IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 AS.No. 327 of 2002() ------------------------------ OS.38/1994 of I ADDL.SUB COURT, THIRUVANANTHAPURAM. .................... APPELLANT/DEFENDANT: -------------------------------------- M/S. CARBON DIOXIDE PRIVATE LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, BANERJI ROAD, COCHIN, ERNAKULAM. BY ADV. SRI.ANIL S.RAJ, SMT.K.N.RAJANI, SRI.RADHIKA RAJASEKHARAN P., SMT.NITHYA. K. RESPONDENT/PLAINTIFF: --------------------------------------- M/S. KERALA AUTOMOBILES, A GOVERNMENT OF KERALA UNDERTAKING, REPRESENTED BY ITS MANAGING DIRECTOR, SUGATH, THYCAUD, THIRUVANANTHAPURAM. BY ADV. SRI.K.ANAND, SMT.LATHA KRISHNAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. AS.No. 327 of 2002 ORDER ON C.M.P. NO.4112/2002 IN A.S. NO.327/2002 DISMISSED 13/08/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 327 OF 2002 = = = = = = = = = = = = = = = Dated this the 13th day of August, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thiruvananthapuram in O.S.38/94. The suit is one for realisation of an amount of Rs.16,750/- and the trial court has granted a decree. It is against that decision the defendant has come up in appeal. 2. Heard the learned counsel for the appellant as well as the respondent. The brief facts necessary for the disposal of the appeal are stated as follows. 3. The plaintiff has entered into an agreement for supply of two wheelers with the defendant in the suit. The agreement was A.S. 327 OF 2002 -2- entered into on 9.9.82. According to the plaintiff by settling the accounts the amount outstanding is Rs.16,750/- and therefore the suit is filed. The defendant on the other hand would contend that it is a cancelled agreement and there is no relationship between the two. At any point of time no acknowledgment is given and so the suit is barred by limitation. Therefore it is submitted that the plaintiff is not entitled to any relief. 4. In the lower Court Exts.A1 to A9 and B1 to B4 were marked. PW1 and DW1 were examined. It is necessary to refer to the documents in this case for answering the question regarding whether the plaintiff has proved the claim as well as for consideration of the question of limitation. Ext.A1 is a statement of account alleged to be maintained by the plaintiff against the defendant for the period of from 1.4.89 to 31.3.91. In the last column the A.S. 327 OF 2002 -3- outstanding amount is shown as Rs.16,750/-. Ext.A2 is the notice and Ext.A3 is the acknowledgment card. 5. Exts.A4, A5 and A6 are credit note registers relating to receipt No.601, 701 and 901 respectively. No.701 is alleged to be a credit being service charges of Rs.60/-. 901 is being booking advance in respect of K.P.Varghese Rs.1,000/- and 601 is with respect to dealer margin Rs.1,750/-. All these are totally denied by the defendant. Exts.A7 and A8 are two letters sent by the plaintiff informing outstanding balance. Ext.A9 is an authorization letter to establish the right to file the case. Ext.B1 is a letter issued by the plaintiff to the defendant whereby there is a unilateral termination of the agreement entered into between them on 9.9.82. The termination letter is dated 17.5.89. Ext.B2 is a letter issued by the defendant regarding the termination letter's A.S. 327 OF 2002 -4- receipt. It is also stated in that letter that security deposit and other accounts should have to be settled. Ext.B4 is a letter issued by the plaintiff to the defendant settling account and it is dated 26.6.89 whereby after giving credit to Rs.25,000/- which is given as dealership deposit and the advance paid Rs.3,000/- from the outstanding liability of Rs.23,256.77. It is stated that the defendant is entitled to Rs.4,743.23 for which a draft is sent with a further direction to hand over the vehicles to M/s Grand Auto Services, Karamana, Thiruvananthapuram. 6. Now the definite case of the defendant is that it had not entered into an agreement for purchase after the termination. The plaintiff would contend that though the agreement was unilaterally terminated the business continued. It is explicitly necessary in this case in the back drop of settling the accounts to produce A.S. 327 OF 2002 -5- valid acceptable documents to prove further transaction between the plaintiff and the defendant. Nowhere the document is seen produced whereby the defendant at any point of time has acknowledged about the continuation of the dealership nor there any acknowledgment to the effect that something is due from the defendant to the plaintiff. We are only having Ext.A1 and also these three credit notes which also do not show that defendant has acknowledged about the same. When it is so it has to be stated that materials are totally lacking to prove the transaction as alleged by the plaintiff and further to be held that there is nothing to show that the defendant has made any acknowledgment in writing as contemplated by law for admitting the liability. Both on the question of liability and limitation materials are lacking to establish the case of the plaintiff and therefore I find that the trial A.S. 327 OF 2002 -6- court was not justified in granting a decree in this matter. Learned counsel for the respondent requests for a remand in this matter. But the matter is of the year 1994 and really the Court is not expected to fill up the lacunae in the case by remand. Therefore that also cannot be granted. Therefore the appeal has to be allowed and the suit has to be dismissed. In the result the appeal is allowed and the judgment and decree of the Court below are set aside and suit O.S.38/94 is dismissed but under the circumstances the parties are directed to bear their respective costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 327 OF 2002 -7- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 327 OF 2002 = = = = = = = = = = = J U D G M E N T 13th August, 2010.