defendants as on 25-7-1990. While so, the defendants again purchased copra from the plaintiff on 26-8-1990 for Rs. 10,543/- and issued Ext.A4 kuruppu kanakku. Later the defendants paid a sum of Rs. 5,000/- on 20-11-1990 and made an endorsement to that effect in the kuruppu kanakku leaving a balance of Rs. 5543/- to be paid to the plaintiff. As per the accounts maintained by the plaintiff a total sum of Rs. 30,623/- was outstanding towards the plaintiff as on 20-11-1990. Even after repeated demands made by the plaintiff the defendants did not pay A.S. No.201 of 1997 -:2:- the amount. The plaintiff thereupon caused Ext.A6 lawyer notice dated 15-10-1991. Even after receipt of lawyer notice, the defendants failed to pay the amount. Hence, the suit. 3. The suit was resisted by the defendants contending inter alia as follows:- The defendants never issued any kuruppu kanakku to the plaintiff. As on 25-7-1990, no amount was outstanding towards the plaintiff. Defendants did not purchase copra on 26-8-1990 as alleged nor did they issued a kuruppu kanakku to the plaintiff. The transaction between the plaintiff and the defendants was on 22-6- 1990 and the amounts due towards the plaintiff by way of copra purchase was paid then and there. There was no transaction between the defendants and the plaintiff on 2-11-1990. On 31-5-1990 the plaintiff had received Rs. 6,000/- as advance and he gave copra worth Rs. 5,185/-. The said amount was adjusted towards the value of copra leaving a balance of Rs. 815/- to be paid to the defendants. The defendants are raising a counter claim for the said amount of Rs. 815/-. 4. The court below framed two issues for trial. On the side of the plaintiff three witnesses were examined as P.Ws 1 to 3 of whom P.W. 1 is the plaintiff himself. P.Ws 2 and 3 are his accountant and another employee. Exts.A1 to A9 were got marked. on the side of the defendants. Three witnesses were examined as Dws 1 to 3 of whom DW1 is the 2 nd defendant and Dws 2 and 3 are Sales Tax Officers. 5. The learned Subordinate Judge, after trial, as per judgment A.S. No.201 of 1997 -:3:- and decree dated 10-1-1996 dismissed the suit. Hence, this appeal. 6. I heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondents/defendants. 7. The learned counsel appearing for the appellant made the following submissions before me in support of the appeal:- The suit transaction has been proved through Exts.A3 and A4 Kuruppu kanakku (account sliip) issued by the 2 nd defendant who is the husband of the first defendant. Ext.A5 paredu book for the years 1990-91 had been prepared on the basis of Exts. A3 and A4 accounts. Ext.A5 had been verified by the plaintiff. The court below was wrong in rejecting the testimony of P.Ws 2 and 3 who were the employees of the plaintiff at the relevant time. Both of them had proved the transaction as stated by the plaintiff. The finding by the court below that the usual mode adopted in the transaction of purchasing copra was by issuing purchase bill and declaration form is opposed by the evidence adduced on the side of the plaintiff. The court below has gone wrong in appreciating the oral and documentary evidence to come to the erroneous conclusion that the suit transaction has not been proved. 8. I am afraid that I cannot agree with the above submissions. The specific case of the plaintiff is that the purchase of copra by the defendants from the plaintiff is evidenced by Exts. A3 and A4 kuruppu kanakku (account slips) prepared in the handwriting of the 2 nd defendant. The 2 nd defendant examined as D.W1 has emphatically denied the case of the said plaintiff. When the handwriting in Exts.A3 and A4 kuruppu kanakku has been A.S. No.201 of 1997 -:4:- specifically denied by the 2 nd defendant both in the written statement as well as while examining before court as DW1, it was obligatory on the part of the plaintiff to take steps to send the questioned documents to a handwriting expert for comparison with the admitted writings of the 2 nd defendant. No steps in that direction was taken by the plaintiff. When the transactions in question were specifically denied and even the handwriting in the alleged account slips was also emphatically denied, the plaintiff could not have expected to get a decree without proving the handwriting in Exts.A3 and A4 account slips. It is true that P.Ws 2 and 3 who were the accountant and another employee of the plaintiff examined as P.W1, have supported the plaintiff. Apart from the fact that they are employees of the plaintiff and would be interested in giving lip service to the plaintiff, the trial judge who had the unique advantage of seeing the witnesses and assessing their credibility was not inclined to accept their testimony. This court sitting in appeal will be loathe to come to a different conclusion , particularly, when the appreciation of the oral evidence by the court below does not suffer from any patent or latent infirmity. See AIR 1983 SC 114. Apart from the fact that the basic documents upon which the plaintiff was relying on have not been satisfactorily proved, the evidence of Dws 2 and 3 who are sales tax officers would go to show that copra could be sold only against purchase bills and evidenced by a declaration form issued by the copra dealer. No such documents are forthcoming to probabilise the case of the plaintiff. Such being the case, the conclusion reached by the court below cannot be faulted. A.S. No.201 of 1997 -:5:- This court will be justified in interfering with the judgment and decree passed by the court below only if this court is convinced that they are wrong and not merely that they are not quite right. I do not, therefore, find any ground for interference in this appeal which is accordingly dismissed. In the facts and circumstances of the case, the parties shall bear their respective costs. Dated this the 10 th day of June, 2009. V. RAMKUMAR, (JUDGE) ani.