IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 AS.No. 554 of 2000(D) --------------------- OS.214/1994 of PRINCIPAL SUB COURT, THRISSUR .................... APPELLANTS/DEFENDANTS:- -------------------------------- 1. DNTIFRICES, P.B. NO. 183, A R MENON ROAD, THRISSUR – 680 001 REPRESENTED BY ITS PARTNER. 2. A.V. ROCKIYA, W/O. RAZAK, PALUVAI DESOM, THAIKKAD VILLAGE, CHAVAKKAD TALUK. 3. N.K. RAMLA, W/O. THEKKUMCHERRY T.C. KHALID, PALUVAI DESOM, THAIKKAD VILLAGE, CHAVAKKAD TALUK. 4. A.V. RAZIA, W/O. THEKKUMCHERY T.C. KUNJABDHU, PALUVAI DESOM, THAIKKAD VILLAGE, CHAVAKKAD TALUK. BY ADV. MS. T.D.RAJALAKSHMI MR. E.R.VENKATESWARAN RESPONDENT/PLAINTIFF:- ------------------------------ QUALITY PACKING, PERUMBUZHA DESOM, MANALUR VILLAGE, THRISSUR TALUK, REPRESENTED BY ITS MG. PARTNER JAISON PAUL S/O. THEKKANATH PAUL, KANDASSAMKADAVU DESOM, KARAMUKKU VILLAGE, THRISSUR TALUK. ADV. MR. N.J.JOHNSON FOR R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S. NO. 554/2000 : 2 : ORDER ON C.M.P. NO. 5060/2000 IN A.S. NO. 554/2000 DISMISSED 13.07.2009 sd/- V. RAMKUMAR, JUDGE. /True Copy/ P.A to Judge. V. RAMKUMAR , J. ------------------------------------------------------------- A.S. No. 554 of 2000 ------------------------------------------------------------ Dated this the 13th day of July, 2009. JUDGMENT The defendants in O.S. No. 214 of 1994 on the file of the Subordinate Judge's Court, Thrissur are the appellants in this appeal. The said suit was one for realisation of a sum of Rs.51,215/- with interest thereon at the rate of 18% per annum allegedly due from the defendants for the purchase of paper cartons during the period from 13.03.1993 to 17.06.1993 as evidenced by Ext.A4 series of invoices. The defendants are manufacturing tooth pastes and they were buying paper cartons from the plaintiff. According to the plaintiff, a sum of Rs.51,215/- covered by Ext.A4 series of invoices remained unpaid. Hence, Ext.A5 lawyer notice dated 12.01.1994 and thereafter the suit. 2. The suit was resisted by the defendants/appellants contending inter alia as follows:- The supply of paper cartons as shown in Ext.A4 series A.S. No. 554/2000 : 2 : of invoices is admitted. But the supply was for a total value of Rs.62,448/- at a time when the defendants had paid a total sum of Rs.1,10,000/-. Therefore, after adjusting Rs.62,448/-, the balance amount was Rs.47,552/-. But four earlier bills for a total amount of Rs.39,178/-, were rejected. Deducting the same from the total amount payable, the balance amount was Rs.38,055/-. Deducting the excess payment of Rs.47,552/-, a sum of Rs.9497/- was found due to the defendant who is, therefore, entitled to the said amount with interest at the rate of 12% per annum. The suit may, therefore, be dismissed and the counter claim for Rs.9497/- may be decreed. 3. The court below framed three issues for trial. On the side of plaintiff, the power of attorney holder of the plaintiff was examined as PW1 and Exts.A1 to A7 were marked. On the side of the defendants, the power of attorney holder of the defendants was examined as DW1. Exts.B1 to B3 were marked subject to proof. A.S. No. 554/2000 : 3 : 4. The learned Subordinate Judge, after trial, as per judgment dated 30.06.1999 upheld the plaintiff's contention and decreed the suit as prayed for. Hence this appeal by the defendants. 5. I heard the learned counsel appearing on either side. 6. The learned counsel appearing for the appellants/defendants made the following submissions before me in support of the appeal:- The plaintiff has admitted the receipt of Rs.1,10,000/- from the defendants. Exts.B1 to B3 letters sent to the plaintiff by the defendants will go to show that the defendants had rejected three earlier bills issued by the plaintiff. According to the defendants, the total amount covered by the rejected bills comes to Rs.39,178/-. The balance amount was Rs.38,055/- and giving credit to the excess payment of Rs.47,552, an amount of Rs.9497/- was due to the defendants. The court below has not appreciated A.S. No. 554/2000 : 4 : the defence properly. 7. I am afraid that I cannot agree with the above submissions. The details of the five invoices as per which the plaintiff had supplied paper cartons to the appellants are as follows:- 1. 13.03.1993 Invoice 1079 6333.00 2. 18.03.1993 Invoice 1089 10303.00 3. 25.03.1993 Invoice 1094 12306.00 4. 12.06.1993 Invoice 1167 10044.00 5. 17.06.1993 Invoice 1175 12,229.00 8. Thus, according to the plaintiff, a sum of Rs.51,215/- covered by the five invoices marked as Ext.A4 series with interest thereon was due to the plaintiff. In the written statement filed by the defendants, they clearly admitted supply of paper cartons by the plaintiff covered by Ext.A4 series of invoices. Their defence was really one of partial discharge in the form of excess payment and an adjustment of the amount covered by the four earlier bills A.S. No. 554/2000 : 5 : which were allegedly rejected. Exts.B1 to B3 were stated to be the letters sent to the plaintiff by the defendants. None of them contains even the initials of the sender. The originals of Exts.B1 to B3 were not got summoned from the custody of the plaintiff who, according to the appellants, is in possession of the same. The learned Subordinate Judge rejected Exts. B1 to B3. Moreover, those letters do not substantiate the contention of the appellants that the paper cartons supplied by the plaintiff were of inferior quality or that paper cartons worth Rs.39,178/- had been rejected. Since the sales as per the five invoices referred to above was admitted by the appellants who were virtually setting up a plea of excess payment and partial rejection, they were really coming out with a plea of discharge for which the burden was squarely on the appellants. They have failed to discharge the said burden. The learned trial Judge who had the unique advantage of seeing the witnesses and assessing their credibility, has accepted the testimony of PW1 in A.S. No. 554/2000 : 6 : preference to that of DW1. This Court, sitting in appeal, will be loath to interfere with the said conclusion. (See Madhusudan Das v. Narayani Bai - AIR 1983 SC 113). The very fact that the appellants have not challenged that part of the decree as per which the counter claim stands rejected will also indicate that the edifice of their defence which has not been accepted by the trial court, has fallen to the ground. Such being the case, I see little ground to interfere with the judgment and decree passed by the trial court. This appeal is, accordingly, dismissed. However, having regard to the circumstances of the case, the parties shall bear their respective costs. Dated this the 13th day of July, 2009. V. RAMKUMAR, JUDGE. rv A.S. No. 554/2000 : 7 : V. RAMKUMAR, J ------------------------------------ A.S. No.554 of 2000 ---------------------------------------- 13th day of July, 2009. JUDGMENT A.S. No. 554/2000 : 8 :