IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 SA.No. 611 of 1996(F) --------------------- AS.51/1995 of ADDL. DISTRICT COURT, THALASSERY OS.217/1992 of SUB COURT, THALASSERY .................... APPELLANT(S): ----------------------- K. KUNHAMBU NAIR, S/O.POKKAN, PROPRIETOR, JAI KERALA MOTOR WORKSHOP, THANA, KANNUR-12. BY SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE DEFENDANT/RESPONDENT/RESPONDENT: -------------------------------------------------------------- C.P. AHAMMED, S/O.MAMMOO, KOYA'S AUTO CONSULTANT, PUTHIYATHERU, KANNUR-11. BY ADV. SRI.T.G.RAJENDRAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 611 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of May, 2010. JUDGMENT The appellant laid O.S.217 of 1992 claiming charges for repair and rent for a vehicle entrusted to him. The defendants resisted the suit. It is understood that initially the suit was decreed in favour of the plaintiff. The defendants took up the matter in appeal. In the appellate court the defendant-appellant chose to produce certain documents. The appellate court was impressed with the documents. The appeal was allowed and the suit was remanded to the trial court for determination of two issues afresh. That related to the repair charges as well as the date of entrustment of the vehicle for safe custody and the date of entrustment for repairs. Based on that finding the amount due to the plaintiff had to be determined. After remand additional evidence was received by the trial court. S.A.611/1996. 2 2. The trial court upheld the claim regarding the repair charges and found that the claim regarding rent for the entrustment period was barred by limitation and the claim for rent was thus declined. Aggrieved by that portion of the decree, the plaintiff carried the matter in appeal as A.S.51 of 1995 before the District Court, Thalassery. The District Court after an elaborate and independent consideration of the evidence adduced before the trial court concurred with the trial court and upheld the finding that the claim regarding arrears of rent due in consequence of entrustment for safe custody was barred by limitation. It is the said finding that is assailed in this Second Appeal. 3. Learned counsel appearing for the appellant pointed out that the court below was not justified in declining to accept Exts. A1 and A2 documents in support of his claim. 4. Before going into the question a few relevant facts may be noticed. There is no dispute between the parties that the vehicle involved in the suit was entrusted S.A.611/1996. 3 for safe custody for a period, with the plaintiff by the defendant and thereafter it was entrusted for repairs. It is also not in dispute that the defendant was liable to pay rent for the period during which the vehicle was entrusted for safe custody. It is also not in dispute that for the period during which the vehicle was in the workshop of the plaintiff for repairs, no rent is levied. While the defendant would say that the entrustment for safe custody was on 27.9.1987, the plaintiff would say that it was 26.9.1987. This difference is not of much consequence at all. However, there is considerable dispute regarding the date of entrustment for repairs. While the defendant would say that the entrustment for repairs commenced from March, 1989, the plaintiff would say that it was from August-September, 1989. Infact the principal issue would be as to what is the date of entrustment for repairs. 5. The courts below have chosen to accept the documents produced by the defendant, which indicated that he had purchased automobile spare parts for the purpose of S.A.611/1996. 4 repairing his vehicle. The relevant documents, the court below considered are Exts. B8, B9 and B10. Based on those documents the court below came to the conclusion that the entrustment for repairs must have been atleast in March, 1989. 6. Learned counsel appearing for the appellant pointed out that the courts below were not justified in holding so. Learned counsel pointed out that for the purpose of levying the repair charges, the court below accepted Ext.A1 series of documents, but for the purpose of ascertaining the date of entrustment for repairs it was discarded. Therefore the courts below have taken inconsistent stands as regards the same series of documents. This stand of the courts below is not justified. Learned counsel also pointed out that even as admitted by the defendant he had approached the plaintiff for release of the vehicle on 25.8.1989. Drawing attention to the fact that even as admitted by the defendant the repairs would be carried out within a month of entrustment. If as a matter of S.A.611/1996. 5 fact the entrustment for repairs was in March, normally the repairs would have been over by April or atleast in May. There is no reason for the defendant to wait till 25.8.1989 to take the vehicle. This shows the claim of the defendant that entrustment for repairs is in March 1989 is unfounded. 7. True that the claim of the plaintiff looks attractive. But on a closer scrutiny they can be found to be without much substance. As already noticed the crucial issue that arises for consideration is the date of entrustment of the vehicle for repairs. There is not much dispute regarding the date of entrustment for safe custody. The issue is when that was over. 8. Exts.B8, B9 and B10 are attacked on the ground that there is nothing to show that the purchase of spare parts as per those documents was for the purpose of repairing the vehicle involved in this proceedings. However, it must be noticed that both the courts below have chosen to accept those documents as relating to the vehicle in question. That was based on the fact that the defendant S.A.611/1996. 6 had entrusted only one vehicle to the plaintiff and that was the one involved in the suit. That essentially is a question of fact, no interference is called for. 9. The second contention that the vehicle was taken only on 25.8.1989 would indicate that repairs are over only then has not much significance. The question is when the vehicle was entrusted for repairs. If as a matter of fact as found by the court below Exts.B8, B9 and B0 relate to the vehicle in question, obviously the entrustment must have been in March. Therefore even assuming that the defendant approached the plaintiff for release of the vehicle on 25.8.1989, that is of no help to the plaintiff. 10. It was also contended that Ext.A2 in fact acknowledges the liability. That only actually deals with the repair charges. Both the courts below had dealt with Ext.A2 in some detail and came to the conclusion that the statement contained in that document could not be taken as an acknowledgement of the liability of the arrears of rent due for the safe custody of the vehicle. These are S.A.611/1996. 7 essentially questions of fact and the findings are based on the evidence available on record. It could not be said that the findings are perverse or unwarranted. No substantial questions of law arise for consideration in this Second Appeal since the decisions are purely based on facts disclosed by evidence. This Second Appeal is without merits and it is dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb. S.A.611/1996. 8 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 611 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 19.05.2010