IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 AS.No. 384 of 1996() ------------------------- OS.240/1993 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT(S)/DEFENDANT --------------------------------- M/S. STEEL INDUSTRIALS KERALA LTD., (SILK) BEYPORE, KOZHIKODE REPRESENTED BY ITS KANAGING DIRECTOR. BY ADVS. SRI.U.K.RAMAKRISHNAN, SENIOR ADVOCATE SRI.P.V.LOHITHAKSHAN SRI.CEV.MAMOO KOYA SMT.UMA GOPINATH SRI.E.K.MADHAVAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S)/PLAINTIFF --------------------------------- M/S. KANJI MORARJI OIL MILLS 5/506 KOPRA BAZAR, KOZHIKODE. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = A.S.No.384 of 1996-A = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of September, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.This appeal is by the defendant. Among other activities, it is involved in breaking up old ships and selling off the scrap. 2.On knowing about the availability of two tanks as part of scrap, the plaintiff offered to purchase them from the defendant. The tanks were provided for inspection and sale in “as is where is condition”. The plaintiff purchased those tanks and transported the same for its purpose. 3.The plaintiff sued on the plea that it was thereafter noted that cement and other materials were embedded inside the tanks and therefore, the AS384/96 -: 2 :- tanks weighed beyond their real worth. On this plea, the plaintiff sued for refund of proportionate amounts out of the consideration paid by the plaintiff to the defendant. They also claimed certain amounts allegedly spent for transit and also towards damages on account of amounts spent, including for cleaning up the tanks. 4.That the tanks were part of scrap is an admitted situation. The appealing defendant, SILK, a public sector company, was involved in breaking up old ships and taking over and selling the scrap. Materials were provided for sale on “as is where is basis”. What is involved is sale of goods. There is no material on record or even a plea by the plaintiff that there was any offer by SILK or representation to the defendant as regards the quality of the goods. There is no plea or evidence that the defendant represented to the plaintiff that the tanks were of a AS384/96 -: 3 :- particular quality or that it is maintained in a particular manner. Obviously, therefore, the principle of caveat emptor applies. The plaintiff had admittedly the opportunity to inspect the goods and take it, if it wanted. 5.On the aforesaid facts and circumstances, the plaintiff's claim in its entirety was wholly unfounded and the plaintiff ought to have been non-suited. The court below, however, decreed the suit allowing recovery of Rs.87,960/- with its future interest. On the evidence on record, in the light of what is stated above, we do not find any ground to sustain the impugned decree. 6.We may take note of the fact that the defendant had offered to return a particular amount to the plaintiff which the plaintiff did not receive. In the aforesaid premise, we allow this appeal and dismiss the suit without prejudice to the AS384/96 -: 4 :- plaintiff collecting any amount that the defendant voluntarily pays. However, there will be no order a to costs. Thottathil B.Radhakrishnan, Judge. P.Bhavadasan, Judge. Sou-Sha/0710 AS384/96 -: 5 :- Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = A.S.5384 of 1996-A = = = = = = = = = = = = = = = Judgment 3rd September, 2010.