IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 RSA.No. 629 of 2007() --------------------- AS.84/2003 of .SUB COURT, KOZHIKODE OS.802/1997 of .M.C.,KOZHIKODE-II .................... APPELLANTS/APPELLANTS/DEFENDANTS 2 AND 5 TO 7 ----------------------------------------------------------------- 1. K.V.BEERASH, AGED 56, S/O. MUHAMMEDKUTTY HAJI, PETTA, FEROKE, NALLUR AMSOM, AND FEROKE DESOM OF KOZHIKODE TALUK. 2. PRAMEELA, AGED 41, W/O. LATE SASEENDRAN, PALLIYALIL HOUSE, NALLUR AMSOM AND DESOM, KOZHIKODE TALUK. 3. PRASANTH, AGED 18, S/O. LATE SASEENDRAN, PALLIYALIL HOUSE, NALLUR AMSOM DESOM, KOZHIKODE TALUK. 4. DEVIKA ARATHI, D/O. LATE SASEENDRAN, PALLIYALLIL HOUSE, NALLUR AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENTS: RESPONDENTS/PLAINTIFF, D3 AND D4 ------------------------------------------------ 1. A.M.VASUDEVAN, AGED 58, S/O. AYYA MALAYIL POCKEN, PROPRIETOR, VAS WOOD INDUSTRIES, KALLAI ROAD, KOZHIKODE DISTRICT, PANNIYANKARA AMSOM AND DESOM. 2. C.V.AHAMMEDKUTTY, AGED ABOUT 61, FATHER'S NAME NOT KNOWN, C.V.HOUSE, MALAPPURAM DISTRICT, CHERUVAYOOR P.O., VAZHAKKAD. 3. MUHAMMED ALI, S/O. USMAN, AGE NOT KNOWN, MUBARACK SAW MILL, FEROKE AMSOM, KOZHIKODE. ADV. SRI.T.R.RAVI FOR R1 SRI.P.S.MURALI FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A NO. 1287 OF 2007 IN R.S.A. NO.629 OF 2007 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 19.8.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 629 of 2007 ---------------------------------------- Dated this the 19th day of August, 2009 JUDGMENT The Second Appeal is directed against the the judgment and decree in A.S. No.84/2003 on the file of the Sub Court, Kozhiikode which arises from the judgment and decree in O.S No. 802/1997 on the file of the Munsiff Court -II, Kozhikode. The suit for realisation of Rs. 45,000/- with interest was decreed by the trial court and confirmed in appeal . Hence the Second Appeal The parties herein after referred to as plaintiff and defendants as arrayed in the suit. Defendants 2 and 5 to 7 are the appellants herein. 2. It is the plaintiffs case that the defendants 1 to 3 are dealers in timber logs and were agreed to supply 52 number of teak woods as enumerated in Ext.A3 chart to the plaintiff and that the 1st defendant had received Rs. 20,000/- from him on 1.7.1997 as advance and Rs.15,000/- on 21.7.1997 and the 2nd defendant received Rs.10,000/- on 11.8.1997 But the defendant delayed the delivery of the goods, against the terms and conditions of Ext.A3 chart. The first two payments were endorsed in Ext.A3 chart and for the 3rd payment the 2nd defendant issued Ext.A3 receipt. It is further contended that during the pendency of the suit and after the inspection by the Commissioner the defendants sold the timber logs to others, which are already sold to the plaintiff and that some timber logs are still lying in the 4th defendant's business premises. 3. The defendants denied the transaction and further contended that R.S.A.No. 629 of 2007 -2- the plaintiff has purchased teak woods from the defendants 1 and 2 for an amount of Rs. 1,41,067.50 on different occasions and that only Rs.10,000/- was paid by the plaintiff ,that when the defendants demanded the balance amount,the suit was filed by the plaintiff with a view to restrain the defendants from filing a suit against the plaintiff for the recovery of the balance amount of Rs.1,31,067.50 The defendants also admitted that they have issued the Ext.A3 chart and that the Original chart is in their possession 4. Plaintiff has filed I.A. No. 1767/2002 directing the defendants to produce documents pertaining to the transaction alleged in the written statement But the defendants filed a counter stating that there is no documentary evidence for all the transactions made by the plaintiff with the 1st defendant. 5. The 3rd defendant filed a written statement and additional written statement contending that defendants No. 1 and 2 are timber merchants and 3rd defendant is a timber broker, that the timber transaction is between the plaintiff and defendants No. 1 and 2 . 6. Defendants 5 to 6 filed written statement adopting the contentions of the 1st defendant and prayed for the dismissal of the suit. 7. The trial court noted the fact that the defendants 1 to 3 have not disputed that they have endorsed the payment of Rs.35,000/- in Ext.A3 chart and the issuance of Ext.A2 receipt for Rs.10,000 to the Plaintiff . The trial court also taken into consideration the admission of the defendants that they R.S.A.No. 629 of 2007 -3- have issued Ext.A3 Chart the original of the same is with their possession. Since there is concrete evidence supporting the claim of the plaintiff the trial court held that the plaintiff is entitled to the plaint claim with interest. 8. Defendants No. 2 and 5 to 7 filed appeal before the lower appellate court. .The lower appellate court also examined the contentions of the contesting defendants/appellants, agreed with the findings entered by the trial court on the basis of evidence on record and held that no reasons are made out by the contesting defendants/appellants to interfere with the findings of the trial court. 10. I have examined the contentions raised by both sides before the courts below and the evidence adduced by them. I am of the view that in the facts, circumstances ,evidence and probabilities of this case the only conclusion possible is that there is transaction between the plaintiff and the defendants 1 to 3 and that the said defendants have received an amount of Rs.45,000/- and refused give the timber logs to the plaintiff as agreed by them. I find no reason to interfere with the findings entered by the courts below. No grounds are made out by the contesting defendants/ appellants to invoke this Courts jurisdiction under Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 629 of 2007 ---------------------------- JUDGMENT 19th August, 2009